In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-1750

J. DONALD HENSON, SR.,

Plaintiff-Appellant,

v.

DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 14-CV-908 — David R. Herndon, Judge.

____________________

SUBMITTED MARCH 9, 2018* — DECIDED JUNE 15, 2018

____________________

Before WOOD, Chief Judge, and BAUER and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Plaintiff J. Donald Henson, Sr., 

appeals from the district court’s grant of summary judgment 

 * We have agreed to decide this case without oral argument because 

the briefs and record adequately present the facts and legal arguments, 

and oral argument would not significantly aid the court. See Fed. R. App. 

P. 34 (a)(2)(C).
2 No. 17-1750

for defendants on his claims under the Freedom of Information Act, 5 U.S.C. § 552. We affirm.

Under the Food, Drug, and Cosmetics Act, “Class III” 

medical devices are those that support or sustain human life, 

that are of substantial importance in preventing impairment 

of human health, or that present a potential, unreasonable risk 

of illness or injury. See Riegel v. Medtronic, Inc., 552 U.S. 312, 

317 (2008); 21 U.S.C. § 360c(a)(1)(A). Class III devices must undergo scientific and regulatory review before they are marketed. See 21 U.S.C. § 360e; 21 C.F.R. §§ 814.1 et seq.

Plaintiff Henson sent the Food and Drug Administration

requests under the Freedom of Information Act seeking documents related to the premarket approval process for a glucose monitoring system. The agency produced documents responsive to Henson’s requests. He was not satisfied with the 

response, so he sued, alleging that the agency failed to satisfy 

its obligations under the Freedom of Information Act. The 

agency then reprocessed Henson’s requests and provided 

him with responsive documents totaling 8,000 pages.

In his amended complaint, Henson alleges that he is diabetic, that he had observed 14 deficiencies with his own glucose monitor, and that he contacted the agency to relay his 

concerns. Henson says that, after speaking with the Ombudsman for the Center for Devices and Radiological Health 

(“CDRH”), the branch of the FDA responsible for overseeing 

the premarket approval process, he sent the agency 46 requests for documents related to the premarket approval process for the glucose monitor. Henson also sent ten letters, labelled sequentially from “R-1” to “R-10,” that he contends 

were new requests, but none of those letters was answered. 

The FDA eventually provided Henson with more than 7,000 
No. 17-1750 3

pages in response to his requests. Henson then called and 

wrote to two FDA employees, insisting that the agency was 

withholding documents to which he was entitled. But Henson’s calls and letters went unanswered. In his complaint, he 

named the agency and the two agency employees as defendants. He also attached two summaries detailing the requests 

that he made to the agency. Henson asked the court to order 

the production of the withheld documents. 

On the defendants’ motion, the district judge dismissed 

the two agency employees from the case, concluding that the 

Act “does not create a cause of action for a suit against an individual employee of a federal agency.” A magistrate judge 

then granted the agency’s request for a stay of discovery because cases under the Act generally proceed to discovery only 

after a plaintiff’s case survives a motion for summary judgment. Rather than move for summary judgment, however, the 

agency asked the court to stay the case so it could reprocess 

Henson’s requests by conducting a new search for responsive 

documents. The agency said it would give Henson documents 

responsive to his requests on a rolling basis and a so-called 

Vaughn index—a list of each redacted or withheld document 

cross-referenced with the exemption that the agency asserts is 

applicable. See Solar Sources, Inc. v. United States, 142 F.3d 

1033, 1036 n.3 (7th Cir. 1998); Vaughn v. Rosen, 484 F.2d 820, 

826–28 (D.C. Cir. 1973). The court granted the stay.

After the agency had reprocessed Henson’s requests, the 

court lifted the stay and the agency moved for summary judgment. The agency argued that it had conducted a reasonable 

search for all documents responsive to Henson’s requests and 

that it had properly withheld and redacted documents pursuant to the exemptions to disclosure listed in 5 U.S.C.
4 No. 17-1750

§ 552(b)(4)–(6). In support of its motion, the agency provided 

the affidavits of two employees: Sarah Kotler, the agency’s Director of the Division of Freedom of Information, and William 

Holzerland, the Director of the Division of Information Disclosure for the CDRH. Their affidavits detailed the following 

information: The two directors sent documents in response to 

18 of Henson’s requests and to some of his letters. They did 

not respond to the remainder, including Henson’s letters, because the requested materials were either outside of the Act’s 

scope, duplicative of Henson’s other requests, or available on 

the agency’s website. The agency also appended to its motion 

tables describing the 18 requests and Henson’s “R” letters, the 

scope of the search undertaken by the agency, and the production following the stay. The affidavits also described why 

the agency had redacted records pursuant to certain of the 

Act’s exemptions to disclosure. The defendants did not file 

with their motion for summary judgment the Vaughn indices

themselves. The agency later said it withheld them so as not 

to burden the district court. 

Judge Herndon granted summary judgment for the defendants. He first determined that the affidavits established 

that the agency performed an adequate search for the documents requested by Henson. The judge also concluded that 

the agency had applied the Act’s exemptions correctly to 

withhold or redact documents: exemption 4 for trade secrets 

relating to the raw materials used to manufacture the glucose 

monitor, the raw materials used in the testing process, and the 

pump’s battery film; exemption 5 for “pre-decisional and deliberative” agency documents; and exemption 6 for documents that identified patients who had reported feedback to 

the agency or the manufacturer of the glucose monitor and 
No. 17-1750 5

those patients’ medical histories, as well as agency employees’ cell-phone numbers and the personal email addresses of 

the manufacturer’s employees. See § 552(b)(4)–(6).

On appeal, Henson raises three challenges. First, he argues 

that the district court should not have dismissed one of the 

agency employees as a defendant. He contends the disciplinary provisions of § 552(a)(4)(F) cannot be enforced unless individual agency employees are proper defendants under the 

Act. Second, he argues that the magistrate judge erred by 

staying the case pending the agency’s motion for summary 

judgment. Third, Henson argues generally that the district 

court erred in granting summary judgment on the merits. We 

address these arguments in turn.

First, we agree with the district court that the Act does not 

authorize suits against the individuals named in Henson’s 

complaint. Under 5 U.S.C. § 552(a)(4)(B), “on complaint, the 

district court . . . has jurisdiction to enjoin the agency from 

withholding agency records and to order the production of 

any agency records improperly withheld from the complainant.” (Emphasis added.) The statute defines “agency” as 

“each authority of the Government of the United States, 

whether or not it is within or subject to review by another 

agency, but does not include—(A) the Congress; (B) the courts 

of the United States; (C) the governments of the territories or 

possessions of the United States; (D) the government of the 

District of Columbia.” 5 U.S.C. § 551(1). An individual employee is not an “agency” as defined by the Act. The district 

court properly dismissed the claims against the two agency 

employees.

Henson resists this conclusion by arguing that 

§ 552(a)(4)(F) allows suits against individuals. That provision
6 No. 17-1750

allows the court, when ordering the production of records, to 

question whether agency personnel have acted arbitrarily or 

capriciously and whether discipline is warranted. But under 

the statute, the issue of any discipline is left to the agency, not 

a court. See id. We agree with our colleagues in other circuits 

that a plaintiff may not sue an individual agency employee

for violating the Freedom of Information Act. See Drake v. 

Obama, 664 F.3d 774, 785–86 (9th Cir. 2011); Batton v. Evers, 598 

F.3d 169, 173 n.1 (5th Cir. 2010); Martinez v. Bureau of Prisons, 

444 F.3d 620, 624 (D.C. Cir. 2006) (noting that Privacy Act and 

Freedom of Information Act “concern the obligations of agencies as distinct from individual employees of those agencies”); 

see also Bavido v. Apfel, 215 F.3d 743, 747 (7th Cir. 2000) (stating that Privacy Act authorizes suits against only agencies, 

not individuals).

Second, the magistrate judge did not err by staying discovery and setting a briefing schedule for summary judgment. Henson argues that the judge’s decision constituted an 

improper order “directing” the agency to file a motion for 

summary judgment. He also contends that the judge lacked 

authority to set a briefing schedule because no written referral 

from the district judge exists in the record.

We do not understand the magistrate judge’s order as

Henson does. The magistrate judge reasoned that, in cases under the Freedom of Information Act, it is prudent to entertain 

summary-judgment motions before discovery. The magistrate judge’s decision to grant the stay and set a briefing 

schedule was within his considerable discretion to manage 

the court’s docket to ensure the “just, speedy, and inexpensive” resolution of this case. See Fed. R. Civ. P. 1, 6(b); Dietz 
No. 17-1750 7

v. Bouldin, 136 S. Ct. 1885, 1891–92 (2016); Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012). Also, the lack of 

a more specific written referral to the magistrate judge does 

not matter here. The district court’s local rules establish that 

most non-dispositive pretrial civil motions, including motions to stay discovery, are to be handled by a magistrate 

judge. See S.D. Ill. Civ. L.R. 72.1(a)(1); see also 28 U.S.C. 

§ 636(b)(1)(A).

Third, we turn to the merits of the district court’s grant of 

summary judgment. Henson disputes both the adequacy of 

the agency’s search and the applicability of the Act’s exemptions 4, 5, and 6 in this case.

We begin with whether the agency’s search was adequate, 

a question that we review de novo. See Rubman v. U.S. Citizenship & Immigration Servs., 800 F.3d 381, 388 (7th Cir. 2015). To 

prevail on summary judgment on a claim under the Act, the 

agency must demonstrate that there is no genuine issue of 

material fact about the adequacy of its search. See id. at 387. 

An agency “must show that it made a good faith effort to conduct a search for the requested records, using methods which 

can be reasonably expected to produce the information requested.” Id., quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 

57, 68 (D.C. Cir. 1990). Good faith is presumed, and it can be 

reinforced by evidence of the agency’s attempts to satisfy the 

request. See id. To support an agency’s assertion that it conducted a reasonable search, the agency may offer non-conclusory affidavits. See Matter of Wade, 969 F.2d 241, 249 n.11 (7th 

Cir. 1992). The affidavits must be reasonably detailed, set 

forth the search terms used in electronic searches and the kind 

of search performed by the agency, and aver that all files 
8 No. 17-1750

likely to contain responsive documents were searched. See

Rubman, 800 F.3d at 387, quoting Oglesby, 920 F.2d at 68.

The undisputed facts show here that the agency’s search 

for responsive documents was reasonable. Holzerland’s affidavit establishes that the agency searched its database by the 

premarket-approval number assigned to the glucose monitor 

Henson inquired about. The agency also had the recipients of 

Henson’s letters and those representatives with whom Henson had met search their files for responsive documents. Kotler attested that, in response to Henson’s request for documents about a meeting he had with the agency’s general counsel, the general counsel searched his files. Other documents 

responsive to Henson’s requests of the ombudsman were 

identified, Kotler described, through a search of files. Kotler 

also detailed how Henson’s other requests were handled in a 

similar manner. The agency also provided Henson with responsive documents after reviewing the documents and creating a Vaughn index. Henson has no basis for suggesting that 

these were not reasonable efforts to locate responsive documents to his many (and often repetitive) requests. We agree 

with the district court that the agency undertook a search reasonably calculated to uncover all relevant documents.

We next turn to whether the agency properly withheld or 

redacted documents pursuant to the Act’s exemptions. We examine de novo whether the district court had an adequate factual basis for its decision. See Patterson v. I.R.S., 56 F.3d 832, 

836 (7th Cir. 1995). That inquiry depends on factors such as 

the specificity of the agency’s affidavits, whether the judge reviewed the documents in camera, and whether the judge reviewed the Vaughn indices. See id.; Rubman, 800 F.3d at 388;

Solar Sources, 142 F.3d at 1038–39; Becker v. I.R.S., 34 F.3d 398, 
No. 17-1750 9

402 (7th Cir. 1994). If a sufficient factual basis for the decision 

exists, then we review the conclusion for clear error. See Appleton Papers, Inc. v. Environmental Protection Agency, 702 F.3d 

1018, 1022 (7th Cir. 2012). Therefore, while we examine closely 

whether the district judge had an adequate factual basis for 

his conclusion that an exemption applies, we do not conduct 

a de novo review of each finding. See Rubman, 800 F.3d at 388. 

Henson challenges both the adequacy of the factual basis and 

the applicability of exemptions 4, 5, and 6.

Henson’s challenge to the adequacy of the judge’s factual 

basis fails. Henson had the agency’s Vaughn indices yet did 

not point to specific claims of exemption with which he disagreed. Neither Henson nor the agency filed the indices with 

the district court. And although Henson argued in the district 

court that the agency did not narrowly construe the exemptions to the Act’s disclosure mandate, as it is required to do, 

see Patterson, 56 F.3d at 835–36, he never provided the judge 

with the indices or pointed to specific entries that purportedly 

showed that the agency improperly redacted documents. 

Having failed to provide the Vaughn indices to the court, 

plaintiff cannot complain here for the first time that the judge 

did not have an adequate factual basis to decide the agency’s 

claims of exemption. See Allen v. City of Chicago, 865 F.3d 936, 

944–45 (7th Cir. 2017).

The district court would have had a stronger factual basis 

for its decision if the judge had reviewed the Vaughn indices

or conducted an in camera review of at least a reasonable sample of the documents. See, e.g., Solar Sources, 142 F.3d at 1038 

(noting that “we might give some weight to the appellants’ 

argument” that a factual basis was not established by the gov-
10 No. 17-1750

ernment’s affidavit had judge not conducted in camera review); Becker, 34 F.3d at 402 (concluding that judge’s decision 

rested on adequate factual basis when judge reviewed documents in camera and reviewed Vaughn indices).

Still, this is an adversary process. Henson was in the better

position to focus the judge on the contested issues. He had the 

ability to identify which redactions he believed were unsupported, rather than objecting generally, as though every entry 

in the Vaughn indices gave insufficient grounds for redaction. 

Rather than ask a busy district judge to examine documents 

(in this case Henson asked the judge to examine over 67,000 

documents) or to parse the Vaughn indices as an original matter, it is better to put the burden on the plaintiff to identify

with particularity the claims of exemption he was challenging, at least where the Vaughn indices appear facially adequate, as they do here.

We recognize that the burden remains on the government 

to justify decisions not to disclose information, see 5 U.S.C. 

§ 552(a)(4)(B). Insofar as we are concerned with the district 

judge’s basis for his decision, the agency met its burden because it provided detailed affidavits in support of its decision 

to redact information. See Rubman, 800 F.3d at 388. Moreover, 

the agency produced Vaughn indices and furnished them to 

Henson.

In this appeal, as a precautionary step, we opted to order 

the agency to file the indices in this appeal. That is not how 

future cases should proceed as a matter of course. Rather, if 

Vaughn indices are created (they are not required in every 

case, see, e.g., Solar Sources, 142 F.3d at 1039–40), the plaintiff 

or the government should file the indices with the district 

court and, if warranted, with a request to seal them. If the 
No. 17-1750 11

plaintiff wishes to claim that the government has claimed inapplicable exemptions to disclosure, the plaintiff should identify specifically which ones are disputed. In some cases, perhaps, indices might be so opaque that it would be impossible 

for the plaintiff to identify which entries in the indices are contested. In other cases, the plaintiff might argue that none of 

the withheld information is exempt from disclosure. In those 

cases, if the plaintiff has been given a copy of the indices, they 

should be filed with the court and the plaintiff should explain 

why he or she cannot narrow the scope of the dispute. We deviated from the ordinary procedure here to ensure that the indices provided Henson with a basis for objecting in a specific 

manner to the agency’s claims of exemption. They did, so we 

conclude that Henson needed to specify in the district court 

which redactions he thought improper.

Because Henson’s challenge to the judge’s factual basis 

fails, we next examine whether the judge clearly erred in upholding the agency’s claims of exemption. We find no clear 

error.

The judge found that the agency properly invoked exemption 4 to withhold “information relating to the raw material 

used in the manufacturing process, raw material used in the 

testing process, and the pump’s battery film.” Exemption 4 

protects from disclosure “matters that are ... trade secrets and 

commercial or financial information obtained from a person 

and privileged or confidential.” 5 U.S.C. § 552(b)(4). We have 

suggested that this exemption applies when disclosing the 

contested information would cause “substantial competitive 

harm to the firm that owns the information.” General Elec. Co. 

v. NRC, 750 F.2d 1394, 1402–03 (7th Cir. 1984), citing National

Parks & Conservation Ass’n v. Kleppe, 547 F.2d 673, 681–84 (D.C. 
12 No. 17-1750

Cir. 1976). The Act does not define “trade secret,” and there is 

some disagreement about the scope of this exemption. See

New Hampshire Right to Life v. Dep’t of Health and Human Servs., 

136 S. Ct. 383 (2015) (Thomas, J., dissenting from denial of certiorari); Anderson v. Dep’t of Health & Human Servs., 907 F.2d 

936, 944 (10th Cir. 1990) (adopting definition of “trade secret”

narrower than agency’s definition); see also 18 U.S.C. 

§ 1839(3) (defining “trade secret” for purposes of criminal 

law). We do not decide which approach is best here because 

Henson’s challenge fails under every approach.

We see no clear error in the judge’s determination that the 

materials used to manufacture the glucose monitor and its 

battery film were exempt from disclosure as trade secrets or 

were otherwise confidential. Henson provided no evidence to 

the district judge contradicting Holzerland’s declaration that 

the agency redacted information relating to the materials 

used to make the monitor and its battery film. The Vaughn indices confirm that the agency limited its redactions pursuant 

to exemption 4 to these kinds of information. There is no evidence that the manufacturer of the glucose monitor disclosed 

the information that the agency redacted, nor is there evidence that the raw materials do not have economic value by 

virtue of remaining confidential. Because there is no evidence 

that the materials used to make the monitor and the battery 

film have been made public, there is no reason to doubt that 

substantial competitive harm could befall the manufacturer if 

that information were released to the public.

The district judge also did not clearly error in finding that 

exemption 5 applied to the agency’s pre-decisional and deliberative documents and communications protected by the at-
No. 17-1750 13

torney-client privilege. Exemption 5 allows an agency to withhold “inter-agency or intra-agency memorandums or letters 

that would not be available by law to a party other than an 

agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). 

This exemption incorporates the attorney-client privilege and 

the work-product privilege. See Appleton Papers, 702 F.3d at 

1022; Becker, 34 F.3d at 403 n.15. The affidavits provided by 

the agency set forth the categories of information that were

redacted, and the Vaughn indices detail on an individual basis 

the topics discussed by the agency’s employees and the purposes for the communications. Henson did not contradict any 

of the agency’s representations, so we see no clear error.

Finally, there was no clear error in the judge’s determination that the agency properly applied exemption 6, which excuses the disclosure of “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). 

Under exemption 6, the court must balance an individual’s 

right to privacy against the Act’s policy of opening agency action to the light of public scrutiny. See U.S. Dep’t of State v. 

Ray, 502 U.S. 164, 175 (1991).

Based on the affidavits provided to the district court and 

the Vaughn indices, the agency redacted medical information 

about the manufacturer’s patients and the contact information for employees of the manufacturer and the agency. We 

agree with the district court that this information was protected by exemption 6 because the revelation of personal identifying information tips the scales in favor of non-disclosure. 

See id. at 175–76; U.S. Dep’t of Navy v. Fed. Labor Relations Auth.,

975 F.2d 348, 350 (7th Cir. 1992) (names and home addresses 

protected from disclosure by exemption 6). Moreover, the Act 
14 No. 17-1750

requires transparency from the government—not the manufacturer’s patients and employees. See U.S. Dep’t of Justice v. 

Reporters Comm. For Freedom of the Press, 489 U.S. 749, 774–75 

(1989).

The judgment of the district court is AFFIRMED.