Judge Hits Both Sides in FOIA Case
DC federal court chief judge Beryl Howell says both FDA and the Judge Rotenbergng Educational Center (JRC) have fallen short in their arguments in a complex Freedom of Information Act (FOIA) case on the agency’s decision to propose a rule to ban use of the Graduated Electronic Decelerator, an electrical stimulation device that the Rotenbergng Center uses for some patients. After the agency proposed its rule, JRC submitted several FOIA requests for records relating to the proposed ban and other issues. Litigation involves how well FDA responded to the records requests. Each side requested summary judgment in its favor, which Howell granted in part and denied in part for each side.
Howell’s opinion noted that the case is onerous through no fault of either party. The center’s FOIA requests returned over 24,000 responsive records, she says, in addition to 60,000 records that CDRH is in the process of producing. “Nevertheless,” Howell writes, “issues relevant to this litigation have not been presented with clarity and neither party is blameless. On the defendants’ side, too much has been painted with too broad a brush…. The plaintiffs have done no better, identifying general problems with the defendants’ production but offering only a smattering of examples of those purported problems, which fall short of their obligation under Federal Rule of Civil Procedure 56.”
The cross-motions for summary judgment raised four categories of disagreements: (1) whether FDA impermissibly withheld non-responsive information contained in otherwise responsive records; (2) whether FDA properly invoked the deliberative-process privilege under FOIA Exemption 5; (3) whether FDA properly invoked FOIA Exemption 6 to withhold medical and other records to protect privacy; and (4) whether FDA produced all reasonably segregable, non-exempt information.
Howell granted FDA partial summary judgment for withholdings under Exemption 5’s attorney-client privilege, withholdings of draft records under Exemption 5’s deliberative-process privilege, and withholdings under Exemption 6 that conceal the personal information of low-level JRC employees or the contact information of government employees under Exemption 7(c). She granted summary judgment to JRC with respect to FDA’s withholding of non-responsive information and for the record identifying a JRC employee who was interviewed by CBS.
The two sides were given to 4/19 to submit a joint status report on the progress, if any, they have made to narrow the issues in dispute and to propose a schedule to govern further proceedings in the matter.