Civil Beat Law Center for the Public Interest, Inc., Plaintiff-Appellant,
Centers for Disease Control & Prevention, Defendant-Appellee.
and Submitted October 9, 2018 Honolulu, Hawai'i
from the United States District Court for the District of
Hawai'i J. Michael Seabright, Chief District Judge,
Presiding D.C. No. 1:16-cv-00008-JMS-KSC
Brian Black (argued), Civil Beat Law Center for the Public
Interest Inc., Honolulu, Hawaii, for Plaintiff-Appellant.
Murphy (argued) and Matthew Collette, Appellate Staff; Kenji
M. Price, United States Attorney; Civil Division, United
States Department of Justice, Washington, D.C.; for
Kim McLane Wardlaw, Marsha S. Berzon, and Johnnie B.
Rawlinson, Circuit Judges.
of Information Act
case involving disclosures under the Freedom of Information
Act ("FOIA"), the panel dismissed as moot that part
of the appeal pertaining to the disclosure of the specific
regulatory violations and vacated those portions of the
district court's order; affirmed the district court's
grant of summary judgment as to the withholding under FOIA
Exemption 6 of the identity and contact information of
certain Centers for Disease Control & Prevention
("CDC") employees; reversed the district
court's grant of summary judgment to the CDC on a Public
Health Security and Bioterrorism Preparedness and Response
Act of 2002 ("BPRA") public endangerment exemption;
and remanded to the district court for further proceedings.
sought disclosure under FOIA of two documents from the CDC
concerning its inspection of the University of Hawaii's
biolab. CDC provided redacted versions of the requested
Exemption 6 allows agencies to withhold personnel and medical
files that would constitute an unwarranted invasion of
privacy. FOIA Exemption 3 applies to any material that is
specifically exempted from disclosure by statute. BPRA
exempts certain federal agencies from disclosing specified
types of information regarding biological agents and toxins
in response to a FOIA request.
Exemption 3, the panel held as an initial matter that BPRA
was a qualifying statute under Exemption 3. The CDC relied on
two enumerated BPRA exemptions to justify the redactions in
the requested information: the site-specific exemption and
the public endangerment exemption. The panel held that it did
not have jurisdiction to address the CDC's redactions of
the specific regulatory violations found at the biolab, that
were justified under BPRA's site-specific exemption,
because plaintiff's claims are moot. Turning to the BPRA
public endangerment exemption, the panel held that Congress
intended the public endangerment determination to be made on
a case-by-case basis. The panel further held that on the
current record, the CDC did not justify its complete
withholding of identity and location information, and the
district court erred in granting summary judgment to the
agency. The panel also held that plaintiff was not entitled
to judgment as a matter of law on its cross-motion for
summary judgment. The panel remanded for further proceedings
on this issue.
Exemption 6, the panel held that the CDC satisfied its burden
of establishing a nontrivial privacy interest, and plaintiff
provided no reason why disclosure of CDC employees'
identities and contact information would further the public
interest. The panel concluded, therefore, that the CDC's
withholding of this information under Exemption 6 was proper.
BERZON, Circuit Judge.
letters containing deadly anthrax spores were mailed to
several media companies and congressional offices in
September 2001. Five individuals were killed; seventeen
others were sickened. U.S. Dep't of Justice,
Amerithrax Investigative Summary 1-3 (2010),
tigative-summary.pdf. In the wake of these attacks, Congress
moved "to improve the ability of the United States to
prevent, prepare for, and respond to bioterrorism and other
public health emergencies." H.R. Rep. No. 107-481, at 1
(2002) (Conf. Rep.), reprinted at 2002 U.S.C.C.A.N.
464, 464. The resulting legislation is the Public Health
Security and Bioterrorism Preparedness and Response Act of
2002 (BPRA), Pub. L. No. 107-188, 116 Stat. 594 (codified as
amended at scattered sections of 7, 18, 21, 29, 38, 42, and
II of BPRA is directed at improving the safety and security
of dangerous biological agents and toxins located throughout
the United States. Toward this goal, BPRA directed the
federal Department of Health and Human Services (HHS) to
"establish and maintain a list of each biological agent
and each toxin that has the potential to pose a severe threat
to public health and safety," 42 U.S.C. §
262a(a)(1)(A), and to create a system for "registration
with [HHS] of the possession, use, and transfer of listed
agents and toxins," id. § 262a(d)(1).
Registered entities must comply with "appropriate
safeguard[s] [established by HHS] . . . for persons
possessing, using, or transferring a listed agent or
toxin." Id. § 262a(e)(1).
addition to these safeguards, BPRA exempts certain federal
agencies from disclosing specified types of information
regarding biological agents and toxins in response to a
Freedom of Information Act (FOIA) request. See id.
§ 262a(h)(1). Relying on this exemption, the Centers for
Disease Control and Prevention (CDC) withheld information
from a FOIA response pertaining to a biological research
laboratory ("biolab") located at the University of
Hawai'i. Much of the withheld information was already
publicly available. The primary question before us is whether
the CDC properly refused to disclose the requested
University of Hawai'i at Mānoa (UH) maintains a
biolab that is "the only facility of its kind for
researchers in the entire State." UH publicizes the
biolab's location at "the Biosciences Building"
on "the Kaka'ako campus, near downtown
Honolulu." Facilities, Dep't Tropical Med.,
Med. Microbiology & Pharmacology,
http://manoa.hawaii.edu/tr opicalmedicine/?page_id=925 (last
updated June 20, 2014). According to the UH website,
researchers at the UH biolab study a number of highly
dangerous biotoxins, including botulinum neurotoxins, the
Ebola virus, Tetrodotoxin, Brucella abortus,
Brucella melitensis, Brucella suis,
Burkholderia pseudomallei, Burkholderia
pseudomallei, the Nipah virus, Ralstonia
solanacearum, and Xanthomonas oryzae.
reports in 2014 revealed that the CDC had uncovered
"widespread regulatory noncompliance" at the UH
biolab, relating to UH's failure to meet certain
standards for biotoxin safety and security. In response to
these reports, Civil Beat Law Center, a government watchdog
group in Hawai'i, filed a FOIA request with the CDC
seeking two documents: (1) a May 2014 CDC inspection report
detailing the regulatory violations found at the UH biolab;
and (2) a May 2014 letter from the CDC demanding that UH
"show cause" for why the UH biolab's
registration to possess, use, and transfer biological agents
and toxins should not be suspended or revoked. The CDC denied
both requests, maintaining that the records sought were
"specifically exempted from disclosure by 42 U.S.C.
§ 262a(h)(1)(C) and (E)." Civil Beat requested
reconsideration, which the CDC also denied.
to compel disclosure of the two disputed documents, Civil
Beat filed suit under FOIA. The parties filed cross-motions
for summary judgment, with the CDC continuing to assert that
no disclosure at all of the requested documents was required.
weeks later, the CDC changed positions. In response to Civil
Beat's motion for summary judgment, the CDC included
redacted versions of the requested records. The redactions in
the newly disclosed documents fell into three categories:
first two categories of redactions were based on exemptions
found in BPRA. First, the CDC redacted information concerning
the specific regulatory violations found at UH, asserting
that "public disclosure of the redacted information . .
. would endanger public health or safety because it could
assist unauthorized individuals to obtain illegal access to
listed agents." See 42 U.S.C. §
262a(h)(1)(E) ("No Federal agency . . . shall disclose .
. . [a]ny portion of an evaluation or report of an inspection
. . . that identifies the listed agent or toxin possessed by
a specific registered person or that discloses the identity
or location of a specific registered person if the agency
determines that public disclosure of the information would
endanger public health or safety."). Second, the CDC
redacted all references to UH, its employees, and the
laboratory, because revealing any of that information
"would inform individuals with nefarious intentions of
site-specific weaknesses in the safeguards and/or security
measures employed by the particular registered entity at a
particular location." See 42 U.S.C. §
262a(h)(1)(C) ("No Federal agency . . . shall disclose .
. . [a]ny portion of a record that discloses the
site-specific or transfer-specific safeguard and security
measures used by a registered person to prevent unauthorized
access to listed agents and toxins.").
the CDC redacted "[t]he names and telephone numbers of
individual [Division of Select Agents and Toxins] staff
members" who conducted the UH inspection, based on
"the sensitive nature of the select agent information
that these staff members possess and process." These
redactions were based on FOIA Exemption 6, covering
"personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of personal privacy." 5 U.S.C. §
Civil Beat opposed all three categories of redactions. It
also argued, in the alternative, that if the district court
determined that the BPRA exemptions were possibly applicable,
the district court should conduct in camera review
of the unredacted documents to determine whether the
redactions were in fact proper.
district court granted the CDC's summary judgment motion
in nearly all respects. Civil Beat Law Ctr. for the Pub.
Interest, Inc. v. CDC, 204 F.Supp.3d 1132, 1134 (D. Haw.
2016). The court held the redactions justified under BPRA
appropriate, and the withholding of the
names and contact information of CDC employees proper under
FOIA Exemption 6. Id. at 1144-48. Civil Beat timely
enacted FOIA "to pierce the veil of administrative
secrecy and to open agency action to the light of public
scrutiny." U.S. Dep't of State v. Ray, 502
U.S. 164, 173 (1991) (quoting Dep't of Air Force v.
Rose, 425 U.S. 352, 361 (1976)). Providing information
to the public under FOIA, it was hoped, would "ensure an
informed citizenry, vital to the functioning of a democratic
society, needed to check against corruption and to hold the
governors accountable to the governed." NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
this goal, FOIA "requires federal agencies to make
Government records available to the public, subject to nine
exemptions for specific categories of material."
Milner v. Dep't of Navy, 562 U.S. 562, 564
(2011). "These exemptions are 'explicitly made
exclusive,' and must be 'narrowly
construed.'" Id. at 565 (citations omitted)
(first quoting EPA v. Mink, 410 U.S. 73, 79 (1973);
then quoting FBI v. Abramson, 456 U.S. 615, 630
(1982)). Given FOIA's overarching purpose, "the
strong presumption in favor of ...