New Hampshire Right to Life v. Department of Health & Human Services
976 F. Supp. 2d 43
D.N.H.2013Background
- New Hampshire Right to Life sought records from HHS under FOIA about the September 2011 sole-source replacement grant to Planned Parenthood.
- HHS released over 2,500 pages but withheld other documents or produced redacted copies under FOIA exemptions 4, 5, and 6, and provided a revised Vaughn index with 34 categories.
- Planned Parenthood submitted information to HHS in response to the Notice of Grant Award; HHS used a sole-source approach due to an alleged urgent need to restore Title X services after NH’s Executive Council cut subgrants.
- NH Executive Council decision in June 2011 not to fund Planned Parenthood prompted HHS to explore a replacement grant; August 18–19, 2011 documents reflect the sole-source justification and countersignature approving sole-source consideration.
- Key events include the September 1–14, 2011 grant notice and award, subsequent disclosures about Planned Parenthood’s policies and manuals, and ongoing cross-motions for summary judgment beginning in 2012.
- The court grants Right to Life’s and HHS’s cross-motions in part, with specific exemptions sustained or rejected for particular document categories, and orders targeted production within 10 days of the order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether exemption 4 applies to Planned Parenthood materials | Right to Life argues materials are not confidential or commercial. | HHS shows the information is commercial and confidential, some on voluntary and some on required submissions. | Exemption 4 generally applies, with one category not shown to be confidential. |
| Whether the deliberative process/attorney-client privileges protect the withheld documents under exemption 5 | Right to Life contends more documents should be compelled, arguing misapplication of privilege. | HHS demonstrates the documents are predecisional or deliberative or fall within attorney-client privilege. | Deliberative process and attorney-client privileges apply to most documents, with some exceptions. |
| Whether exemption 6 protects Planned Parenthood employee information | Right to Life contends salary and identifying information should be disclosed for public accountability. | HHS balances privacy interests against public interest and argues most items are private. | Names, private numbers, and biographical sketches of middle/lower-level employees protected; salaries may be disclosed in limited form (curiculum vitae exception for Medical Director not protected). |
| Whether the Manual of Medical Standards and Guidelines and related materials are confidential under exemption 4 | Right to Life argues these are not confidential and are standard industry planning documents. | HHS demonstrates they are confidential and provide a competitive business model and internal policies. | Manual and related documents deemed confidential under exemption 4, with some pages not protected where appropriate. |
Key Cases Cited
- Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280 (D.C. Cir. 1983) (definition of 'commercial' under exemption 4; public interest not weighed against confidentiality)
- Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26 (D.C. Cir. 2002) (commercial information is confidential if it has a commercial function)
- Am. Airlines, Inc. v. Nat’l Mediation Bd., 588 F.2d 863 (2d Cir. 1978) (commercial information is confidential if it serves a commercial purpose)
- Church of Scientology Int’l v. Dep’t of Justice, 30 F.3d 224 (1st Cir. 1994) (FOIA exemptions must be narrowly construed)
- Town of Norfolk v. Army Corps of Engineers, 968 F.2d 1438 (1st Cir. 1992) (predecisional and deliberative test for the deliberative process privilege)
- Providence Journal Co. v. Dep’t of Army, 981 F.2d 552 (1st Cir. 1992) (waiver of deliberative process privilege requires express adoption of predecisional material)
- Frazee v. United States Forest Service, 97 F.3d 367 (9th Cir. 1996) (planoperating details not automatically exempt; context matters)
- Moffat v. Dep’t of Justice, 716 F.3d 244 (1st Cir. 2013) (prior release of exempt information does not destroy privacy interests)
- News Grp. Boston, Inc. v. Nat’l RR Passenger Corp., 799 F. Supp. 1264 (D. Mass. 1992) (public interest versus privacy in contractor employee information)
- Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S. 487 (1994) (privacy interests generally outweigh FOIA public interest in some personnel data)