NEW HAMPSHIRE RIGHT TO LIFE, Plaintiff, Appellant, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
No. 14-1011.
United States Court of Appeals, First Circuit.
Feb. 4, 2015.
778 F.3d 43
III. Conclusion
For the foregoing reasons, we affirm.
Before TORRUELLA, HOWARD, and KAYATTA, Circuit Judges.
KAYATTA, Circuit Judge.
In 2011, the Department of Health and Human Services (“Department“) awarded federal grant funds directly to Planned Parenthood of Northern New England (“Planned Parenthood“). New Hampshire Right to Life (“Right to Life“) then filed a request under the Freedom of Information Act (“FOIA“),
I. Background
A. Direct Award Of Federal Grant To Planned Parenthood
Prior to 2011, the Department historically awarded Title X1 federal grants to New Hampshire, which in turn dispersed a combination of federal and state funds through subgrants to various entities. Title X federal grants “assist in the establishment and operation of voluntary family planning projects which . . . offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents).”
In June 2011, the New Hampshire Executive Council chose not to award any subgrant to Planned Parenthood, expressing concern that taxpayer funds were being used to subsidize abortions.2 New Hampshire‘s decision meant that unless a new provider received the funds, large portions of the state would no longer have access to Title X services. In July 2011, the Department asked New Hampshire for information on how it would ensure continued provision of Title X services in areas previously served by Planned Parenthood. In mid-August 2011, the New Hampshire Department of Health and Human Services informed the Department that they could not find a replacement provider for those areas. New Hampshire then relinquished what would have been Planned Parenthood‘s portion of the federal funds.
The Department considered alternative options, including bypassing New Hampshire‘s Executive Council, and directly awarding Title X funds to Planned Parenthood. On August 19, 2011, Marilyn Keefe, the Deputy Assistant Secretary of the Department‘s Office of Population Affairs (“OPA“), signed a memorandum titled,
On September 1, 2011, Planned Parenthood applied for the direct award grant. The Department then prepared a “Technical Review” document, evaluating Planned Parenthood‘s application. On September 9, the Department announced, via its website, its intent to directly issue a replacement grant to Planned Parenthood. On September 13, the Department formally provided a Notice of Grant Award to Planned Parenthood. The notice required Planned Parenthood to submit to the Department, by Dеcember 15, 2011, additional “institutional files” on “a variety of policies and procedures[.]” Responding to this notice, Planned Parenthood submitted its Manual of Medical Standards and Guidelines (“Manual“) as well as information on its fee schedule and personnel policies.
B. Right To Life‘s FOIA Challenge And District Court Decision
On December 22, 2011, Right to Life filed a lawsuit under the FOIA, seeking documents related to the Department‘s decision to proceed with a direct award process, documents that Planned Parenthood submitted as part of its grant application, and documents related to the Department‘s decision to award that grant to Plаnned Parenthood. After being sued, the Department released more than 2,500 pages of documents. The Department determined that some portions of the Manual were exempt from disclosure under the FOIA, but intended to release the remainder, and so informed Planned Parenthood. Planned Parenthood responded by arguing that its entire Manual constituted confidential commercial information, and thus was exempt from disclosure under the FOIA. See
The district court remanded the matter to the Department to “reconsider its FOIA determination in light of additional information provided by [Planned Parenthood] about specific portions of the [M]anual, and produce a more comprehensive explanation for any determination that portions of the [M]anual are subject to disclosure despite [Planned Parenthood‘s] objections.” Upon reconsideration, the Department decided to withhold or redact additional portions of the Manual. The Department also continued to withhold various other documents or portions of
The district court partially granted and partially denied both parties’ motions for summary judgment. The district court found that the “vast majority” of documents were properly withheld under FOIA exemptions, but that the Department did not meet its burden to justify withholding a few categories of documents. The district court found that Exemption 4 applied to the Manual, the letter describing the Manual‘s standards and guidelines, the Fees and Collections Policies, and a document titled “Steps in Establishing our Fee Schedule.”
The district court found that Exemption 5 applied to an e-mail chain between Department employees and attorneys relating to the legality of the direct award process, an e-mail chain about the rationale for the replacement grant‘s funding amount, and multiple drafts of a public announcement of the Assistant Secretary‘s intent to issue a replacement grant to Planned Parenthood. The district court also found that the Department met its burden for invoking the attorney-client and work product privileges, as recognized by Exemption 5, for various documents.
Right to Life appeals, seeking disclosure of the following documents that are either partially redacted or entirely withheld: the Manual (Vaughn index category 38); a letter describing the Manual (Vaughn index category 39); Planned Parenthood‘s Fees and Collection Policies (Vaughn index category 37); “Steps to Establishing our Fee Schedule” document (Vaughn index category 35); and various internal Department communications (Vaughn index categories 11, 15-16, 18-19, 23-25, 30, 33). [BB 19-20, 22, 28-29, 31.]
II. Standard of Review
We review de novo the district court‘s determination that the Department was entitled to summary judgment based on its Vaughn index and affidavits. Carpenter v. United States Dep‘t of Justice, 470 F.3d 434, 437 (1st Cir. 2006). The government bears the burden of demonstrating that a claimed exemption applies. Church of Scientology Int‘l v. United States Dep‘t of Justice, 30 F.3d 224, 228 (1st Cir. 1994).
III. Analysis
The FOIA obligates federal agencies to “make ‘promptly available’ to any person, upon request, whatever ‘records’ the agency possesses unless those ‘records’ fall within any of nine listed exemptions.” Id. (quoting
Here, the Department relies on FOIA Exemptions 4 and 5 only. Exemption 4 shields from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”
A. Planned Parenthood Documents
The Department invokes Exemption 4 to prevent disclosing portions of the Manual, a letter describing the Manual, the Fees and Collections Policies, and a document titled “Steps in Establishing our Fee Schedule.” In order to properly invoke Exemption 4, the Department must demonstrate that the informatiоn it seeks to protect is both commercial and confidential.4 See
Right to Lifе makes two arguments for why Exemption 4 does not apply to the requested information: (1) Planned Parenthood, as a non-profit, cannot possess commercial information; and (2) even if Planned Parenthood can possess commercial information, disclosure of the requested information poses no likelihood of substantial harm to Planned Parenthood‘s competitive position.
Right to Life argues that because Planned Parenthood is a non-profit organization, it cannot be said to possess commercial information within the meaning of Exemption 4. We disagree. If accepted, this argument would amount to a per se exclusion of nonprofit entities from protection under Exemption 4. Neither the language of the statute nor common sense lean in Right to Life‘s favor here. The term “commercial” as used in the statute modifies “information” and not the entity supplying the information. See
Apart from arguing that non-profits cannot possess commercial information, Right to Life does not claim that the information in the documents is somehow not otherwise commercial.6 These documents—the Manual, the letter describing the Manual, the fees and collections policies, and the “Steps in Establishing our Fee Schedule” document—outline Planned Parenthood‘s operations and fees. That is to say, they outline the amounts Planned Parenthood charges customers for its services, and how it produces those services for sale. These documents thus surely pertain or relate to commerce as that term is ordinarily understood. See, e.g., Pub. Citizen Health Research Grp., 704 F.2d at 1290.
2. The subject documents are confidential.
We turn now to the question of whether this undoubtedly commеrcial information is also ‘confidential’ under FOIA Exemption 4. See 9 to 5 Org., 721 F.2d at 8;
For the purposes of awarding the grant in 2011, both New Hampshire and
Right to Life‘s view of actual competition is myopic, focusing only on the ad-hoc, non-competitive grant process that took place in 2011. The district court aptly noted that Planned Parenthood faces plenty of competition from other entities for patients. Many of Planned Parenthood‘s services are also provided by hospitals and health clinics. Further, the Title X grant process in New Hampshire will be open to other bids in the future. Even in 2011, a potential competitor—the Manchester Community Health Center—requestеd information from the Department about applying for the same grant. Although Planned Parenthood admittedly did not compete for the federal grant in 2011, it certainly does face actual competitors—community health clinics—in a number of different arenas, and in future Title X bids. This satisfies the “actual competition” requirement. See, e.g., Utah, 256 F.3d at 970-71.
Having established that the documents contain commercial information, and that Planned Parenthood faces actual competition in a variety of contexts, we turn to the specific documents Right to Life wants disclosed, and whether disclosure of those documents would likely cause substantial competitive harm to Planned Parenthood.7
The Manual, and thus the letter that describes it, “provides a model for operat-
The Fees and Collections Policies and the “Steps in Establishing our Fee Schedule” documents contain information that “identifies cost differentials between services, identifies all services provided[,] and sets forth the fee scale.” Planned Parenthood treated these documents as confidential information not generally available to the public. Pricing information like that contained in these documents is undoubtedly valuable information for competitors. Nor is there any suggestion that competitors have access to this information (other than perhaps anecdotally and incompletely). We thus agree with the district court that the Department met its burden for establishing a likelihood of substantial competitive harm from the disclosure of Planned Parenthood‘s “Steps in Establish-
B. Department Documents
Right to Life also seeks internal Department documents that are withheld under Exemption 5. Exemption 5 shields documents that are normally immune from civil discovery, including those protected by the deliberative process and attorney-client privileges. See Nat‘l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 149-55 (1975); see also Elec. Frontier Found. v. United States Dep‘t of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014) (Exemption 5 applies “to documents that are predecisional and deliberative, meaning they reflect advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated“) (quotations and citations omitted); Mead Data Central, Inc. v. United States Dep‘t of Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977) (Exemption 5 “is intended to protect the quality of agency decision-making by preventing the disclosure requirement of the FOIA from cutting off the flow of information to agency decision-makers. Certainly this covers professional advice on legal questions which bears on those decisions.“). Exemption 5 protects government “agencies from being ‘forced to operate in a fishbowl.‘” Id. (quoting Envtl. Prot. Agency v. Mink, 410 U.S. 73, 87 (1973)). It facilitates government decision making by: (1) assuring subordinates will feel free to provide uninhibited opinions, (2) protecting against premature disclosure of proposed government policies, and (3)
Right to Life advances two arguments for rejecting the Department‘s reliance on Exemption 5: First, it argues that some of the documents that are outside the scope of the attorney-client privilege are also not predecisional as a matter of simple chronology; and, second, it argues that the Department waived any objection to producing the documents that rеflect the opinions of Department lawyers because the Department adopted the opinions of legal counsel as policy of the Department. We address each argument in turn.
1. The withheld documents are all predecisional.
To fit within Exemption 5, the Department must demonstrate that the communications were both “predecisional” and “deliberative.” Providence Journal, 981 F.2d at 557 (internal quotation omitted). Right to Life argues that the documents are not deliberative only because they are not predecisional, so we limit our inquiry to whether they are indeed predecisional. A document is predecisional if the agency can: “(1) pinpoint the specific agency dеcision to which the document correlates, (2) establish that its author prepared the document for the purpose of assisting the agency official charged with making the agency decision, and (3) verify that the document precedes, in temporal
On August 8, 2011, there was an e-mail chain (Vaughn index category 11) between Department employees and Office of General Counsel attorneys regarding whether the Department could legally issue a replacement grant. On August 9, Secretary Sebelius was briefed on the issue. Subsequently, on August 10, the White House was also briefed on this alternative plan. Right to Life asserts that this briefing constituted “approval from the White House.” Right to Life cites as evidence of White House “approval” an informal e-mail stating, “[t]he WH was briefed and they are getting down to pennies and nickels.” On August 12, there was an e-mail chain (Vaughn index category 15) discussing a draft document regarding funding for the replacement grant. On August 18, there was another e-mail chain addressing funding for the replacement grant (Vaughn index category 18). Finally, on August 19, OASH‘s executive officer signed a blank line indicating “Approve” underneath the heading “Decision” on the Sole Source Justification memorandum.
On September 28, 2011, three out of five members of the New Hampshire Executive Council filed a letter protesting the
Right to Life contends that the decision to directly award Title X funds to Planned Parenthood was made at the White House briefing on August 10, 2011. If this were true, all pertinent documents created after that date would be post-decisional, and thus not exempt from disclosure under Exemption 5. See id. The record, however, does not support Right to Life‘s contention. On its face, the e-mail Right to Life cites as evidence of White House approval indicates that a decision, while perhaps close, had not yet been finalized. The phrase “getting down to pennies and nickels” plainly suggests a pending decision, not a final decision for Exemption 5 purposes. That leaves August 19—the date the OASH executive signed the approval line on the Sole Source Justification memorandum—as the date the decision was made to proceed with a direct award process.9 We therefore reject Right to Life‘s argument that Vaughn index categories 15-16 and 18-19, all created prior to August 19 were post-decisional documents.10
We turn next to the documents covered by Vaughn index categories 23-25 and 33. All of these documents post-date the Au-
Vaughn index categories 23-25 relate to and pre-date the September 9 public announcement that the Department intended to directly award a grant to Planned Parenthood. These doсuments deal with the Department‘s decision of how and what to communicate to the public, which is a decision in and of itself. Vaughn index categories 23-25 are not post-decisional. Right to Life simply misidentifies the decision to which these documents relate.
Similarly, the documents included in Vaughn index category 33 involve communications between Department employees and attorneys relating to whether the Department should also respond to the New Hampshire Executive Council‘s protest. This e-mail chain necessarily predates any decision by the Department to withhold a separate response to the рrotest. We are satisfied that the Department appropriately met its burden for withholding these documents under Exemption 5.
2. The Department Did Not Waive Its Privileges By Adopting Counsel‘s Legal Advice.
In responding to Right to Life‘s FOIA request, the Department revealed that an attorney in the Office of General
Right to Life advances a single argument for finding that the Department must now produce the communication with OCG counsel. It claims that, by issuing the replacement grant, the Department adopted counsel‘s advice as “policy of the Agency.”11
The record provides no factual support for this claim unless one presumes that every time an agency acts in accord with counsel‘s view it necessarily adopts counsel‘s view as “policy of the Agency.” As a categorical rule this makes no sense, especially where counsel‘s legal advice is simply that there is no imрediment to the agency doing what it wants to do.
For precedent, Right to Life points only to Nat‘l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132 (1975), and Brennan Center v. United States Dep‘t of Justice, 697 F.3d 184 (2d Cir. 2012). Each of these opinions, however, hinged disclosure of legal counsel‘s advice on whether the agency actually adopted the reasoning behind counsel‘s opinion as its own. See Renegotiation Bd. v. Grumman Aircraft Eng‘g Corp., 421 U.S. 168, 184-85 (1975) (companion case to Sears, holding that “[if] the evidence utterly fails to support the conclusion that the reasoning in the reports is adopted by the Board as its reasoning,
“Mere reliance on a document‘s conclusions“—at most what we have here—“does not necessarily involve reliance on a document‘s analysis; both will ordinarily be needed before a court may properly find adoption or incorporation by reference.” National Council of La Raza v. Dep‘t of Justice, 411 F.3d 350, 358 (2d Cir. 2005); Elec. Frontier Found., 739 F.3d at 10-11 (“[T]he Court has refused to equate reference to a report‘s conclusions with adoptiоn of its reasoning, and it is the latter that destroys the privilege.“)
It is a good thing that Government officials on appropriate occasion confirm with legal counsel that what the officials wish to do is legal. To hold that the Government must turn over its communications with counsel whenever it acts in this manner could well reduce the likelihood that advice will be sought. Nothing in the FOIA compels such a result.
IV. Conclusion
For the foregoing reasons, we affirm the district court‘s rulings.
So ordered.