UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) PEOPLE FOR THE ETHICAL ) TREATMENT OF ANIMALS, ) ) Plaintiff, ) ) v. ) Civil Action No. 17-cv-1395 (TSC) ) ) DEPARTMENT OF HEALTH AND ) HUMAN SERVICES, ) ) Defendant. ) ) MEMORANDUM OPINION Plaintiff People for the Ethical Treatment of Animals (PETA) has sued under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, et seq., challenging certain responses to a FOIA request it submitted to the National Institutes of Health (NIH), a component of Defendant Department of Health and Human Services (HHS). Before the court is HHS’s Motion for Summary Judgment. (ECF No. 16, MSJ.) For the following reasons, the court will grant in part and deny in part HHS’s motion. I. BACKGROUND A. PETA’s FOIA Request PETA requested: For the period covering May 1, 2014 to July 31, 2014, copies of all e-mails sent and/or received by Francis Collins and/or Kathy Hudson regarding maternal deprivation experiments conducted on rhesus macaques at the NIH’s facility in Poolesville, Maryland. 1 (ECF. No. 16-1, Decl. of Garcia-Malene ¶ 4.) PETA also requested that the search include documents located in Collins’ and Hudson’s Gmail accounts, as well as any other private e-mail accounts they used during the specified time period. (Id.) NIH’s Office of the Executive Secretariat (Exec Sec) searched Collins’ work email using three terms (“maternal deprivation”, “Poolesville”, and “rhesus macaque”) and found no responsive documents. (Id. ¶ 6.) Exec Sec also searched the NIH Outlook repository using the same terms and found four items. (Id. ¶ 7.) Finally, Exec Sec searched Collins’ personal Gmail account using 17 terms, including the three used in the other searches, and found an unspecified number of items. (Id. ¶ 8.) It sent all the search results to the NIH FOIA office for review, and that office found 42 pages responsive. (Id. ¶ 9.) NIH produced this material to PETA, with redactions under Exemptions 5 and 6 on 31 of the pages. (Id.) Hudson’s assistant Kathy Abel searched Hudson’s personal Gmail and NIH email accounts using six terms (“maternal deprivation”, “Poolesville”, “rhesus macaque”, “monkeys”, “Goodall”, and “PETA”) and located 200 pages, which Abel provided to the NIH FOIA Office for review. (Id. ¶ 12.) The FOIA Office found all 200 pages responsive, and on October 30, 2017 turned over 71 pages in full and 30 pages in part, withholding the remaining 99 in their entirety under Exemptions 5 and 6. (Id. ¶¶13, 16.) On February 8, 2018, HHS changed course and notified PETA that “after further review of the previously released records . . . [HHS has] concluded that 119 pages are not responsive to the request, and we have therefore pulled these pages from the group that remain contested in the litigation from which the request stems.” (Id. ¶ 14.) HHS then filed its motion for summary judgment. 2 II. LEGAL STANDARDS A. Summary Judgment Summary judgment is appropriate if “there is no genuine dispute as to any material fact ...
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