57 F.4th 1061
D.C. Cir.2023Background
- Perioperative Services & Logistics sold medical devices to the VA; the VA received an anonymous complaint alleging Perioperative sold counterfeit implants.
- The VA’s National Center for Patient Safety issued an internal recall and instructed facilities to sequester Perioperative products; the recall was lifted 40 days later after an investigation found no support for the allegation.
- Perioperative submitted a FOIA request for the complaint to identify the complainant; the VA withheld the complaint under FOIA Exemption 6 (privacy).
- The VA submitted an ex parte, in camera declaration (Tierney) explaining why disclosure would reveal the complainant’s identity and why publicly filing the declaration would itself risk unmasking the complainant.
- The district court reviewed the Tierney declaration in camera, accepted the ex parte submission under Arieff, and granted summary judgment for the VA; Perioperative appealed.
- On appeal Perioperative principally argued (1) the court erred by relying on an ex parte declaration instead of public procedures, and (2) the VA failed to carry its burden under Exemption 6 (including segregability/redaction).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court permissibly relied on an ex parte (in camera) declaration in FOIA litigation | Argued district court should not have relied on an ex parte declaration; Hubbard sealing test should apply and public access/fairness require disclosure | Cited Arieff: ex parte submissions are permissible when public affidavits and records cannot suffice and public disclosure of supporting info would compromise secrecy | Court affirmed use of ex parte declaration under Arieff; Hubbard addresses common-law access to judicial records and is distinct from Arieff’s FOIA ex parte test |
| Whether the complaint is exempt under FOIA Exemption 6 (privacy balancing) | Sought disclosure to reveal alleged abuse of VA processes and to identify a possible competitor complainant; argued public interest favors release | VA argued complainant has a substantial privacy interest in anonymity and disclosure would risk unwanted contact; public interest in disclosure is limited and speculative | Court held VA met its burden: complaint is a "similar file" with a substantial privacy interest that outweighs the FOIA public-interest showing |
| Whether segregable, non-privileged information must be disclosed/redacted | Argued it is implausible that entire document is non-segregable; requested redactions so identity could be revealed | VA contended redaction or partial disclosure would reveal identifying details or leave only minimal/no information content; entitled to presumption it complied with segregation obligation | Court accepted VA’s showing and presumption of proper segregation; no reversible error shown |
| Whether Perioperative’s interest in suing the complainant over defamation overrides FOIA privacy protection | Argued need to identify complainant to pursue defamation suit defeats VA’s withholding | VA replied FOIA balancing focuses only on public interest in government operations, not private litigation goals | Court held Perioperative’s private litigation interest does not overcome Exemption 6 protection |
Key Cases Cited
- Arieff v. Department of the Navy, 712 F.2d 1462 (D.C. Cir. 1983) (permits ex parte/in camera affidavits in FOIA cases when public affidavits and records are insufficient and public disclosure would defeat asserted secrecy)
- United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) (articulates six-factor test governing common-law public access and sealing/unsealing of judicial records)
- Montgomery v. Internal Revenue Service, 40 F.4th 702 (D.C. Cir. 2022) (applied Arieff to permit in camera declarations in FOIA context regarding confidential sources)
- Cable News Network v. Federal Bureau of Investigation, 984 F.3d 114 (D.C. Cir. 2021) (applied Hubbard when litigant sought to unseal a declaration in FOIA litigation)
- National Ass'n of Home Builders v. Norton, 309 F.3d 26 (D.C. Cir. 2002) (defines "substantial" privacy interest for Exemption 6 balancing)
- Department of Defense v. FLRA, 510 U.S. 487 (1994) (recognizes privacy interests implicated by disclosure, e.g., avoiding unwanted contact; frames FOIA public-interest inquiry)
- Mead Data Center, Inc. v. Department of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) (agencies need not disclose redacted material if remaining markings have minimal or no information content)