FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CIVIL BEAT LAW CENTER FOR THE No. 16-16960 PUBLIC INTEREST, INC., Plaintiff-Appellant, D.C. No. 1:16-cv-00008- v. JMS-KSC CENTERS FOR DISEASE CONTROL & PREVENTION, OPINION Defendant-Appellee. Appeal from the United States District Court for the District of Hawai’i J. Michael Seabright, Chief District Judge, Presiding Argued and Submitted October 9, 2018 Honolulu, Hawai’i Filed July 10, 2019 Before: Kim McLane Wardlaw, Marsha S. Berzon, and Johnnie B. Rawlinson, Circuit Judges. Opinion by Judge Berzon 2 CIVIL BEAT LAW CTR. V. CDC SUMMARY * Freedom of Information Act In a 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. Plaintiff 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 records. FOIA 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 * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CIVIL BEAT LAW CTR. V. CDC 3 regarding biological agents and toxins in response to a FOIA request. Concerning 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. Concerning Exemption 6, the panel held that the CDC ...
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