301 F.3d 1247
Robert CASAD, Jr., Ph.D,
Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
No. 01-3368.
August 29, 2002.
Robert C. Casad, Jr., Ph.D., Pro Se.
Robert D. McCallum, Jr., Assistant Attorney General; James E. Flory, United States Attorney; Leonard Schaitman and Freddi Lipstein, Attorneys, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C.; Patricia Mantoan, Of Counsel, Office of General Counsel, Department of Health and Human Services, for Defendant-Appellee.
Before SEYMOUR, PORFILIO, and O'BRIEN, Circuit Judges.
SEYMOUR, Circuit Judge.
1
Robert Casad, Jr. filed suit against the United States Department of Health and Human Services challenging the denial of his request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, for the complete "summary statement" associated with a grant application funded by the National Institutes of Health (NIH).1 After determining that NIH properly withheld the requested information under FOIA's deliberative process privilege, the district court entered summary judgment in favor of defendant. We affirm.2
I.
2
The summary statement sought by Mr. Casad was created during peer review of a training grant application submitted to the National Institute on Aging (NIA), one of the institutes within the NIH. Peer review plays an important role in the NIH's competitive grant application process. See 42 U.S.C. §§ 289a, 289a-1. A scientific review group, composed of experts qualified by training and experience in particular scientific or technical fields, evaluates the scientific and technical merit of grant applications. The group first decides whether the application is deemed worthy of funding under NIH selection criteria. If a majority of members of the group do not recommend the application for approval, then the application does not proceed through the funding process. See § 289a-1(a)(2). Approximately half the applications fall within the likely pool for making funding decisions. For these applications, the group assigns a numerical priority rating as a tool to permit applications to be funded in order of their priority.
3
A staff administrator then compiles a summary statement, which contains the scientific review group's recommendation, the priority score, and a summary of the factors considered on peer review. It also recounts the reviews of the individual peer reviewers, along with a summary of any group discussion. A copy of the summary statement is sent to the principal investigator of the proposed research so that the investigator may submit rebuttal comments.
4
For approved grant applications with direct costs exceeding $50,000, the summary statement is sent to the next stage of the review process — conducted by the advisory council for the appropriate institute. The purpose of this second level of review is to choose, from among meritorious projects, those most relevant to the nation's health needs. The advisory council, which includes both scientists and lay community leaders, usually concurs with the peer review determination of merit. In making its recommendation, however, it also takes into account the broad background of research in universities and other institutions, the need to initiate research in new areas and the degree of relevance of the proposed project to the institute's mission. Without a favorable recommendation from the council, the grant cannot be funded. See § 284(b)(2)(B)(ii).
5
Upon completion of both levels of review, the Secretary of the Department of Health and Human Services, acting through the institute's director, makes the final decision on whether to fund the proposed project. §§ 284(b)(2), 288. The record shows that the director funds a proposal based on the availability of funds, "the proposed research training's relevance to NIA priorities and to the timeliness of the research training," as well as "the perceived scientific quality of the application as judged by initial peer review." Aplt.App. at 93. A successful applicant is given notice of a grant award and a general description of the funded project is made available to the public.
6
The grant at issue in this case was an NIA training grant
awarded to researchers at the
7
Mr. Casad made a FOIA request for the grant's entire documentary record. Although his request was eventually granted for the most part, portions of the summary statement were redacted. Sections containing evaluative comments and the scientific merit score were withheld, based on an administrative determination that the redacted information was protected from public disclosure by the deliberative process and privacy exemptions to FOIA's general requirement that the federal government release information to the public.
8
Mr. Casad brought suit in district court, arguing that the NIH had improperly invoked the exemptions and that the NIH had a legal duty under FOIA to release the complete summary statement. The parties filed cross-motions for summary judgment. The district court granted summary judgment in favor of defendant, holding that the deliberative process exemption applied. Mr. Casad appeals that ruling, and also attempts to appeal the district court's refusal to expedite his case under the priority of civil actions statute, 28 U.S.C. § 1657(a).
II.
9
FOIA "provides the public with a right of access to
federal agency records." Herrick v. Garvey, 298 F.3d 1184, 1189 (10th
Cir.2002). Its "purpose is to 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."
10
"FOIA is to be broadly construed in favor of disclosure,
and its exemptions are to be narrowly construed." Herrick,
298 F.3d 1184, 1189 (quotation
omitted). "If an agency has been sued by an individual because the
agency has refused to release documents, the agency bears the burden of
justifying nondisclosure."
11
"Federal courts are granted the authority to enjoin the
agency from withholding records, § 552(a)(4)(B),"
and to determine whether records fall within the statutory exemptions listed in
5 U.S.C. § 552(b).
III.
12
The district court determined that the redacted material from
the summary statement was properly withheld under FOIA's
exemption five, which covers documents which a private litigant could not
obtain from the agency through normal discovery rules. See Dep't of Interior
v. Klamath Water Users Protective Ass'n, 532
13
This deliberative process privilege "rests on the obvious
realization that officials will not communicate candidly among themselves if
each remark is a potential item of discovery and front page news, and its
object is to enhance the quality of agency decisions by protecting open and
frank discussion among those who make them within the Government." Klamath Water Users Protective Ass'n,
532
14
Mr. Casad argues that there are two reasons why exemption five does not protect the withheld material from disclosure. First, he states that the summary statement is the final opinion of the NIA on the scientific merit of a grant application. Second, he states that a scientific review group is itself an agency within the meaning of FOIA and the summary statement constitutes the agency's opinion.
A.
15
With regard to Mr. Casad's first argument, the essential question is whether the requested summary statement is "expressly subject to disclosure" as the final opinion "explaining the reasons" for a funding decision already made or, instead, a predecisional memorandum protected from disclosure under the deliberative process privilege. Renegotiation Board v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 170, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975). Case law identifies two factors helpful in determining whether the privilege applies:
16
the "nature of the decisionmaking authority vested in the officer or person issuing the disputed document," Taxation with Representation Fund v. IRS, 646 F.2d 666, 678 (D.C.Cir.1981), and the relative positions in the agency's "chain of command" occupied by the document's author and recipient. [Arthur] Andersen [& Co. v. IRS], 679 F.2d [254,] 258 [(D.C.Cir.1982)]; see also Schlefer v. United States, 702 F.2d 233, 238 (D.C.Cir.1983) (intra-agency memoranda from "subordinate" to "superior" more likely to be deliberative in character than documents traveling in opposite direction); Bristol-Meyers Co. v. FTC, 598 F.2d 18, 28 n. 20 (D.C.Cir. 1978) ("[D]etailed information about the agency's decision-making process is essential ... to a fair determination of the agency's [deliberative process] claims.").
17
Senate of the Com. of Puerto Rico on Behalf of Judiciary Comm. v. United States Dep't of Justice, 823 F.2d 574, 586 (D.C.Cir.1987).
18
When the record is viewed in the light of these factors, it is apparent that the summary statement is a predecisional communication in the NIH funding process. The scientific review group's charge is confined to a determination of scientific merit and computation of a priority score. The summary statement reflecting the group's thoughts and conclusions is sent to the advisory council and, after approval there, on to the NIA director. Although an important consideration in the director's funding decision, the peer group evaluation is not dispositive. At the end of the day, the director alone has the power to fund an application. The NIH met its burden of demonstrating that the summary statement is a predecisional, deliberative document.
19
Mr. Casad argues that, even if this
is true, exemption five still does not protect the summary statement. His
theory is that the statement contains the only explanation of the reasons why
NIH funded the grant application and should therefore be disclosed as either an
adopted opinion, Aplt.
20
The Supreme Court has considered and rejected both aspects of Mr.
Casad's proposed approach. In NLRB v. Sears,
Roebuck & Co., 421 U.S. 132,
161, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975), the Court
required express adoption of a predecisional document
as a prerequisite to an agency waiver under exemption five. See id. (stating that the agency must "expressly ... adopt or
incorporate [the document] by reference" in a final decision). The Court
has also refused to equate reference to a report's conclusions with adoption of
its reasoning. It is only the latter that destroys the privilege. See
Grumman, 421
21
Further, "[t]he Freedom of Information Act imposes no
independent obligation on agencies to write opinions. It simply requires them
to disclose the opinions which they do write." Grumman, 421
B.
22
Mr. Casad also argues that the
summary statement may be predecisional in the broad
context of the NIH process, but it constitutes the final decision of the
scientific review group, which is itself an agency. He, like the unsuccessful
plaintiff in Grumman, reasons that a report which is a final product of
a governmental entity "must therefore be disclosable
if" the entity is a separate agency.
23
the fact that Exemption 5 does not distinguish between inter-agency and intra-agency memoranda. By including inter-agency memoranda in Exemption 5, Congress plainly intended to permit one agency possessing decisional authority to obtain written recommendations and advice from a separate agency not possessing such decisional authority without requiring that the advice be any more disclosable than similar advice received from within agency.
24
25
The entity at issue in Grumman was a regional board
which had "some final decisional authority" to resolve matters with
less than $800,000 at stake, but only investigative and advisory authority in
matters involving a higher amount.
26
The Grumman reasoning is directly applicable to Mr. Casad's argument. Although a scientific review group may have the power to terminate consideration of an application by determining it has little scientific merit, it has no power to actually fund an application. Mr. Casad seeks a summary statement describing a proposal which survived peer review and was forwarded to the advisory counsel and then on to the institute director for a funding decision. Whether or not a review group can be considered an agency for FOIA purposes, its lack of funding authority brings the summary statement within the protection of exemption five.6
IV.
27
Finally, Mr. Casad seeks to appeal
the district court's denial of his motion to expedite its ruling. The district
court has resolved the case; this court can provide no relief for any alleged
delay. When events occur that prevent the appellate court from granting any
effective relief, an issue is moot. Phelps v.
28
Mr. Casad, however, argues that the
issue falls under an exception to the mootness
doctrine, citing Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam).
To meet this exception to mootness, two conditions
must be simultaneously satisfied: "(1) the challenged action [is] in its
duration too short to be fully litigated prior to cessation or expiration, and
(2) there [is] a reasonable expectation that the same complaining party [will]
be subject to the same action again."
V.
29
We thus hold that the requested summary statement falls within the deliberative process privilege included in FOIA exemption five. We AFFIRM the decision of the district court denying Mr. Casad's request to compel additional disclosure. We dismiss the appeal of the district court's denial of Mr. Casad's motion to expedite his action. We grant Mr. Casad's motion to file an appendix, but deny his motion to expedite the appeal and his motion for costs.
__________________________________________________________________________________
Notes:
The named defendant in this case is the United States Department of Health and Human Services (HHS). The NIH, dedicated to research and development activities in the area of public health and welfare, is an agency of the Public Health Service, 42 U.S.C. §§ 203, 281, which is in turn administrated by the Secretary of Health and Human Services, § 241
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appealSee Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Section 552(b)(5) provides that FOIA disclosure requirements do not apply to "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."
In his reply brief, Mr. Casad asserts that the
record would have been more complete on this issue if he had been allowed
discovery in the trial court. Reply
We note that the district court and the magistrate judge reached, analyzed, and rejected Mr. Casad's argument that a scientific review group is an agency subject to FOIA. We need not reach this issue
Because we determine that exemption five applies to the summary statement, we do not reach the question of whether it is protected under exemption six, "which protects: personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6)