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New Hampshire Right to Life v. United States Department of Health And Human Services

United States Court of Appeals, First Circuit

February 4, 2015

NEW HAMPSHIRE RIGHT TO LIFE, Plaintiff, Appellant,

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[Copyrighted Material Omitted]

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Michael J. Tierney, with whom Wadleigh, Starr & Peters, PLLC, was on brief, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief, for appellee.

Before Torruella, Howard, and Kayatta, Circuit Judges.


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KAYATTA, Circuit Judge.

In 2011, the Department of Health and Human Services (" Department" ) awarded federal grant funds directly to Planned Parenthood of Northern New England (" Planned Parenthood" ). New Hampshire Right to Life (" Right to Life" ) then filed a request under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, and ultimately this lawsuit, seeking documents related to the award of that federal grant. The Department produced some documents, but withheld others, citing FOIA exemptions for confidential commercial information, id. § 552(b)(4) (Exemption 4), and inter- or intra-agency memoranda, id. § 552(b)(5) (Exemption 5). We affirm the district court's ruling that the Department properly withheld the subject documents under FOIA Exemptions 4 and 5.

I. Background

A. Direct Award Of Federal Grant To Planned Parenthood

Prior to 2011, the Department historically awarded Title X[1] federal grants to New Hampshire, which in turn dispersed a combination of federal and state funds through subgrants to various entities. Title X federal grants " assist in the establishment and operation of voluntary family planning projects which . . . offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents)." 42 U.S.C. § 300(a). Planned Parenthood historically received one of these subgrants, including Title X federal funds, from New Hampshire. As of July 1, 2011, Planned Parenthood operated clinics in six different New Hampshire municipalities: Manchester, Derry, Keene, Exeter, West Lebanon, and Claremont.

In June 2011, the New Hampshire Executive Council chose not to award any subgrant to Planned Parenthood, expressing concern that taxpayer funds were being used to subsidize abortions.[2] New Hampshire's decision meant that unless a new provider received the funds, large portions of the state would no longer have access to Title X services. In July 2011, the Department asked New Hampshire for information on how it would ensure continued provision of Title X services in areas previously served by Planned Parenthood. In mid-August 2011, the New Hampshire Department of Health and Human Services informed the Department that they could not find a replacement provider for those areas. New Hampshire then relinquished what would have been Planned Parenthood's portion of the federal funds.

The Department considered alternative options, including bypassing New Hampshire's Executive Council, and directly awarding Title X funds to Planned Parenthood. On August 19, 2011, Marilyn Keefe, the Deputy Assistant Secretary of the Department's Office of Population Affairs (" OPA" ), signed a memorandum titled,

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" Sole Source Justification for Replacement Grant in New Hampshire" . This memorandum " request[ed] approval [from the Department's Office of the Assistant Secretary of Health (" OASH" )] of a sole source replacement grant to [Planned Parenthood] for a period of 16 months." The memorandum " noted an urgent need to reinstate services in [the affected] areas with an experienced provider that is familiar with the provision of Title X family planning services and applicable laws . . . and has a history of successfully providing services in this area of the state." The memorandum explained that, upon approval of its recommendation, " [the OPA] will reach out to the proposed replacement grantee to determine if the organization is willing to take on this project as a directly funded federal grantee." The memorandum also stated that " [t]he Director of the OASH Grants Management Office has consulted with the Office of the General Counsel, which has determined that the use of the replacement grant process is legally justified in this case." The OASH Executive Officer approved the OPA's recommendation by countersigning the memorandum on that very same day--August 19, 2011.

On September 1, 2011, Planned Parenthood applied for the direct award grant. The Department then prepared a " Technical Review" document, evaluating Planned Parenthood's application. On September 9, the Department announced, via its website, its intent to directly issue a replacement grant to Planned Parenthood. On September 13, the Department formally provided a Notice of Grant Award to Planned Parenthood. The notice required Planned Parenthood to submit to the Department, by December 15, 2011, additional " institutional files" on " a variety of policies and procedures[.]" Responding to this notice, Planned Parenthood submitted its Manual of Medical Standards and Guidelines (" Manual" ) as well as information on its fee schedule and personnel policies.

B. Right To Life's FOIA Challenge And District Court Decision

On December 22, 2011, Right to Life filed a lawsuit under the FOIA, seeking documents related to the Department's decision to proceed with a direct award process, documents that Planned Parenthood submitted as part of its grant application, and documents related to the Department's decision to award that grant to Planned Parenthood. After being sued, the Department released more than 2,500 pages of documents. The Department determined that some portions of the Manual were exempt from disclosure under the FOIA, but intended to release the remainder, and so informed Planned Parenthood. Planned Parenthood responded by arguing that its entire Manual constituted confidential commercial information, and thus was exempt from disclosure under the FOIA. See 5 U.S.C. § 552(b)(4). The Department rejected this argument. Planned Parenthood countered by commencing an action in district court, seeking to enjoin the Department from releasing any portion of the Manual.

The district court remanded the matter to the Department to " reconsider its FOIA determination in light of additional information provided by [Planned Parenthood] about specific portions of the [M]anual, and produce a more comprehensive explanation for any determination that portions of the [M]anual are subject to disclosure despite [Planned Parenthood's] objections." Upon reconsideration, the Department decided to withhold or redact additional portions of the Manual. The Department also continued to withhold various other documents or portions of documents,

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invoking FOIA Exemptions 4, 5, and 6. The Department gave Right to Life a Vaughn Index, correlating withheld documents to particular FOIA exemptions.[3] Right to Life and the Department then filed cross motions for summary judgment, see Fed.R.Civ.P. 56, to ...

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