NH Right to Life v. US DHHS

2013 DNH 132

• Court: District Court, D. New Hampshire
• Decided: September 30, 2013
• Docket: CV-11-585
• Status: Published

Opinion

NH Right to Life v . US DHHS CV-11-585 9/30/13

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

New Hampshire Right to Life

v. Civil N o . 11-cv-585-JL Opinion N o . 2013 DNH 132 Department of Health and Human Services

MEMORANDUM ORDER

This action presents several questions over the application

of various exceptions to the Freedom of Information Act, 5 U.S.C.

§ 552 (“FOIA” or “the Act”). Invoking the Act, the plaintiff,

New Hampshire Right to Life, requested the release of documents

by the defendant, the Department of Health and Human Services

(“HHS”), concerning its September 2011 award of a “sole-source

discretionary replacement grant” to Planned Parenthood of New

England (“Planned Parenthood”). After HHS failed to respond to

Right to Life’s request by the 20-day statutory deadline, Right

to Life commenced this action, invoking this court’s jurisdiction

under FOIA. See 5 U.S.C. § 552(a)(4)(B). HHS has since released

more than 2,500 pages of documents in response to Right to Life’s

request (and two related ones), but has refused to release other

documents, or has released documents in redacted form, invoking

three different statutory exceptions to FOIA. The parties have filed cross-motions for summary judgment,

see Fed. R. Civ. P. 5 6 , as to whether HHS correctly invoked these

exceptions. The exceptions at issue, as set forth in FOIA, are:

(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; [and]

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]

5 U.S.C. § 552(b). Together with its motion and supporting

memorandum, which also serves as an objection to Right to Life’s

summary judgment motion, HHS has submitted a revised “Vaughn

index” listing 34 different categories of documents that HHS has

continued to withhold, together with a brief description of each

and the FOIA exception invoked as the basis of the withholding.1

HHS has also submitted declarations from two HHS officials (one

involved in awarding the grant to Planned Parenthood, the other

1 As the Court of Appeals has explained, “[a] Vaughn index correlates information that an agency decides to withhold with the particular FOIA exemption or exemptions, explaining the agency’s justification for nondisclosure.” Maynard v . CIA, 986 F.2d 5 4 7 , 556 (1st Cir. 1993). Its name is “derived from the seminal case, Vaughn v . Rosen, 484 F.2d 820 (D.C. Cir. 1973).” Id. at 556 n.10.

2 involved in responding to Right to Life’s FOIA requests) and from

a Planned Parenthood director.

Right to Life, for its part, has filed a memorandum

(accompanied by several exhibits) in support of its own motion

for summary judgment, as well as a memorandum both objecting to

HHS’s cross-motion and replying to HHS’s objection to Right to

Life’s summary judgment motion. HHS has submitted a reply to

that filing, and Right to Life has submitted a sur-reply.

Based on these materials, the court grants Right to Life’s

motion for summary judgment in part and denies it in part, and

grants HHS’s motion for summary judgment in part and denies it in

part. While HHS has carried its burden to show that the vast

majority of the materials it has continued to withhold in

response to Right to Life’s FOIA requests fall within the claimed

exemptions, HHS has failed to carry that burden as to a few

categories of information. Specifically, HHS has not shown that

(1) Planned Parenthood’s personnel policies amount to

“confidential” commercial information, (2) that emails between

HHS’s regional director and her subordinates advising her on how

to conduct a telephone call with a state official are protected

by the deliberative process privilege, and (3) that disclosing

the curriculum vitae of Planned Parenthood’s medical director, or

3 the salaries of Planned Parenthood employees, would amount to a

clearly unwarranted invasion of the employees’ personal privacy.

I. Applicable legal standard

Summary judgment is appropriate where “the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A dispute is “genuine” if it could reasonably be

resolved in either party's favor at trial, and “material” if it

could sway the outcome under applicable law. See Estrada v .

Rhode Island, 594 F.3d 5 6 , 62 (1st Cir. 2010). In analyzing a

summary judgment motion, the court “views all facts and draws all

reasonable inferences in the light most favorable to the

non-moving” parties. Id. On cross-motions for summary judgment,

“the court must consider each motion separately, drawing

inferences against each movant in turn.” Merchants Ins. C o . of

N.H., Inc. v . U.S. Fid. & Guar. Co., 143 F.3d 5 , 7 (1st Cir.

1998) (quotation marks omitted). The standards for summary

judgment in a FOIA case are the same as those in any other kind

of case. Francis M . Dougherty et a l . , Freedom of Information, in

15 Federal Procedure: Lawyers’ Edition § 38:461, at 539 (2011).

4 II. Background

A. Award of the grant to Planned Parenthood

The following facts are undisputed. For decades, HHS has

provided federal funding to the State of New Hampshire under

Title X of the Public Health Service Act, created by the Family

Planning Services and Population Research Act of 1970. Pub. L .

91-572, § 6 ( c ) , 84 Stat. 1504, 1506-08, codified as amended at 42

U.S.C. §§ 300--300a-6. The purpose of this funding is “to assist

in the establishment and operation of voluntary family projects

which shall offer a broad range of acceptable and effective

family planning methods and services, 42 U.S.C. § 300(a),

including, as Right to Life alleges, “free or reduced cost[]

birth control, contraception, and other services.” After

receiving these funds, as grants from HHS, the State distributes

them as subgrants to various entities throughout New Hampshire.

It appears that this was done on an annual basis, and that

Planned Parenthood was among those entities that regularly

received these subgrants.

In June 2011, however, the New Hampshire Executive Council

voted not to award any sub-grants to Planned Parenthood, which

operates clinics in six different New Hampshire municipalities,

effective July 1 , 2011. In reaching this decision, the Executive

Council “expressed its concern that Planned Parenthood was not

5 able to provide sufficient guarantees that the Title X funds

would not be used to subsidize abortions,” according to Right to

Life. Since its passage, Title X has prohibited the use of the

funding it authorizes “in programs where abortion is a method of

family planning.” 42 U.S.C. § 300a-6.

In response, HHS wrote to its state counterpart, the New

Hampshire Department of Health and Human Services, in mid-July

2011. HHS noted that, due to the Executive Council’s decision,

“currently there is no funded entity to provide Title X services

for [the] portion of the state” served by Planned Parenthood, and

expressed concern “that access to Title X family planning

services are being negatively impacted for a significant number

of individuals in need.” Thus, HHS asked for information on how

the State proposed to provide those services in light of the

Executive Council’s decision.

Later that month, Christie Hager, the Regional Director of

HHS’s Region I Office (which encompasses New Hampshire)

participated in a telephone conference with one of New

Hampshire’s Executive Councilors, David Wheeler, who had a number

of questions about the consequences of the Council’s decision to

discontinue Planned Parenthood’s subgrants. In preparation for

this call, Hager sought assistance from several HHS staffers in

6 compiling answers to Councilor Wheeler’s questions, resulting in

two chains of e-mails created prior to the conference call.2

In mid-August 2011, the New Hampshire Department of Health

and Human Services informed HHS that the state was no longer

providing Title X family planning services in the municipalities

previously served by Planned Parenthood. As a result, the New

Hampshire Department of Health and Human Services explained, it

was relinquishing a portion of the federal grant equal to its

projection of what Planned Parenthood would have received to

provide those services for the second half of 2011, or

approximately $360,000.

A week or so later, on August 1 9 , 2011, Marilyn Keefe, the

Deputy Assistant Secretary for Population Affairs of the Office

of the Assistant Secretary for Health (“OASH”) at HHS, signed a

memorandum (dated one day earlier, August 1 8 , 2011) to “OASH,

Executive Officer” entitled “Sole Source Justification for

Replacement Grant in New Hampshire.” Noting the state’s

relinquishment of the HHS grant to provide Title X services in

the six municipalities previously served by Planned Parenthood,

2 These e-mails are identified on the revised Vaughn Index as category 9. In response to Right to Life’s FOIA requests, HHS disclosed an e-mail by Hager summarizing the call after it occurred, identified on the revised Vaughn Index as category 3 7 .

7 the memorandum states that “[a]s a result, there are no Title X

services being provided in [those] areas . . . . Services need

to be re-established as quickly as possible to minimize the

interruption of needed clinical services and protect the public

health.” Thus, the memorandum explains, HHS’s Office of

Population Affairs (“OPA”) “is requesting approval of a sole

source replacement grant award to [Planned Parenthood] for a

period of 16 months.”

To justify the “sole source” nature of this action, i.e.,

that Planned Parenthood “is the only entity from which an

application should be sought” for the replacement grant, the

memorandum recites “an urgent need to reinstate services in [the

affected] areas with an experienced provider that is familiar

with the provision of Title X family planning services and

applicable laws . . . and has a history of successfully providing

services in this area of the state.” The memorandum further

explains that “[i]f this recommendation is approved, OPA will

reach out to the proposed replacement grantee to determine if the

organization is willing to take on the project as a directly

funded federal grantee” (underlining omitted). On August 1 9 ,

2011 (the same day Keefe signed i t ) , the memorandum was

countersigned on a blank line indicating “Approve,” underneath

the heading “Decision,” by Michon Kretschmaier, the OASH

8 Executive Officer. The parties vigorously dispute the extent to

which this is the “decision” at issue for purposes of applying

the deliberative process privilege here. See infra Part

III.B.1.a.

On September 1 , 2011, Planned Parenthood submitted a grant

application to HHS and, on September 8 , 2011, HHS prepared a

document entitled “Technical Review” evaluating that

application.3 The next day, the Assistant Secretary for Health

approved the publication of a notice, on the HHS website, that

HHS “intends to issue a replacement grant to [Planned Parenthood]

to provide Title X family planning services” in the affected

municipalities. The notice was in fact posted to the HHS website

on September 9, 2011.

Among other things, the notice explained that “[b]ecause of

the urgent need to have Title X services reinstated, and because

of [Planned Parenthood’s] prior experience with providing Title X

services in the identified areas,” HHS “intends to issue a sole-

source urgent replacement grant award to [Planned Parenthood] for

a period of 16 months.” The notice further explained, however,

that “[t]he entire state of New Hampshire will be in a

3 Both of these documents were disclosed, in redacted form, in response to Right to Life’s FOIA requests. The application is identified as category 2 6 , and the Technical Review is identified as category 2 7 , on the revised Vaughn index.

9 competitive status in [fiscal year] 2013, with a new grant award

period beginning December 3 1 , 2012.”

On September 1 3 , 2011, HHS issued a “Notice of Grant Award”

to Planned Parenthood.4 Among other things, this notice required

Planned Parenthood to submit additional information to HHS by

December 1 5 , 2011, including “institutional files” on “a variety

of policies and procedures.” In response, Planned Parenthood

submitted a number of documents to HHS, including information on

its fee schedule and personnel policies at its clinics, as well

as its “Manual of Medical Standards and Guidelines.”5 As noted

at the outset, HHS has disclosed redacted versions of these

documents on the grounds that they contain Planned Parenthood’s

confidential commercial information, as well a s , in some

instances, information that, if revealed, would constitute an

4 HHS asserts that this date marked its decision to award the grant to Planned Parenthood--even though, as just discussed, it had announced its “intention” to do so on its website four days earlier, on September 9, 2011. Whether HHS decided to award the grant to Planned Parenthood on September 9, 2011 or September 1 4 , 2011 is immaterial for present purposes, however, because HHS has not invoked the deliberative process privilege as to any documents created between those two dates. See infra Part III.B.1.a. So the court will simply refer to the date of that decision as September 1 4 , 2011. 5 These documents are identified on the revised Vaughn index as categories 35-39.

10 invasion of privacy as to one or more of Planned Parenthood’s

employees. Right to Life disputes these characterizations.

B. Litigation

On October 7 , 2011, a month or so after HHS announced its

intention to award the grant to Planned Parenthood, counsel for

Right to Life presented HHS with a request under FOIA for 27

different categories of documents concerning the award. At the

end of that month, HHS notified counsel for Right to Life that

HHS had received his FOIA request and had asked OASH to conduct a

search, but would “be unable to comply” with the statutory

deadline to respond, see 5 U.S.C. § 552(a)(6)(A)(i), even with

11 the benefit of the 10-day extension available in “unusual circumstances,” id. § 552(a)(B)(I).6

Right to Life then commenced this action in late December

2011, seeking, among other relief, for “HHS to immediately

provide [Right to Life] with all records responsive to the [FOIA]

request.” The case was assigned to Judge Barbadoro. HHS began

producing documents to Right to Life in early January 2012, in a

series of disclosures that continued well into the spring of that

year. In the meantime, this court (McCafferty, M.J.) approved,

over Right to Life’s objection, HHS’s proposed scheduling order

in this matter, which required HHS “to produce all non-exempt

documents on or before April 1 , 2012 and to produce its Vaughn

Index on or before April 1 5 , 2012.” Order of Feb. 2 4 , 2012.

6 Right to Life argues in its opening summary judgment memorandum that HHS failed to comply with the statutory deadlines for responding to Right to Life’s initial FOIA request, but does not identify any relief to which it would be entitled as a result of this delay. Moreover, in its response to HHS’s motion for summary judgment, Right to Life disclaims any suggestion “that HHS’s failure to follow the statute automatically results in a waiver of all exemptions.” But Right to Life goes on to state that the late response to the FOIA request “does entitle [it] to summary judgment on the issue of HHS’s failure to comply with the time requirements of FOIA.” But, on summary judgment or otherwise, this court can only decide issues that could result in the provision of some meaningful relief. See, e.g., Lujan v . Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Because, as Right to Life more or less acknowledges, a ruling that HHS failed to comply with the Act’s deadlines in responding to the FOIA request would not provide any meaningful relief, this court cannot, and does not, make that ruling here.

12 This order was subsequently modified, with Right to Life’s

assent, to add deadlines for HHS to produce, or list on a

supplemental Vaughn index, documents responsive to a request that

counsel for Right to Life had made to counsel for HHS in March

2012. This request sought the additional information that

Planned Parenthood was required to submit by the Notice of Grant

Award issued in September 2011. See Part II.A, supra.

One of these documents, as already noted, was Planned

Parenthood’s Manual of Medical Standards and Guidelines. After

determining that certain portions of the manual (totaling 7 of

244 pages) were exempt from disclosure under FOIA, HHS notified

Planned Parenthood that HHS intended to release the balance of

the manual. In response, Planned Parenthood argued that the

entire manual was in fact confidential commercial information

exempt from disclosure under FOIA, see 5 U.S.C. § 552(b)(4), but

HHS rejected that argument and notified Planned Parenthood that

it intended to proceed with disclosure.

Planned Parenthood then commenced an action in this court

against HHS, seeking to enjoin it from releasing any portion of

the manual. Planned Parenthood of N . New Eng. v . HHS, N o . 12-cv-

163-JL (Apr. 2 6 , 2012). With Planned Parenthood’s assent, HHS

sought, and was granted, a remand of that matter to HHS so it

could “reconsider its FOIA determination in light of additional

13 information provided by [Planned Parenthood] about specific

portions of the manual, and produce a more comprehensive

explanation for any determination that portions of the manual are

subject to disclosure despite [Planned Parenthood’s] objections.”

That action, which had been assigned to the undersigned, was then

administratively closed “without prejudice to the possibility of

being reopened.” The present case (Right to Life’s FOIA action)

was then assigned to the undersigned. Order of May 3 , 2012.

Upon reconsideration of its decision to release all but 7

pages of Planned Parenthood’s manual, HHS “decided to withhold or

redact significant portions” of i t . HHS produced the other

portions of the manual to Right to Life in July 2012. Then, in

August 2012, Right to Life submitted another FOIA request to HHS,

this time seeking communications between Planned Parenthood and

the agency concerning its decisions as to which documents to

disclose in response to Right to Life’s earlier FOIA requests.

HHS made a series of disclosures in response to the August 2012

FOIA request between late August and mid-October 2012.

In the meantime, on April 1 3 , 2012, HHS produced its initial

Vaughn index in this matter, and later, in mid-July 2012,

submitted a supplemented version which included the portions of

the Planned Parenthood manual and other related documents

requested by counsel for Right to Life in March 2012. Based on

14 this Vaughn index, Right to Life filed its motion for summary

judgment. When HHS filed its objection and cross-motion for

summary judgment, it included a revised Vaughn index, which

excluded certain documents that, while initially withheld, HHS

had decided to release in response to Right to Life’s summary

judgment motion. The documents listed on the revised Vaughn

index, then, are the ones presently in dispute.

III. Analysis

FOIA generally requires federal agencies to make their

records available to any person upon proper request. See 5

U.S.C. § 552(a)(3)(A). But this requirement is subject to

several exceptions, three of which are at issue here:

(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; [and]

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]

5 U.S.C. § 552(b). As the Court of Appeals has advised, “[t]he

policy underlying FOIA is . . . one of broad disclosure, and the

government must supply any information requested by any

individual unless it determines that a specific exemption,

15 narrowly construed, applies.” Church of Scientology Int’l v .

Dep’t of Justice, 30 F.3d 2 2 4 , 228 (1st Cir. 1994). Accordingly,

“[t]he government bears the burden of demonstrating the

applicability of a claimed exemption, and the district court must

determine de novo whether the queried agency has met this

burden.” Id. (citations omitted).

In moving for summary judgment, Right to Life argues that

HHS has failed to show that the exemptions it has invoked in

withholding particular documents apply, for a number of reasons.

In objecting, and cross-moving for summary judgment, HHS argues

that it has in fact carried that burden here. As explained fully

below, the court rules that HHS has sustained its burden to show

that an exemption applies to most, but not all, of the

information it has continued to withhold from Right to Life.

A. Confidential commercial information (exemption 4 )

HHS has invoked exemption 4 , protecting “trade secrets and

commercial or financial information obtained from a person and

privileged or confidential,” in disclosing redacted versions of

several documents submitted to HHS by Planned Parenthood. Again,

Planned Parenthood provided those documents in response to the

Notice of Grant Award, which required Planned Parenthood’s

“institutional files” on “a variety of policies and procedures.”

16 See Part II.A, supra. The documents include information on

Planned Parenthood’s fee schedule, personnel policies,

collections policies, and medical standards and guidelines--most

significantly, the Manual of Medical Standards and Guidelines.

HHS argues that the redacted portions of these documents

constitute Planned Parenthood’s confidential commercial

information. But Right to Life maintains that HHS has failed to

show that the redacted information is either “commercial” or

“confidential.” As explained fully below, the court rules that

HHS has, in fact, carried that burden, except as to a single

category of documents that it has failed to show is confidential.

1. “Commercial”

As an initial matter, Right to Life argues that none of the

information submitted by Planned Parenthood is “commercial” in

nature. This is s o , Right to Life says (at least in its opening

memorandum) because Planned Parenthood is a not-for-profit

organization and “[n]on-profit entities, by their definition, do

not engage in commercial enterprises.”7 But, as HHS points out

7 In its reply, Right to Life accuses HHS of “misstat[ing] Right to Life’s argument that the documents at issue cannot be commercial documents. It is not simply because [Planned Parenthood] is a non-profit entity.” This court reads the foregoing statement from Right to Life’s opening memorandum the same way HHS does. In any event, Right to Life’s reply memorandum continues to press the point that a non-profit

17 in response, courts applying exemption 4 have recognized that

“[a] submitter’s ‘non-profit status is not determinative of the

character of the information it reports.’” N.Y. Pub. Interest

Research Grp. v . EPA, 249 F. Supp. 2d 3 2 7 , 333 (S.D.N.Y. 2003)

(quoting Critical Mass Energy Project v . NRC, 830 F.2d 2 7 8 , 281

(D.C. Cir. 1987), rev’d on other grounds,975 F.2d 871 (D.C. Cir.

1992) (en banc)); see also Am. Airlines, Inc. v . Nat’l Mediation

Bd., 588 F.2d 863, 870 (2d Cir. 1978) (rejecting argument that

information was not commercial because the submitter “does not

have profit as its primary aim”); Gov’t Accountability Project v .

Dep’t of State, 699 F. Supp. 2d 9 7 , 102 (D.D.C. 2010) (similar).

To the contrary, the scope of “commercial information” under

exemption 4 does not depend on the character of the entity that

submitted it to the agency, but on the character of the

information itself. That much is clear from the language of

exemption 4 , in which “commercial” modifies the term

“information,” rather than the term “person” (referring to the

entity’s information cannot be “commercial” under exemption 4 , relying on the definitions of “commercial activities” and “commercial or for profit organization” set forth in an HHS “Facilities Program Manual” and a “Grants Policy Directive.” Insofar as these materials set forth mutually exclusive definitions of “non-profit” and “commercial” in a non-FOIA context, the court does not find them instructive in light of the weight of case law, discussed infra, that defines “commercial” as it appears in FOIA itself.

18 source of the information). Thus, courts have recognized that

“information is ‘commercial’ under this exemption i f , ‘in and of

itself,’ it serves a ‘commercial function’ or is of a ‘commercial

nature,’” Nat’l Ass’n of Home Builders v . Norton, 309 F.3d 2 6 , 38

(D.C. Cir. 2002) (quoting Am. Airlines, 588 F.2d at 870)). In

other words, exemption 4 applies “where the provider of the

information has a commercial interest in the information

submitted to the agency.” Baker & Hostetler LLP v . Dep’t of

Commerce, 473 F.3d 3 1 2 , 319 (D.C. Cir. 2006).

Furthermore, because FOIA does not contain its own

definition of the term “commercial” as it appears in § 552(b)(4),

courts “have consistently held that the term[] ‘commercial’ . . .

in the exemption should be given [its] ordinary meaning.” Pub.

Citizen Health Research Grp. v . FDA, 704 F.2d 1280, 1290 (D.C.

Cir. 1983); see also, e.g., Watkins v . Bureau of Customs & Border

Prot., 643 F.3d 1189, 1195 (9th Cir. 2011). That meaning is

simply “pertaining to or relating to or dealing with commerce.”

Am. Airlines, 588 F.2d at 870.

The information that Planned Parenthood submitted to HHS in

response to the Notice of Grant Award readily meets this accepted

definition of “commercial” as it appears in § 552(b)(4). As

explained in the declarations filed with HHS’s summary judgment

materials, the manual “provides a model for operating a family

19 planning clinic,” while the other documents contain information

on more discrete aspects of that operation, including setting

rates, managing employees, and collecting accounts. This is

plainly information serving a “commercial function,” i.e.,

guiding the operations of an entity engaged in “commerce” as that

term is commonly understood.

Right to Life nevertheless asserts that “it defies common

sense that the operation of federally subsidized family planning

clinics is commerce.” The court disagrees. Many kinds of

entities--including, just to name a few, universities, hospitals,

and farms--receive federal grants or other forms of federal

subsidies for their operations, and it cannot seriously be argued

that, as a result, those operations are not “commerce.”

Moreover, Planned Parenthood does not fund its clinical

operations solely through federal grants but, as one of its

directors explains in a declaration submitted by HHS, “receives

some of its revenue by accepting private insurance and collecting

cash payments and co-payments from its patients.” HHS has

carried its burden to show that the documents that Planned

Parenthood submitted to HHS in response to the “Notice of Grant”

contained “commercial information” under § 552(b)(4). 8

8 Rather than addressing the definition of “commercial” as set forth in the case law, Right to Life argues that the term

20 2. “Confidential”

To prove that information falls within exemption 4 , HHS must

demonstrate not only that the information is “commercial,” but

also that it is “confidential.” 5 U.S.C. § 552(b)(4). Whether

commercial information is “confidential” depends, in the first

instance, on whether the party who submitted it did so

voluntarily, or was required to do so as a condition of doing

business with the government. “[C]ommercial information provided

to the [g]overnment on a voluntary basis is ‘confidential’ for

the purpose of Exemption 4 if it is of a kind that would

customarily not be released to the public by the person from whom

it was obtained.” Critical Mass, 975 F.2d at 879. On the other

hand, “‘commercial . . . matter is “confidential” for purposes of

the exemption if disclosure of the information is likely to have

either of the following effects: (1) to impair the

[g]overnment's ability to obtain necessary information in the

future; or (2) to cause substantial harm to the competitive

position of the person from whom the information was obtained.”

9 to 5 Org. for Women Office Workers v . Bd. of Governors of Fed.

must be “narrowly construed.” While, as already noted, all FOIA exemptions must be narrowly construed, Church of Scientology, 30 F.3d at 2 2 8 , there is no reasonable construction of “commercial,” however “narrow,” that excludes the day-to-day operations of non- profit entity engaged in commercial activity, even if those operations are federally subsidized.

21 Reserve Sys., 721 F.2d 1 , 8 (1st Cir. 1983) (quoting Nat’l Parks

& Conservation Ass’n v . Morton, 498 F.2d 765, 770 (D.C. Cir.

1974) (footnote omitted by the citing court)). 9 S o , as HHS

acknowledges, when a party was required to submit the information

to the government, “it is not enough that information is the type

of information that the submitter would usually keep secret” to

immunize it from disclosure to a third party under exemption 4 .

HHS has identified both “voluntary” and “required”

submissions among the information that it has withheld pursuant

to exemption 4 . With one exception, Right to Life has not

disputed (in either its own motion for summary judgment or its

objection to the Department’s cross-motion) that the Department

has correctly classified certain submissions that Planned

Parenthood made as “voluntary,” or that the information contained

in these submissions is “of a kind that would customarily not be

released to the public by the person from whom it was

9 Right to Life agrees that this test controls the definition of “confidential” for materials submitted on a “required” basis.

22 obtained.”10 Critical Mass, 975 F.2d at 879. Based on the

presentation in its summary judgment memorandum, and the

supporting materials, HHS has carried its burden to show that

exemption 4 applies to the information it has characterized as

Planned Parenthood’s “voluntary” submissions to the agency.

Again, Right to Life does not argue to the contrary.11

Right to Life’s sole challenge to the application of

exemption 4 is directed at whether HHS has shown, as to

information that Planned Parenthood was required to submit, that

10 These documents are identified on the revised Vaughn index as category 35 and part of category 38 (which is Planned Parenthood’s Manual of Medical Standards and Guidelines). HHS argues that, while “[t]he majority of Category 38 was a required submission,” seven pages of it were not, because they pertain to “services that are not funded under Title X.” Right to Life does not dispute that point, and acknowledges in its objection that it “does not challenge the withholding of these seven pages.” 11 As to category 3 5 , which consists of documents describing the steps that Planned Parenthood uses to establish a fee schedule, Right to Life simply asserts that these are “part of the fee schedule itself,” so that “the document as a whole was a required submission.” But Right to Life provides no support for that assertion. HHS, in contrast, relies on the declaration of one of its employees to the effect that, while Planned Parenthood was required to submit its fee schedule, it was not required to submit information on how it arrived at that schedule. There is no genuine dispute, then, that Planned Parenthood’s submission of that information was “voluntary.” As a result, it is confidential under exemption 4 so long as it “would customarily not be released to the public by the person from whom it was obtained.” Critical Mass, 975 F.2d at 879. As just noted, HHS has carried its burden to show that the data Planned Parenthood uses to set its fee schedule fits that description, and Right to Life has not disputed that point.

23 the release of that information would likely “cause substantial

harm to the competitive position of” Planned Parenthood. 9 to 5 ,

721 F.2d at 8 . HHS, for its part, does not argue that releasing

the information that Planned Parenthood was required to submit

would likely “impair the [g]overnment's ability to obtain

necessary information in the future.” Id.

Before analyzing the application of exemption 4 to the

particular documents at issue, the court pauses to address an

argument that Right to Life repeatedly makes in challenging HHS’s

invocation of exemption 4 . HHS argues that disclosure is

required notwithstanding the exemption because “public disclosure

would increase the quality of health clinics applying for federal

funds while simultaneously decreasing the costs to the taxpayer,”

o r , more broadly, that the “public has a right to know” how

Planned Parenthood conducts its operations, since those

operations are financed in part through public funds.

As HHS points out, the Court of Appeals for the District of

Columbia Circuit has expressly rejected the argument that, in

applying exemption 4 , courts “should gauge whether the

competitive harm done . . . by the public disclosure of

confidential information is outweighed by the strong public

interest” in its disclosure. Pub. Citizen Health Research Grp.

v . FDA, 185 F.3d 8 9 8 , 903-04 (D.C. Cir. 1999). In declining to

24 adopt this “consequentialist approach” to exemption 4 , the court

reasoned that “Congress has already determined the relevant

public interest” by providing in FOIA that “information should be

disclosed unless it comes within a specific exemption,” id. at

904, including, of course, the exemption for “commercial or

financial information obtained from a person and privileged or

confidential,” 5 U.S.C. § 552(b)(4). This court finds this

reasoning persuasive--if for no other reason than it simply

applies the Act as written. Right to Life provides no authority

to the contrary in any event. So this court rejects Right to

Life’s suggestion that, even if material is “confidential” under

§ 552(b)(4)--in the accepted sense that its disclosure would

likely “cause substantial harm to the competitive position of”

the person who submitted it--that exemption is nevertheless

inapplicable so long as that harm is outweighed by the public

interest in the material.

25 a. Manual of Medical Standards and Guidelines and Planned Parenthood’s letter describing them12

According to the declaration of Planned Parenthood’s

Director of Health Care Operations, Helen Reid, submitted with

HHS’s summary judgment memorandum, the organization’s Manual of

Medical Standards and Guidelines effectively “provides a model

for operating a family planning clinic and for providing the

services consistent with [Planned Parenthood’s] unique model of

care.” Reid further explains that the information in the manual

“has been developed over the years” by Planned Parenthood

Federation of America (Planned Parenthood of Northern New

England’s national affiliate) and that both organizations “have a

written policy prohibiting their reproduction, reprinting, and

distribution in most cases.”

HHS argues that releasing the manual would likely cause

substantial harm to Planned Parenthood by, among other things,

eliminating Planned Parenthood’s advantage over its competitors

from its efforts in compiling the manual and maintaining its

12 Again, the manual is identified on the revised Vaughn index as category 3 8 , while the letter is category 3 9 . HHS explains that the letter, which Planned Parenthood sent to HHS upon learning of its decision to release portions of the manual, has been disclosed except insofar as it includes the portions of the manual that HHS withheld as Planned Parenthood’s confidential commercial information. Right to Life does not question this explanation. The analysis in this section, then, applies with equal force to the redacted portions of the letter.

26 confidentiality. If the manual were publicly released, Reid

explains, “[o]ther health care providers, such as community

health care clinics, could easily copy the Planned Parenthood

model and compete for patients, funding, staff, and providers.”

This shows that releasing the manual will likely cause Planned

Parenthood “harm flowing from the affirmative use of proprietary

information by competitors,” bringing it within the accepted

definition of “confidential” information under exemption 4.13

Pub. Citizen Health Research Grp. v . FDA, 704 F.2d 1280, 1291

n.30 (D.C. Cir. 1983).

In arguing to the contrary, Right to Life asserts that HHS

cannot show a likelihood of “competitive harm based on the

speculation that a hospital or low cost health clinic might

compete for the lucrative federal grants in the future.” As

Right to Life acknowledges, however, “it is not necessary to show

13 Right to Life relies on Ninth Circuit case, Frazee v . United States Forest Service, 97 F.3d 367 (9th Cir. 1996), for the proposition that a “plan of how to operate [is] not exempt from disclosure under exemption 4.” But the court in Frazee simply ruled, in relevant part, that because the information contained in a submitter’s plan for operating recreational campgrounds was “freely or cheaply available from other sources,” the district court correctly “determined that the . . . disclosure of the Plan is unlikely to cause substantial competitive harm.” Id. at 371. Here, in contrast, there is no suggestion that the information in Planned Parenthood’s manual is freely available from other sources; Reid’s undisputed sworn statements establish that it is not.

27 actual competitive harm. Actual competition and the likelihood

of substantial competitive injury is all that need be shown” to

bring commercial information within exemption 4 . Gulf & W .

Indus., Inc. v . United States, 615 F.2d 5 2 7 , 530 (D.C. Cir.

1979). Right to Life does not question that Planned Parenthood

faces “actual competition” for grants from hospitals and

community health clinics; indeed, Right to Life states in its

complaint here that, in deciding not to award the Title X

sub-grants to Planned Parenthood, “the Executive Council

specifically requested that hospitals or community health

facilities be found who would be willing to provide the Title X

services” instead.14

Regardless, even if those entities did not compete with

Planned Parenthood for grants, Right to Life does not dispute

Reid’s statement, just quoted, that those entities compete with

Planned Parenthood for patients. HHS has carried its burden to

show that releasing the manual would likely cause substantial

harm to the competitive position of Planned Parenthood.

14 Right to Life also relies on the fact that HHS awarded the replacement grant to Planned Parenthood on a “sole-source,” or non-competitive basis. As HHS points out, though, that fact has no effect on whether releasing the manual will likely cause harm to Planned Parenthood in competing for Title X sub-grants in the future, given HHS’s express statement that, following the expiration of the sole-source award, “the entire state of New Hampshire will be in competitive status” once again.

28 b. Fees and collections policy15

Reid attests that Planned Parenthood’s “‘Fees and

Collections Policy’ is an internal management policy that is not

disclosed to patients or the public,” addressing, among other

things, “issues regarding the timeliness of payment and methods

of payment for services, and invoice adjustments.” She further

states that disclosing this policy would harm Planned

Parenthood’s “ability to engage in commercial decision-making

about how and whether to charge certain patients, and how and

whether to release bad debts”--by, for example, allowing

competitors to “design more favorable policies to attract

patients away from” Planned Parenthood.

Information that would “enable competitors to solicit [a

submitter’s] customers with competitive arrangements” has been

found to threaten substantial competitive harm and, as a result,

to qualify as “confidential” under exemption 4 . Burke Energy

Corp. v . Dep’t of Energy, 583 F. Supp. 5 0 7 , 512 (D. Kan. 1984).

Right to Life’s sole argument to the contrary, that “[t]axpayers

have a right to know when grantees chose to rely on government

grants for payment for services instead of payment by the

patients,” is unsupported by the language of FOIA or any caselaw

15 These documents are identified on the revised Vaughn index as category 3 7 .

29 interpreting i t , as already discussed. See Part III.A.2, supra

(discussing Pub. Citizen, 185 F.3d at 903-04). HHS has carried

its burden to show that Planned Parenthood’s “Fees and

Collections Policies” are confidential under exemption 4 .

c. Personnel policies16

Reid attests that Planned Parenthood’s personnel policies

“identify hours of work, compensation and benefit rates, benefit

eligibility criteria, employee orientation, insurance policy

limits, and disciplinary, improvement and termination issues.”

She asserts that releasing this information “would allow

competitors to bid against [Planned Parenthood] for providers and

staff, or even hire providers and staff away.”

It is difficult for the court to view this information as

“confidential.” In most fields, including health care,

information on how much an employer pays its employees, the

benefits it provides, the conditions under which it expects them

to work, and the like is commonly shared with prospective

employees--including, presumably, those deciding whether the

benefits and burdens of the prospective job make it worth

pursuing when compared to the benefits and burdens offered by

other similar positions. Reid does not say that Planned

16 These documents are identified on the revised Vaughn index as category 3 6 .

30 Parenthood deviates from this common practice in the name of

preserving some “competitive advantage” (by, for example,

requiring applicants to accept employment there without knowing

what their compensation will be or agreeing not to disclose that

information as a condition of applying). Nor does Reid identify

any practice that prevents Planned Parenthood employees

themselves from revealing their salary and benefits to

competitors interested in hiring those employees away. Her

declaration, then, fails to show that Planned Parenthood faces a

likelihood of substantial competitive injury from the release of

its personnel policies. See News Grp. Boston, Inc. v . Nat’l

Passenger R.R. Corp., 799 F. Supp. 1264, 1269 & n.7 (D. Mass.

1988) (finding that release of payroll information would not

likely cause substantial competitive harm to employer).

Furthermore, as Right to Life points out in its objection to

HHS’s summary judgment motion, Planned Parenthood has already

disclosed a list of its employees, their positions, and their

salaries in a “Staff List Form” provided to the New Hampshire

Department of Health and Human Services. As already noted,

disclosure of information that is “freely or cheaply available

from other sources . . . is unlikely to cause substantial

competitive harm.” Frazee, 97 F.3d at 371. While Planned

Parenthood’s personnel policies contain information beyond the

31 salary data contained in the “Staff List Form,” the public

availability of that data further undermines HHS’s claim that

releasing such information would likely cause it substantial

competitive harm. HHS has failed to carry its burden to show

that Planned Parenthood’s personnel policies are “confidential”

under exemption 4 .

B. Deliberative process and attorney-client privilege

(exemption 5 )

Also exempted from disclosure under FOIA are “inter-agency

or intra-agency memorandums or letters which would not be

available by law to a party other than an agency in litigation

with the agency.” 5 U.S.C. § 552(b)(5). This exemption thus

shields documents normally immune from civil discovery, including

those protected by, among other doctrines, the deliberative

process and attorney-client privileges. See NLRB v . Sears,

Roebuck, & Co., 421 U.S. 1 3 2 , 149-55 (1975). HHS invokes both of

those privileges in defending its ultimate decision to withhold a

number of documents, or to produce other documents only in

redacted form, in response to Right to Life’s FOIA request.

Again, HHS bears the burden of showing that these privileges, and

therefore exemption 5 , apply to the documents in question. See

Church of Scientology, 30 F.3d at 228. The court will consider

each of the claimed privileges in turn. 32 1. Deliberative process privilege

As the court of appeals has explained, the deliberative

process privilege

is designed to safeguard and promote agency decisionmaking processes in at least three ways: it serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency’s action.

Providence Journal C o . v . Dep’t of Army, 981 F.2d 5 5 2 , 557 (1st

Cir. 1992) (quotation marks and bracketing omitted; formatting

altered). To establish that the deliberative process shields its

inter- or intra-agency communications from disclosure under FOIA,

the agency must show that the communications are both

“predecisional” and “deliberative.” Id. at 558. That i s , the

communication must have been both “prepared prior to a final

decision in order to assist an agency decisionmaker in arriving

at his decision” and “a direct part of the deliberative process

in that it makes recommendations or expresses opinions on legal

or policy matters.” Town of Norfolk v . Army Corp. of Engineers,

968 F.2d 1438, 1458 (1st Cir. 1992) (quotation marks omitted).

33 HHS has invoked the deliberative process privilege as to a

number of documents encompassed by Right to Life’s FOIA requests.

Right to Life challenges the invocation of the privilege as to

particular documents, and also makes two broader arguments as to

the scope of the privilege generally. These arguments are

ultimately unavailing.

First, Right to Life asserts that “even if documents would

otherwise be protected by the deliberative process privilege,”

they “still need to be produced if the opinion or interpretation

was later adopted by the agency.” On this view, “HHS can

withhold the deliberative advice of subordinates . . . that was

rejected,” but “cannot withhold the deliberative advice . . .

that was accepted” by the agency in making its decision. As HHS

points out, though, the Court of Appeals has explicitly held that

an agency’s “[e]xpress adoption of a predecisional document is a

prerequisite to an agency waiver” of the deliberative process

privilege that would otherwise apply. Providence Journal, 981

F.2d at 558. Indeed, the court indicated that, to effect such a

waiver, the “agency must expressly adopt or incorporate [a]

predecisional document by reference in [its] final decision.”

Id. (quotation marks, bracketing, and ellipse by the court

omitted). Right to Life does not point to any documents

embodying or announcing any “final decision” by HHS that

34 incorporate by reference any of the documents as to which the

agency has claimed the deliberative process privilege. Under

Providence Journal, the fact that the final decision happened to

be consistent with those pre-decisional documents is not enough.

Second, Right to Life relies on another decision by the

Court of Appeals for the proposition that “where the documents

sought may shed light on alleged government misfeasance, the

[deliberative process] privilege is routinely denied.” Texaco

P.R., Inc. v . Dep’t of Consumer Affairs, 60 F.3d 8 6 7 , 885 (1st

Cir. 1995) (quotation marks omitted). In upholding the district

court’s refusal to apply the deliberative process privilege in

that case, however, the Court of Appeals relied on a “strong

showing of arbitrariness and discriminatory motives” on the part

of the agency and the district court’s finding that the agency

had “acted in bad faith over a lengthy period of time.” Id.

Right to Life has not alleged, let alone made a “strong showing,”

of anything of the sort here. At worst, Right to Life accuses

HHS of unlawfully awarding the grant to Planned Parenthood on a

non-competitive basis. Even if that charge could be proven, it

would not amount to the sort of “malfeasance” that the Court of

Appeals has deemed sufficient to pierce the deliberative process

privilege. See id.

35 Aside from these broader attacks, Right to Life does not

dispute HHS’s invocation of the deliberative process privilege as

to several of the documents it has withheld on that basis. Based

on its review of the materials submitted by HHS, the court

concludes that HHS has carried its burden to show that the

deliberative process privilege applies to those documents.17 But

Right to Life challenges HHS’s invocation of the deliberative

process privilege as to other documents, arguing that they are

not “predecisional,” and, in one case, also not “deliberative.”

For the reasons set forth below, the court rules that HHS has

carried its burden to show that the deliberative process

privilege applies to these documents as well--with the exception

of the one category that Right to Life argues, correctly, are

neither predecisional nor deliberative.

a. Predecisional

HHS has invoked the deliberative process privilege as to

several documents that are dated subsequent to August 1 9 , 2011.18

HHS claims that these documents pre-dated its September 1 4 , 2011

decision to award the grant to Parenthood. See Part I.A, supra.

17 These documents are identified on the revised Vaughn index as categories 1-12. 18 These documents are identified on the revised Vaughn index as categories 2 1 , 2 5 , and 2 7 .

36 In response, Right to Life argues that HHS actually reached that

decision on August 1 8 , 2011 (at the latest), so that these

subsequent documents could not have been “prepared prior to the

final decision” at issue, bringing them outside the protections

of the deliberative process privilege. Town of Norfolk, 968 F.2d

at 1458. As HHS points out, however, the decision it made on

August 1 9 , 2011, was not to award the grant to Planned

Parenthood, but to solicit an application for the grant from

Planned Parenthood on a non-competitive (or “sole source”) basis.

That much is clear from the memorandum from Keefe, the

Deputy Assistant Secretary for Population Affairs at OASH, to

Kretschmaier, the OASH executive officer, dated August 1 8 , 2011.

See Part I.A, supra. While the memorandum “request[s] approval

of a sole source replacement grant award” to Planned Parenthood,

it also explains that, “[i]f this recommendation is approved, OPA

will reach out to the proposed replacement grantee to determine

if the organization is willing to take on the project as a

directly funded federal grantee” (underlining omitted). The

memorandum does not say, as Right to Life suggests, that approval

of the recommendation will result in the award of the grant

itself to Planned Parenthood. To the contrary, as Keefe explains

in a declaration filed with HHS’s reply brief, the decision

embodied in Kretschmaier’s countersignature to the memorandum

37 “was that it permitted [Planned Parenthood] to apply for the

grant without competition. It did not mean . . . that the grant

had been awarded to” Planned Parenthood.

In arguing to the contrary, Right to Life relies solely on a

document dated September 8 , 2011 (after the memorandum) and

entitled “Technical Review,” which was disclosed, albeit in

redacted form, in response to Right to Life’s FOIA requests.19

Indeed, in its response to HHS’s summary judgment motion, Right

to Life maintains that the “Technical Review” shows that HHS

actually made the decision to award the grant to Planned

Parenthood on August 1 2 , 2011, i.e., a week before Kretschmaier

countersigned Keefe’s memorandum on August 1 9 , 2011.20 On this

theory, additional documents withheld on the basis of the

19 This is the document filed under the docket number (25-7) that Right to Life cites in making this argument in its brief. While Right to Life also cites a Bates number, that number does not correspond to any of the pages of docket n o . 25-7. Because Right to Life does not otherwise describe the document on which it intends to rely for this argument, the court is left to evaluate the argument in light of the document that Right to Life actually cites, docket n o . 25-7, which is the Technical Review. 20 In further support of this argument, Right to Life asserts that, because Keefe’s memorandum to Kretschmaier is entitled “Sole Source Justification for Replacement Grant in New Hampshire,” it is “just that--a justification for a decision that had already been made.” That is wholly inconsistent with the substance of the document, through which Keefe seeks Krestchmaier’s sign-off on awarding the grant on a sole source basis by offering a “justification” as to why that is appropriate.

38 deliberative process privilege (emails and other documents that

HHS says were exchanged among its employees in reaching the

August 1 8 , 2011 decision embodied in Kretschmaier’s

countersignature to the memorandum) would also post-date the

relevant decision.21

But Right to Life does not explain how the “Technical

Review” supports this theory, and, on the court’s reading, it

does not. The “Technical Review” evaluates a proposal from

Planned Parenthood “for a single source grant to continue

services it had provided in New Hampshire under a contract with

the [New Hampshire] Department of Health and Human Services.”

The very fact that HHS was evaluating Planned Parenthood’s

proposal for the grant in early September 2011, of course, belies

any suggestion that HHS had already decided to award the grant in

21 These documents are identified on the revised Vaughn index as categories 1 3 , 1 5 , 1 6 , 1 8 , and 1 9 .

39 mid-August 2011.22 HHS has carried its burden to show that the

documents as to which it invokes the deliberative process

privilege are predecisional, in the sense that they predated

either the August 1 9 , 2011 decision to solicit an application for

the grant from Planned Parenthood on a sole-source basis

(categories 1 3 , 1 5 , 1 6 , 1 8 , and 19) or the September 1 4 , 2011

decision to award the grant to Planned Parenthood (categories 2 1 ,

2 5 , and 2 7 ) .

b. Deliberative

Right to Life also argues that HHS has improperly invoked

the deliberative process privilege as to one category of

documents because “there was no specific agency decision to which

the document correlates”--rendering the documents neither

“predecisional” nor “deliberative.” This document comprises two

chains of emails between Hager (the Regional Director of HHS’s

Region I Office) and HHS staffers from whom she sought assistance

22 In its sur-reply, Right to Life argues that the decision “to award a sole source contract” was actually made by “higher level officials,” including the Secretary of HHS and the President of the United States, on August 9, 2011, and August 1 0 , 2011, respectively, citing to emails between two HHS officials. This court ordinarily ignores theories raised for the first time in sur-reply, see, e.g., Beane v . Beane, 856 F. Supp. 2d 2 8 0 , 298 (D.N.H. 2012), and, in any event, the emails do not support Right to Life’s position. They reflect simply that the Secretary and the White House were “briefed” on or around August 10 (while noting that, as of August 1 7 , OASH was still working to get the approval of both Kretschmaier and the White House).

40 in preparing for a telephone call with Executive Councilor

Wheeler about the consequences of the Council’s decision to

discontinue Planned Parenthood’s subgrants.23 See note 2 and

accompanying text, supra.

Pointing out that the redacted portions of these emails

discuss “options for providing responses to Wheeler’s questions,

and the suggested answers to those questions,” HHS argues that

this “information was predecisional and deliberative to Hager’s

participation in the call with Wheeler.” But HHS does not

explain how an agency representative’s “participation” in a

telephone call with an elected official amounts to a “decision”

so as to bring documents advising the representative on what to

say within the auspices of the deliberative process privilege.

So far as the court can tell, in fact, the purpose of the call

was simply to inform Wheeler about what HHS would do in response

to the Executive Council’s decision, presumably as a matter of

agency rule or policy. And “an explanation of an existing policy

. . . is not protected by the deliberative process privilege.”

Nat’l Day Laborer Organizing Network v . ICE, 811 F. Supp. 2d 713,

741 (S.D.N.Y. 2011); see also RTC v . Diamond, 137 F.R.D. 6 3 4 , 641

(S.D.N.Y. 1991) (noting that the deliberative process privilege

23 These documents are identified on the revised Vaughn index as category 9.

41 “does not extend to materials related to the explanation,

interpretation or application of an existing policy, as opposed

to the formulation of a new policy”). HHS has failed to carry

its burden to show that the emails advising Hager on her

telephone call with Wheeler are protected by the deliberative

process privilege.

2. Attorney-client privilege

To show that the attorney-client privilege exempts a

document from disclosure under exemption 5 , the agency must show:

(1) that [it] was or sought to be a client of [the attorney;

(2) that the attorney in connection with the document acted as a lawyer;

(3) that the document relates to facts communicated for the purpose of securing a legal opinion, legal services or assistance in legal proceedings; and

(4) that the privilege has not been waived.

Maine v . Dep’t of Interior, 298 F.3d 6 0 , 71 (1st Cir. 2002)

(bracketing by the court omitted). To satisfy the third element

of this test, the agency cannot “assume[] that the requirement of

client communicated confidentiality is satisfied merely because

the documents are communications between a client and attorney,”

but must “identify [a] circumstance expressly or inferentially

supporting confidentiality.” Id. at 71-72.

42 In its opening memorandum for summary judgment, Right to

Life argued that HHS had failed to make this showing in the

supplemented version of its Vaughn index that HHS provided in

mid-July 2012. See Part II.B, supra. But, with its response to

Right to Life’s motion for summary judgment (and in support of

HHS’s own motion for summary judgment), HHS submitted a revised

Vaughn index, together with a declaration from Robert Eckert, an

HHS employee. These materials state the basis for HHS’s

invocation of the attorney-client privilege as to each document

in considerably more detail than the earlier version of the

Vaughn index and, in the court’s view, suffice to show the

requisite “circumstance[s] supporting confidentiality.” Maine v .

Dep’t of Interior, 298 F.3d at 71-72. Indeed, Right to Life’s

response to HHS’s motion for summary judgment does not argue to

the contrary o r , for that matter, address HHS’s claim of

attorney-client privilege in any way.24 The court finds that HHS

has carried its burden to show that the attorney-client privilege

24 It is also worth noting that, in responding to Right to Life’s summary judgment motion, HHS withdrew one of its claims of attorney-client privilege that Right to Life had identified as “most egregious[]”: the claim as to the documents identified on the revised Vaughn index as category 1 7 , which have since been produced to Right to Life in unredacted form.

43 shields the information it has withheld from disclosure on that

basis in response to Right to Life’s FOIA request.25

C. Personnel information (exemption 6 )

Finally, HHS has withheld information on the basis of

exemption 6, which protects “personnel and medical files and

similar files the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy.”26 5 U.S.C. 552(b)(6).

HHS says that this information “consists of names, private phone

numbers, biographical sketches, a [curriculum vitae], and . . .

salary information of individual [Planned Parenthood] employees,”

as revealed in documents that Planned Parenthood submitted to HHS

in support of its grant application.

Applying exemption 6 requires the court to “weigh the public

interest in disclosure against a privacy interest in the

requested information.” Kurzon v . HHS, 2001 DNH 1 2 8 , 2001 WL

25 These documents are identified on the revised Vaughn index as categories 1 1 , 1 8 , 2 0 , 23-24, and 3 3 . While HHS also claims the deliberative process and work product privileges as to category 3 3 , the court need not reach those contentions. 26 These documents are identified on the revised Vaughn index as categories 2 6 , 2 9 , 3 6 , and 3 9 . The court has ruled that HHS properly withheld portions of the documents in categories 36 and 39 as confidential commercial information under exemption 4 . See Parts III.A.2.a-b, supra. HHS invokes exemption 6 as to these documents only insofar as they reveal the names of employees of Planned Parenthood or its affiliates.

44 821531, at *3 (D.N.H. July 1 7 , 2001) (DiClerico, J.) (citing

Dep’t of Justice v . Reporters Comm’n for Freedom of the Press,

489 U.S. 749, 775 (1989)). HHS, which bears the burden of

showing that this exemption applies, see id., argues that there

is no recognized public interest in the information it has

withheld under exemption 6, and, even if there were, it would be

outweighed by the privacy interests of Planned Parenthood’s

employees. The court agrees with this analysis as to some, but

not all, of the information HHS has withheld under exemption 6.

While HHS concedes that there is a public interest in “who

is running [Planned Parenthood’s] clinics”--which HHS says it has

disclosed--it maintains that this interest does not extend to

“identifying information of middle and lower level employees.”

Among the information that HHS has withheld, however, is the

curriculum vitae of its “Medical Director.” Given HHS’s

acknowledgment of a public interest in the identity of “who is

running [Planned Parenthood’s] clinics”--and its corresponding

lack of any effort to identify any countervailing privacy

interest in the items of that person’s professional or

educational background that would be contained on his or her

curriculum vitae--the court rules that HHS has failed to carry

45 its burden to show that disclosing the curriculum vitae would

constitute a clearly unwarranted invasion of personal privacy.27

HHS has succeeded, however, in carrying its burden to show

that releasing the names, private phone numbers, and biographical

sketches of the other Planned Parenthood employees would

constitute a clearly unwarranted invasion of their personal

privacy. As HHS points out, the Supreme Court has held that

“[t]he only relevant public interest in the FOIA balancing

analysis” is “the extent to which disclosure of the information

would shed light on an agency’s performance of its statutory

duties or otherwise let citizens know what its government is up

to.” Dep’t of Defense v . Fed. Labor Relations Auth., 510 U.S.

487, 497 (1994) (quotation marks omitted). Thus, the Supreme

Court ruled in that case that the privacy interest of federal

civil service employees “in nondisclosure of their home addresses

substantially outweighs the negligible FOIA-related public

interest in disclosure,” so “disclosure would constitute a

clearly unwarranted invasion of personal privacy” under exemption

6. Id. at 502 (quotation marks omitted).

27 If the curriculum vitae contains the director’s home address, telephone number, or email address, that information shall be redacted from the version of the document produced pursuant to this order, because the disclosure of that information would amount to a clearly unwarranted invasion of personal privacy. See infra this part.

46 This holding is plainly controlling as to the names, private

phone numbers, and biographical sketches of the middle- and

lower-level employees of Planned Parenthood--who, unlike the

employees in the Supreme Court case, do not even work for the

federal government, but for a private organization that receives

part of its funding from the federal government. Right to Life

does not identify, and the court cannot conceive o f , any public

interest in that kind of information, and “the employees’

interest in nondisclosure is not insubstantial,” for the reasons

explained by the Supreme Court. Id. at 500-01. Indeed, federal

courts have routinely held that exemption 6 applies to the names,

addresses, and other personal information of the employees of

government contractors. See, e.g., Painting & Drywall Work

Preservation Fund, Inc. v . HUD, 936 F.2d 1300, 1303-04 (D.C. Cir.

1991); Hopkins v . HUD, 929 F.2d 8 1 , 88 (2d Cir. 1991); News Grp.

Boston, 799 F. Supp. at 1272; Dougherty, supra, § 38:181, at 256

(citing additional cases). Right to Life does not provide any

authority to the contrary.

Instead, Right to Life points to the fact that Planned

Parenthood has already disclosed the names of its employees,

their positions, and their salaries in a “Staff List Form”

provided to the New Hampshire Department of Health and Human

Services. See Part III.A.2.c, supra. The Court of Appeals has

47 held, however, that “prior revelations of exempt information do

not destroy an individual’s privacy interest.” Moffat v . Dep’t

of Justice, 716 F.3d 2 4 4 , 251 (1st Cir. 2013).

In Moffat, the Court of Appeals ruled that releasing the

names of various individuals (including law enforcement officers)

contained in a report of a witness interview would work a clearly

unwarranted invasion of personal privacy, even though some of

those names had been revealed in a redacted version of the report

released to the plaintiff prior to his FOIA request. Id. Thus,

“[t]he privacy interests the government seeks to uphold

remain[ed] as strong as they were before” the release of the

report, yet the plaintiff had “not identified a public interest

powerful enough to outweigh” them. So Moffat is right on point

here, where, as just discussed, Right to Life has failed to

articulate any public interest in the names, telephone numbers,

or biographical sketches of the mid- or low-level Planned

Parenthood employees.

In the absence of this identifying information, however, the

court sees little if any privacy interest in the salaries of the

Planned Parenthood employees, i.e., accompanied by the titles of

the corresponding positions, rather than the names of the

employees who hold those positions. There is also a substantial

public interest in what government contractors pay their

48 employees, namely, whether the contractors are “spending taxpayer

funds efficiently and effectively.” News Grp. Boston, 799 F.

Supp. at 1271 (ruling that exemption 6 shielded contractor’s

employees’ names and addresses, but not their titles and wages).

Accordingly, this court rules that HHS properly withheld the

names, personal phone numbers and biographical sketches of

Planned Parenthood’s middle- and lower-level employees pursuant

to exemption 6, but that HHS incorrectly invoked the exemption in

withholding those employees’ salary information. See id.

IV. Conclusion

For the foregoing reasons, both Right to Life’s motion for

summary judgment28 and HHS’s motion for summary judgment29 are

GRANTED in part and DENIED in part. Within 10 days of the date

of this order, HHS shall produce the following information to

Right to Life:

• the information identified on the revised Vaughn index as category 9;

• the information identified on the revised Vaughn index as categories 26 and 2 9 , insofar as that information consists of the job titles and salaries of Planned Parenthood staff, or the curriculum vitae of its medical director (excluding that person’s home address, telephone number, or email address); and

28 document n o . 2 5 . 29 document n o . 3 1 .

49 • the information identified on the revised Vaughn index as category 3 6 .

SO ORDERED.

Joseph N . Laplante lited States District Judge

Dated: September 30, 2013

cc: Michael J. Tierney, Esq. Joseph Gardner Mattson, Esq. Seth R. Aframe, AUSA