1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL WHISTLEBLOWER CENTER, et al., Plaintiffs,

v. Civil Action No. 10-2120 (JEB)

DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

MEMORANDUM OPINION Plaintiffs, who are the National Whistleblow er Center and six current and former employees of Defendant Department of Health and Human Services, have brought this action to gain access to records related to the individuals’ employment w ith that Agency. Plaintiffs’ Second Amended Complaint challenges the deci sions of various HHS components and other agencies to withhold documents, and it asserts claims under a variety of statutes including, but not limited to, the Freedom of Information Act, the Privacy Act, and the Administrative Procedure Act. The records at issue in the parties’ current Cross-Motions for Part ial Summary Judgment are contained in two investigative case files maintained by HHS’s Office of the Inspector General. While OIG has already released hundreds of pages from these files to Plaintiffs, it has withheld, in whole or in part , hundreds more, citing exemptions to disclosure under FOIA and the Privacy Act. Through this Motion, Plaintiffs are now ch allenging a subset of OIG’s withholding decisions, as well as the procedure HHS followed wh en processing their related2 administrative appeals. Defendants oppose Plai ntiffs’ Motion, arguing their withholdings and processing procedures are correct. Having considered OIG’s sworn representations regarding the content of these withheld records and the necessity of withholding them, and having reviewed in camera many of the actual pages at issue, the Court now upholds the majority of OIG’s withholding decisions, but not all. In addition, because the Court finds that Plaintiffs lack standing to bring their procedural claims alleging OIG’s failure to adjudicate their appeals, summary judgment will be granted to Defendants on that claim.
I. Background Plaintiffs Ewa Czerska, Paul Hardy, Ju lian Nicholas, Robert Smith, R. Lakshmi Vishnuvajjala, and Nancy Wersto claim that they are witnesses, complainan ts, or targets of two HHS OIG investigations related to whistleblowing activities. Plfs. Mot. (ECF No. 14), Exh. A (Declaration of Kelly McClanahan), ¶ 5. They c ontend that these whistleblowing activities relate to HHS’s improper approval of medical devices . Plfs. Mot. at 2. Between July 26 and November 4, 2010, all individual Plaintiffs, in co ncert with the National Whistleblower Center, submitted requests under FOIA, 5 U.S.C. §552, et seq. , and the Privacy Act, 5 U.S.C. § 552a, et
seq. , for various records pertaini ng to their employment with HHS. Sec. Am. Compl., ¶¶ 17, 51, 64, 102, 155, 168. Different agency components treate d the requests differently. As to OIG, after initially denying their reque sts under Exemption 7(A), on the gr ound that the files related to an ongoing investigation, it processe d Plaintiffs’ requests and releas ed to them over 800 pages of relevant, non-exempt documents, some with redactions. See Def. Opp./Mot., Attach. 1 (Declaration of Robin Brooks), ¶¶ 11-12, 18-19, 24-25, 30-31, 36-37, 43-44.3 Plaintiffs filed this action on December 15, 2010, and have twice since amended their Complaint. The parties’ inst ant Cross-Motions for Partial Summary Judgment are limited to Counts 1, 6, 7, 12, 19, 20, and 28, which relate only to Plaintiffs’ requests for documents maintained by HHS’s OIG and not any other component. 1 The documents at issue in these counts are contained in two OIG Investiga tive Case Files: H-08- 20505-3 and H-10-00248-3. File H-08-20505-3 (H-08) contains documents rela ting to OIG’s “investiga tion into managerial misconduct [at FDA] based on Plaintiffs’ allegations.” Plfs. Opp. (ECF No. 68) at 3. File H-10- 00248-3 (H-10) contains documents relating to OI G’s investigation into Plaintiffs’ “alleged unauthorized disclosure of confid ential information.” Id. at 4. See Defendant HHS’s Statement of Material Facts as to Which there Is No Genuine Issue, ¶¶ 4, 6; Plaintiffs’ Response to Defendants’ Statement of Material Facts, ¶¶ 4, 6. OIG initially released 481 pages in full and 25 pages with redactions from File H-08. Brooks Decl., ¶ 49. Another 366 pages were releas ed in full and 5 pages were released with redactions from File H-10. Id., ¶ 73. HHS withheld in full 839 pages and 52 pages, respectively, from those two files under FOIA Exemptions 4, 5, 6, 7(C), and 7(E). Id., Exhs. 15-16 (Vaughn Indices 1-2). Finally, OIG referred 182 pages to the Food and Drug Admini stration (the original creator of the documents) for consultation. See Defs. Supp. Mot. (ECF No. 59) at 3; Plfs. Opp.
at 2-3. Plaintiffs initially filed the Motion for Partial Summary Judgment now at issue on April 27, 2011, in conjunction with a Motion for Prel iminary Injunction. Defendants opposed Plaintiffs’ Motions and cross-moved for su mmary judgment on May 18, 2011. On June 3, the

1 Plaintiffs have voluntarily dismissed Count 27, a FOIA /Privacy Act claim against OI G for “failure to perform searches.” See Sec. Am. Compl., ¶¶ 209-216; Plfs. Opp. at 6. Following OIG’s performance in June-August 2011 of an additional search for records resp onsive to their requests, “Plaintiffs stipulate that Defendants’ search for OIG records was adequate and offer no challenge on that issue.” Plfs. Opp. at 6. Count 27 is thus dismissed.4 Court stayed briefing on Defenda nts’ Cross-Motion pending a ru ling on Plaintiffs’ Motion for Preliminary Injunction. Plainti ffs’ filed their Reply on June 10. Following a hearing on June 20, the Court, two days later, denied Plaintiffs’ re quest for injunctive relief and lifted the stay on Defendants’ Cross-Motion. See Order Denying Pl aintiffs’ Motion for Preliminary Injunction (ECF No. 28). Since initially filing their Cross-Motions, the parties have worked cooperatively to narrow the areas of their disagreement. On June 23, 2011, OIG completed its consultation regarding the 182 pages at issue that had originated with F DA and released to Plaintiffs an additional 51 complete pages and 73 pages withredactions, while withholding 58 pages. See Defs. Supp. Mot. at 3. At this time OIG also released an additional 35 pages to Plaintiffs, including all withholdings from File H-10 prev iously made under Exemption 7(E). See Joint Notice Regarding Modification of Exemption 7(E) Withholdings (ECF No. 29) at 1. Some time in June 2011, OIG began an additi onal search to confir m that all records responsive to Plaintiffs’ requests were in fact contained in Investigative Files H-08 and H-10. See Defs. Supp. Mot. at 2. During this search, additional responsive documents were located in boxes in the case agent’s office. Id. at 3. OI G’s FOIA Officer, Robin Brooks, determined that 923 pages were responsive to Plaintiffs’ reque sts. Id. On August 30 and September 2, 2011, OIG released to Plaintiff an additional 312 pages in their en tirety, released 289 pages with redactions, and withheld in thei r entirety 322 pages loca ted during this additional search. Id. On September 26, Defendants filed a Supplem ent to their Cross-Motion for Summary Judgment in order to address the withholding of the documents discovered during OIG’s additional search and those initially referred to FDA for consultation, as well as to address Counts 27 and 28. (ECF No. 59). Plaintiffs f iled their Opposition to Defendants’ Motion and5 Supplement on October 26, and Defendants filed a Reply on November 16. The Motions are now ripe. Throughout their briefing, the parties have – admirably, in the Court’s opinion – continued to work together to narrow their disputes. Plaintiffs have agreed, for the purpose of these Motions, to limit the list of OIG withholdings th at they seek to contest. The withholdings Plaintiffs presently oppose are:

 From Investigative File H-08-20505-3:

o Withheld in part: Pages 1, 9, 25, 48, 49, 52, 53, 135, and 207-212*. 2

o Withheld in full: Pages 6, 11-13, 15-16, 18-19, 21, 24, 28-47, 50-51, 54-57, 60, 62-63, 68-93, 94-101, and 217-234*.

 From Investigative File H-10-00248-3:

o Withheld in part: Pages 3-5*, 6-10*, 14-40*, 551*, and 553.
o Withheld in full: Pages 42-54*, 126-27, 447, 450-51, 498-503, 543-44, 554- 55, and 558-59.

 Additional Search (AS) Records 3 :

o Withheld in part: Pages 77-81, 83-87, 93-98, 106-114, 115, 197-98, 199, 289- 96, 378, 381-82, 392-94, 705, 770, 774-78, 784, 806, and 828-29.
o Withheld in full: Pages 20-29, 31, 33, 36-48, 66, 74-76, 264, 274, 276, 278- 80, 324, 390, and 427-635. See Plfs. Opp. at 3-4. Plaintiffs are “also voluntarily removing from controversy any challenge to the withholding of any names, titles, phone numbers, social security numbers, office numbers, and comparable Personally Identifiable Information (‘P II’) that may be located in the above indicated pages.” Plfs. Opp. at 6. Plaintiffs note, however , that “this concession is made with the caveat

2 Pages with asterisks denote those that originated with FDA and were initially referred there for consultation prior to OIG making a final FOIA determination. 3 OIG describes these records as being “part of investigation numbers H-08-20505-3 and H-10-00248-3.” Plfs. Opp. at 3 (emphasis in original); se e also Defs. Reply at 5.6 that Plaintiffs narrowly define P II as just these types of unique identifiers, as opposed to . . . anything that could be used to identify a pers on.” Id. (emphasis added). As an example, Plaintiffs challenge the notion that “the fact that[an individual] was in a particular meeting and that Plaintiffs would be able to use that inform ation to deduce the person’s identity based on the fact that they knew who was present at that meeting” qualifies as personally identifiable information exempt from disclosure. Id. In order to more accurately evaluate OIG’s withholding decisions, on March 13 and 20, 2012, the Court ordered OIG to submit for in camera review 279 pages that the Agency contends are exempt from disclosure, along with a declar ation further explaining the non-public nature of the law-enforcement techniques withheld under Exemption 7(E). OIG complied with these orders, and the Court has review ed the documents in question. While Counts 1, 6, 7, 12, 19, and 20 all relate to Plaintiffs’ challeng es to specific OIG withholdings, Count 28 – “Failure to Adjudicate Appeals” – is pr ocedural in nature. See Sec. Am. Compl., ¶¶ 217-225. Here Plai ntiffs state: “Each time Plaint iffs filed an administrative appeal challenging the blanket ex emptions initially invoked by OI G, HHS did not adjudicate the appeal. Instead, OIG opened a new FOIA/PA re quest with a new Reque st Number, and HHS dismissed the pending appeal as moot. Upon inform ation and belief, this activity represents an ongoing policy or practice.” Id., ¶ 218. “By faili ng to adjudicate Plaintiffs’ appeals of these blanket withholdings,” they allege , “HHS effectively ensured that the blanket withholdings could not be reversed administratively or undergo judicial re view.” Id., ¶ 219. Plai ntiffs contend that “[a] policy or practice th at intentionally avoids appellate or judicial review of withholding decisions is in violation of FOIA and the Privacy Act,” and is “ar bitrary, capricious, an abuse of discretion, or otherwise contrary to law.” Id., ¶ 220. As relief Plai ntiffs seek a declaratory order7 that “HHS is in violation of its statutory responsibilities unde r 5 U.S.C. § 552, 552a and an injunction compelling Defendant HHS pursuant to t hose statutes to cease the practice of opening new FOIA/PA requests instead of pr operly adjudicating administrative appeals of denials.” Id., ¶ 225.
II. Legal Standard Summary judgment may be gr anted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Li berty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). “A party asserting that a fact cannot be or is genuinely disputed must s upport the assertion by citing to partic ular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). The movi ng party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catret t, 477 U.S. 317, 322 (1986). “[A] material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party” on an element of the claim. Liberty Lobby, Inc., 477 U.S. at 248. Factual assertions in the moving party’s affida vits or declarations may be accepted as true unless the opposing party submits his own affidav its, declarations, or doc umentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992). FOIA cases typically and appropriately are decided on motions for summary judgment. Defenders of Wildlife v. U.S. Border Patr ol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. United States Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). A defendant agency seeking summary judgment in a FOIA case mustdemonstrate that no material facts are in dispute, that it has conducted an adequate search for re sponsive records, and that each responsive record that it has located has b een produced to the plaintiff oris exempt from disclosure.8 Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001). In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency’s affidavits or de clarations if they are relatively deta iled and “describe the documents and the justifications for nondisclosu re with reasonably specific detail, demonstrate that the information withheld logically falls within th e claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits ordeclarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverab ility of other documents.’” SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
III. Analysis As narrowed by the parties, there are now thr ee questions to be decided here. First, although OIG has released many pages to Plainti ffs, it nonetheless asserts a blanket privilege under the Privacy Act for those documents it has w ithheld. Is this blanket privilege proper? Second, even if proper under the Privacy Act, ar e the particular withhol dings also appropriate under FOIA? Plaintiffs’ entitlement to access r ecords under each of these Acts “is available without regard to exemptions under the other”; therefore, in order to withhold the documents Plaintiffs seek, OIG “must demonstrate that the documents fall within some exemption under each Act.” Martin v. Office of Special Counsel, MSPB, 819 F.2d 1181, 1184 (D.C. Cir. 1987) (emphasis in original). Third and finally, di d OIG correctly handle Plaintiffs’ administrative appeals under FOIA?9 A. Privacy Act The Privacy Act requires that [e]ach agency that maintains a system of records shall . . . upon request by any individual to gain access to his r ecord or to any information pertaining to him which is contained in the system, permit him . . . to review the record and have a copy made of a ll or any portion thereof in a form comprehensible to him . . . . 5 U.S.C. § 552a(d)(1). The Act, however, also identifies certain general and specific exemptions from this requirement. See id., §§ 552a(d)(5), (j)-(k). In the present case, Defendants invoke § 552a(k)(2). Under this exemption, OIG may wit hhold the documents Plaintiffs seek under the Privacy Act if HHS has properly promulgated a rule that exempts from disclosure the system of records in which they are maintained. See 5 U. S.C. § 552a(k). Whether HHS has done so is where the first dispute lies.
1. Proper Promulgation of Rule HHS contends that the records at issue in th is case – namely, those contained in Files H08 and H-10 – are exempt because they are ma intained in OIG’s “civil and administrative investigative files” records system, and HHS has promulgated a rule, 45 C.F.R. § 5b.11(b)(2)(ii)(D), exempting such files from the Privacy Act’s access provisions. See Defs. Opp./Mot. (ECF No. 18) at 35-36 (citing Brooks Decl ., ¶ 7). In light of this rule, Defendants argue, OIG need not have proces sed Plaintiffs’ records reques ts under the Privacy Act. Plaintiffs argue first, and in vain, that 45 C.F.R. § 5b.11(b)(2)(ii)(D) was improperly promulgated and, consequently, th at OIG’s civil and administrativ e investigative files have not been successfully exempted from the Privacy Act. See, e.g., Plfs. Reply (ECF No. 26) at 5-7. Their argument is based on the last provision of § 552a(k), which states th at “[a]t the time rules are adopted under this su bsection, the agency shall include in the statement required under section 553(c) of this title, the reasons why the system of reco rds is to be exempt from a10 provision of this section.” Th ey argue that § 5b.11( b)(2)(ii)(D) fails to comply with this requirement and is thus invalid. Plaintiffs concede that “HHS included its reasons for exempting the OIG Civil/ Administrative Records System when it published a Final Rule in the Federal Register .” Plfs. Reply at 6 (citing 47 Fed. Reg. 57040 (Dec. 22, 1982)). In fact, the Final Rule advises that OIG’s Civil and Administrative Investigative File s were exempted “[i]n order to maintain the integrity of the OIG investigative process and to assure that the OIG will be able to obtain access to complete and accurate information” a nd explains that this records system will contain sensitive investigative records, the release of which could impede on-going investigations, violat e the privacy rights of individuals other than the subjects of the investigations, reveal the identifies of confidential sources, or otherwise im pair the ability of the Office of Inspector General to conduct civil and administrative investigations. For these reasons, the Department is ex empting this system , under subsection (k)(2) of the Privacy Act, from th e notification, access, correction and amendment provisions of the Privacy Act. 47 Fed. Reg. 57040. Nor do Plaintiffs contest the su fficiency of these reasons. Rather, they argue that because HHS’s statement of reasons appears only in the Federal Register, and not in the Code of Federal Regulations where the ru le was eventually codified at 45 C.F.R. § 5b.11(b)(2)(ii)(D), subsection (k) is not satisfied. Plaintiffs’ inte rpretation of subsection (k) and, more to the point, section 553(c) demands too much. Subsection (k)(2) requires only that an agency ’s rule exempting investigative material comply with the Administrative Procedure Act’s re quirement that “the agency shall incorporate in the rules adopted a concise ge neral statement of their basis and purpose.” 5 U.S.C. § 553(c). Contrary to Plaintiffs’ position, s ee Plfs. Reply at 6-7 n.3, § 553(c) is satisfied when a statement of the rule’s basis and purpose is included in the preamble to the Final Rule appearing in the Federal Register. That is the case here.11 The regulations and case law interpreting § 553(c) indicate that compliance with the “basis and purpose” requirement is an essential part of a rule’s preamble. For example, 1 C.F.R. § 18.12 requires that “[e]ach agen cy submitting a proposed or final rule document for publication shall prepare a preamble which will inform the reader , who is not an expert in the subject area, of the basis and purpose for the rule or proposal.” Id. (emphasis added). The D.C. Circuit has made clear that when a rule’s preamble contains an adequate statement of the rule’s basis and purpose, the requirement of § 533(c) is satisf ied. See In re Surface Mining Regulations Litigation, 627 F.2d 1346, 1354 (D.C. Cir. 1980) (“The preamble to the fina l interim regulations satisfies the mandate of the Administrative Proce dure Act, 5 U.S.C. s 553(c ), that rules adopted incorporate ‘a concise general stat ement of their basis and purpose.’” ). Section 4(b) of the APA, codified at § 533(c), the D. C. Circuit has explained, provides that the statement of “basis and purpose” shall be incorporated “in the rules.” Since the rules must be published . . . a statement of “basis and purpose” can be “incorporated in th e rules” only if it too is published. We do not mean to suggest, however, that a [§] 4(b) statement must be published at precisely the same mome nt as the regulations. The agency must be allowed some latitude for technical difficulties. The enquiry must be whether the rules and statement ar e published close enough together in time so that there is no doubt that th e statement accompanies, rather than rationalizes the rules. Tabor v. Joint Board for Enrollment of Actuaries, 566 F.2d 705, 711 n.14 (D.C. Cir. 1977). As the reasons for HHS’s rule exempting OIG’s civil and administrative investigative files from the Privacy Act’s access provisions su fficiently appear in the preamble to the Final Rule in the Federal Register, OIG has complied w ith § 553(c). These files, including those at issue in this case, therefore, are gene rally exempt from the Privacy Act.
2. Denial of Right, Privilege, or Benefit Section 552a(k)(2) makes clear, however, that even files contained in an exempt system of records must be disclosed under the Privacy Act “if any individual is denied any right,12 privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenan ce of such material.” Plaintiffs contend that even if OIG’s records-system exemption was pr operly promulgated, they have a right to access the documents contained in File H-10 under this exception. In other words, they claim they suffered adverse employment actions as a result of the maintenance of such material. See Notice of Filing of Additional Exhibits and of Additional Authority (dated June 20, 2011) (ECF No. 27) (with attachments: “Czerska Notic e of Proposed Removal,” “Hardy Notice of Non-Duty Status,” “Vishnuvajjala Memo of Caution”). This argument fares no better. OIG disputes that any employment actions taken against Pl aintiffs occurred as a result of the maintenance of Investigative File H-10. Th e results of that inve stigation, OIG attests, produced “no evidence of prohibited personnel practices, retaliation, or other violations of law. Any administrative action taken by the FDA against the individual pl aintiffs was separate from OIG’s two investigations, was at FDA’s discreti on, and was not as a result of OIG’s maintenance of records in the two investigati on files at issue in this case.” Brooks Decl., ¶ 9. All Plaintiffs offer in contradiction is an email from the OIG Assistant Special Agent in Charge of the investigation to the FDA Director of the Center for Devices and Radiol ogical Health (CDRH), where Plaintiffs worked. This email states: “Your office indicated it had developed sufficient evidence to address the alleged mi sconduct through administrative processes . . . .” Plfs. Mot. at 15. Despite Plaintiffs’ reliance on it, when it is considered in light of OIG’s findings of no misconduct, this email actually supports OIG. In other words, OIG is poi nting out that FDA will handle Plaintiffs’ misconduct through FDA’s ad ministrative processes. In sum, OIG’s maintenance of its investigative files did not cause Plaintiffs to be denied rights or benefits;13 instead, FDA’s maintenance of its own investig ative files resulted in any adverse employment actions suffered by Plaintiffs. Plaintiffs nevertheless conte nd that Plaintiff Czerska was terminated by FDA in part based on “‘evidence that OIG obtai ned during its investigation.’” Plfs. Opp. at 14 (quoting Defs. Opp./Mot. at 32). They contend that § (k)(2) shou ld be read such that if one agency (FDA) took administrative action against an employee based on records or documents collected by another agency (OIG) during its own investigation, the fi les must be disclosed. Yet, as the email demonstrates, FDA took action based on its collection of evidence, not OIG’s. Finally, Plaintiffs argue that FDA’s actions and OIG’s maintenance of its investigative files are both attributable to their parent agency, HHS. The Court need not d ecide this issue now beca use Plaintiff has sought the same documents from FDA itself. The Cour t will thus address the FDA issue when it is presented. The Court otherwise concludes that Plaintiffs cannot access File H-10 under the cited exception to subsection (k)(2) because OIG’s inves tigation resulted in no de nial of benefit to Plaintiffs. Because the undisputed facts show that OI G is entitled to withhold the documents Plaintiffs seek under the Privacy Act, the Court now moves to consider whether withholding is appropriate under FOIA.
B. FOIA FOIA provides that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accord ance with published rules . . . , shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdictio n to order the production of records that an agency improperly withholds. See 5 U.S.C. § 55 2(a)(4)(B); U.S. Dep’t of Justice v. Reporters14 Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989). “Unlike the review of other agency action that must be upheld if supported by substa ntial evidence and not arbitrary and capricious, the FOIA expressly places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter de novo.’” Repor ters Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). “At al l times, courts must bear in mi nd that FOIA mandates a ‘strong presumption in favor of disclosure . . . .’” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)). Congress exempted nine categories of docum ents from FOIA’s broad sweep. “[T]he statutory exemptions, which are exclusive, are to be ‘narrowly construed.’” Id. (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)). This case turns on the appli cation of Exemptions 5, 6, 7(C), and 7(E). 4 In evaluating the propriety of OIG’s withhol ding decisions, the Cour t has reviewed and relies in part on the Declaration and Supplemen tal Declaration of OIG’s FOIA Officer, Robin Brooks, see Def. Opp./Mot., Attach. 1; Def. Supp. Mot., Exh. 1, as well as the four Vaughn Indices the government has file d with their briefs. See Brooks Decl., Exh. 15 (index for File H08 initial withholdings, hereinafter Vaughn Index 1); Brooks Decl., Exh. 16 (index for File H-10 initial withholdings, hereinafter Vaughn I ndex 2); Brooks Supp. Decl., Exh. 4 (index for documents found during OIG’s additional sear ch, hereinafter Vaughn Index 3); Brooks Supp. Decl., Exh. 5 (index for documents initially refe rred to FDA for consultation, hereinafter Vaughn Index 4). In addition, the Court has conducted its own in camera review of a substantial subset

4 At this time, Plaintiffs do not challenge OIG’s withhold ings under Exemption 4. See Defs. Reply (ECF No. 74) at 1 (noting that Plaintiffs’ briefs do not address Exemption 4 withholdings). For this reason, the Court need not now decide whether portions of the following documents were improperly withheld: H-08 pages 207-12, 217-34; H-10 pages 3-5, 14-40; and the Exemption 4 redactions to AS 77-81.15 of the withheld documents at issue, which OI G has provided. These documents consist of: 1) File H-08 pages 9, 54-57, and 62-63; 2) File H-10 pages 126-27, 447, 450-51, 498-503, 543-44, 553, and 554-55; and 3) Additional Search pages AS 20-29, 31, 33, 36-48, 66, 74-76, 264, 274, 276, 278-79, 324, 378, 381-82, 390, 392-94, 427-635, 705, 770, 784, and 806. Finally, the Court has also reviewed in camera a declaration explaining the non-public nature of the lawenforcement techniques withheldunder FOIA Exemption 7(E).
1. Exemptions 6 and 7(C) Because the majority of the pages Plaintiffs assert should be released to them were withheld at least in part base d on FOIA Exemptions 6 and 7(C), the Court will consider first whether these exemptions were properly applied. OIG invokes Ex emptions 6 and 7(C) for all documents withheld in full and almost all par tial redactions from File H-08, all but two pages withheld from File H-10, and the majority of pa ges withheld from the additional search (AS) documents. Exemption 6 protects “personne l 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). Exemption 7(C) excludes “records of information compiled for law enforcement purposes . . . to the extent that production of su ch law enforcement records or information . . . could reasonably be expected to constitute an unwarranted inva sion of personal privacy.” Id. § 552(b)(7)(C). Both provisions re quire agencies and reviewing c ourts to “balance the privacy interests that would be compromised by disclosure against the public interest in the release of the requested information.” Beck v. U.S. Dep’ t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) (quoting Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992)).16 Although both exemptions require agencies and reviewing courts to undertake the same weighing of interests, the balance tilts more st rongly toward nondisclosu re in the context of Exemption 7(C) because “Exemption 7(C)’s priv acy language is broader than the comparable language in Exemption 6 in two respects.” Repo rters Comm., 489 U.S. at 756. First, Exemption 6 encompasses “clearly unwarranted” invasions of privacy, while Exemption 7(C) omits the adverb “clearly.” See id. Second, Exemption 6 prevents disclosures that “would constitute” an invasion of privacy, while Exemption 7(C) ta rgets disclosures that“could reasonably be expected to constitute” such an invasion. See i d. Both differences are the result of specific amendments, reflecting Congress’s conscious c hoice to provide greate r protection to lawenforcement materials than to pers onnel, medical, and other similar files. See id. Courts have accordingly held that Exemption 7(C) “establis hes a lower bar for withholding material” than Exemption 6. ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011); see also Beck, 997 F.2d at 1491. As a result, if the records and information OIG seeks to withhold in this case were “compiled for law enforcement purposes,” the Cour t need only address whether the agency has properly withheld these documents under Exempti on 7(C). While Defendants maintain Files H08 and H-10 meet this threshold re quirement, Plaintiffs contend they do not. On this point Defendants are correct.

a. Law-Enforcement Purposes In Jefferson v. U.S. Dep’t of Justice, Offi ce of Professional Responsibility, 284 F.3d 172 (D.C. Cir. 2002), the D.C. Circuit summarized th e law governing application of Exemption 7’s requirement that the records in question be compiled for law-enforcement purposes. In performing this analysis, “the focus is on how and under what circumstances the requested files17 were compiled, . . . and ‘whether the files s ought relate to anything that can fairly be characterized as an enforcement proceeding.’” Id. at 176-77 (citing Weisberg v. U.S. Dep’t of Justice, 489 F.2d 1195, 1202 (D.C. Ci r. 1973); quoting Aspin v. U.S. Dep’t of Defense, 491 F.2d 24, 27 (D.C. Cir. 1973)). The court reiterated its identification of two categories of investigative files that government agencies compile: “(1) f iles in connection with government oversight of the performance of duties by its employees, and (2) files in connection with investigations that focus directly on specific alleged illegal acts whic h could result in civil or criminal sanctions.” Jefferson, 284 F.3d at 177 (citing Rural Housing A lliance v. U.S. Dep’t of Agriculture, 498 F.2d 73, 81 (D.C. Cir. 1974)). Exemption 7 does not exempt “[i]nternal agency investigations . . . in which an agency, acting as the employer, simply supervises it s own employees.” Stern v. F.B.I., 737 F.2d 84, 89 (D.C. Cir. 1984). On the other hand, “an agency’s investigation of its own employees is for ‘law enforcement purposes’ . . . if it focuses directly on specifically alleged illegal acts, illegal acts of particular identified officials, act s which could, if proved, result in civil or criminal sanctions.” Id. (quoting Rural Housing Alliance, 498 F.2d at 81); see also Kimberlin v. U.S. Dep’t of Justice, 139 F.3d 944, 947 (D.C. Cir. 1998). Exemption 7 is t hus triggered when “‘th e files sought relate to anything that can fairly be characterized as an enforcement proceeding.’” Jefferson, 284 F.3d at 177 (quoting Aspin v. U.S. Dep’t of De fense, 491 F.2d 24, 27 (D.C. Cir. 1973)). The documents contained in both Investiga tive Files H-10 and H- 08 qualify as records compiled for law-enforcement purposes. File H- 10 was compiled to “investigat[e] allegations against plaintiffs, Hardy, Smith, and Czerska, of unauthorized disclosure of information in potential violation of 18 U.S. C. § 1905.” Brooks Decl., ¶ 8. File H-08 was compiled to: investigat[e] specific allegations from certain [FDA] employees, including individual plaintiffs, about certainmanagers at the FDA Center for18 Devices and Radiological Health (CDRH) , regarding allegations that those managers engaged in misconduct relati ng to the scientific review of applications for pre-market approval or clearance of radiological devices, allegations that those managers vi olated an FDA regulation, 21 C.F.R § 10.70, concerning the documentation of significant decisions in the administrative file, and allegations that those managers retaliated against the complainants. Id. In other words, the reco rds in both investigative files were compiled to investigate allegations that specific individuals at FDA had engaged in specific acts that could constitute violations of criminal and civil laws. This is not a case involving person nel files maintained in the ordinary course of monitoring employees’ pe rformance at an agency. Instead, these files were compiled to carry out investigations in respon se to specific allegations with the potential to lead to enforcement actions against the targets. It is of no moment that both investigations resulted in findings of no misconduct and that no sanctions were ultimately imposed by OIG. See Center for National Policy Review on Race and Urban Issues v. Weinberger, 502 F.2d 370, 373 (D.C . Cir. 1974) (“For a file to be deemed to have been compiled for law enforcement purposes it is not necessary thatan adjudication have been imminent or even likely, either at th e time the material was amassed or at the time disclosure is sought under the FO IA.”). Exemption 7 is “applicable to material amassed in connection with an enforcement proceeding that [is] merely ‘conceivable.’ Likelihood of adjudication is not the decisive determinant of whether a file has been compiled for law enforcement purposes.” Id. The facts underlying Investigation H-10 are on al l fours with Kimberlin v. U.S. Dep’t of Justice, 139 F.3d 944 (D.C. Cir. 1998), in which the D.C. Circuit found that the records at issue were compiled for law-enforcement purposes. I d. at 947-48. That case, as does this one, involved an “investigation . . . c onducted in response to and focused upon a specific, potentially illegal release of information by a particular, identified official .” Id. at 947. The Kimberlin19 investigation, as is true for both investigations in the present cas e, “was not aiming generally. . . ‘to insure that [the agency’s] employees are act ing in accordance with statutory mandate and the agency’s own regulations.’” Id. at 948-49 ( quoting Rural Housing Alliance, 498 F.2d at 81) (emphasis added). Defendants ha ve thus satisfied their initia l burden under Exemption 7 of showing that the records Plaintiffs seek were compiled for law-enforcement purposes. b. Privacy Interests in Withholding Exemption 7(C) allows for the withholding of records compiled for law-enforcement purposes if disclosure “could reas onably be expected to constitu te an unwarranted invasion of personal privacy.” 5 U.S.C. § 552 (b)(7)(C). “To determine whether disclosure of certain information would constitute an unwarranted in vasion of privacy, the Court must balance the public interest in disclosure against the privac y interest of the individual mentioned in the record.” Blanton v. U.S. Dep’t of Ju stice, 63 F. Supp. 2d 35, 45 (D.D.C. 1999). The first step in the Exemption 7(C) analysis is to determine whether there is, in fact, a privacy interest in the material s sought. See ACLU, 655 F.3d at 6. In this context, the Supreme Court has rejected a “cramped notion of pe rsonal privacy” and emphasized that “privacy encompass[es] the individual’s control of inform ation concerning his or her person.” Reporters Comm., 489 U.S. at 763. To constitute a privacy in terest under FOIA, the claimed interest must be “substantial.” Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1229-30 (D.C. Cir. 2008). “[S]ubstantial,” however, “means less than it might seem. A substantial privacy interest is anything greater than a de minimis privacy interest.” Id. Individuals involved in law-en forcement investigations – in cluding targets, witnesses, complainants, and investigators – have a privacy in terest in the non-disclosure of their names and identifying information. See Computer Professi onals for Social Responsibility v. U.S. Secret20 Service, 72 F.3d 897, 904 (D.C. Cir. 1996) (“‘Exempti on 7(C) takes particular note of the strong interest of individuals, whether they be suspects, witnesses, orinvestigators, in not being associated unwarrantedly with alleged criminal activity.’”) (quoting D unkelberger v. U.S. Dep’t of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990)). Th is protection extends to “‘persons who are not the subjects of the investigation [but who] may nonetheless have their privacy invaded by having their identities and information about them reve aled in connection with the investigation’” because disclosure of their id entities “‘may result in embarra ssment and harassment.’” Id. (quoting Burge v. Eastburn, 934 F.2d 577, 579 (5th Cir. 1991); McDonnell v. United States, 4 F.3d 1227, 1255 (3d Cir. 1993)). Exemption 7(C) thus “affords broad[] privacy rights to suspects, witnesses, and inves tigators.” Bast v. U.S. Dep’t of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981); see also SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1205 (D.C. Cir. 1991). OIG invokes Exemption 7(C) as a basis for with holding nearly all of the documents that remain in dispute for purposes of this Motion. While Defendant has withheld some of these documents in full (including H-08 pages 6, 11-13, 15-16, 18-19, 21, 24, 28-47, 50-51, 54-57, 60- 62-63, 68-93, and 94-101; H-10 pages 42-54, 447, 450-51, 498-503, 543-44, and 558-59; and AS pages 20-29, 31, 33, 36-48, 66, 74-76, 264, 274, 276, 278-80, 324, 390, and 427-635), it has released others in part through the use of redactions to preven t the disclosure of personally identifiable information (including H-08 pages 1, 9, 25, 48, 49, 52, 53, and 135; H-10 pages 6- 10, 14-40, 551, and 553; and AS pages 77-81, 83-87, 93-98, 106-114, 115, 197, 199, 289, 378, 381-82, 392-94, and 828-29). The pages Plaintiffs contend OIG improperl y withholds under this exemption fall into one of three general categories: 1) documents – such as emails or exhibit logs – on which OIG has excised personally identifiable information through the use of discrete redactions; 2)21 documents – such as notes of witness interviews – that OIG has withheld in their entirety on the ground that all of the information contained therei n would reveal an individual’s identity; and 3) documents in which accusations and derogatory st atements made against an individual, as well as that individual’s identity, have been redacted. The Court will consider the privacy interests at stake for each of these categories of documents. In the first category, many of the withholdi ngs under Exemption 7(C) were made, OIG attests, to protect the identities of the targets of, and the witnesses and law enforcement agents and officials who participated i n, the two investigations at issu e. Where this was accomplished merely by redacting a name, title, phone number, office number, or comparable personally identifiable information, Plaint iffs do not object to the withho lding. Plfs. Opp. at 21. This concession thus ends the Court’s analysis of th e pages where such limited redactions of personal information were made. OIG represents, and the C ourt’s review of the size and placement of the redactions on a number of the pages confirms, th at redactions on the fo llowing pages were thus properly withheld: H-08 pages 1, 48, 49, 52, 53, and 135; H-10 pages 551 and 552-53; and AS pages 381-82 and 392-94. Although H-10 pages 447 and 450-51, and AS page 390, were withheld in their entirety, the Court’s in camera review of these documents confirms that, as described in Section III(B)(3)(b), infra , the substance of these emails between OIG and either FDA or the Office of Public Health and Science, or between employ ees of FDA, may be withheld under Exemption 5, leaving for Exemption 7(C) only th e type of personal information Pl aintiffs decline to challenge. Similarly, while H-08 page 9 and AS page 392- 94 contain substantial redactions under both Exemption 5 and Exemption 7(C), the Court’s in camera review revealed that all substantive information redacted under both exemptions qua lifies for withholding under Exemption 5, thus22 limiting the use of Exemption 7(C) in this doc ument to discrete personal information. No dispute remains, therefore, as to the Exem ption 7(C) withholdings in these documents. The second category of documents at issue he re is a source of disagreement for the parties. These records, which include File H-08 pages 6, 11-13, 15-16, 18-19, 21, 24, 25, 28-47, 50-51, 54-57, 60, 62-63, 68-93, and 94-101; H-10 pa ges 558-59; and AS pages 20-29, 31, 33, 36- 48, 66, 74-76, 264, 274, 276, 278-80, 324, and 427-635, were w ithheld in their entirety (or in substantial part) under Exemption 7(C). Acco rding to OIG’s Vaughn Index and Robin Brooks’s Declarations, and conf irmed by the Court’s in camera review of the AS documents included in this category, these pages consist of reports of conversations, reports of interviews, and “handwritten notes of OIG agents taken during witness interviews and handwritten notes of FDA employees provided to OIG during OIG’s investigation[s].” Vaughn Index 3 at 3. OIG contends these documents must be withheld in full under Exemption 7(C) “where it was not possible to reasonably segregate information, because the wi tnesses were known to the targets,” or where the “third parties interviewed or investigated wo rked in the same office or agency and would be easily identifiable to the targets of the investigation, as well as [to] the plaintiffs.” Brooks Decl., ¶ 64. Plaintiffs argue OIG’s interpretation of Ex emption 7(C) is overbro ad in asserting “that entire records may be withhe ld under these exemptions becau se one or more Plaintiffs, possessing the specialized knowledge gleaned from having taken part in the investigations, may be able to identify these indi viduals based on their testimony where a member of the public would not.” Plfs. Opp. at 21. Exemption 7(C) protects a qua lifying individual’s privac y by exempting records and information that would reveal his or her identity from disclosure. Nothing in the language of the exemption limits such withholdings to names, so cial security numbers, phone numbers, and other23 discrete personally identifiable information that Pl aintiffs decline to challenge. The decisions of other courts that have considered this i ssue support OIG’s contention that “[w]hen the information in question concerns a small group of individuals who are known to each other and easily identifiable from the deta ils contained in the informati on, redaction does not adequately protect privacy interests.” Defs. Reply (ECF N o. 74) at 12. For instance, Department of Air Force v. Rose, 425 U.S. 352 (1976), involved a FO IA request for case summaries of honor and ethics hearings at a service academy with pers onal references and other identifying material deleted. The Supreme Court observed in that ca se, however, that “what constitutes identifying information regarding a subject cadet must be we ighed not only from the viewpoint of the public, but also from the vantage of those who would have been familiar, as fellow cadets or Academy staff, with other aspects of hi s career at the Academy.” Id. at 380. In other words, while the redaction of an individual’s name may be sufficient to protect hi s identity and privacy from the public, it may not be sufficient so protect him in the smaller community of his school or work. The Rose Court thus upheld the court of appeal s instruction to the di strict court that, “if in its opinion deletion of personal references a nd other identifying information ‘is not sufficient to safeguard privacy, then the summaries should not be disclosed.’” 425 U.S. at 381 (citation omitted). The Tenth Circuit also applied this principle in Alirez v. NLRB, 676 F.2d 423 (10th Cir. 1982). In that case, the “r equested documents relate[d] to a few incidents involving about a dozen people. Even sanitized, these documents would enable Mr. Alirez , and others who had specific knowledge of these incidents, to identif y readily the informant and persons discussed in each document.” Id. at 427-28. For this reason, th e court concluded that the “deletion of names and other identifying data ordere d by the district court [was] inadequate to prevent serious privacy invasions.” Id. at 427. These cases supp ort OIG’s position that an entire document such24 as a report or notes from a witn ess interview may be withheld in its entirety where disclosure would allow other agency employees to identify the witness and thus constitute an unwarranted invasion of privacy. The Court here accepts OIG’s determination th at the contents of the reports and notes listed above, unless withheld in thei r entirety, would reveal the identity of a target or witness in OIG’s investigations. While the Court has re viewed some but not all of these documents, lacking the knowledge of an FDA insider, the C ourt is not in a positi on to make line-by-line determinations of which statements from a witness interview woul d expose the witness’s identity. As the Ninth and Te nth Circuits have observed: “The problems in undertaking to deci de which portions of an employee's statement may be released to hi s employer without revealing that employee’s identity are enormous, if, indeed, not insoluble. Merely deleting the name from the statement would not insure against identification, since the employee’s narrative, or part of it, may be such that the employer could identify the employee involved, or could narrow the group down to two or three employees. Moreover, it is doubtful whether the court could select which por tions to release with the degree of certainty required adequately to prot ect the interests of employees who wish to avoid identification.” Alirez, 676 F.2d at 428 (quoting Harvey’s Wa gon Wheel, Inc. v. NLRB, 91 L.R.R.M. 2410, 2415 (N.D. Cal. 1976), remanded in part on othe r grounds, 550 F.2d 1139 (9th Cir. 1976)). This deference to the government’s evaluation is warranted because this is not a case in which OIG has categorically withheld in full all documents for which it claims Exemption 7(C). On the contrary, the record in this case cont ains numerous examples of places where OIG has made use of targeted redactions to release documents to Plain tiffs without disclosing personally identifiable information. OIG has attested that “all reasonably segregable, non-exempt information has been released,” and that where “r ecords [were] withheld in their entirety, there was no reasonably segregable material or non- exempt information amounted to essentially25 meaningless words and phrases.” Brooks Decl ., ¶ 88; Brooks Supp. Decl., ¶ 19. The Court has no reason to doubt the veracity of these declarat ions. The fact that OIG has redacted and released many of the documents for which it claims Exemption 7(C) applies supports its declaration that it has only withheld the information necessary to protect the identities of the investigation’s targets, witness, and investigators. The Court’s partial in camera review, which revealed general diligence and fairness on the part of OIG in selecting which information to disclose and which information to withhold, provides no cause to question the government’s application of the exemption to these documents. The Court theref ore finds that the witness and interview notes listed above all contain informati on to which significant priv acy interests attach. Third and finally, Plaintiffs also contes t OIG’s decision to withhold under Exemption 7(C) a category of information that the govern ment describes as “accu sations or derogatory statements against specific individuals.” See Defs . Reply at 14 n.11; see also Plfs. Opp. at 23-24. These records consist of H-10 pages 6-10, 14- 40, and 42-54; and AS pages 77-81, 83-87, 93-98, 106-114, 115, 197-98, 199, and 828-29. Id. With the exception of one document (H-10 42-54, for which OIG also asserted Exemptions 4 and 5), all of these documents have been released to Plaintiffs in part, with limited redactions. A ccusations and derogatory statements made against specific individuals, if made public , can reasonably be expected to result in an intrusion on those individuals’ personal privacy by causing embarrassment and reputa tional harm. See McCutchen v. Dep’t of Health and Human Services, 30 F.3d 183, 187-88 (D.C. Cir. 1994); Carter v. Dep’t of Commerce, 830 F.2d 388 (D.C. Cir. 1987). The subjects of these statements thus have a privacy interest in the non-disclosure of accusations and derogatory statements made against them, particularly when they have been found not to have officially committed any misconduct.26 McCutchen, 30 F.3d at 188 (finding HHS scient ists accused of misconduct “who have been investigated and exonerated[] have a substantia l privacy interest in remaining anonymous”). Having found personal privacy interests in a ll of OIG’s Exemption 7(C) withholdings, the Court must now evaluate the public interest in their disclosure.

c. Public Interest in Disclosure When evaluating the public interest in disc losure of information that implicates the personal privacy of an individual mentioned in a law-enforcement record, it is the “‘interest of the general public and not that of the private litig ant’” that the Court must consider. Blanton v. U.S. Dep’t Justice, 63 F. Supp. 2d 35, 45 (D.D .C. 1999) (quoting Brown v. FBI, 658 F.2d 71, 75 (2d Cir. 1981)). “[T]he only public interest rele vant for purposes of Exemption 7(C) is one that focuses on ‘the citizens’ right to be informed about what their government is up to.’” Davis v. 968 F.2d at 1282 (quoting Reporters Comm., 489 U.S. at 773). The request must thus “have the objective of obtaining a response that ‘sheds light on the conduct of [a] Government agency or official.’” Cuban v. SEC, 744 F. Supp. 2d 60, 87 (D.D.C. 2010) (quoting Reporters Comm., 489 U.S. at 773). Plaintiffs explain that they ar e currently involved in a public debate over “whether or not the OIG investigations” – H-08 and H-10 – “w ere conducted properly. ” Plfs. Opp. at 23 (emphasis in original). “Tha t purpose,” they explain, “is the driving force behind Plaintiffs’ efforts to obtain the controverted information from these Case Files. Plaintiffs agree that the OIG reports found no misconduct. Pl aintiffs (and a healthy number of politicians and reporters) do not believe that the evidence inside the Case F iles supports such a finding.” Id. (emphasis in original). In support of this asserted public intere st, Plaintiffs have filed with the Court numerous newspaper articles discussing a Congr essional inquiry into whether the FDA illegally27 surveilled Plaintiffs’ personal ema il accounts and whether Plaintiffs were retaliated against for engaging in protected whistleblower ac tivities. See ECF Nos. 80 and 88. The public no doubt has an interest in know ing whether HHS OIG properly investigates allegations of misconduct by agency officials an d whether this was done during Investigations H-08 and H-10. “[M]atters of substantive law en forcement policy are properly the subject of public concern.” ACLU, 655 F.3d at 14 (quoti ng Reporters Comm., 489 U.S. at 766 n.18). For this reason, “a request that seeks ‘information that would explain how [an agency’s] disciplinary procedures actually functioned’ is permi ssible.” Cuban, 744 F. Supp. 2d at 87 (quoting Reporters Comm., 489 U.S. at 773). As another cour t in this District desc ribed it, “There is a compelling public interest in know ing whether the defendant [age ncy] conducts investigations free of misconduct by its employees and how al leged transgressions by its employees are addressed.” Cuban, 744 F. Supp. 2d at 84. In light of Plaintiffs’ stated purpose in seeking the information contained in the files for investigations H-08 and H-10, the Court finds that the public does have an interest in their disclosure. The Court must now balance this public interest with the privacy interests implicated by disclosure. d. Balancing The Supreme Court has explained the test to be applied when balanc ing private interests in non-disclosure with the public interestin obtaining the info rmation withheld: Where the privacy concerns addressed by Exemption 7(C) are present, the exemption requires the person requesti ng the information to establish a sufficient reason for the disclosure. First, the citizen must show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake. Second, the citizen must show the information is likely to advance that interest. Otherwise, the invasion of priv acy is unwarranted. National Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004).28 As described above, the disputed documents withheld in this cas e under Exemption 7(C) can be divided into two general cat egories based on the privacy interest s at stake. At issue in the first category, consisting of repor ts and notes of conversations and interviews with witnesses or agency employees, is the witnesses’, employees’, and investigators’ pr ivacy interest in not having their identities disclosed. The s econd category, which incl udes accusations and derogatory statements made about particular individuals, raises the same privacy concerns with respect to the identities of the subjects of those accusations and statements. In addition, the accusations and derogatory statements themselves have been withheld in this second group. As the privacy interests and public interest with resp ect to each category may be different, the Court will conduct separate balancing analyses for each. i. Disclosure of Identities With respect to the documents OIG has w ithheld on the ground that release would disclose the identities of targets, witnesses, or investigators who participated in the two investigations underlying Plaintiffs’ FOIA requests (H-08 pages 6, 11-13, 15-16, 18-19, 21, 24, 25, 28-47, 50-51, 54-57, 60, 62-63, 68-93, and 94-101; and AS pages 20-29, 31, 33, 36-48, 66, 74-76, 264, 276, 278-80, 324, and 427-635), the privacy interests of those individuals are “substantial.” See Bast, 665 F.2d at 1254; SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1205- 06 (D.C. Cir. 1991). The D.C. Circuit has held “categorically that, unless access to the names and addresses of private individu als appearing in files within the ambit of Exemption 7(C) is necessary in order to confirm or refute compelli ng evidence that the agency is engaged in illegal activity, such information is exempt from disclo sure.” SafeCard Services, 926 F.2d at 1206. In SafeCard Services, the D.C. Circuit rejected th e plaintiff’s claim that “access to the names and addresses of potential witnesse s or litigants in SEC stock ma nipulation investigations would provide SafeCard and the public wi th insight into the SEC’s conduct with respect to SafeCard in29 particular and short selling practi ces in general,” noting that “the type of information sought is simply not very probative of an agency’s be havior or performance.” Id. at 1205-06. This case presents a slightly more complex problem than is involved in cases where an individual’s identity can be protected merely by redacting di screte pieces of personally identifiable information. In the records at is sue here, as explained in Section III(B)(1)(b), supra , the Court accepts OIG’s attestation that certain do cuments must be withheld in their entirety in order to protect an individual’s identity and thus privacy. In the process, however, the Court recognizes that substantive information beyond na mes, titles, and phone numbers will likely also be withheld in the name of privacy. This conc ern is not enough, however, to persuade the Court that these documents must be released. This, again, is not a case in which the government has categorically withheld all documents compiled fo r law-enforcement purposes in their entirety. On the contrary, they have released many of th e records that Plaintiffs sought in full and many more with limited redactions. Thus even were the Court to find – which it does not – that Plaintiffs had presented compelling evidence thatOIG engaged in illega l activity by improperly investigating their allegations of misconduct at FDA, they have not shown that disclosure of the documents at issue here – and, correspondingly, th e identities of the particular individuals involved – would be necessary to confirm or refute such allegations. The Court therefore finds that the privacy interests at stake outweigh the p ublic interest in these records and that their release “could reasonably be expected to c onstitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7). OIG thus pr operly withholds these documents under Exemption 7(C). The exception to this ruling relates to H- 08 pages 54-57 and 62-63. OIG describes these pages as “memoranda from OIG to FDA.” See Vaughn Index 1 at 5-6. Unlike the majority of30 the pages withheld here in their enti rety under Exemption 7(C), the Court’s in camera review reveals that, rather than recording witness interviews or conversat ions, these pages are memoranda from OIG seeking information from potential witnesses about a personnel matter involving one FDA employee, Sophie Paquerault, who signed a privacy waiver in connection with Plaintiffs’ FOIA requests. See Plfs. Mo t. at 18 n.10. While portions of H-08 pages 54-55 and 62-63 may properly be redact ed under Exemption 7(C), includi ng the recipient’s name and other identifying information, ot her portions of these memoranda should be released, as the public interest in the facts and que stions contained therein is substa ntial, and the privacy interests implicated by the questions and background mate rial is insignificant. For one of these memoranda (H-08 pages 56-57), OIG released th e witness’s response without withholding any portions of the document under Exemption 7(C). See Section III(B)(3) (discussing AS 289-90 and AS 294-96). The response includes all in formation in the memorandum. H-08 pages 56-57 should thus be released in full, and H-08 page s 54-55 and 62-63 should be released in part. ii. Accusations or Derogatory Statements The second category of documents at issue ar e those in which OIG redacted accusations or derogatory statements about specific indi viduals (H-10 pages 6-10, 14-40, and 42-54; and AS77-81, 82-87, 93-98, 106-114, 115, 197-98, 199, and 828-29). Without exception, these documents were authored by Plaintiffs or, in one case, Sophie Paquerault, another employee who signed a privacy waiver in connection with Plaint iffs’ FOIA requests. See Plfs. Mot. at 18 n.10. The Court infers from the circumstances invo lved and the unredacted portions of these documents that individuals mentioned are the su bjects of OIG’s investig ation into Plaintiffs’ allegations of managerial misconduct at FDA. The Court finds first that these individua ls’ identities were properly withheld under Exemption 7(C) through OIG’s redactions. Targets of an investiga tion, like witnesses and31 investigators, have a privacy interest in protecti ng their identities from public disclosure. This is especially true where such individuals have be en investigated and e xonerated. See McCutchen, 30 F.3d at 188. After completing and closing inve stigations H-08 and H- 10, OIG issued findings that no misconduct had occurred. The stated public interest in the release of these documents is that they are probative of whet her the investigations themselves were properly conducted. The identities of the individual F DA officials that Plaintiffs have accused of wrongdoing need not be released in order to probe the propriety of the investigations themselves. See Reporters Comm., 489 U.S. at 773 (citing Rose, 425 U.S. at 372, wh ere deletions of names from disciplinary hearing summaries “were unquestionably appropriate because the names of the particular cadets were irrelevant to the inquiry into the way the Air Force Academy administered its Honor Code”). “[T]he identities of the s ubject[s] of the investig ation[s] . . . is not nearly as significant” in terms of the public interest “as the actions (o r lack thereof) taken by the defendant.” Cuban, 744 F. Supp. 2d at 89. The D.C. Circuit’s opinion in McCutchen, 30 F.3d 183, is instructive on this point. That case involved a scientist’s request for “a list of all investigations of scientific misconduct undertaken by the Department of Health and Human Services’ Offi ce of Scientific Integrity,” including the names of both the complainants and the targets of the investigations. The record in the case included “newspaper articles as evidence of ‘growing concern’ that OSI was mishandling scientific misconduct in vestigations,” and “allegations in the scientific and political communities that OSI’s handling of these cases ha[d] been inadequate.” Id. at 188. The court permitted HHS to withhold the names of the target s of these investigations on the ground that a “mere desire to review how an agency is doing it s job, coupled with allega tions that it is not, does not create a public interest sufficient to override the privacy interests protected by32 Exemption 7(C).” For this same reason, the C ourt finds that redacti on of the identities of individuals mentioned in “accusations and derogato ry statements” contained in the documents at issue may properly be withheld. Plaintiffs rely heavily on the decision of a nother court in this Dist rict in Cuban v. SEC, 744 F. Supp. 2d 60, to support their case for disc losure. This case, however, is clearly distinguishable from the facts before the Cuban c ourt. Most importantly, that case involved the government’s decision to withhold entire documents under Exemption 7(C), ra ther than just the identities of particular indi viduals, without providing an expl anation to the court for “why redacting the names and any othe r identifying characteri stics of the persons involved in the OIG investigations will not adequately protect the privacy interests at stake.” Id. at 89. Even accepting “the defendant’s representations that the identity of persons connected with the investigation should not be disclo sed for the reasons the defendant offers,” the court found “the defendant has not justified withholding the remainde r of the information likely contained in the records.” Id. This is a crucial distinction for Plaintiffs in the present case, as the Court finds here that OIG may withhold only enough information as is necessary to protect the privacy and identities of the individuals mentioned. The substance of the accusations and derogato ry statements contained in the records at issue, however, is another matter. To the extent the public has an interest in information that sheds light on whether or not OIG properly conducte d the investigations at issue in this case, the nature of the accusations made against government officials may be probative of the propriety of the steps OIG took to investigate. The Court th us finds that if the accusations and derogatory statements contained in the documen ts Plaintiffs seek can be redacted such that the identity of33 the individuals against whom they are made w ill remain private, OIG may not withhold them under Exemption 7(C).
2. Exemption 7(E) OIG may withhold records or information unde r Exemption 7(E) if they were “compiled for law enforcement purposes,” and if production “would disclose technique s and procedures for law enforcement investigations or prosecuti ons, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reason ably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b )(7)(E). Exemption 7(E) thus generally protects those law-enforcement techniques and procedures th at are “not well-known to the public.” See Judicial Watch, Inc. v. U.S. Dep’t of Co mmerce, 337 F. Supp. 2d 146, 181 (D.D.C. 2004); see also Albuquerque Publishing Co. v. U.S. Dep’ t of Justice, 726 F. Supp. 851, 857 (Exemption 7(E) applies to “techniques and procedur es generally unknown to the public”). OIG withholds portions of six additional pages under subsection (E) of Exemption 7. All six pages come from File H-08: 1, 48, 49, 52, 53, and 135. As explained above, the Court has already found that the records and information contained in Investigative File H-08 were compiled for law-enforcement purposes. See Section III(B)(1)(a), supra . The Court has reviewed in camera both unredacted copies of each of th ese pages as well as a declaration prepared by OIG’s FOIA Officer, Robin Brooks, further explaining the non-public nature of the law-enforcement techniques withheld under this Ex emption. In light of the Court’s review and Brooks’s attestations, it is clear that the redactedportions of the documents at issue relate to investigative techniques and pro cedures that OIG uses to gather and analyze evidence that are not generally known to the public, and the disclosu re of which could reas onably be expected to risk circumvention of the law. To describe th ese techniques in greater detail here would risk34 disclosing them – the very harm Exemption 7(E) seeks to prevent. See Smith v. Bureau of Alcohol, Tobacco and Firearms, 977 F. Supp. 496, 501 (D.D.C. 1997) (rec ognizing “[i]n some cases, it is not possible to describe secret law enforcement techniques, ev en in general terms, without disclosing the very information to be wi thheld”). The Court, accordingly, finds that the six documents at issue here were pr operly withheld under Exemption 7(E).
3. Exemption 5 Finally, Plaintiffs object to a selectio n of HHS OIG’s withholdings under FOIA Exemption 5, pursuant to which an agency need not disclose “inter-age ncy or intra-agency memorandums or letters which would not be availabl e by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5 ). Exemption 5 thus protects documents that would be unavailable to an opposing party thr ough discovery in civil litigation. See U.S. v. Weber Aircraft Corp., 465 U.S. 792, 800 (1984); Martin v. Office of Special Counsel, 819 F.2d 1181, 1185 (D.C. Cir. 1987) (Exemption 5 “unequivo cally” incorporates “all civil discovery rules”). Documents that fall w ithin the attorney-client privil ege, the attorney work-product privilege, and the deliberative-process privilege are thus exempt from disclosure. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148-49 (1987); Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). OIG justifies its invocation of Exemption 5 under the deliberative-process privilege. Defs. Supp. Mot. at 9. “One of the traditional ev identiary privileges available to the Government in the civil discovery context is the common-sens e, common-law deliberative process privilege.” Jordan v. DOJ, 591 F.2d 753, 772 (D.C. Cir. 1978), ove rruled in part on other grounds, Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051 (D.C. Cir. 1981). This encompasses three main policy purp oses, two of which are applicab le to this dispute: (1) to35 encourage open, frank discussions on matters of policy between subordina tes and superiors; and (2) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds fo r an agency’s action. See Russell v. Dep’t of Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982); see also Missouri ex rel. Shorr v. U.S. Army Corps of Eng’rs, 147 F.3d 708, 710 (8th Cir. 1998) (“The purpose of the deliberative process privilege is to allow agencies to freely explore alternativ e avenues of action and to engage in internal debates without fear of public scrutiny.”). Two requirements must be met to permit va lid invocation of this privilege. The communication withheld mu st be predecisional – i.e. , “antecedent to the adoption of an agency policy,” Jordan, 591 F.2d at 774, and it must be deliberative – i.e. , “a direct part of the deliberative process in that it makes recomme ndations or expresses opinions on legal or policy matters.” Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975). A record or document can be predecisional in nature even when an agency subsequently makes a fi nal decision on the issue discussed in the record or document. See Fed. Open Mkt. Comm. v. Merrill, 443 U.S. 340, 360 (1979). Exemption 5 may thus be invoked to withhol d advisory opinions, recommendations, draft documents, proposals, analyses, suggestions, discussions, and other subjective documents that “compris[e] part of a process by which governmental decision s and policies are formulated.” Sears, Roebuck & Co., 421 U.S. at 150. “The de liberative character of agency documents can often be determined through ‘the simple test thatfactual material must be disclosed but advice and recommendations may be withheld.’” Mapo ther v. U.S. Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993) (quoting Wolfe v. U.S. Dep’t of Health and Human Services, 839 F.2d 768, 773 (D.C. Cir. 1988)). “[B]ecause the privilege serves to protect the deliberative process itself, not36 merely documents containing deliberative material ,” however, “purely factual material” may be withheld where it reflects an “exercise of disc retion and judgment calls.” Mapother, 3 F.3d at 1539; Ancient Coin Collectors Guild v. U.S. Dep’ t of State, 641 F.3d 504, 513 (D.C. Cir. 2011). Where a document contains “factual material . . . assembled through an exercise in judgment in extracting pertinent material from a vast number of documents for the benefit of an official called upon to take discretionary action,” the D. C. Circuit has found Exemption 5 to apply. Mapother, 3 F.3d at 1539; see also Ancient Coin Collectors Guild, 641 F.3d at 513. This limited exception to the general principl e that purely factual material may not be withheld under Exemption 5 may not be read so broadly, however, as to swallow the rule. As the D.C. Circuit has observed, “Anyone making a report must of necessi ty select the facts to be mentioned in it; but a report does not become a part of the delib erative process merely because it contains only those facts which the person making th e reports thinks material. If this were not so, every factual report would be protected as part of the delibera tive process.” Playboy Enterprises, Inc. v. U.S. Dep’t of Justice, 677 F.2d 931, 935 (D.C. Cir. 1982). Plaintiffs challenge OIG’s decision to withhold under Exemption 5 the following records: H-08 page 9; H-10 pages 3-5, 6-10, 14 -40, 42-54, 126-27, 447, 450-51, 498-503, 543-44, and 553-55; and AS pages 20-29, 31, 33, 36-48, 66, 74-76, 264, 276, 278-80, 289-96, 324, 378, 381- 82, 390, 392-94, 427-635, 705, 770, 774-78, 784, and 806. Many pages on this list fall into one category of documents – namely, handwritten notes taken during meetings – which may be addressed together. The other pa ges are not as easily categorize d, thus requiring the Court to separately evaluate the propriety of withholdi ng a variety of reports, emails, memoranda, and draft documents.37 a. Notes Many of the documents withheld in their entirety under Exemption 5, both from OIG’s initial File H-10 disclosures and from the AS documents, are handwritten notes describing a meeting, phone call, or interview. These include File H-10 pages 126-27, 498-503, and 543-44, and AS pages 20-29, 31, 33, 36-48, 66, 74-76, 264, 276, 278-80, 324, and 427-635. OIG attests, and the Court is persuaded, that all are pred ecisional. Brooks Decl., ¶¶ 80-85; Brooks Supp. Decl., ¶ 15. Each of these documents was prepared during the investigatio ns that Files H-08 and H-10 concern, and all predate the October/Novemb er 2010 conclusion of those investigations. Id. OIG contends these handwritten notes are al so deliberative because they “indicate the author’s thoughts about what wa s note-worthy” about the meeting, call or interview. See Brooks Decl., ¶¶ 80, 83-84; Brooks Supp. Decl., ¶ 15. He re OIG’s application of Exemption 5 is overbroad. Exemption 5 provides no general ex clusion for handwritten notes prepared by an agency employee, even though such notes inhere ntly reveal what the notetaker thought was noteworthy about the subject of the notes. See Playboy Enterprises, 677 F.2d at 935 (“Anyone making a report must of necessity select the facts to be mentioned in it; but a report does not become a part of the deliberative process merely because it contains only those facts which the person making the reports thinks material.”). Handwritten notes may be deliberative or part of the agency’s deliberative process where they contain the author’s opinions, analysis, or imp ressions of the event he or she describes. To the extent such notes merely record or summari ze factual content from the meetings, calls, or interviews, those purely factual porti ons must be disclosed “unless th e material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably38 reveal the government’s deliberations.” In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). This is the conclusion reached by other courts in this District that have recently been confronted with similar documents sought under FOIA. See Williams & Connolly LLP v. SEC, 729 F. Supp. 2d 202, 213 (D.D.C. 2010); Gold Anti-Trust Ac tion Committee v. Board of Governors of the Federal Reserve System, 762 F. Supp. 2d 123, 136-38 (D.D.C. 2011). In Williams & Connolly, the court consider ed documents described as “notes of conversations” and concluded: “To the extent that these documents contain merely factual material such as statements made by Corigl iano or Kearney, they do not fall within the deliberative process privilege.” 729 F. Supp. 2d at 213. Similarly, in Gold Anti-Trust Action Committee, the court reviewed in camera “a staff member’s notes on [a] discussion by the Gold and Foreign Exchange Committee of the Group of Ten.” 762 F. Supp. 2d at 137. Following this review, Judge Ellen Huvelle co ncluded: “[I]t is apparent thatthese notes do not reflect ‘the writer’s analytical views regarding the matters di scussed . . . , but rather are a straightforward factual recounting of a meeting . . . detailing what each of the participants said,” and therefore have “not properly been withheld under Exempti on 5.” Id. (emphasis in original). The Court thus finds that OIG may notwithhold these notes categ orically under Exemption 5. Only two of these pages (H-10 pages 126-27), ho wever, were not also withheld in their entirety under Exemption 7(C). The Court has reviewed these two in camera and concludes that their very brief contents are deliberat ive and were thus properly withheld. b. Other Pages The Court will now address the other pages withheld under Exemption 5. Page 9 from File H-08 is a report of a conversation between FDA staff and OIG st aff dated February 11, 2009. See Brooks Decl., ¶ 68. This document is pr edecisional because it pr edates and relates to39 an investigation that concluded in October 2010. Id. The Court has reviewed the withheld portion of this page in camera , and the results confirm OIG’s atte station that the withheld portion is deliberative “because OIG’s advice was sought by FDA, regard ing allegations that an FDA employee made an unauthorized disclosure of confidential information,” id., and it includes discussion of potential possible actio ns to be taken in response. The Court thus finds that OIG’s redaction of a portion of page 9 was proper under Exemption 5. Another group of documents withheld in thei r entirety includes emails between FDA and OIG (H-10 page 447), OIG and the Office of Public Health and Safety (pages 450-51), and OIG and DOJ (pages 553-55) discussing evidence relating to a potentia l then-pending OIG investigation. These emails are no doubt predecisional, as they were prepared between August 2010 and October 2010 and thus predate the Novemb er 2010 conclusion of the investigation into Plaintiffs’ alleged breach of confidentiality. See Brooks Decl., ¶¶ 81, 82, 85. OIG attests that it withheld pages 447 and 450-51 in their entirety to “preclude disclosure of the agency’s deliberative process.” Id., ¶¶ 81-82. Having reviewed these documents in camera , the Court finds that these emails do generally reveal the deliberative process the agency followed in determining how to proceed with its investigation and are thus covered by Exemption 5. Pages 553 and 555 contain similar delibera tive material. The sole exce ption is page 554, which also contains purely factual informati on regarding the investigation into Plaintiffs’ alleged disclosure of confidential information. OIG should theref ore redact page 554 to protect information regarding OIG’s deliberations, as well as personally identifiable information that qualifies for protection under Exemption 7(C), and then disclose the purely f actual portions of the page. OIG also properly withheld all or portions of additional internal FDA emails under Exemption 5. These pages include AS 378, 381-82, 390, 392-94, 705, 770, 784, and 806.40 Because these 2008 and 2009 emails did not receive individualized discussion in Robin Brooks’s Supplemental Declaration, the Court reviewed them in camera . This review confirmed that these records were both predecis ional and deliberative, contai ning advice and recommendations regarding how to address eitherPlaintiffs’ conduct and pending personnel matters within FDA, or allegations of retaliation against FDA, before final decisions were made as to how to proceed with respect to those matters. Portions of pages AS 289-90 and AS 294-96, how ever, appear to be improperly withheld under Exemption 5 for the reason th at the document is not predecisional. Described in Vaughn Index 3 merely as “[a]dvice and recommendations about Dr. Paquerault’s work performance and whether to extend her appointment and names of other FDA employees,” the redacted pages provided to Plaintiffs reveal th e document to be a letter memora ndum from Nicholas Petrick of OSEL/DIAM to an OIG Inspector dated Augus t 12, 2009, with subject: “Response to 03-Aug2009 Inquiry Letter.” OIG released the majority of this document with limited redactions – in fact, pages AS 291-93 were released in full. Vaughn Index 3 indicates only that OIG determined the redacted statements qualify for Exemption 5 withholding because they “disclose internal FDA advice and recommendations about Dr. Paque rault’s work performance and whether to extend her appointment before a final agency d ecision was made.” The text of the document itself, however, indicates that it wa s prepared not as part of such a pending deliberative process, but to explain past agency decisions regarding Dr. Paquerault. The document is structured to respond to three particular issues . Issue #1 identifies a “decision that was made” and indicates that the author was “asked to provide a written statement and supporting documentation detailing the events that led up to this decision.” AS 289. Issue #3 uses similar language. AS 295. Issue #2 required the author to provi de “a written statement and supporting documentation” for41 examples of behavior identified during Dr. Pa querault’s 2008 year-end PMAP review, which had already taken place. AS 291. Given the document’ s stated purpose of explaining or justifying prior decisions, rather than making recommenda tions for future ones, and the fact that the Supplemental Declaration of Robi n Brooks does not specifically me ntion these pages, the Court finds that OIG has failed to carry its burden of s howing that the redacted portions of these pages are properly exempt under the deliberative-process privilege. Finally, AS 774-78 disclose comments on a draft FDA document and are thus properly withheld under Exemption 5. See Judicial Wa tch, 337 F. Supp. 2d at 174 (“Drafts and comments on drafts are squarely within th e scope of Exemption 5.”).
C. Count 28 Unlike Counts 1, 6, 7, 12, 19, and 20, Count 28 re lates not to the substance of OIG’s withholdings, but rather to the pr ocedure the agency used to pro cess Plaintiffs’ FOIA requests. Because the Court finds that Plaintiffs lack sta nding to bring this claim, the Court will grant summary judgment in Defendants’ favor on Count 28. Neither party disputes that OIG initially de nied each of Plaintiffs’ individual FOIA requests under Exemption 7(A). See Brooks Decl., ¶¶ 11, 18, 24, 30, 36, 43 (denying Plaintiff Smith’s request on September 27, 2010; Plain tiffs Wersto, Vishnuvajjala, Nicholas, and Czerska’s requests on October 7, 2010; and Plai nitff Hardy’s request on November 8, 2010). Exemption 7(A) permits an agency to wit hhold “records or inform ation compiled for law enforcement purposes” when production of such records “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). In denying Plaintiffs’ requests, OIG informed each of them of “an open and ongoing investigation concerning the subject of the request” and that the agency had determined that “prematurely releasing even42 some of the information in the file could have disclosed the direction of the investigation and could have impeded or interfered with law enfo rcement proceedings.” See, e.g., Brooks Decl., ¶ 11. After receiving these denials, Plaintiffs administra tively appealed OIG’s blanket application of Exemption 7(A) to their requests for documen ts contained in OIG Investigative Files H-08 and H-10. While Plaintiffs’ appeals were pending, Invest igations H-08 and H-10 were closed. In light of the fact that the i nvestigations at issue were no longer ongoing, in November 2010, OIG withdrew its invocation of Exemption 7(A) and began processi ng Plaintiffs’ requests under new numbers. See Brooks Decl., ¶¶ 12, 19, 25, 31, 37, 44. OIG released some documents to Plaintiff Czerka on November 3, 2010; to Plaintiffs Smith, Wersto, Vishnuvajjala, and Nicholas on November 5; and to Plaintiff Hardy on November 30, while withholding others in full or in part under Exemptions 5, 6, 7(C), and 7(E). Id., ¶¶ 13, 20, 26, 32, 38, 45. Plaintiffs plead in their Second Amended Complaint that after OIG began processing their requests with new numbers, HHS dismissed their pending appeals of OIG’s initial refusal to release documents under Exemption 7(A) as moot. See Sec. Am. Compl., ¶ 218. They further contend that “this activity represents [Defendants’] ongoing policy or practice.” Id. Plaintiffs allege in Count 28 that by beginning the process anew and dismissing Plaintiffs’ administrative appeal s as moot without adjudicating them, “HHS effectively ensured that the blanket withhold ings could not be reversed administratively or undergo judicial review.” Id., ¶ 219. Plaintiffs thus allege that HHS main tains a “policy or prac tice that intentionally avoids appellate or judicial revi ew of withholding decisions” in vi olation of FOIA and the APA. Id., ¶ 220. They further allege that they “wer e materially harmed by this practice due to the43 necessity that they bring the instant case to ensure appropriate review of OIG’s blanket invocations.” Id., ¶ 224. Defendants have now moved for summary judgment on Count 28 on the ground that “OIG acted reasonably when it pr ocessed Plaintiffs’ requests fo llowing the closing of the OIG investigation[s].” Def. Supp. Mot. at 19. The Court need not reach that issue because it finds Plaintiffs have no standing to br ing this count. Article III of th e Constitution limits the power of the federal judiciary to the resolution of “Cases” and “Controversies.” U.S. Const. art. III, § 2; see also Allen v. Wright, 468 U.S. 737, 750 (1984) (discussing the case-or-controversy requirement). “This limitation is no mere formal ity: it ‘defines with respect to the Judicial Branch the idea of separation of powers on wh ich the Federal Government is founded.’” Dominguez v. UAL Corp., 666 F.3d 1359, 1361 (D.C. Cir. 2012) (quoting Allen, 468 U.S. at 750). Because “standing is an essential and unchanging part of the case-or-controversy requirement of Article III,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), finding that a plaintiff has standing is a necessary “p redicate to any exerci se of [the Court’s] jurisdiction.” Fla. Audubon Soc’y v. Be ntsen, 94 F.3d 658, 663 (D.C. Cir. 1996)). “Every plaintiff in federal court,” accordingl y, “bears the burden of establishing the threeelements that make up the ‘irreducible constitutional minimum’ of Article III standing: injury-infact, causation, and redressabili ty.” Dominguez, 666 F.3d at 1362 (quoting Lujan, 504 U.S. at 560-61). Although Defendants do not explicitly cha llenge Plaintiffs’ standing with respect to Count 28, “[b]ecause standing is a ju risdictional doctrine,” the Court is “obliged to consider the issue sua sponte .” Catholic Social Services v. Shalala, 12 F.3d 1123, 1125 n.2 (D.C. Cir. 1994). Plantiffs “bear[] the burden of providing, by affidavit or other ev idence, specific facts sufficient to demonstrate standing; once provided, however, thos e facts will be taken as true by this Court.”44 Town of Barnstable v. F.A.A., 659 F.3d 28, 31 (D .C. Cir. 2011) (internal quotation marks and citations omitted). It is on the first of the three standing criteria that Plaintiffs ’ standing falters. To establish that they have suffered an “injury in fact,” Pl aintiffs must point to “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ac tual or imminent, not conjectural or hypothetical.” Lu jan, 504 U.S. at 560 (internal citations and quotations omitted). Count 28 is premised on an alleged injury to Pl aintiffs’ procedural rights – namely, that by reprocessing Plaintiffs’ FOIA requests under new numbers and dismissing their administrative appeals without adjudicating them, OIG denied Plaintiffs the pro cess they were due. See Plfs. Opp. at 26-27. To demonstrate standing to assert a claim ba sed on the alleged violation of a procedural right, Plaintiffs “must show not only that th e defendant[s’] acts omitted some procedural requirement, but also that it is substantially probable that the procedural breach will cause the essential injury to the plaintiff[s’] own interest[s].” Be ntsen, 94 F.3d at 665. Thus “to have standing to challenge an allege d procedural violation, a party must demonstrate that it has suffered an injury caused by the substantiv e action taken by the agency.” WebCel Communications, Inc. v. FCC, 1999 WL 325450, at *1 (D.C. Cir. Apr. 28, 1999). Here the undisputed facts of the case disprove the substantive injury Plaintiffs allege they suffered as a result of Defendants’ dismissa l of their administrative appeals. The only substantive injury Plaintiffs allege in their Second Amended Complaint is that they “were materially harmed by this practice due to the nece ssity that they bring the instant case to ensure appropriate review of OIG’s bl anket invocations.” Sec. Am. Compl., ¶ 224. Although the count cites both FOIA and the Privacy Act, Plaintiffs ’ brief on the issue makes manifest this claim45 relates only to Defendants’ i nvocation of FOIA Exemption 7( A). See Plfs. Opp. at 26-27. Plaintiffs do not dispute, however , and Defendants attest, that OIG had withdrawn its reliance on Exemption 7(A), processed their FOIA request s, and asserted othe r exemptions for any remaining withholdings by November5 (in the case of Plainti ffs Smith, Wersto, Vishnuvajjala, Nicholas, and Czerska) and by November 30, 2010 (in th e case of Plaintiff Ha rdy). Plaintiffs did not file this suit unt il December 15, 2010, more than two week s after OIG had disclaimed any reliance on Exemption 7(A) to continue to withhol d documents. As a result, Plaintiffs did not need to bring this suit to challenge Defendants’ reliance on 7(A); such reliance – and, ergo, such injury – had ceased by the time of filing. To the extent Plaintiff National Whistleblower Center alleges that, “[ a]s a frequent FOIA requester, [it] stands to continue to be harmed by this ongoing practice inthe future,” Sec. Am. Compl., ¶ 224, this allegation of future unspecified harm is too vague. Is the harm, for instance, a future invocation of Exemption 7(A) or, mo re broadly, generally improper reliance on exemptions? More particularity is required be fore such an allegati on could continue. Because Plaintiffs have failed to plead a nd demonstrate that they have suffered a material, concrete harm as a result of any procedural violation Defendants may have committed in processing their FOIA requests, the Cour t will grant summary j udgment in favor of Defendants on Count 28.
IV. Conclusion For the reasons articulated above, an Order accompanying this Memorandum Opinion will grant in part and deny in part the partie s’ Cross-Motions for Summary Judgment, dismiss Counts 27 and 28 of Plaintiffs’ Second Amended Complaint, and instru ct Defendant HHS OIG to release additional information to Plainti ffs consistent with this Memorandum Opinion.46 /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: March 28, 2012