White Coat Waste Project v. United States Department of Veterans Affairs

• Court: District Court, District of Columbia
• Decided: August 29, 2019
• Docket: Civil Action No. 2017-2264
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WHITE COAT WASTE PROJECT

Plaintiff, v. No. 17-cv-2264 (EGS) UNITED STATES DEPARTMENT OF VETERANS AFFAIRS,

Defendant.

MEMORANDUM OPINION

I. Introduction

Plaintiff White Coat Waste Project (“WCW”), a non-profit

organization that monitors federally-funded animal experiments,

brings this Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,

against the United States Department of Veterans Affairs (“VA”),

seeking to obtain certain records about canine experiments at

the Louis Stokes Cleveland Veterans Affairs Medical Center

(“Stokes VAMC”) in Ohio. The dog experiments have prompted

speculation and resulted in protests. Stokes VAMC eventually

released responsive documents, invoking certain FOIA exemptions

based on the nature of the animal research and the privacy

interests of its principal investigators and other research

personnel. Following Stokes VAMC’s productions, WCW’s

administrative appeals of certain withholdings, and the filing

of this action, the remaining dispute is quite narrow. WCW solely seeks the name of the principal investigator on a

research protocol for dog experiments at Stokes VAMC.

Pending before the Court are the parties’ cross-motions for

summary judgment. Upon careful consideration of the parties’

submissions, the applicable law, and the entire record herein,

the Court concludes that FOIA Exemption 5’s deliberative process

privilege does not justify withholding the principal

investigator’s name, and that the Court finds that the VA has

failed to provide it with sufficient information to determine

whether the principal investigator’s name was properly withheld

under Exemption 6. Therefore, the Court GRANTS IN PART and

DENIES IN PART Defendant’s Motion for Summary Judgment and

GRANTS IN PART, DENIES IN PART, and HOLDS IN ABEYANCE

Plaintiff’s Cross-Motion for Summary Judgment. The Court DENIES

WITHOUT PREJUDICE WCW’s requests for in camera review and the

production of the animal research protocol, and DEFERS ruling on

the issue of whether the agency has “officially acknowledged”

the principal investigator’s name.

II. Background

WCW is a non-profit organization with a mission “to expose

and end wasteful taxpayer-funded animal experiments.” Def.’s

Statement of Material Facts (“Def.’s SOMF”), ECF No. 20-1 at 1 ¶

1 (quoting Compl., ECF No. 1 at 2 ¶ 4); see also Pl.’s Counter-

Statement of Material Facts (“Pl.’s SOMF”), ECF No. 21-2 at 1 ¶

2 1 (same). 1 As part of its investigation into the VA’s dog

experiments, WCW submitted a FOIA request to Stokes VAMC on

April 3, 2017, seeking the following records:

(1) A current census of all dogs actively held and used in the Stokes VAMC laboratories (including each animal’s ID number, breed, name, color and distinctive markings, date of birth, source, USDA pain category, and assigned protocol); (2) Photographs and videos of these or other dogs used in Stokes VAMC labs (from January 1, 2010 to the present); (3) Active [Institutional Animal Care and Use Committee]-approved protocols to which these dogs are assigned; and (4) Animal welfare incident reports association with the aforementioned projects (from January 1, 2010 to the present). 2

Compl., ECF No. 1 at 2 ¶ 8; see also Def.’s SOMF, ECF No. 20-1

at 1-2 ¶ 2. Acknowledging receipt of WCW’s request on April 5,

2017, Stokes VAMC responded to WCW on April 17, 2017, claiming

that it did not have responsive records. Decl. of Tomica

Jefferson (“Jefferson Decl.”), ECF No. 20-3 at 3 ¶ 7, 4 ¶ 8.

On April 26, 2017, WCW administratively appealed that

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 WCW asserts—and the VA does not dispute—that “the [Animal Welfare Act, 7 U.S.C. § 2131, et seq.] today requires that every research facility that uses animals for laboratory experiments must have an Institutional Animal Care and Use Committee (IACUC) which evaluates the facility’s use and care of animals used in experiments.” Pl.’s Mem. in Opp’n to Def.’s Mot. for. Summ. J. & in Supp. of Pl.’s Cross-Mot. for Summ. J. (“Pl.’s Mem.”), ECF No. 21-1 at 11; see generally Def.’s Reply to Pl.’s Opp’n to Def.’s Mot. for Summ. J. & Opp’n to Pl.’s Cross-Mot. for Summ. J. (“Def.’s Opp’n”), ECF No. 27 at 1-12. 3 response. Id. at 4 ¶ 9. Stokes VAMC then conducted a

“comprehensive search,” Def.’s SOMF, ECF No. 20-1 at 2 ¶ 4,

locating responsive records in a filing cabinet in a research

area, id. at 2 ¶ 7. Stokes VAMC found sixty-seven responsive

documents. Id. at 2 ¶ 4. Stokes VAMC produced fourteen pages in

part and withheld fifty-two pages in full. Id. The VA withheld

the census records under FOIA Exemptions 4, 5, and 6, 3 id. at 2 ¶

5, and the IACUC-approved protocols under Exemption 5, id. at 2

¶ 6. According to Stokes VAMC, there were no responsive

photographs, videos, and animal welfare reports. Id. WCW did not

challenge those categories of documents. Jefferson Decl., ECF

No. 20-3 at 7 ¶ 22.

On September 13, 2017, WCW filed a second administrative

appeal, challenging the withholdings in the census records and

the IACUC-approved protocols. Id. at 5 ¶¶ 18-19. Stokes VAMC

stood by all of its initial conclusions, with the exception of a

research protocol and certain census information. Id. at 5 ¶ 19.

3 “Congress included nine exemptions permitting agencies to withhold information from FOIA disclosure.” Judicial Watch, Inc. v. U.S. Dep’t of Treasury, 796 F. Supp. 2d 13, 23 (D.D.C. 2011) (citing 5 U.S.C. § 552(b)). Exemption 4 covers “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” Id. § 552(b)(4). Exemption 5 applies to “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[.]” Id. § 552(b)(5). Exemption 6 protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]” Id. § 552(b)(6). 4 Stokes VAMC “continue[d] to withhold the principal

investigators’ names as well as other research personnel within

the protocol and location of building rooms, pursuant to FOIA

Exemptions (b)(5) and (b)(6).” Id. at 5 ¶ 19(b). Stokes VAMC

explained that “[p]rincipal investigators as well as other

research personnel have a privacy interest in being protected

from annoyance and harassment” pursuant to Exemption 6, id. at 6

¶ 20(a), and the census records and protocol “discuss unadopted

opinions of the Principal Investigator and research personnel”

pursuant to Exemption 5, id. at 7 ¶ 21(a).

On May 1, 2017, WCW submitted a second FOIA request to

Stokes VAMC, seeking to obtain the following records:

(1) Invoices for all dogs purchased or otherwise procured by Stokes VAMC (from January 1, 2016-present); (2) Acquisition and disposition records for all dogs purchased or otherwise procured by Stokes VAMC (from January 1, 2016-present); (3) Complete animal use and veterinary records for all dogs used in Stokes VAMC experiments (from January 1, 2016-present); (4) Active IACUC-approved Stokes VAMC protocol/s for the use of dogs; (5) Animal welfare incident reports associated with the use of dogs at Stokes VAMC (from January 1, 2014-present); (6) All emails and other records associated with the adoption of any dogs from Stokes VAMC (January 1, 2016- present); (7) Inactive IACUC-approved protocol/s for the use of dogs (from January 1, 2015-present); and (8) Photographs and videos of dogs used in Stokes VAMC labs (from January 1, 2010-present).

Compl., ECF No. 1 at 4-5 ¶ 21. On August 3, 2017, Stokes VAMC

5 released 169 pages of responsive documents, withholding in part

certain information under Exemptions 4, 5, and 6. Jefferson

Decl., ECF No. 20-3 at 8 ¶ 27; see also Def.’s SOMF, ECF No. 20-

1 at 3 ¶ 9. Stokes VAMC redacted names under Exemption 6,

withheld the protocols under Exemption 5, and withheld other

information (i.e. “company names, addresses, invoice numbers and

the like”) under Exemption 4. Def.’s SOMF, ECF No. 20-1 at 3 ¶

10. On September 20, 2017, after litigation had already begun,

the VA’s Office of General Counsel received WCW’s administrative

appeal regarding the August 3, 2017 production. Jefferson Decl.,

ECF No. 20-3 at 9 ¶ 31. After the VA’s Office of General Counsel

issued a remand to Stokes VAMC to process WCW’s appeal, Stokes

VAMC eventually released 217 pages of responsive documents on

March 9, 2018. Id. at 9 ¶¶ 32, 34. Stokes VAMC partially

withheld the majority of those records under Exemptions 5 and 6,

including the names of principal investigators, and redacted

some “invoice” information under Exemptions 4, 5, and 6. Def.’s

SOMF, ECF No. 20-1 at 3 ¶ 12.

Stokes VAMC also turned over a redacted version of an

animal research protocol, entitled “High Frequency Spinal Cord

Stimulation to Restore Cough.” Pl.’s SOMF, ECF No. 21-2 at 8 ¶

49; see also Pl.’s Mem., ECF No. 21-1 at 17 (asserting that

“Stokes VAMC’s experimenters cut the spinal cord[s] of mongrel

dogs to paralyze them and then attempt to restore a cough in the

6 paralyzed dogs.”). The protocol is a forty-eight-page document,

subject to redactions pursuant to Exemptions 5 and 6. Def.’s Ex.

A, Jefferson Decl., ECF No. 20-3 at 18 (showing an excerpt of

the Vaugh index). 4 That redacted document—the protocol at issue—

excludes the name of the principal investigator. See Pl.’s SOMF,

ECF No. 21-2 at 8 ¶¶ 49-50. Over the course of this litigation,

the parties have narrowed the scope of the dispute to the

protocol at issue. See Decl. of Matthew Strugar (“Strugar

Decl.”), ECF No. 21-4 at 2 ¶ 10. WCW solely challenges the

redactions of the principal investigator’s name in the protocol

in order to hold that person and the VA accountable. Id. at 8 ¶

50; see also Pl.’s Mem., ECF No. 21-1 at 35.

Both parties moved for summary judgment. See, e.g., Def.’s

Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 20; Def.’s Mem. of P.

& A. in Supp. of Def.’s Mot. (“Def.’s Mem.”), ECF No. 20-2 at 1-

19; Pl.’s Cross-Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 21 at

1-3. 5 The VA argues that it is entitled to summary judgment for

the following five reasons: (1) it conducted adequate searches

4 “A Vaughn index describes the documents withheld or redacted and the FOIA exemptions invoked, and explains why each exemption applies.” Prison Legal News v. Samuels, 787 F.3d 1142, 1145 n.1 (D.C. Cir. 2015) (citing Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973); Keys v. U.S. Dep’t of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987)). 5 WCW’s cross-motion for summary judgment was not accompanied by a proposed order as required by Local Civil Rule 7.1(c). See LCvR 7.1(c) (“Each motion and opposition shall be accompanied by a proposed order.”); see generally Pl.’s Mot., ECF No. 21. 7 for the responsive records; (2) it properly withheld certain

financial, tax and other information of vendors under Exemption

4; (3) it appropriately withheld census and protocol records

under Exemption 5 because those “records are a deliberative

prelude to a report that the VA typically makes publicly

available[;]” (4) it properly invoked Exemption 6 to protect the

privacy interests of its employees and shield them from

harassment “[g]iven the nature of animal research work and

antipathy towards [that research][;]” and (5) it released all

reasonably segregable, non-exempt information, withholding

exempt information under Exemptions 4, 5, and 6. Def.’s Mem.,

ECF No. 20-2 at 1-2. In moving for summary judgment, WCW argues

that the VA has failed to demonstrate that the name of the

principal investigator on the animal research protocol is exempt

from disclosure. Pl.’s Mot., ECF No. 21 at 1. WCW contends that

the VA waived all claimed exemptions to the principal

investigator’s name by previously disclosing it in the public

domain. 6 Pl.’s Mem., ECF No. 21-1 at 22-24. WCW concedes that the

VA has adequately conducted its searches, properly invoked

6 WCW’s waiver argument falls under the “official acknowledgment” doctrine. See Montgomery v. IRS, 356 F. Supp. 3d 74, 81–82 (D.D.C. 2019) (“The [plaintiffs] root their first set of objections in a species of waiver doctrine known as ‘official acknowledgement.’ Under that doctrine, an agency may be barred from asserting . . . a FOIA exemption if doing so would be irreconcilable with its previous official statements.” (citing Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007)). 8 Exemption 4 to the withholdings, and appropriately segregated

the non-exempt information from the exempt information. Id. at

21-22; see also Def.’s Opp’n, ECF No. 27 at 3. The briefing is

now complete, and the motions are ripe and ready for the Court’s

adjudication.

III. Legal Standard

The “vast majority” of FOIA cases can be resolved on

summary judgment. Brayton v. Office of the U.S. Trade

Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court may

grant summary judgment only if “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). Likewise, in ruling on

cross-motions for summary judgment, the court shall grant

summary judgment only if one of the moving parties is entitled

to judgment as a matter of law upon material facts that are not

genuinely disputed. See Citizens for Responsibility & Ethics in

Wash. v. U.S. Dep’t of Justice, 658 F. Supp. 2d 217, 224 (D.D.C.

2009) (citation omitted). Under FOIA, “the underlying facts and

the inferences to be drawn from them are construed in the light

most favorable to the FOIA requester[,]” and summary judgment is

appropriate only after “the agency proves that it has fully

discharged its [FOIA] obligations . . . .” Moore v. Aspin, 916

F. Supp. 32, 35 (D.D.C. 1996) (citations omitted).

When considering a motion for summary judgment under FOIA,

9 the court must conduct a de novo review of the record. See

5 U.S.C. § 552(a)(4)(B). The court may grant summary judgment

based on information provided in an agency’s affidavits or

declarations when they are “relatively detailed and non-

conclusory,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200

(D.C. Cir. 1991) (citation omitted), and “not controverted by

either contrary evidence in the record nor by evidence of agency

bad faith,” Military Audit Project v. Casey, 656 F.2d 724, 738

(D.C. Cir. 1981). Such affidavits or declarations are “accorded

a presumption of good faith, which cannot be rebutted by ‘purely

speculative claims about the existence and discoverability of

other documents.’” SafeCard Servs., 926 F.2d 1197 at 1200

(citation omitted).

IV. Analysis

As stated by WCW, “[t]he parties’ cross-motions for summary

judgment in this case involve one piece of information: the name

of the principal investigator on a publicly-funded experiment on

dogs at [Stokes VAMC] entitled ‘High Frequency Spinal Cord

Stimulation to Restore Cough.’” Pl.’s Reply, ECF No. 29 at 5.

The sole dispute is whether the VA’s redactions of the principal

investigator’s name on the protocol at issue were justified

under Exemptions 5 and 6. 7 The VA advances four primary arguments

7 WCW does not contest the adequacy of the searches, the applicability of the withholdings under Exemption 4, and the 10 for why the redactions were proper. The VA’s first argument is

that the non-final research protocols are government agency

records; thus, those records are covered under Exemption 5’s

deliberative process privilege. Def.’s Mem., ECF No. 20-2 at 12-

13. Next, the VA argues that the redactions of the names of the

principal investigators and other research personnel were proper

under Exemption 6 to protect them from the possibility of

embarrassment and harassment in conducting the canine research,

which constitutes a substantial privacy interest against any

public interest in the name. Id. at 16-17; see also Def.’s

Opp’n, ECF No. 27 at 3-8. The VA’s next argument is that WCW

will gain access to the principal investigator’s name in due

segregability determinations. Pl.’s Mem., ECF No. 21-1 at 21-22. Neither does WCW challenge the redactions to: (1) the principal investigator’s address, telephone number, e-mail address, or any other personal identifying information; or (2) non-principal investigator’s information. Pl.’s Mem., ECF No. 21-1 at 32. The Court deems those matters as conceded. See Lewis v. District of Columbia, No. 10–5275, 2011 WL 321711, at *1 (D.C. Cir. Feb. 2, 2011) (per curiam) (“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat arguments that the plaintiff failed to address as conceded.” (citation and internal quotation marks omitted)). The Court has an independent obligation to determine whether the government has met its FOIA obligations. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007). Having reviewed the VA’s declaration and the Vaughn indices, see, e.g., Def.’s Mot., ECF No. 20-2 at 17-18; Jefferson Decl., ECF No. 20- 3 at 2-18, the Court finds that the VA has fulfilled its obligations with respect to these uncontested matters. Accordingly, the Court GRANTS Defendant’s motion for summary judgment as to the adequacy of the searches, the withholdings under Exemption 4, and the segregability determinations. 11 course based on its “practice of releasing the names of

principal investigators along with completed research protocols

in abstract form.” Def.’s Opp’n, ECF No. 27 at 8. Finally, the

VA contends that it has not waived any exemptions with respect

to withholding the principal investigator’s name because the

research has not been released to the public. Id. at 10. And WCW

has failed to meet its “burden of pointing to specific information

in the public domain that duplicates that being withheld” because

“[the VA] has not published or publicly disclosed the exact

protocol that [WCW] would need to be able to meet this Circuit’s

strict standard.” Id.

WCW responds that the protocol was improperly withheld

under Exemption 5 because: (1) information and names in research

protocols constitute factual material that the deliberative

process privilege rarely covers, Pl.’s Mem., ECF No. 21-1 at 26,

and (2) the agency is neither “coming up with the names of its

principal investigators” nor “using the names of investigators

to formulate agency policy,” id. at 27. WCW contends that the

principal investigator only has a de minimis privacy interest in

his or her name. Id. at 28-29, 35. Finally, WCW argues that the

VA has waived any claimed exemptions for redacting the principal

investigator’s name on the protocol at issue because “the exact

information that WCW seeks through this litigation has already

been published by the VA itself,” id. at 24, and the National

12 Institute of Health (“NIH”) published the name of the principal

investigator on its online database, id. at 22.

The Court will address each argument in turn, concluding

that the VA improperly withheld the principal investigator’s

name under Exemption 5, and that the Court lacks sufficient

information to determine whether the name was properly withheld

under Exemption 6.

A. The VA Improperly Withheld the Principal Investigator’s Name under Exemption 5

“Exemption 5 permits an agency to withhold materials

normally privileged from discovery in civil litigation against

the agency.” Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir.

1997). To withhold a document under Exemption 5, the “document

must meet two conditions: [1] its source must be a Government

agency, and [2] it must fall within the ambit of a privilege

against discovery under judicial standards that would govern

litigation against the agency that holds it.” Stolt–Nielsen

Transp. Grp. Ltd. v. United States, 534 F.3d 728, 733 (D.C. Cir.

2008) (citation and internal quotation marks omitted). Exemption

5 encompasses the deliberative process privilege as one of the

privileges against discovery, and that privilege protects from

disclosure documents that would reveal an agency’s deliberations

prior to arriving at a particular decision. Dent v. Exec. Office

for U.S. Attorneys, 926 F. Supp. 2d 257, 267–68 (D.D.C. 2013).

13 To fall within the scope of the deliberative process

privilege, withheld materials must be both “predecisional” and

“deliberative.” Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537

(D.C. Cir. 1993). A communication is predecisional if “it was

generated before the adoption of an agency policy” and

deliberative if it “reflects the give-and-take of the

consultative process.” Coastal States Gas Corp. v. Dep’t of

Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). “Even if the

document is predecisional at the time it is prepared, it can

lose that status if it is adopted, formally or informally, as

the agency position on an issue[.]” Id. The deliberative process

privilege is to be construed “as narrowly as consistent with

efficient Government operation.” United States v. Phillip

Morris, 218 F.R.D. 312, 315 (D.D.C. 2003) (quoting Taxation with

Representation Fund v. IRS, 646 F.2d 666, 667 (D.C. Cir. 1981)). 8

According to the VA, the research protocols are

8 The VA argues that the census records are deliberative in nature because those documents discuss “unadopted opinions” of the researchers, Def.’s Mem., ECF No. 20-2 at 14 (quoting Jefferson Decl., ECF No. 20-3 at 7 ¶ 21(a)); see also Def.’s Opp’n, ECF No. 27 at 2, 11, and that the census records are predecisional because the researchers gathered facts in those records for draft research purposes, see Def.’s Mem., ECF No. 20-2 at 14-15. Since the narrow dispute in this case concerns the redactions of the principal investigator’s name in the protocol, the census records are not at issue and the Court need not resolve an undisputed issue. See, e.g., Pl.’s Mem., ECF No. 21-1 at 21-22; Def.’s Opp’n, ECF No. 27 at 2-3; Pl.’s Reply, ECF No. 29 at 9. 14 predecisional because those documents consist of a complication

of factual materials created by the researchers for draft

research purposes. See Def.’s Mem., ECF No. 20-2 at 15. The VA

further argues that the protocols are deliberative in nature

because those documents discuss “unadopted opinions” of the

principal investigator and research personnel. Id. at 14

(quoting Jefferson Decl., ECF No. 20-3 at 7 ¶ 21 (a)). The

United States Court of Appeals for the District of Columbia

Circuit (“D.C. Circuit”) has made clear that “[i]f [the] agency

records are indeed deliberative, it is appropriate to apply

Exemption 5 to the documents themselves, as well as to the names

of their authors.” Brinton v. Dep’t of State, 636 F.2d 600, 604

(D.C. Cir. 1980). It is undisputed that the protocols are agency

records. Def.’s Mem., ECF No. 20-2 at 13; see generally Pl.’s

Mem., ECF No. 21-1. But the protocol at issue has already been

produced to WCW, subject to the redactions. Pl.’s Reply, ECF No.

29 at 8. The question remains whether the name itself can be

redacted under Exemption 5. 9

9 The Court will not decide whether the protocol itself is predecisional or deliberative because the parties only dispute the principal investigator’s redacted name—the protocol itself is not at issue. See Judicial Watch, Inc. v. Dep’t of the Navy, 25 F. Supp. 3d 131, 140 (D.D.C. 2014) (declining to decide whether a memorandum was a predecisional document because the parties only challenged the redacted signature pages in the memorandum). For the same reasons, the Court need not address the issue of whether the protocol qualifies as an agency final decision. 15 The Court is not persuaded that the principal

investigator’s name should be shielded under Exemption 5’s

deliberative process privilege. Neither party disputes that “the

selection or organization of facts can be part of an agency’s

deliberative process and so exempt from FOIA,” Def.’s Mem., ECF

No. 20-2 at 15 (citing Ancient Coin Collectors Guild v. U.S.

Dep’t of State, 641 F.3d 504, 513 (D.C. Cir. 2011)). But the

factual material in this case is the principal investigator’s

name, and the VA has failed to show how the redacted name

assisted the agency with the decision-making process. The VA’s

reliance on Ancient Coin Collectors Guild v. United States

Department of State, 641 F.3d 504 (D.C. Cir. 2011), is

misplaced. In that case, the D.C. Circuit held that “the

legitimacy of withholding does not turn on whether the material

is purely factual in nature or whether it is already in the

public domain, but rather on whether the selection or

organization of facts is part of an agency’s deliberative

process.” Ancient Coin Collectors Guild, 641 F.3d at 513. The

D.C. Circuit reasoned that the factual summaries in a federal

advisory committee’s reports regarding import restrictions on

cultural artifacts reflected an “exercise of discretion and

judgment calls,” id. at 513, because the factual materials

“include[d] lists of events selected to show whether a given

type of item ha[d] been pillaged[,]” id. at 514. The D.C.

16 Circuit concluded that the factual summaries were covered under

Exemption 5 because those documents “were culled by the

Committee from the much larger universe of facts presented to

it[.]” Id. at 513 (citation omitted).

Here, the principal investigator’s name neither reflects an

“exercise of judgment as to what issues” should bear on the

research, id., nor involves the selection of facts as part of

the agency’s deliberative process, see id. WCW does not dispute

the VA’s assertion that research may fall within the scope of

the deliberative process privilege, see Def.’s Mem., ECF No. 20-

2 at 15, but WCW maintains that a name is not “an opinion

(adopted or un-adopted) of any employee,” Pl.’s Reply, ECF No.

29 at 17. Indeed, a court has held that the names on a signature

page in a memorandum were “indisputably ‘factual,’” and the

“names of those who signed the memorandum [could not] be

described as the ‘materials embodying officials’ opinions[.]’”

Judicial Watch, Inc. v. Dep’t of the Navy, 25 F. Supp. 3d at 140

(quoting Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976

F.2d 1429, 1434 (D.C. Cir. 1992)). The same is true here. The VA

fails to show how the principal investigator’s name

“implicate[s] any deliberative process that may have gone into

the creation of the [protocol] as a whole[.]” Id. The VA has not

met its burden of demonstrating that the principal

investigator’s name “bear[s] on the formulation or exercise of

17 agency policy-oriented judgment.” Petroleum Info. Corp., 976

F.2d at 1435 (emphasis in original). The Court therefore finds

that the principal investigator’s name in the protocol is

neither predecisional nor deliberative. Accordingly, the Court

GRANTS WCW’s cross-motion for summary judgment and DENIES the

VA’s motion for summary judgment as to the redactions of the

principal investigator’s name pursuant to Exemption 5.

B. The Court Lacks Sufficient Information to Determine Whether the VA Properly Withheld the Principal Investigator’s Name Under Exemption 6

The Court next considers whether the VA properly withheld

the principal investigator’s name under Exemption 6. Exemption 6

permits withholding of information when two requirements have

been met. See U.S. Dep’t of State v. Wash. Post Co., 456 U.S.

595, 598 (1982). The first requirement is that “the information

must be contained in personnel, medical or ‘similar’ files.” Id.

The statutory formulation “similar files” is understood broadly

to include any “[g]overnment records on an individual which can

be identified as applying to that individual.” Id. at 602

(citation and internal quotation marks omitted). Thus, Exemption

6 permits exemption of “not just files, but also bits of

personal information, such as names and addresses, the release

of which would create[ ] a palpable threat to privacy.” Judicial

18 Watch, Inc. v. FDA, 449 F.3d 141, 152 (D.C. Cir. 2006) (citation

and internal quotation marks omitted).

The second requirement is that “the information must be of

such a nature that its disclosure would constitute a clearly

unwarranted invasion of personal privacy.” See Wash. Post Co.,

456 U.S. at 598. This requirement demands that a court “weigh

the privacy interest in non-disclosure against the public

interest in the release of the records in order to determine

whether, on balance, the disclosure would work a clearly

unwarranted invasion of privacy.” Lepelletier v. FDIC, 164 F.3d

37, 46 (D.C. Cir. 1999) (citation and internal quotation marks

omitted). The only relevant public interest in this balancing

analysis in a FOIA case is “the extent to which disclosure of

the information sought would she[d] light on an agency’s

performance of its statutory duties or otherwise let citizens

know what their government is up to.” Id. (citation and internal

quotation marks omitted).

1. The Principal Investigator’s Name Is Information Contained in “Similar Files”

The parties agree that the principal investigator’s name is

information that is not contained within the categories of

“personnel” or “medical” files. See, e.g., Def.’s Opp’n, ECF No.

27 at 4 (arguing that the VA properly withheld the information

from “similar” files because “even information that is not

19 specifically located in ‘personnel files’ falls within the

protections of Exemption 6.”); Pl.’s Mem., ECF No. 21-1 at 29-

32. With regard to the “similar files” category, WCW

acknowledges that the categorization has a broad meaning. See

Pl.’s Mem., ECF No. 21-1 at 29. The D.C. Circuit has broadly

interpreted “‘[s]imilar files’ [to] include ‘detailed Government

records on an individual which can be identified as applying to

that individual[,]’” including names and other personal

identifying information. Prison Legal News, 787 F.3d at 1146–47

(quoting Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d

1108, 1124 (D.C. Cir. 2004)). Nevertheless, WCW contends that

“this broad construction is not unbounded” and that the broad

application does not encompass “[i]nformation concerning an

individual government employee that is ‘essentially business,’

rather than personal, in nature . . . .” Pl.’s Mem., ECF No. 21-

1 at 29. (quoting Sims v. CIA, 642 F.2d 562, 574 (D.C. Cir.

1980)).

WCW argues that the protocol at issue is not a record

concerning the principal investigator, but “it is a document

detailing the experiments the investigator will lead.” Id. at

30. In response, the VA argues that the test for Exemption 6—

that “all information that ‘applies to a particular individual’

meets the threshold requirement for Exemption 6—applies to the

principal investigator in this case. See Def.’s Opp’n, ECF No.

20 27 at 4 (quoting Wash. Post Co., 456 U.S. at 602); see also

Wash. Post Co., 456 U.S. at 602 n.4 (“[T]here are undoubtedly

many Government files which contain information not personal to

any particular individual, the disclosure of which would

nonetheless cause embarrassment to certain persons.”). The Court

agrees.

WCW’s suggestion—that the principal investigator’s name is

not personal in nature—is unavailing. Prior to the Supreme

Court’s decision in United States Department of State v.

Washington Post Company, 456 U.S. 595 (1982), the D.C. Circuit

in Sims held that “Exemption 6 was developed to protect intimate

details of personal and family life, not business judgments and

relationships. Surely it was not intended to shield matters of

such clear public concern as the names of those entering into

contracts with the federal government.” 642 F.2d at 575. The

D.C. Circuit determined that the Central Intelligence Agency

(“CIA”)’s records, including “names of persons and institutions

who conducted scientific and behavioral research under contracts

with or funded by the CIA,” id. at 563, for a project that

resulted in the death of individuals were not “similar files”

for Exemption 6 purposes, id. at 564, 574-75.

More than twenty-five years after Sims, the D.C. Circuit in

Judicial Watch, Inc. v. Food & Drug Administration recognized

that the Supreme Court has interpreted Exemption 6 broadly and

21 that broad application “does not ‘turn upon the label of the

file which contains the damaging information.’” 449 F.3d at 152

(quoting Wash. Post Co., 456 U.S. at 601). Acknowledging that

FOIA does not only exempt “just files, but also bits of personal

information, such as names and addresses,” id. (emphasis added),

the D.C. Circuit held that the agency “fairly asserted abortion-

related violence as a privacy interest for both the names and

addresses of persons and businesses associated with [the

controversial drug] mifepristone.” Id. at 153. In reaching that

conclusion, the D.C. Circuit relied on: (1) “supporting

affidavits detail[ing] evidence of abortion clinic bombings”;

and (2) descriptions of “websites that encourage[d] readers to

look for mifepristone’s manufacturing locations and then kill or

kidnap employees once found.” Id. The D.C. Circuit concluded

that the agency properly withheld the names of the agency

personnel and other personal information under Exemption 6 “to

protect [those associated with mifepristone] from the injury and

embarrassment that can result from the unnecessary disclosure of

personal information.” Id. (quoting Wash. Post Co., 456 U.S. at

599).

The Court is persuaded that the principal investigator’s

name in the protocol falls within the “similar files” category.

See id.; see also Wash. Post. Co., 456 U.S. at 602 (holding that

passport information satisfied Exemption 6’s “similar files”

22 requirement, and explaining that nondisclosure “should have been

sustained upon a showing by the Government that release of the

information would constitute a clearly unwarranted invasion of

personal privacy.”). To be clear, the Court does not find that

the VA has presented evidence that WCW is encouraging

threatening behavior against the VA and its research personnel

as in Judicial Watch, Inc. v. Food & Drug Administration, 449

F.3d at 152-53. At the same time, the Court cannot ignore that

the VA’s dog experiments, including those at Stokes VAMC, have

prompted speculation and generated media attention. See, e.g.,

Pl.’s Mem., ECF No. 21-1 at 12-15; Decl. of Justin Goodman

(“Goodman Decl.”), ECF No. 21-3 at 4 ¶ 13 (stating that “more

than fifty separate news stories detail[] the controversy over

the McGuire VAMC’s dog experiments.”); id. at 7 ¶ 14 (“A variety

of news outlets have also reported on dog experiments at the

Stokes VAMC[.]”). Members of Congress have called for

accountability and transparency in government-funded animal

experimentation. Pl.’s Mem., ECF No. 21-1 at 13; see also

Goodman Decl., ECF No. 21-3 at 3 ¶ 12. Furthermore, WCW has

publicly criticized the experiments. See Pl.’s SOMF, ECF No. 21-

2 at 3 ¶ 17. It is undisputed that WCW “asked supporters to call

the Richmond VAMC’s Public Affairs Officer and express

opposition to the facility’s painful and deadly dog

experiments.” Id. Finally, media outlets have reported that

23 activists have participated in organized protests outside of

Stokes VAMC, challenging the dog experiments carried out by the

VA’s researchers. 10 While it is true that Sims made clear that

Exemption 6 does not apply to business judgments and

relationships, 642 F.2d at 575, the VA characterizes the nature

of the privacy interests at stake here as a concern that the

principal investigator will be subjected to possible harassment

for the controversial dog experiments at Stokes VAMC. Given that

the phrase “similar files” is to be accorded a broad

application, the Court therefore finds that the principal

investigator’s name falls within Exemption 6’s “similar files”

category. 11

10“Taking judicial notice of the existence of [news] articles is entirely proper.” Sandza v. Barclays Bank PLC, 151 F. Supp. 3d 94, 113 (D.D.C. 2015) (emphasis in original) (citing Wash. Post v. Robinson, 935 F.2d 282, 291 (D.C. Cir. 1991)). The Court therefore takes judicial notice of the existence of news articles concerning the protests at Stokes VAMC. See, e.g., Natasha Anderson & Jennifer Jordan, Activists Protest Cleveland VA Medical Center After Hospital Allegedly Received 3 New Dogs for Testing, FOX 8 Cleveland News (Apr. 6, 2019, 8:46 PM), https://fox8.com/2019/04/06/activists-protest-cleveland-va- medical-center-after-hospital-allegedly-received-3-new-dogs-for- testing/; Amber Cole, Protesters Gather at Louis Stokes VA Medical Center, Ask for the Release of 3 Beagles, WOIO Cleveland 19 News (Apr. 6, 2019, 2:47 PM), https://www.cleveland19.com/2019/04/06/protesters-gather-louis- stokes-va-medical-center-ask-release-beagles/. 11WCW’s reliance on two decisions in this jurisdiction and an out-of-Circuit decision—to support its argument that the principal investigator’s name is “essentially business” in nature—does not alter the Court’s conclusion. See Pl.’s Mem., ECF No. 21-1 at 29 (citing Aguirre v. SEC, 551 F. Supp. 2d 33, 54 (D.D.C. 2008); Leadership Conference on Civil Rights v. 24 2. The VA Has Failed to Provide Sufficient Information as to Whether the Principal Investigator Has a Substantial Privacy Interest in His or Her Name

Having determined that the principal investigator’s name

satisfies Exemption 6’s “similar files” requirement, this Court

“must determine whether the information is of such a nature that

its disclosure would constitute a clearly unwarranted privacy

invasion.” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26,

32 (D.C. Cir. 2002). “This, in turn, requires a two-part

analysis.” Sai v. Transp. Sec. Admin., 315 F. Supp. 3d 218, 259

(D.D.C. 2018). The threshold question is “whether disclosure of

the files would compromise a substantial, as opposed to de

minimis, privacy interest, because if no significant privacy

Gonzales, 404 F. Supp. 2d 246, 257 (D.D.C. 2005); Gordon v. FBI, 390 F. Supp. 2d 897, 902 (N.D. Cal. 2004)). In Aguirre, the court found that even if the names of SEC employees referenced in the plaintiff’s employment and termination paperwork were considered “similar files,” those documents did not implicate the privacy interests of the SEC employees. 551 F. Supp. 2d at 55. In Gonzales, the court found that the names and work telephone numbers of paralegals at the Justice Department’s Public Integrity Section relating to monitoring federal elections were not similar to “personnel” or “medical” files. 404 F. Supp. 2d at 257. In Gordon, a non-binding, out-of-Circuit decision, the court held that the agency’s redactions of the names of government officials in an e-mail forwarding a news article about a retired Coast Guard lieutenant commander whose name was similar to a name on the No-Fly list were unjustified. 390 F. Supp. 2d at 902. Aguirre, Gonzales, and Gordon are readily distinguishable because those cases did not involve government employees developing a controversial abortion drug as in Judicial Watch, Inc. v. FDA, 449 F.3d at 153, or conducting controversial dog experiments at federal research facilities. 25 interest is implicated FOIA demands disclosure.” Multi Ag Media

LLC v. Dep’t of Agric., 515 F.3d 1224, 1229 (D.C. Cir. 2008)

(citation and internal quotation marks omitted). “Substantial,

in this context, means less than it might seem. A substantial

privacy interest is anything greater than a de minimis privacy

interest.” Humane Soc’y of United States v. Animal & Plant

Health Inspection Serv., 386 F. Supp. 3d 34, 43 (D.D.C. 2019)

(citation and internal quotation marks omitted). For the reasons

explained below, the Court finds that the VA has failed to

provide sufficient information to clear this first hurdle.

WCW makes three main arguments why principal investigators

have no substantial privacy interests in their names. First, WCW

contends that principal investigators are not “government

employees who are involved in law enforcement or national

security positions.” Pl.’s Mem., ECF No. 21-1 at 31. Next, WCW

argues that principal investigators do not have substantial

privacy interests because their names are listed on government

websites, including the VA’s own website, as required by 5

C.F.R. § 293.311. Id. at 30-35. WCW goes on to argue the VA

itself, along with the NIH, published the name of the principal

investigator. 12 Id. Finally, WCW points to the “[e]videntiary

12WCW argues that the Stokes VAMC researchers do not have a substantial privacy interest in their names because they have included their names in publicly-available academic journals. See Pl.’s Mem., ECF No. 21-1 at 33-35. The VA does not dispute 26 [f]laws” in two of the VA’s declarations, arguing that: (1) the

declarations do not show a substantial privacy interest in

preventing the disclosure of the name, id. at 39; and (2) the

majority of the statements in the declarations are inadmissible

because they are hearsay, speculative, and not based on the

declarants’ personal knowledge, id. at 39-43; see also Pl.’s

Reply, ECF No. 29 at 9-10.

Maintaining that there is a substantial privacy interest in

the principal investigator’s name, the VA heavily relies on its

declarations to support its position that disclosure of the

principal investigator’s name could subject him or her to

embarrassment and harassment. Def.’s Opp’n, ECF No. 27 at 5-8.

The VA argues that it properly withheld that name because the

Supreme Court has “clarified that all information that ‘applies to

a particular individual’ meets the threshold requirement for

Exemption 6.” Id. at 4 (quoting Wash. Post Co., 456 U.S. at 602).

The VA contends that it is “necessary” to withhold the name “to

protect them from potential attack, harassment, or threatening

behavior beyond the incidents that already occurred” where advocacy

this assertion. See Def.’s Opp’n, ECF No. 27 at 11; see also Pl.’s Reply, ECF No. 29 at 14. Accordingly, the Court treats WCW’s argument as conceded. See LCvR 7(b); see also Texas v. United States, 798 F.3d 1108, 1110 (D.C. Cir. 2015) (“[Local Civil Rule 7(b)] is understood to mean that if a party files an opposition to a motion and therein addresses only some of the movant’s arguments, the court may treat the unaddressed arguments as conceded.” (citation omitted)). 27 groups and members of the public targeted individual researchers at

other facilities. Id. at 7; see also Fallon Decl., ECF No. 20-3 at

22-23 ¶¶ 9, 11-12, 15. But the VA does not respond to WCW’s

evidentiary objections to the statements contained in the two

declarations. See generally Def.’s Opp’n, ECF No. 27 at 1-12;

see also Pl.’s Reply, ECF No. 27 at 10. The Court will address,

in turn, each of these arguments.

WCW’s first argument—that government employees who do not

hold law enforcement and national security positions lack

substantial privacy interests in their names—is unavailing. See

Pl.’s Mem., ECF No. 21-1 at 31; see also Pl.’s Reply, ECF No. 29

at 13. To support its position, WCW relies on Walston v. United

States Department of Defense, 238 F. Supp. 3d 57, 67 (D.D.C.

2017) (Sullivan, J.). In Walston, this Court found that the

agency properly withheld the names and other personal

identifying information of low-level government employees who

conducted an investigation into the plaintiff’s allegations of

hacking activity by a government employee because such

information satisfied Exemption 6’s first requirement and the

investigators had a “cognizable privacy interest in keeping

their names from being disclosed” because they were employed in

a “sensitive agenc[y]” and had “sensitive occupations.” Id.

(quoting Long v. Office of Pers. Mgmt., 692 F.3d 185, 192 (2d

Cir. 2012)). WCW overstates the holding in Walston as carving

28 out a rule that all government employees working in law

enforcement and national security automatically have significant

privacy interests in all circumstances under Exemption 6.

Indeed, the D.C. Circuit has explained that Exemption 6 “does

not categorically exempt individuals’ identities because the

privacy interest at stake may vary depending on the context in

which it is asserted.” Am. Immigration Lawyers Ass’n v. Exec.

Office for Immigration Review, 830 F.3d 667, 675 (D.C. Cir.

2016) (citation and internal quotation marks omitted).

While it is true that this Court and others in this

jurisdiction have recognized that law enforcement and national

security officials have substantial privacy interests in their

identities, see, e.g., Walston, 238 F. Supp. 3d at 67; Welenc v.

Dep’t of Justice, No. CV 17-0766 (RBW), 2019 WL 2931589, at *8

(D.D.C. July 8, 2019), WCW has failed to cite any D.C. Circuit

precedent—and the Court is aware of none—that holds a government

employee (i.e. a researcher or a principal investigator) cannot

have substantial privacy interests in their names outside of the

law enforcement context, see Pl.’s Mem., ECF No. 21-1 at 31-32.

The opposite is true. See Judicial Watch, Inc. v. FDA, 449 F.3d

at 153 (holding that the agency properly invoked Exemption 6 to

withhold names of FDA employees and others who worked on

approving a controversial abortion drug).

WCW’s other argument—that the principal investigator’s name

29 has already been made public because 5 C.F.R. § 293.311 requires

disclosure of the principal investigator’s name—is equally

unavailing. Pl.’s Mem., ECF No. 21-1 at 17, 31-32. Section

293.311 does not support WCW’s position. Section 293.311(a)

provides that a federal employee’s name and position, among

other things, is “information” that is generally “available to

the public[.]” 5 C.F.R. § 293.311(a). Under that provision, the

names of current and former federal employees consist of

“information from both the [Office of Personnel Management

(“OPF”)] and employee performance file system folders, their

automated equivalent records, and from other personnel record

files that constitute an agency record within the meaning of the

FOIA and which are under the control of the [OPF] . . . .” Id.

(emphasis added). WCW, however, fails to demonstrate that the

protocol at issue is under the control of OPF. See id. Even

assuming, arguendo, that the protocol at issue is under the

control of OPF, WCW ignores subsection (b), which provides that

“[t]he [OPF] or agency will generally not disclose information

where the data sought is a list of names . . . of Federal

employees” that “[w]ould otherwise be protected from mandatory

disclosure under an exemption of the FOIA.” 5 C.F.R. §

293.311(b). “The relevant regulation accordingly, by its own

terms, does not disarm an otherwise available FOIA exemption.”

Sai, 315 F. Supp. 3d at 260 (rejecting the FOIA requester’s

30 argument that the agency’s privacy redactions were improper

because 5 C.F.R. § 293.311 required disclosure).

The Court next considers whether there is a substantial

privacy interest that would justify withholding the principal

investigator’s name under Exemption 6. The VA argues that it

properly invoked Exemption 6 to protect the principal

investigator and other researchers from harassment, but the VA’s

declarations fail to provide any details about the possible

harassment of researchers at Stokes VAMC. See Def.’s Mem., ECF

No. 20-2 at 17; see also Def.’s Opp’n, ECF No. 27 at 7. In

general terms, one of the VA’s three declarants avers that

“[p]rincipal investigators as well as other research personnel

have a privacy interest in being protected from annoyance and

harassment.” Jefferson Decl., ECF No. 20-3 at 6 ¶ 20(a)

(emphasis added); id. at 8 ¶ 20(b) (stating that the “release of

their names . . . may also open these individuals to potential

attack, harassment or threatening behavior.” (emphasis added)).

The VA submits a declaration from the VA’s Chief Veterinary

Medical Officer whose office is located in Atlanta, Georgia, and

who “oversee[s] the animal research programs at all VA

facilities nationally, including [Stokes VAMC].” Fallon Decl.,

ECF No. 20-3 at 20 ¶ 1. The declarant provides specific examples

of threatening incidents at VA medical centers conducting dog

experiments in Richmond, Virginia (“Richmond VAMC”) and

31 Milwaukee, Wisconsin (“Milwaukee VAMC”). See id. at 21-26.

According to the declarant, the Richmond VAMC’s operator

received a bomb threat, id. at 21 ¶ 4, advocates protested at

the Richmond VAMC, id. at 21 ¶ 7, and the Milwaukee VAMC

received verbally abusive telephone calls from individuals

opposed to the canine research there, id. at 23 ¶ 15.

The declarant states that “[r]eleasing the names of

individual researchers puts them at increased risk of becoming

targets.” Id. at 24 ¶ 18. The declarant avers that WCW sought

the name of the principal investigator at the Richmond VAMC in a

separate FOIA lawsuit, and that the NIH inadvertently disclosed

his name. Id. at 21-22 ¶ 8; see also Pl.’s SOMF, ECF No. 21-2 at

4-5 ¶ 22 (“One of the reports released by NIH in response to

WCW’s request showed that Dr. Alex Tan, the principal

investigator on a McGuire VAMC dog experiment, showed ‘reckless

behavior’ and ‘lack of foresight’ after cutting open a dog’s

lung during a heart surgery.”). Shortly thereafter, the

principal investigator at the Richmond VAMC became a target for

his research. Fallon Decl., ECF No. 20-3 at 22 ¶ 9 (stating that

a comment on a website stated “OMG – This ‘TAN’ is a madman and

needs to be put down himself”). The declarant also states that

an animal rights advocates organized a protest at the homes of

three University of Florida researchers, id. at 22 ¶ 11, that

another researcher received a “threatening email,” id. at 23 ¶

32 13, and that an animal rights organization targeted a Yale

University researcher, id. at 23 ¶ 14. Despite these averments,

the VA acknowledges that the principal investigator’s name will

be released to the public. Jefferson Decl., ECF No. 20-3 at 6 ¶

20(c).

The VA submits a third declaration from the Chair of the

Animals in Research and Education Subcommittee of the Federation

of American Societies for Experimental Biology (“FASEB”). Kregel

Decl., ECF No. 20-3 at 28 ¶ 1. The declarant avers that other

researchers have been targeted by animal rights organizations

and individuals. Id. at 29 at ¶¶ 4-5. The declarant also states

that a 2014 FASEB report shows “animal rights extremist groups”

in the United States have been involved in approximately “220

incidents involving facility break-ins, thefts of animals,

property damage, and harassment” between 1990 to 2012. Id. at 28

¶ 2.

Based on the declarations, the Court is not persuaded that

the VA has shown that the “threat to [the principal

investigator’s] privacy is real rather than speculative.” Elec.

Privacy Info. Ctr. v. Dep’t of Homeland Sec., 384 F. Supp. 2d

100, 116 (D.D.C. 2005). The VA may be able to show that the

principal investigator at Stokes VAMC has a substantial privacy

interest in his or her name to avoid any potential threats or

harassment. See, e.g., Dep’t of Air Force v. Rose, 425 U.S. 352,

33 380 n.19 (1976) (“Exemption 6 [is] directed at threats to

privacy interests more palpable than mere possibilities.”); see

also Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d

873, 875 (D.C. Cir. 1989) (“[T]he privacy interest of an

individual in avoiding the unlimited disclosure of his or her

name and address is significant[.]”); Am. Farm Bureau Fed’n v.

EPA, 836 F.3d 963, 971 (8th Cir. 2016) (“The disclosure of names

. . . can implicate substantial privacy interests.”). It is

undisputed that WCW maintains a Facebook page with a comments

section, that WCW asked its supporters on Facebook to contact

the VA to express their opposition to dog experiments, and that

WCW disseminated photographs of dogs at a VA research facility.

Pl.’s SOMF, ECF No. 21-2 at 3 ¶¶ 16-17, 7 ¶¶ 42-43; see also

Pl.’s Mem., ECF No. 21-1 at 41, 44. It is also uncontested that

the dog experiments at Stokes VAMC have received media

attention. See Goodman Decl., ECF No. 21-3 at 7 ¶ 14. But, as

explained below, the declarations do not provide a basis for

justifying the nondisclosure of the principal investigator’s

name.

The Court cannot rely on declarations that are “reduced to

speculation and summary accounts of [] hearsay.” Humane Soc’y of

United States, 386 F. Supp. 3d at 45. As WCW correctly states,

“[a] declaration in support of a motion for summary judgment

‘must be made on personal knowledge’ and ‘set out facts that

34 would be admissible in evidence.’” Pl.’s Mem., ECF No. 21-1 at

39 (quoting Fed. R. Civ. P. 56(c)(4)). “[I]t is ‘well-settled

that only admissible evidence may be considered by the trial

court in ruling on a motion for summary judgment.’” Humane Soc’y

of United States, 386 F. Supp. 3d at 44 (quoting Bortell v. Eli

Lilly & Co., 406 F. Supp. 2d 1, 11 (D.D.C. 2005)). “And hearsay

evidence generally is inadmissible.” Id. (citing Fed. R. Evid.

802). “Hearsay is an out-of-court statement that ‘a party offers

in evidence to prove the truth of the matter asserted in the

statement.’” Id. (quoting Fed. R. Evid. 801(c)).

WCW takes issue with seventeen of the twenty-one paragraphs

contained in the Fallon declaration, and six of the eight

paragraphs contained in the Kregel declaration. 13 See Pl.’s Objs.

to Fallon Decl., ECF No. 21-5 at 1-11; see also Pl.’s Objs. to

Kregel Decl., ECF No. 21-5 at 11-14. WCW argues that both

declarations “lack[] any indicia of personal knowledge or

reliability on a variety of matters they offer testimony about

and documents they purport to rely on, including email messages

allegedly sent to and received by people entirely unassociated

with the [VA].” Pl.’s Reply, ECF No. 29 at 9; see also Pl.’s

13WCW bases its objections to the Fallon declaration on Federal Rules of Evidence 401, 403, 602, 701, 802, and 1002. Pl.’s Objs. to Fallon Decl., ECF No. 21-5 at 1-11. WCW also objects to the Kregel declaration under Federal Rules of Evidence 403, 602, 701, 802, and 1002. Pl.’s Objs. to Kregel Decl., ECF No. 21-5 at 11-14. 35 Mem., ECF No. 21-1 at 39-43. WCW objects to the hearsay and

speculative statements contained in the challenged

declarations. 14 Pl.’s Mem., ECF No. 21-1 at 42-43, 46. The VA

does not respond to any of WCW’s arguments or objections with

respect to the declarations. See generally Def.’s Opp’n, ECF No.

27. Defendants have conceded these arguments and objections by

not responding to them. See Campbell v. Nat’l R.R. Passenger

Corp., 311 F. Supp. 3d 281, 327 n.13 (D.D.C. 2018) (Sullivan,

J.) (“Plaintiffs do not offer any response to this argument, and

thus concede it.”). The Court agrees with WCW’s argument that

14The Court observes that WCW does not object the following statements contained in the Fallon declaration: (1) the operator at Richmond VAMC initiated the bomb threat protocol and the police evacuated employees from that facility, see Pl.’s Objs. to Fallon Decl., ECF No. 21-5 at 1; (2) WCW, along with other organizations, circulated photographs of dogs at Richmond VAMC, id.; (3) Richmond VAMC received approximately 2,500 to 3,000 telephone calls of callers expressing opposition to the canine research, id. at 2; (4) WCW brought a previous lawsuit seeking certain documents at Richmond VAMC, WCW identified Dr. Alex Tan as the researcher, id. at 3, and a comment on a website stated that Dr. Tan “needs to be put down himself,” Fallon Decl., ECF No. 20-3 at 22 ¶ 9; (5) “WCW has a record of repeatedly and consistently promoting language that misrepresents the truth, not only creating impressions that directly contradict the facts, but also inspiring outrage in the reader in response to the imagined atrocities[,] id. at 24 ¶ 18; (6) WCW offered a reward that “not only discourages the communication with VA that makes it possible for VA to investigate concerns, provide needed animal care, and develop appropriate corrective actions to prevent recurrence of any shortcomings, it incentivizes individuals to disregard conventional mechanisms for solving problems, which creates a culture of acceptance for behaviors that are outside of social norms that constrain attacks on other people[,]” id. at 26 ¶ 19. 36 numerous statements made in the Fallon and Kregel declarations

are inadmissible. See Pl.’s Reply, ECF No. 29 at 5, 9-10.

In this case, the VA “has established only the speculative

potential of a privacy invasion without any degree of

likelihood.” Norton, 309 F.3d at 37. The Court is mindful of the

decisions in this jurisdiction that have held that individuals

have a substantial privacy interest in their names under certain

circumstances. See, e.g., Am. Ctr. for Law & Justice v. U.S.

Dep’t of Justice, 334 F. Supp. 3d 13, 19-20 (D.D.C. 2018)

(holding that three FBI special agents who received an e-mail

from the Attorney General’s Office regarding the scheduling of a

conference call about a meeting between the Attorney General and

a former president had a substantial privacy interest in their

names); Judicial Watch, Inc. v. U.S. Dep’t of State, 875 F.

Supp. 2d 37, 47 (D.D.C. 2012) (finding that “[d]isclosure . . .

would likely lead to the publication of [two White House

Security staffers’] names and intrusion from media or others

seeking information about the [Keystone XL] pipeline and the

process”). Other courts, however, have found that declarations

based on conclusory statements and second-hand accounts do not

justify withholding individuals’ names under Exemption 6. See,

e.g., Humane Soc’y of United States, 386 F. Supp. 3d at 44-47;

Judicial Watch, Inc. v. Dep’t of the Navy, 25 F. Supp. 3d at

142-143. Indeed, the D.C. Circuit has made clear that the agency

37 declaration must “give the reviewing court a reasonable basis to

evaluate the claim of privilege,” Judicial Watch, Inc. v.

FDA, 449 F.3d at 146 (citation omitted). The VA has failed to

carry its burden of demonstrating a substantial privacy interest

in the principal investigator’s name. Accordingly, the Court

DENIES IN PART Defendant’s motion for summary judgment.

* * *

The Court nonetheless finds that the VA has asserted a

potential substantial privacy interest. See, e.g., Elec. Privacy

Info. Ctr., 384 F. Supp. 2d at 117 (finding that redactions to

the names of federal employees were proper under Exemption 6

where “[t]he documents released by the defendants will likely be

published on the Internet once released to the plaintiff, and it

is likely that readers of the plaintiff’s reports, including

media reporters as well as private individuals, would seek out

the employees mentioned for further information” (footnote

omitted)); Island Film, S.A. v. Dep’t of the Treasury, 869 F.

Supp. 2d 123, 136 (D.D.C. 2012) (finding that low-level agency

personnel and third parties had “a privacy interest in avoiding

the harassment that could ensue following the disclosure of

their personal information” due to the risk of “unwarranted

public scrutiny or harassing phone calls to elicit sensitive

information”). The Court will take the same approach that was

taken in Judicial Watch, Inc. v. Department of the Navy, 25 F.

38 Supp. 3d at 143-144. In that case, the court found that the

agency failed to demonstrate that there was a substantial

privacy interest in the names of the signatories of a

memorandum. Id. at 143. The court, however, permitted the agency

to provide additional information “[g]iven that [the agency had]

identified a potential substantial privacy interest that might

exist in [that] case but ha[d] failed to provide the necessary

details for the Court to evaluate that interest[.]” Id.

The Court directs the VA to provide additional information

in the form of supplemental declarations or affidavits as to the

principal investigator’s privacy interest in withholding his or

her name under Exemption 6. The submissions of declarations or

affidavits “will not end the Exemption 6 inquiry. Rather, when

‘a substantial privacy interest is at stake,’ the court must go

on to ‘weigh that privacy interest in non-disclosure against the

public interest in the release of the records in order to

determine whether, on balance, disclosure would work a clearly

unwarranted invasion of personal privacy.’” Id. at 144 (quoting

Horner, 879 F.2d at 874). Accordingly, the Court HOLDS IN

ABEYANCE Plaintiff’s motion for summary judgment as to the

Exemption 6 issue.

3. WCW’s Requests for In Camera Review and the Production of the Protocol

WCW invokes the “official acknowledgment” doctrine by

39 arguing that the VA has waived any claimed exemptions to

withholding the principal investigator’s name. See Pl.’s Mem.,

ECF No. 21-1 at 22-24; see also Pl.’s Reply, ECF No. 29 at 6-8.

According to WCW, the VA has previously published the principal

investigator’s name in the public domain. Pl.’s Reply, ECF No.

29 at 5. The VA disagrees, arguing that the agency “has not

published or publicly disclosed the exact protocol that [WCW]

would need to be able to meet this Circuit’s strict standard.”

Def.’s Opp’n, ECF No. 27 at 10.

The D.C. Circuit has established “[a] three-part test [to]

determine[] whether an item is “officially acknowledged”:

(1) “the information requested must be as specific as the

information previously released”; (2) “the information requested

must match the information previously disclosed”; and (3) “the

information requested must already have been made public through

an official and documented disclosure.” Mobley v. CIA, 806 F.3d

568, 583 (D.C. Cir. 2015) (quoting Fitzgibbon v. CIA, 911 F.2d

755, 765 (D.C. Cir. 1990)). “Thus, the fact that information

exists in some form in the public domain does not necessarily

mean that official disclosure will not cause harm cognizable

under a FOIA exemption.” Wolf, 473 F.3d at 378. “The plaintiff

bears the burden of identifying specific information that is

already in the public domain due to official disclosure.”

Mobley, 806 F.3d at 583. Here, the specific information is the

40 principal investigator’s name.

WCW argues that the VA focuses on the protocol instead of

the requested name. Pl.’s Reply, ECF No. 29 at 8. WCW points out

that the VA’s Office of Research and Development website has

already listed the name of the “PI” (i.e., the principal

investigator) for the “High Frequency Spinal Cord Stimulation to

Restore Cough.” E.g., Pl.’s Mem., ECF No. 21-1 at 19 (showing a

still image of the VA’s Office of Research & Development website

with the protocol at issue as one of the “FY 2018 Funded

Projects”); Pl.’s Reply, ECF No. 29 at 7. In response, the VA

contends that the research has not been completed or published.

Def.’s Opp’n, ECF No. 27 at 10. The VA states that it “will

release the names of the researchers in the protocols in dispute

once the research has been completed” based on its “practice of

releasing all completed research protocols in abstract form on

its website, along with the principal investigators’ names and

research credentials[.]” Id. at 11-12.

To determine whether the VA has already publicly released

the principal investigator’s name, WCW requests that this Court

conduct an in camera review of the first page of the protocol at

issue in the event that the Court finds that there is a

substantial privacy interest in the principal investigator’s

name. Pl.’s Mem., ECF No. 21-1 at 50 (citing Mehl v. EPA, 797 F.

Supp. 43, 48 (D.D.C. 1992); Maynard v. CIA, 986 F.2d 547, 558

41 (1st Cir. 1993)). WCW also requests that the Court order the

production of the unredacted protocol at issue if the Court

finds that the principal investigator’s privacy interest is not

outweighed by the public interest. Id. at 49-50.

The Court will not exercise its discretion to review the

withheld document. 5 U.S.C. § 552(a)(4)(B); see also Canning v.

United States Dep’t of State, 134 F. Supp. 3d 490, 502 (D.D.C.

2015) (“In camera review is a last resort[.]” (citation and

internal quotation marks omitted)). Because the Court has

directed the VA to provide additional information on the issue

of whether there is a substantial privacy interest in the

principal investigator’s name under Exemption 6, the Court

declines to conduct an in camera review or order the production

of the protocol at issue. Cf. Am. Immigration Lawyers Ass’n v.

U.S. Dep’t of Homeland Sec., 852 F. Supp. 2d 66, 82 (D.D.C.

2012) (“Because a district court should not undertake in camera

review of withheld documents as a substitute for requiring an

agency’s explanation of its claims exemptions in accordance with

Vaughn, the Court finds that the best approach is to direct

defendants to submit revised Vaughn submissions.” (citations

omitted)). Accordingly, the Court DENIES WITHOUT PREJUDICE WCW’s

requests for in camera review and the production of the

protocol, and DEFERS ruling on WCW’s wavier argument.

42 V. Conclusion

For the reasons set forth above, the Court GRANTS IN PART

and DENIES IN PART Defendant’s Motion for Summary Judgment and

Plaintiff’s Cross-Motion for Summary Judgment. Within thirty

days of the issuance of this Memorandum Opinion, the VA shall

submit amended declarations or affidavits that provide

additional information in order for this Court to evaluate the

asserted substantial privacy interest in the principal

investigator’s name. The Court DENIES WITHOUT PREJUDICE WCW’s

requests for in camera review and the production of the animal

research protocol, and DEFERS ruling on the issue of whether the

agency has officially acknowledged the principal investigator’s

name. A separate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge August 29, 2019