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

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

WHITE COAT WASTE PROJECT

Plaintiff,

v. No. 17-cv-1155 (EGS)
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS,

Defendant.

MEMORANDUM OPINION

I. Introduction

This case closely resembles White Coat Waste Project v.

United States Department of Veterans Affairs (“WCW I”), 404 F.

Supp. 3d 87 (D.D.C. 2019). Plaintiff White Coat Waste Project

(“WCW”) brought both actions under the Freedom of Information

Act (“FOIA”), 5 U.S.C. § 552, against the United States

Department of Veterans Affairs (“VA”). The related cases concern

WCW’s separate FOIA requests for certain information about the

publicly-funded canine experiments at the VA’s facilities—

namely, the names of the principal investigators on the animal

research protocols. WCW I involved the experiments at Louis

Stokes Cleveland Veterans Affairs Medical Center (“Stokes VAMC”)

in Ohio. This case involves experiments at the Hunter Holmes

McGuire Veteran Affairs Medical Center (“McGuire VAMC”) in

Richmond, Virginia, which have captured the public’s attention.
 Invoking two of the same FOIA exemptions (Exemptions 5 and

6) in both actions, the VA withheld the requested information

based on the nature of the research and the asserted privacy

interests of the researchers. The VA claims that the names of

the principal investigators must be shielded from disclosure

based on the substantial privacy interests at stake in both

cases, notwithstanding that the VA’s own website lists the

principal investigators, publications include the names of the

researchers, and the VA will release the names after the

completion of the animal research. Where the related actions

part ways, however, is on the narrow issue in this case of

whether the VA properly redacted the title of a single animal

research protocol—Animal Component of Research Protocol numbered

02235 (“ACORP # 02235”)—under Exemption 3.

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: (1) the VA improperly withheld the

principal investigators’ names under Exemptions 5 and 6; and

(2) the VA properly withheld the title of ACORP # 02235 pursuant

to Exemption 3. Therefore, the Court GRANTS IN PART and DENIES

IN PART the VA’s Motion for Summary Judgment and GRANTS IN PART

and DENIES IN PART WCW’s Cross-Motion for Summary Judgment.

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II. Background

The following facts—drawn from the parties’ submissions—are

undisputed. See, e.g., Def.’s Statement of Undisputed Material

Facts (“Def.’s SOMF”), ECF No. 10-2 at 1-8; Pl.’s Counter-

Statement of Material Facts (“Pl.’s SOMF”), ECF No. 13-2 at 1-

16. 1 Because the VA does not dispute the facts in WCW’s Counter-

Statement of Material Facts, see Def.’s Reply, ECF No. 16 at 1-

12, the Court assumes the facts identified by WCW are admitted,

see LCvR 7(h)(1) (“In determining a motion for summary judgment,

the Court may assume that facts identified by the moving party

in its statement of material facts are admitted, unless such a

fact is controverted in the statement of genuine issues filed in

opposition to the motion.”).

A. Factual Background

WCW, a non-profit organization, aims to “unite animal-

lovers and liberty-lovers to expose and end wasteful taxpayer-

funded animal experiments.” Pl.’s SOMF, ECF No. 13-2 at 9 ¶ 17.

McGuire VAMC is one of the facilities carrying out the

federally-funded experiments on dogs. Id. at 10 ¶ 24. The VA’s

animal research protocols indicate that “some [of] McGuire

VAMC’s dog experiments involved the highest pain classification—

1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
3
Category E—where animals are subjected to intense pain with no

access to pain relief.” Id. at 10 ¶ 23. In response, WCW

requested that the VA’s Office of Inspector General open an

investigation into the experiments. Id. at 10 ¶ 25. At some

point, WCW asked its supporters on social media to contact

McGuire VAMC’s Public Affairs Officer to express their

opposition to the experiments. Id. at 15 ¶ 51.

The experiments at McGuire VAMC garnered media attention.

Decl. of Justin Goodman (“Goodman Decl.”), ECF No. 13-3 at 5-10

¶ 17 (stating that “more than fifty separate news stories

detail[] the controversy over the McGuire VAMC’s dog

experiments”). Between 2016 and 2017, federal and state

lawmakers took certain actions in response to the experiments.

Pl.’s SOMF, ECF No. 13-2 at 11 ¶¶ 28-31. Members of Congress

submitted a request to the Government Accountability Office to

perform an audit of the federal agencies conducting the

experiments, id. at 11 ¶ 28; state legislators sent a letter to

the Governor of Virginia inquiring about the Commonwealth’s role

in the experiments, id. at 11 ¶ 31; and the United States House

of Representatives unanimously passed an amendment to defund the

experiments at the VA’s facilities for fiscal year 2018, id. 11

¶ 30. On July 12, 2017, two members of Congress introduced the

“Preventing Unkind and Painful Procedures and Experiments on

Respected Species Act of 2017” or the “PUPPERS Act of 2017” to

4
“prohibit the Secretary of Veterans Affairs from conducting

medical research causing significant pain or distress to dogs.”

H.R. 3197, 115th Cong. (2017); see also H.R. 1155, 116th Cong.

(2019).

B. WCW’s FOIA Request

On January 10, 2017, WCW submitted a request to McGuire

VAMC seeking the following three categories of records:

[1] A current census of all dogs actively held
and used in the McGuire VAMC laboratories
(including each animal’s ID number, breed,
name, color and distinctive markings, date of
birth, source, USDA pain category, and
assigned protocol). Such records must be
maintained and made available to the public
per 9 CFR § 2.35 (Recordkeeping requirements
of the Animal Welfare Act)[;]

[2] Photographs and videos of these dogs[;
and]

[3] Active Institutional Animal Care and Use
Committee (IACUC) approved protocol/s to which
these dogs are assigned[.]

Pl.’s SOMF, ECF No. 13-2 at 1-2 ¶ 1 (quoting Decl. of Emily

Fuemmeler (“Fuemmeler Decl.”), ECF No. 10-5 at 2 ¶ 5). 2

2 As noted in WCW I, the VA does not dispute WCW’s assertion that
“the [Animal Welfare Act (“AWA”), 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.” WCW I, 404 F.
Supp. 3d at 93 n.2; see also 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. 13-1 at 14.
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 Thereafter, McGuire VAMC conducted a search for materials

responsive to WCW’s FOIA request. Id. at 8-9 ¶¶ 14-16 (citing

Decl. of William Maragos (“Maragos Decl.”), ECF No. 10-6 at 2 ¶¶

5-6, 8-10). Following the VA’s release of certain responsive

materials to WCW on March 1, 2017, id. at 2 ¶ 3, WCW then

administratively appealed certain redactions in the VA’s initial

production, id. at 2 ¶ 4. The VA redacted information, including

the names of the principal investigators and the protocol

titles, under claimed FOIA Exemptions. Id. at 2-5 ¶ 5. 3

Before the VA responded to WCW’s administrative appeal, WCW

submitted a FOIA request to the National Institute of Health

(“NIH”) in April 2017 to obtain certain reports from five

facilities, including McGuire VAMC, regarding the noncompliance

3 The VA invoked Exemptions 3, 5, 6, and 7(F). Fuemmeler Decl.,
ECF No. 10-5 at 3 ¶ 11, 4 ¶ 14. Exemption 3 protects from
disclosure materials “specifically exempted from disclosure by
statute,” if such statute either “(i) requires that the matters
be withheld from the public in such a manner as to leave no
discretion on the issue” or “(ii) establishes particular
criteria for withholding or refers to particular types of
matters to be withheld.” 5 U.S.C. § 552(b)(3). Exemption 5
covers “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).
Exemption 7(F) applies to “records or information compiled for
law enforcement purposes, but only to the extent that the
production of such law enforcement records or information . . .
could reasonably be expected to endanger the life or physical
safety of any individual.” Id. § 552(b)(7)(F).
6
with the AWA. Id. at 9 ¶ 19. In turn, NIH released documents

showing that: (1) “McGuire VAMC researchers failed to comply

with federal humane care regulations under the AWA, resulting in

the deaths of three dogs during experiments in 2016,” id. at 9 ¶

19; and (2) “the McGuire VAMC IACUC warned the facility that

future AWA violations could result in suspension or terminations

of [Dr.] Tan’s animal protocol,” id. at 10 ¶ 21. One of the

reports contained within NIH’s production stated that a

principal investigator at McGuire VAMC, Alex Tan, M.D.

(“Dr. Tan”), “showed ‘reckless behavior’ and ‘lack of foresight’

after cutting open a dog’s lung during a heart surgery.” Id. at

9 ¶ 20 (quoting Goodman Decl., ECF No. 13-3 at 2 ¶ 6).

On August 25, 2017, the VA issued its “Final Agency

Decision,” concluding, inter alia, that: (1) its application of

Exemption 6 allows withholding the personal information of the

research personnel, including the principal investigators,

because those individuals “have a privacy interest in being

protected from annoyance and harassment,” id. at 2-3 ¶ 5;

(2) “[r]elease of their names, locations, or room numbers where

they work may also open these individuals to potential attack,

harassment or threatening behavior,” id. at 3 ¶ 5; and

(3) “[a]ny general public interest will be satisfied once the

research protocols are released to the public on [the] VA’s

website, after the research is completed,” id. Asserting

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Exemption 5, the VA also concluded that:

The release of certain portions of this
research, such as the names of the principal
investigators and research personnel would
have a chilling effect on the ability of the
agency official to discuss and evaluate issues
raised in the research frankly and openly
before the research is completed, because
these individuals may fear for their safety
and stop the research prematurely.

Id. at 4 ¶ 5.

Finally, the VA concluded that Exemption 3 justifies

withholding the protocol title contained in ACORP # 02235

because “ACORP # 02235 contains information that is confidential

and privileged, trade secret information, as well as information

that is pending patent pursuant to 35 U.S.C. § 205, which

protects the Confidentiality of Patents.” Id. at 5 ¶ 5. The VA

stated that “the Federal Technology Transfer Act (‘FTTA’),

[which] allows federal agencies the discretion to protect any

commercial and confidential information that results from a

Cooperative Research And Development Agreement (‘CRADA’) with a

nonfederal party, has been held to qualify as an Exemption 3

statute.” Id. (citing 5 U.S.C. § 3710a).

C. Procedural Background

On June 14, 2017, WCW filed the present action. See

generally Compl., ECF No. 1. After litigation had already begun,

the VA released certain information in response to WCW’s

administrative appeal, but the VA stood by its initial

8
conclusions to withhold the names of the principal investigators

and the title of ACORP # 02235. Pl.’s SOMF, ECF No. 13-2 at 15

¶¶ 54-55. On November 1, 2017, while this case was being

litigated, WCW filed a separate, related action to obtain

records concerning the experiments at Stokes VAMC. See Compl.,

WCW I, Civ. Action No. 17-2264, ECF No. 1 at 1 ¶ 1. Because WCW

was awaiting a final agency determination on its FOIA requests

in WCW I, WCW argued that “consolidation [of the two cases]

would cause substantial delay to the resolution of the initial

action and because there are only limited common issues of fact

and law between the two cases.” Pl.’s Resp. to Order to Show

Cause, ECF No. 12 at 1. The Court did not exercise its

discretion to consolidate the related actions under Federal Rule

of Civil Procedure 42(a)(2). See Min. Order of Nov. 20, 2017.

In this case, the parties filed cross-motions for summary

judgment. See, e.g., Def.’s Mot. for Summ. J. (“Def.’s Mot.”),

ECF No. 10 at 1-2; Pl.’s Cross Mot. for Summ. J. (“Pl.’s Mot.”),

ECF No. 13 at 1-3. 4 After those motions became ripe, the Court

4 Neither party attached proposed orders to the motions and
opposition briefs, as required by Local Civil Rule 7.1(c). See,
e.g., Def.’s Mot., ECF No. 10 at 1-2; Def.’s Mem. of P. & A. in
Supp. of Def.’s Mot. (“Def.’s Mem.”), ECF No. 10-1 at 1-14;
Pl.’s Mot., ECF No. 13 at 1-3; Pl.’s Mem., ECF No. 13-1 at 1-53;
Def.’s Reply, ECF No. 16 at 1-12; Pl.’s Reply, ECF No. 17 at 1-
21. The Court construes the VA’s reply brief—styled “Defendant’s
Reply in Support of Its Renewed Motion for Summary Judgment”—as
its reply in support of its motion for summary judgment and in
opposition to WCW’s cross-motion for summary judgment. See
9
referred the motions to a Magistrate Judge for a Report and

Recommendation (“R & R”), and the Court stayed the case. Min.

Order of Mar. 8, 2018. Before a decision on the pending motions

in the instant action, this Court resolved the parties’ cross-

motions for summary judgment in the related case. See WCW I, 404

F. Supp. 3d at 109; see also Final Order, WCW I, Civ. Action No.

17-2264 (D.D.C. Feb. 6, 2020), ECF No. 44 at 1-7. On August 29,

2019, this Court in WCW I granted in part and denied in part

those motions, finding that: (1) the VA improperly withheld the

principal investigator’s name under Exemption 5; and (2) the

VA’s declarations, which contained inadmissible hearsay, failed

to demonstrate a substantial privacy interest in the principal

investigator’s name under Exemption 6. WCW I, 404 F. Supp. 3d.

at 99, 106-07. The Court held in abeyance WCW’s cross-motion for

summary judgment as to the Exemption 6 issue and directed the VA

to submit additional information as to the asserted privacy

interest of the Stokes VAMC’s principal investigator. Id. at

107.

On February 6, 2020, the Court granted summary judgment in

favor of WCW on the Exemption 6 issue, finding that: (1) the VA

Def.’s Reply, ECF No. 16 at 1 (emphasis added). As WCW correctly
notes, the VA’s motion for summary judgment was not “ruled on,
stricken, or withdrawn, and as a result it [had] not been
‘renewed’ in any way.” Pl.’s Reply, ECF No. 17 at 6 n.1; see
generally Docket for Civ. Action No. 17-1155.
10
failed to meet its burden of establishing a substantial privacy

interest in the name of the Stokes VAMC’s principal

investigator; and (2) the public interest outweighed any

asserted privacy interest. Final Order, WCW I, Civ. Action No.

17-2264 (D.D.C. Feb. 6, 2020), ECF No. 44 at 4-7. A few days

later, on February 11, 2020, the Court granted WCW’s motion to

lift the stay in this case, and the Court vacated the referral

for the R & R. Min. Order of Feb. 11, 2020.

D. The Motions

In moving for summary judgment in the instant action, the

VA advances five primary arguments: (1) it conducted adequate

and reasonable searches for responsive materials, Def.’s Mem.,

ECF No. 10-1 at 4-5; (2) it properly invoked Exemption 6 to

withhold the names of the principal investigators and research

personnel, claiming that there are substantial privacy interests

at stake and there is no public interest in the names, id. at 6-

11; (3) it appropriately withheld certain portions of the

research protocols, including the names of the principal

investigators and researchers, under Exemption 5 because those

documents are pre-decisional and deliberative, id. at 11-13;

(4) it properly redacted the title of ACORP # 02235 under

Exemption 3 because “ACORP # 02235 contains information that is

confidential and privileged, trade secret information, as well

as information that is pending patent,” id. at 13; and (5) it

11
has not withheld any reasonably segregable, non-exempt

information, id. at 14.

WCW argues that it is entitled to summary judgment for five

main reasons: (1) federal government animal researchers do not

have a substantial privacy interest in their names because their

names are publicly available on government websites, including

the VA’s own website, and the McGuire VAMC researchers regularly

include their names in academic publications about the dog

experiments, Pl.’s Mem., ECF No. 13-1 at 27-31; (2) the public

interest in the disclosure of the names is strong because the

dog experiments have prompted federal and state lawmakers to

demand accountability, generated media coverage, and sparked

criticism from the public, id. at 31-45; (3) the VA improperly

invoked Exemption 5 because the factual information contained

within the research protocols does not reveal the agency’s

deliberations or opinions, and the protocols are not pre-

decisional given that those documents are the decisions, id. at

49-50; (4) the VA cannot rely on 35 U.S.C. § 205 as the relevant

withholding statute under Exemption 3 to withhold the title of

ACORP # 02235 because Section 205 protects information “for a

reasonable time in order for a patent application to be filed,”

and “the patent application, by the agency’s own account, has

already been filed,” id. at 52; and (5) the VA waived the

invocation of the FTTA as the withholding statute under

12
Exemption 3 because the VA did not advance such an argument in

its opening brief, id.

Over the course of this litigation, the parties narrowed

the scope of the disputed issues to: (1) the disclosure of the

identities of the principal investigators; and (2) the title of

ACORP # 02235. See Pl.’s Reply, ECF No. 17 at 6-7. WCW does not

challenge that the VA has adequately conducted reasonable

searches, and properly segregated the non-exempt information

from the exempt information. Id.; see also Def.’s Reply, ECF No.

16 at 11-12. Nor does WCW contest the redactions under Exemption

7(F) in the Vaughn index. See Pl.’s Mem., ECF No. 13-1 at 12-52;

see also Def.’s Ex. 1, ECF No. 10-3 at 1-4 (Vaughn Index). 5 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

5 “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. DOJ, 830 F.2d 337, 349 (D.C. Cir. 1987)).
13
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. DOJ, 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,

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

14
other documents.’” SafeCard Servs., 926 F.2d 1197 at 1200

(citation omitted).

IV. Analysis

As in WCW I, the core of the parties’ dispute in this case

is whether the VA properly withheld the names of the principal

investigators at McGuire VAMC under Exemptions 5 and 6. Compare

Pl.’s Reply, ECF No. 17 at 6, 10-19, with WCW I, 404 F. Supp. 3d

at 96 (“The sole dispute is whether the VA’s redactions of

[Stokes VAMC’s] principal investigator’s name . . . were

justified under Exemptions 5 and 6.”). In each case, the parties

presented similar arguments as to the VA’s withholdings. Compare

Def.’s Mem., ECF No. 10-1 at 6-13, and Pl.’s Mem., ECF No. 13-1

at 22-51, with WCW I, 404 F. Supp. 3d at 94-96. This case

differs from WCW I in that the VA withheld the title of ACORP

# 002235 pursuant to Exemption 3 while releasing the titles of

the other protocols. See Def.’s Mem., ECF No. 10-1 at 13.

The Court addresses the contested FOIA Exemptions in turn,

concluding that: (1) the VA improperly withheld the names of the

principal investigators under Exemptions 5 and 6; and (2) the VA

properly invokes the FTTA as the withholding statute under

Exemption 3 to redact the title of ACORP # 02235. 6

6 WCW does not contest the VA’s withholdings under Exemption
7(F), and the VA does not move for summary judgment as to those
withholdings. See Def.’s Mem., ECF No. 10-1 at 5-13; see also
Pl.’s Mem., ECF No. 13-1 at 22-52. WCW does not challenge the
15
 A. The VA’s Invocation of Exemption 5 Was Improper

The VA invokes Exemption 5’s deliberative process privilege

to protect the claimed deliberative nature of the protocols and

the integrity of the research process. See Def.’s Mem., ECF No.

13-1 at 12-13. In WCW I, this Court explained that Exemption 5’s

deliberative process privilege is 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. 404 F. Supp. 3d at 97 (citing Dent v.

Exec. Office for U.S. Att’ys, 926 F. Supp. 2d 257, 267–68

(D.D.C. 2013)). Documents withheld under the deliberative

process privilege must be both “predecisional” and

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

(D.C. Cir. 1993). A communication is pre-decisional if “it was

generated before the adoption of an agency policy” and

adequacy of the searches, and the segregability determinations.
Pl.’s Reply, ECF No. 17 at 6-7. Neither does WCW challenge the
redactions to: (1) the principal investigators’ other personal
identifying information; or (2) the non-principal investigators’
information. See id. at 6-8. Although WCW does not contest these
issues, the Court has an independent obligation to determine
whether the VA 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 declarations and the Vaughn index, see, e.g.,
Def.’s Ex. 1, ECF No. 10-3 at 1-4; Fuemmeler Decl., ECF No. 10-5
at 1-5; Maragos Decl., ECF No. 10-6 at 2-3, the Court finds that
the VA has fulfilled its obligations with respect to these
uncontested matters. Accordingly, the Court GRANTS the VA’s
motion for summary judgment as to the adequacy of the searches
and the segregability determinations.
16
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. Courts construe the

deliberative process privilege “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)).

Before addressing the substantive issue of whether

Exemption 5’s deliberative process privilege applies to the

names of the principal investigators, WCW first argues—and the

VA does not dispute—that “[n]owhere in the 283 pages of animal

protocols that the [VA] produced does it identify even a single

redaction based on Exemption 5” and the VA’s “Vaughn index does

not identify even a single Exemption 5 assertion.” Pl.’s Mem.,

ECF No. 13-1 at 47; see also Pl.’ Reply, ECF No. 17 at 17

(“[WCW] also provided the [VA’s] entire production to

demonstrate that the [VA] does not assert Exemption 5 as a basis

for withholding in any of the 288 pages it produced.”). But the

VA asserted Exemption 5 at the administrative level, and the VA

points out that one of the agency’s declarants avers that the VA

withheld the names of the principal investigators and other

17
research personnel under Exemption 5. E.g., Def.’s Reply, ECF

No. 16 at 9; Fuemmeler Decl., ECF No. 10-5 at 3 ¶ 11, 4 ¶ 13.

“[T]he exemption only need be raised at a point in the district

court proceedings that gives the court an adequate opportunity

to consider it,” and WCW “has cited no . . . case that supports

a different proposition.” Sciba v. Bd. of Governor of Fed.

Reserve Sys., No. CIV.A.04-1011, 2005 WL 758260, at *1 n.3

(D.D.C. Apr. 1, 2005).

To the extent that the VA asserts Exemption 5, the Court is

persuaded by WCW’s next argument that the names of the principal

investigators are neither pre-decisional nor deliberative. See

Pl.’s Mem., ECF No. 13-1 at 50. 7 In the VA’s view, “[t]he release

of certain portions of this research, such as the names of the

principal investigators and research personnel would have a

chilling effect on the ability of the agency official to discuss

and evaluate issues raised in the research, have frank and open

discussions before the research is completed, and stop the

research prematurely.” Def.’s Mem., ECF No. 10-1 at 12. WCW

7 Because WCW solely seeks the names of the principal
investigators, see Pl.’s Reply, ECF No. 17 at 6, the Court need
not decide whether the protocols themselves are “pre-decisional”
or “deliberative” within the meaning of Exemption 5, 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 document was
pre-decisional because the parties only challenged the redacted
signature pages in the document); see also WCW I, 404 F. Supp.
3d at 98 n.9 (same).
18
contends that “[t]he investigators’ names are not predecisional”

because “[t]here is no agency policy or law being developed

through the use of principal investigators’ names.” Pl.’s Mem.,

ECF No. 13-1 at 50. And WCW argues that the names are not

deliberative because “[t]he agency is not using the names of

investigators to formulate agency policy” and such “information

fits squarely within the type of factual material that the

deliberative process privilege does not protect.” Id. The Court

agrees.

“[T]he agency has the burden of establishing what

deliberative process is involved,” Coastal States Gas Corp.,

617 F.2d at 868, but the VA fails to demonstrate how the

principal investigators’ names “implicate any deliberative

process that may have gone into the creation of [each protocol]

as a whole,” Judicial Watch, Inc. v. Dep’t of the Navy, 25 F.

Supp. 3d at 140. In Ancient Coin Collectors Guild v. United

States Department of State, 641 F.3d 504, 513 (D.C. Cir. 2011),

the United States Court of Appeals for the District of Columbia

Circuit (“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.” In that case, the

D.C. Circuit concluded that Exemption 5 covered the factual

19
summaries in a federal advisory committee’s reports regarding

import restrictions on cultural artifacts because those

documents: (1) “were culled by the Committee from the much

larger universe of facts presented to it,” id. at 513 (citation

omitted); (2) reflected an “exercise of discretion and judgment

calls,” id.; and (3) “include[d] lists of events selected to

show whether a given type of item ha[d] been pillaged,” id. at

514.

As in WCW I, the names of the principal investigators

neither reflect an “exercise of judgment as to what issues”

should bear on the research, nor involve the selection of facts

as part of the agency’s deliberative process. WCW I, 404 F.

Supp. 3d at 98 (quoting Ancient Coin Collectors Guild, 641 F.3d

at 513); see also Petroleum Info. Corp. v. U.S. Dep’t of

Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (“Under the

deliberative process privilege, factual information generally

must be disclosed, but materials embodying officials’ opinions

are ordinarily exempt.”). The names of the principal

investigators conducting the experiments at McGuire VAMC are

“indisputably ‘factual,’” and those names “cannot 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., 976 F.2d at 1434).

20
 The VA’s argument—that the principal investigators “may

fear for their safety and stop the research prematurely,” Def.’s

Reply, ECF No. 16 at 9 (quoting Fuemmeler Decl., ECF No. 10-5 at

4 ¶ 13)—is unavailing. The VA fails to demonstrate that

disclosure of the names of the principal investigators “would be

likely to ‘stifle honest and frank communication within the

agency.’” Petroleum Info. Corp., 976 F.2d at 1439 (quoting

Coastal States Gas Corp., 617 F.2d at 866). It is undisputed

that “[r]esearchers at McGuire VAMC also regularly attach their

names and a variety of other personal information to

publications detailing their research.” Def.’s Reply, ECF No. 16

at 10 (quoting Pl.’s Mem., ECF No. 13-1 at 29). It is

uncontested that the NIH’s “database reveals at least ten

researchers at McGuire VAMC attaching their names to articles

detailing dog research.” Pl.’s Mem., ECF No. 13-1 at 29 (citing

Pl.’s SOMF, ECF No. 13-2 at 13 ¶¶ 40-44, 14 ¶¶ 45-48, 15 ¶¶ 49-

50). While is true that the “key question” is whether the

release of information has the ability to “discourage candid

discussion within the agency,” Access Reports v. DOJ, 926 F.2d

1192, 1195 (D.C. Cir. 1991) (citation omitted), the VA fails to

provide sufficient justifications to withhold the names of the

principal investigators pursuant to Exemption 5’s deliberative

process privilege. The Court therefore finds that the VA has not

carried its burden of demonstrating that disclosure of the

21
principal investigators’ names “is likely in the future to

stifle honest and frank communication within the agency.”

Coastal States Gas Corp., 617 F.2d at 866. Accordingly, the

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

the VA’s motion for summary judgment as to Exemption 5.

B. The VA Improperly Withheld the Principal
Investigators’ Names Under Exemption 6

The Court next considers the issue of whether the VA

properly invoked Exemption 6. As stated in WCW I, “Exemption 6

permits withholding of information when two requirements have

been met.” WCW I, 404 F. Supp. 3d at 99 (citing U.S. Dep’t of

State v. Wash. Post Co., 456 U.S. 595, 598 (1982)). First, “the

information must be contained in personnel, medical or ‘similar’

files.” Wash. Post Co., 456 U.S. at 598. The phrase “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). Exemption 6 covers “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 Watch, Inc. v. FDA, 449 F.3d 141, 152 (D.C. Cir. 2006)

(citation and internal quotation marks omitted).

Next, “the information must be of such a nature that its

disclosure would constitute a clearly unwarranted invasion of

22
personal privacy.” Wash. Post Co., 456 U.S. at 598. This second

requirement demands that the 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 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 Investigators’ Names Fall Within
the Broad Meaning of “Similar Files”

WCW I is a starting point for the Court’s Exemption 6

analysis. In WCW I, this Court broadly construed the phrase

“similar files” and found that the name of the principal

investigator at Stokes VAMC fell within Exemption 6’s “similar

files” category. 404 F. Supp. 3d at 99-101. As WCW acknowledged

in WCW I, WCW recognizes in this case that the phrase “similar

files” has a broad meaning. Pl.’s Mem., ECF No. 13-1 at 24.

Indeed, 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

23
individual[,]’” including his or her name. Prison Legal News,

787 F.3d at 1146–47 (quoting Judicial Watch, Inc. v. DOJ, 365

F.3d 1108, 1124 (D.C. Cir. 2004)). In this case, the names of

the principal investigators qualify as “similar files” under

D.C. Circuit case law. See id.

Nonetheless, WCW makes the same argument that this Court

rejected in WCW I: “the principal investigators’ names on the

animal research protocols are ‘essentially business,’ rather

than personal, in nature.” Pl.’s Mem., ECF No. 13-1 at 25; see

also WCW I, 404 F. Supp. 3d at 100. WCW’s argument is unavailing

because the Supreme Court has recognized that Exemption 6 covers

“information which applies to a particular individual.” Wash.

Post Co., 456 U.S. at 602. To be sure, the D.C. Circuit in

Judicial Watch, Inc. v. Food & Drug Administration held that the

agency there “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,” concluding that the non-disclosure of the names

of the agency personnel and other personal identifying

information was proper under Exemption 6 “to protect [those

associated with mifepristone] from the injury and embarrassment

that can result from the unnecessary disclosure of personal

information.” 449 F.3d at 153 (citation omitted).

24
 Here, the VA relies on the averments of one of its

declarants to explain that “the release of these individuals’

names, locations, or offices make them vulnerable to ‘potential

attack, harassment or threatening behavior,’ and the release of

such personal details are ‘inextricably linked to those

individuals’ expectations of working in a safe environment.’”

Def.’s Reply, ECF No. 16 at 4 (quoting Fuemmeler Decl., ECF No.

10-5 at 3 ¶ 12). The controversy over the experiments at McGuire

VAMC have captured widespread public attention and generated

media coverage. Pl.’s SOMF, ECF No. 13-2 at 12 ¶ 32. WCW has

publicly criticized the experiments at McGuire VAMC, and “WCW

asked its supporters on Facebook to call the phone number for

the McGuire VAMC’s Public Affairs Officer ‘and politely say you

do not want your tax dollars funding dog abuse.’” Id. at 15 ¶ 51

(quoting Goodman Decl., ECF No. 13-3 at 14 ¶ 31). Consistent

with this Court’s finding in WCW I that the principal

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

category, 404 F. Supp. 3d at 100, the VA clears the first hurdle

in this case because Exemption 6 protects “bits of personal

information, such as names,” Judicial Watch, Inc. v. FDA, 449

F.3d at 152 (emphasis added).

2. The Competing Interests

“[T]he mere fact that an agency file or record contains

personal, identifying information is not enough to invoke

25
Exemption 6—the information must also be ‘of such a nature that

its disclosure would constitute a clearly unwarranted privacy

invasion.’” Judicial Watch, Inc. v. U.S. Dep’t of State, 282 F.

Supp. 3d 36, 49–50 (D.D.C. 2017) (quoting 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.” WCW I, 404 F. Supp. 3d at

102 (quoting Sai v. Transp. Sec. Admin., 315 F. Supp. 3d 218,

259 (D.D.C. 2018)). First, the Court must “determine whether

disclosure of the files would compromise a substantial, as

opposed to de minimis, privacy interest, because [i]f no

significant privacy 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); see also Prison Legal News, 787 F.3d at 1147

(“The government bears the burden of showing that a substantial

invasion of privacy will occur if the documents are released.”).

If the agency demonstrates that “a substantial privacy interest

is at stake, then [the Court] must balance the privacy interest

in non-disclosure against the public interest.” Consumers’

Checkbook Ctr. for the Study of Servs. v. U.S. Dep’t of Health &

Human Servs., 554 F.3d 1046, 1050 (D.C. Cir. 2009). “In

undertaking this analysis, the [C]ourt is guided by the

instruction that, ‘under Exemption 6, the presumption in favor

of disclosure is as strong as can be found anywhere in the

26
Act.’” Norton, 309 F.3d at 32 (quoting Wash. Post Co. v. United

States Dep’t of Health and Human Servs., 690 F.2d 252, 261 (D.C.

Cir. 1982)).

a. Privacy Interests

“Substantial, in this context, means less than it might

seem. A substantial privacy interest is anything greater than a

de minimis privacy interest.” WCW I, 404 F. Supp. 3d at 102

(quoting Humane Soc’y of United States v. Animal & Plant Health

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

parties disagree about whether there are substantial privacy

interests at stake. See Def.’s Mem., ECF No. 10-1 at 8 (“[T]here

can be no question that viable privacy interests are at

stake.”); see also Pl.’s Mem., ECF No. 13-1 at 27 (“[T]he

principal investigators have no substantial privacy interest in

the names.”). Claiming that “[t]here have been numerous and

recent threatening incidents targeting VA research labs at

[McGuire] VAMC,” Def.’s Mem., ECF No. 10-1 at 8, the VA argues

that there are substantial privacy interests here, id. at 11.

WCW does not dispute the existence of a privacy interest in the

names of the principal investigators, but WCW contends that the

interest “is, at most, de minim[i]s.” Pl.’s Mem., ECF No. 13-1

at 31.

To support its contention that disclosure of the names will

subject the principal investigators to annoyance and harassment,

27
see Def.’s Mem., ECF No. 10-1 at 10, the VA relies on a

declaration from the VA’s Chief Veterinary Medical Officer whose

office is located in Atlanta, Georgia, and who is “responsible

for VA animal research policy, including such activities at

[McGuire VAMC],” Fallon Decl., ECF No. 10-4 at 1 ¶ 1. 8 The VA

also relies on a Microsoft PowerPoint Presentation, entitled

“Threats to Individuals,” with twenty slides that contain a mix

of text, images, and hyperlinks. Def.’s Ex. 5, ECF No. 11 at 1.

The text in the PowerPoint presentation tracks the language in

the Fallon declaration. Compare id. at 1-20, with Fallon Decl.,

ECF No. 10-4 at 2 ¶¶ 4-10, 3 ¶¶ 11-15.

The VA’s declarant—Dr. Michael Fallon (“Dr. Fallon”)—

provides certain examples of incidents at McGuire VAMC and

Milwaukee VAMC, as well as threats received by researchers with

no apparent connections to the VA. See Fallon Decl., ECF No. 10-

4 at 2 ¶¶ 4-10, 3 ¶¶ 11-15. According to the declarant, in June

2017, a VA operator received a threat that there was a bomb on

the third floor, where no animal research is conducted. Id. at 2

¶ 4; see also Def.’s Ex. 5, ECF No. 11 at 13. The declarant

8 The VA cites to the “Declaration of Sarah B. Kotler” in its
reply brief to support its position that the release of the
names would cause an unwarranted invasion of personal privacy,
Def.’s Reply, ECF No. 16 at 8, but WCW correctly points out that
the VA did not file that declaration in this case, Pl.’s Reply,
ECF No. 17 at 15-16. The record does include a declaration from
Sarah B. Kotler. See Docket for Civ. Action No. 17-1155.
28
avers that WCW has circulated photographs of dogs at the

research facility that were illegally obtained by a VA employee

in May 2017. Fallon Decl., ECF No. 10-4 at 2 ¶ 5 (stating that

the VA employee released the photographs and blueprints of the

facility to a news outlet); see also Def.’s Ex. 5, ECF No. 11 at

10. And the declarant states that the facility received

thousands of telephone calls opposing the canine research after

WCW posted the McGuire VAMC’s Public Affairs Officer telephone

number on WCW’s Facebook page. Fallon Decl., ECF No. 10-4 at 2

¶¶ 6-7. According to the declarant, an animal advocacy group

organized protests outside of McGuire VAMC in September and

October 2017, which prompted increased security measures. Id. at

2 ¶ 8.

The declarant avers that “Dr. Tan received threats from the

Daily Caller comments section” following the public release of

his name by NIH in December 2016. Id. at 2 ¶ 10. On a slide in

the PowerPoint presentation, the highlighted text in an image of

a comment provides: “OMG -This ‘TAN’ is a madman and needs to be

put down himself . . . ALSO dogs should NOT be used in

experiments. The VA makes me angrier by the day[.]” Def.’s Ex.

5, ECF No. 11 at 3. According to the declarant, WCW’s Facebook

page includes stories about the research at McGuire VAMC, and

the page contained “several threatening comments” in September

2017. Fallon Decl., ECF No. 10-4 at 3 ¶ 14.

29
 WCW argues—and the Court agrees—that the Fallon declaration

and the PowerPoint presentation raise various evidentiary issues

that are left unaddressed by the VA. E.g., Pl.’s Mem., ECF No.

13-1 at 35-38; Pl.’s Objs. to Fallon Decl., ECF No. 14 at 1-9. 9

WCW correctly points out that “[n]early every statement in the

Fallon declaration fails [the] standard” under Rule 56(c)(4),

Pl.’s Mem., ECF No. 13-1 at 36. “A principal command of Rule

56[(c)(4)] is straightforward: ‘Supporting and opposing

affidavits’ on summary-judgment motions ‘shall be made on

personal knowledge, shall set forth facts as would be admissible

in evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein.’” Londrigan

v. FBI, 670 F.2d 1164, 1174 (D.C. Cir. 1981) (footnote omitted);

see also Fed. R. Civ. P. 56(c)(4). And “[a]lthough the rule’s

directive with respect to the admissibility of an affidavit’s

contents on summary judgment has been liberally construed, its

requirement of personal knowledge by the affiant is unequivocal,

and cannot be circumvented.” Londrigan, 670 F.2d at 1174

(footnotes omitted).

9 WCW objects to the averments in the Fallon declaration under
Federal Rules of Evidence 401, 403, 602, 701, 802, and 1002.
Pl.’s Objs. to Fallon Decl., ECF No. 14 at 1-8. WCW also objects
to the PowerPoint presentation under Federal Rules of Evidence
602, 802, and 901. Id. at 9. The VA offers no response to WCW’s
objections or evidentiary arguments. See Def.’s Reply, ECF No.
16 at 1-12.
30
 Here, Dr. Fallon attests that his “statements . . . in

[the] declaration are made on the basis of [his] personal

knowledge of the following incidents and upon [his] review of

information available to [him] in [his] official capacity.”

Fallon Decl., ECF No. 10-4 at 1 ¶ 2. The VA argues that “the

Fallon Declaration details a series of threatening incidents in

recent history where [WCW], the media, and other advocacy groups

used personally identifiable and private information to target

[the VA’s] labs at [McGuire] VAMC [and] other researchers across

the country.” Def.’s Reply, ECF No. 16 at 5. But WCW contends—

and the Court agrees—that Dr. Fallon testifies about incidents

without explaining the basis for his personal knowledge. Pl.’s

Mem., ECF No. 13-1 at 36. According to WCW, “[i]t is unclear on

what basis [Dr.] Fallon knows of the nature, content, or volume

of calls placed to various unnamed people at the [McGuire VAMC]

facility or the protest outside of it” because Dr. Fallon avers

that he works in Atlanta, Georgia. Id. WCW argues—and the Court

agrees—that Dr. Fallon fails to establish the basis for any

personal knowledge of the incidents at McGuire VAMC and

Milwaukee VAMC, as well as the incidents involving the

researchers with no connections to the VA. Id.

Although “FOIA declarants may include statements in their

declarations based on information they have obtained in the

course of their official duties,” Barnard v. Dep’t of Homeland

31
Sec., 598 F. Supp. 2d 1, 19 (D.D.C. 2009), “it is a different

matter to rely on out-of-court statements from private third

parties to justify an agency’s withholding,” Humane Soc’y of

United States, 386 F. Supp. 3d at 44. The Fallon declaration and

the PowerPoint presentation include statements and information

based on third-party websites and second-hand accounts to

justify the redactions to the principal investigators’ names.

See, e.g., Fallon Decl., ECF No. 10-4 at 2 ¶¶ 5-6, 2 ¶¶ 9-10, 3

¶¶ 11-12, 3 ¶¶ 14-15; Def.’s Ex. 5, ECF No. 11 at 2-8, 10. The

VA did not submit a single declaration from a principal

investigator or researcher at McGuire VAMC with first-hand

knowledge of the alleged incidents. See generally Def.’s Mem.,

ECF No. 10-1. “[T]he second-hand, unsubstantiated accounts in

the [Fallon] declaration are inadmissible hearsay.” Humane Soc’y

of United States, 386 F. Supp. 3d at 44.

The Court cannot rely on the statements and information in

the Fallon declaration and PowerPoint presentation that the VA

has neither confirmed nor verified. See WCW I, 404 F. Supp. 3d

at 105-06 (citing Humane Soc’y of United States, 386 F. Supp. 3d

at 45). As WCW correctly points out, “[Dr.] Fallon makes no

attempt to authenticate [the slides in the PowerPoint

presentation] or even make mention of the slides in his

declaration.” Pl.’s Mem., ECF No. 13-1 at 37. The PowerPoint

presentation itself lacks critical information, such as the

32
author and the date of creation. Id.; see also Def.’s Ex. 5, ECF

No. 11 at 1-20. “Without the accounts of harassment from the

[principal investigators and researchers], the declaration’s

justification for withholding the [principal investigators’

names] is reduced to speculation and summary accounts of the

hearsay.” Humane Soc’y of United States, 386 F. Supp. 3d at 45.

In holding that an agency “fairly asserted abortion-related

violence as a privacy interest for both the names and addresses

of persons and businesses associated with mifepristone,” 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.” Judicial Watch, Inc. v. FDA, 449 F.3d at 153. In this

case, however, the VA has failed to provide declarations or

affidavits from the principal investigators and other research

personnel attesting to the alleged harassment, annoyance, and

embarrassment to support the VA’s invocation of Exemption 6. See

Humane Soc’y of United States, 386 F. Supp. 3d at 45 (finding

that the agency’s declaration to support its withholding of the

requested information was “reduced to speculation and summary

accounts of the hearsay” in the absence of first-hand accounts

from the employees who were allegedly subjected to harassment).

The Court therefore finds that the VA has failed to demonstrate

33
that there are substantial privacy interests in the principal

investigators’ names. 10

Nonetheless, the D.C. Circuit has instructed that the issue

of whether disclosure would compromise a substantial, as opposed

to a de minimis, privacy interest “is not very demanding.” Multi

Ag Media LLC, 515 F.3d at 1230. The D.C. Circuit has balanced

the privacy interest against the public interest even where an

agency, as here, “established only the speculative potential of

a privacy invasion without any degree of likelihood.” Norton,

309 F.3d at 37. Given that the “standard at this stage is not

very demanding,” the D.C. Circuit explained that it was “willing

to engage in the balancing inquiry by concluding that disclosure

of the information would constitute a ‘more than minimal

invasion[] of personal privacy.’” Multi Ag Media LLC, 515 F.3d

at 1230 (quoting Norton, 309 F.3d at 35).

b. The Public Interest in Disclosure
Outweighs the Asserted Privacy
Interests

“[T]he only relevant ‘public interest in disclosure’ to be

10Having found that the VA has failed to carry its burden of
demonstrating substantial privacy interests in the principal
investigators’ names to justify the non-disclosure under
Exemption 6, the Court need not reach WCW’s other arguments—that
federal researchers do not have privacy interests because:
(1) the names are made available to the public under 5 C.F.R.
§ 293.311; (2) the VA’s website lists the principal
investigators; and (3) academic journals and publications
contain the names of the principal investigators. See Pl.’s
Mem., ECF No. 13-1 at 27-31.
34
weighed in this balance is the extent to which disclosure would

serve the ‘core purpose of the FOIA,’ which is ‘contribut[ing]

significantly to public understanding of the operations or

activities of the government.’” U.S. Dep’t of Def. v. Fed. Labor

Relations Auth., 510 U.S. 487, 487 (1994) (quoting DOJ v.

Reporters Comm. For Freedom of Press, 489 U.S. 749, 775 (1989)).

“In other words, disclosure of government records under FOIA is

meant to help the public stay informed about ‘what their

government is up to.’” Am. Immigration Lawyers Ass’n v. Exec.

Office for Immigration Review (“AILA”), 830 F.3d 667, 674 (D.C.

Cir. 2016) (quoting Reporters Comm., 489 U.S. at 773).

Given FOIA’s strong presumption in favor of disclosure, the

public interest in disclosure militates strongly in favor of

disclosure of the names of the principal investigators in this

case. WCW argues—and the Court agrees—that the disclosure of

“the principal investigators’ names would help hold individual

investigators and the VA accountable for their conduct,

encourage the investigators’ compliance with the animal research

protocols, and allow the public and WCW [to] evaluate the [VA’s]

compliance and responses to the public and Congressional concern

surrounding the facility’s dog experiments.” Pl.’s Mem., ECF No.

13-1 at 31. The VA, however, fails to acknowledge the public

interest in the release of the names of the principal

investigators, arguing that “the disclosure of the identities

35
and personal information” of the principal investigators “is

simply not relevant to the public’s understanding of how [the]

VA conducts its business.” Def.’s Mem., ECF No. 10-1 at 10-11.

Contrary to the VA’s assertion that there is no public

interest here, see id., the experiments at McGuire VAMC have

garnered extensive media coverage about the canine research,

see, e.g., Pl.’s SOMF, ECF No. 13-2 at 12 ¶ 32 (“More than fifty

new stories have been published detailing the controversy over

McGuire VAMC’s dog experiments.”); Pl.’s Mem., ECF No. 13-1 at

32 (“The Richmond-area ABC affiliate WRIC, for one example,

aired more than 25 segments related to the McGuire VAMC dog

experiments in the past eight months.”). It is undisputed that

federal and state lawmakers have demanded accountability and

transparency in government-funded animal experimentation. Pl.’s

SOMF, ECF No. 13-2 at 11-12 ¶¶ 28-31. The PUPPERS Act of 2017

was introduced in Congress to prohibit the VA’s research from

causing significant pain or distress to dogs. See id. at 11 ¶

29. And Congress unanimously passed an amendment to defund the

VA’s dog experiments in fiscal year 2018. Id. at 11 ¶ 30.

Furthermore, an incident report revealed that one of the

researchers conducting a McGuire VAMC dog experiment “showed

‘reckless behavior’ and ‘lack of foresight’ after cutting open a

dog’s lung during a heart surgery.” Id. at 9 ¶ 20 (quoting

Goodman Decl., Ex. A, ECF No. 13-3 at 24). The VA does not

36
dispute the information contained in the incident report. See

id.; see also Def.’s Reply, ECF No. 16 at 1-12. Neither does the

VA challenge that “the McGuire VAMC IACUC warned the facility

that future AWA violations could result in suspension or

terminations of [Dr.] Tan’s animal protocol.” Pl.’s SOMF, ECF

No. 13-2 at 10 ¶ 21; see also Def.’s Reply, ECF No. 16 at 1-12.

The Court concludes that information about the experiments

and the principal investigators’ compliance and non-compliance

with the animal research protocols and applicable federal

regulations clearly fall under the ambit of information that

“let[s] citizens know ‘what their government is up to.’”

Lepelletier, 164 F.3d at 46 (citation omitted). And disclosure

of the names of the principal investigators will ensure that the

“public stay[s] informed about ‘what their government is up

to.’” AILA, 830 F.3d at 674 (citation omitted). On balance, the

public interest outweighs the asserted privacy interests of the

principal investigators. The Court therefore finds that the

release of the names would not “constitute a clearly unwarranted

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

Accordingly, the Court DENIES the VA’s motion for summary

judgment, and GRANTS WCW’s cross-motion for summary judgment as

to Exemption 6. 11

11Because WCW is entitled to summary judgment as to Exemption 6,
the Court FINDS AS MOOT WCW’s requests for in camera review and
37
 C. The VA Properly Withheld the Title of ACORP # 02235
Under Exemption 3

Finally, WCW challenges the VA’s invocation of Exemption 3

to redact the title of ACORP # 02235. Pl.’s Mem., ECF No. 13-1

at 51. A “statute fits within Exemption 3 if . . . it either

‘(i) requires that . . . matters be withheld from the public in

such a manner as to leave no discretion on the issue’ or

‘(ii) establishes particular criteria for withholding or refers

to particular types of matters to be withheld.’” Labow v. DOJ,

831 F.3d 523, 527 (D.C. Cir. 2016) (quoting 5 U.S.C. §

552(b)(3)(A)(i)–(ii)). Here, the VA invokes two withholding

statutes pursuant to Exemption 3: (1) 35 U.S.C. § 205, which

protects confidential information related to patents; and

(2) 15 U.S.C. § 3710a, which protects confidential information

within cooperative research and development agreements. E.g.,

Def.’s Mem., ECF No. 10-1 at 13; Def.’s Reply, ECF No. 16 at 11.

The Court analyzes, in turn, both statutes.

Section 205 provides:

Federal agencies are authorized to withhold
from disclosure to the public information
disclosing any invention in which the Federal
Government owns or may own a right, title, or
interest (including a nonexclusive license)
for a reasonable time in order for a patent
application to be filed. Furthermore, Federal

the production of the first page of each protocol at issue with
the principal investigators’ names to determine whether the
identities of the principal investigators are in the public
domain. See Pl.’s Mem., ECF No. 13-1 at 45-46.
38
 agencies shall not be required to release
copies of any document which is part of an
application for patent filed with the United
States Patent and Trademark Office or with any
foreign patent office.

35 U.S.C. § 205. The parties agree that 35 U.S.C. § 205 is a

qualifying statute under Exemption 3. See, e.g., Def.’s Mem.,

ECF No. 10-1 at 13; Pl.’s Mem., ECF No. 13-1 at 51. According to

the VA, “ACORP # 02235 contains information that is confidential

and privileged, trade secret information, as well as information

that is pending patent.” Def.’s Mem., ECF No. 10-1 at 13.

WCW attacks the VA’s reliance on 35 U.S.C. § 205 to

withhold the title of ACORP # 02235 on two grounds: (1) “[t]he

title of a protocol is not the type of information that . . .

would ‘disclose the invention’ under section 205, especially as

compared to all of the material about the process and research

itself that is left unredacted in ACROP # 02235,” Pl.’s Mem.,

ECF No. 13-1 at 51-52; and (2) the VA “asserts that the patent

is already pending” and “[b]ecause the patent application, by

the agency’s own account, has already been filed, section 205

does not protect the information,” id. at 52.

Without addressing WCW’s arguments, see Def.’s Reply, ECF

No. 16 at 11, the VA relies on the Fuemmeler declaration, which

states, in general terms, that “ACROP # 02235 contains

information that is confidential and privileged, trade secret

information, as well as information that is pending patent.”

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Fuemmeler Decl., ECF No. 10-5 at 4 ¶ 14. The VA contends that

the agency “properly exercised its discretion to withhold the

protocol title of ACROP # 02235.” Def.’s Reply, ECF No. 16 at

11. The VA, however, falls short of providing a “relatively

detailed justification, specifically identifying the reasons

why” Exemption 3 applies to the information purportedly covered

under Section 205. Mead Data Cent., Inc. v. Dep’t of the Air

Force, 566 F.2d 242, 251 (D.C. Cir. 1977).

WCW correctly points out that “the text of 35 U.S.C. § 205

makes clear that it protects information ‘for a reasonable time

in order for a patent application to be filed,’” but the VA does

not deny that “it has already filed its patent application.”

Pl.’s Reply, ECF No. 17 at 20; see also Def.’s Reply, ECF No. 16

at 10-11. Section 205 covers information prior to the filing of

a patent application for a reasonable time, 35 U.S.C. § 205, but

the patent has already been filed because the VA’s declarant

avers that the patent is pending. Fuemmeler Decl., ECF No. 10-5

at 4 ¶ 14. The VA fails to demonstrate that Section 205 applies

to the title of ACROP # 02235. See Def.’s Reply, ECF No. 16 at

10-11. The Court therefore finds that the VA has not met its

burden of demonstrating that the title of ACROP # 02235 is

exempt from disclosure under 35 U.S.C. § 205.

Having found that the VA failed to demonstrate that the

information in the title of ACROP # 02235 is protected under

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Section 205, the Court turns to the VA’s invocation of the FTTA.

The FTTA provides:

No trade secrets or commercial or financial
information that is privileged or
confidential, under the meaning of section
552(b)(4) of Title 5, which is obtained in the
conduct of research or as a result of
activities under this chapter from a non-
Federal party participating in a cooperative
research and development agreement shall be
disclosed.

15 U.S.C. § 3710a(c)(7)(A).

In this case, WCW does not dispute that the FTTA satisfies

the withholding criteria under Exemption 3. See Pl.’s Mem., ECF

No. 13-1 at 52; see also Pl.’s Reply, ECF No. 17 at 20. But WCW

argues that the VA waived any arguments based on the FTTA

because the VA did not raise that statute in its opening brief.

See Pl.’s Mem., ECF No. 13-1 at 52; see also Pl.’s Reply, ECF

No. 17 at 20. Although WCW is correct that the VA raised the

FTTA for the first time in its reply brief as a basis for

withholding the title of ACROP # 02235, the VA asserted the FTTA

to withhold information in the Fuemmeler declaration and the

Vaughn index, see, e.g., Fuemmeler Decl., ECF No. 10-5 at 4-5 ¶

14; Def.’s Ex. 1, ECF No. 10-3 at 4. The Court finds that the VA

did not waive any arguments based on the FTTA because WCW had an

opportunity to respond to the VA’s arguments in its reply brief.

See Rosenberg v. United States Dep’t of Immigration & Customs

Enf’t, 13 F. Supp. 3d 92, 115-116 (D.D.C. 2014) (finding that

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the agency’s late invocation of Exemption 3 in its reply brief

did not waive raising the exemption where the FOIA requester had

an opportunity to respond in its opposition brief to the

agency’s motion for reconsideration).

Apart from its waiver argument, WCW has adduced no argument

as to the applicability of the FTTA under Exemption 3. See Pl.’s

Mem., ECF No. 13-1 at 52; see also Pl.’s Reply, ECF No. 17 at

20. “[T]he Court still has an independent duty to ‘determine for

itself whether the record and any undisputed material facts

justify granting summary judgment,’ because a Court may not

grant summary judgment simply because the withholding [under a

particular exemption] was not challenged.” Tokar v. DOJ, 304 F.

Supp. 3d 81, 94 n.3 (D.D.C. 2018) (quoting Winston & Strawn, LLP

v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016)).

The VA argues—and the Court agrees—that Section

3710a(c)(7)(A) gives the agency “no discretion to release any

commercial and confidential information obtained from the

[cooperative research and development agreement’s] private

sector partner.” Def.’s Reply, ECF No. 16 at 11. According to

the VA’s declarant, “[t]here is a cooperative research and

development agreement . . . in place for [ACROP # 02235].”

Fuemmeler Decl., ECF No. 10-5 at 5 ¶ 14. And the VA’s declarant

avers that “release of [the title of ACROP # 02235] would reveal

a new and innovative process to treating a disease.” Id. Such

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information cannot be disclosed under the FTTA. See 15 U.S.C.

§ 3710a(c)(7)(A). The VA’s declaration supports its invocation

of the FTTA as the exempting statute to withhold the title of

the ACROP # 02235. The Court therefore finds that the VA

appropriately redacted the information at issue pursuant to

Exemption 3. Accordingly, the Court GRANTS the VA’s motion for

summary judgment, and DENIES WCW’s cross-motion for summary

judgment as to Exemption 3.

V. Conclusion

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

and DENIES IN PART the VA’s Motion for Summary Judgment and

GRANTS IN PART and DENIES IN PART WCW’s Cross-Motion for Summary

Judgment. A separate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
March 10, 2020

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