MANZKE v. Centers for Disease Control and Prevention

Filing 23

MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 4/2/2012:Mailed notice(ca, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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EDWARD MANZKE,
Plaintiff,
v.
CENTERS FOR DISEASE CONTROL AND
PREVENTION,
Defendant.

No. 11 C 4680

MEMORANDUM OPINION AND ORDER
Plaintiff Edward Manzke brought this action against defendant
Centers for Disease Control and Prevention (“CDC”) under the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, related to an
Enterobacter Sakazakii infection at Rush-Copley Neonatal Intensive
Care Unit.
deceased

Plaintiff is an attorney who represents a family whose
infant

son,

Connor

McCray,

contracted

Enterobacter

Sakazakii at Rush-Copley. This case centers on plaintiff’s March
28, 2011 FOIA request which sought information relating to CDC lab
files

concerning

bacteria

Minnesota and South Carolina.

samples

originating

in

Illinois,

Specifically, the request sought a

copy of the Pulse Field Gel Electrophoresis (“PFGE”) pattern, .tif
or .pdf files, and a dendogram for six identified Enterobacter
sakazakii infection lab samples.

Four of the samples were from

Connor McCray in Illinois, while the other two came from one
unnamed individual in Minnesota and one unnamed individual in South

Carolina.
Plaintiff explained the origin of his request.
plaintiff

submitted

a

FOIA

request

Enterobacter Sakazakii infections.

to

the

CDC

Back in 2008,
related

to

In response to that request,

the CDC produced a dendogram which included patterns for numerous
samples, including, among others, the Minnesota sample (“2005-32-01
MN”) and the South Carolina sample (“2007-05-01 SC”) at issue in
this case.

The CDC provided the PFGE patterns along with the

corresponding CDC identification numbers.

According to plaintiff,

the quality of the PFGE patterns, which were reproduced via
photocopy, was limited.

In an effort to obtain clearer images, on

March 28, 2011, plaintiff sent a second FOIA request to the CDC for
“.tif files” of the PFGE patterns.
With respect to the most recent FOIA request, the parties
agreed that the CDC would provide the requested materials by
December 12, 2011.

The CDC produced the requested information for

Connor McCray’s samples without redaction because all privacy
concerns

were

extinguished

by

his

death.

However,

because

plaintiff failed to provide signed consents from the individuals
represented by the Minnesota and South Carolina samples (or proof
that

these

individuals

were

deceased),

the

CDC

redacted

all

information from the Minnesota and South Carolina samples that
might be used to identify these individuals. Specifically, the CDC
redacted the state lab identification number, submitter, submitter

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identification, and the date received from the Minnesota and South
Carolina samples because the CDC determined that including this
information may make it possible to discover the identify of the
individuals attached to each sample. Plaintiff argues that the CDC
has not, in fact, fully complied with his FOIA request because the
CDC refuses to identify which specific PFGE patterns belong to the
Minnesota and South Carolina samples.
FOIA requires governmental agencies “upon any request for
records which . . . reasonably describes such records . . . [to]
make the records promptly available[.]”

5 U.S.C. § 552(a)(3).

In

accordance with FOIA’s “goal of broad disclosure, [FOIA] exemptions
have been consistently given a narrow compass.”

Dept. of the

Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8
(2001) (internal citation omitted).

A defendant agency in a FOIA

case may be granted summary judgment where it demonstrates that its
search was adequate and any withheld documents fall within an
exemption to FOIA.

See Demma v. U.S. Dept. of Justice, No. 93 C

7289, 1996 WL 11932, at *1 (N.D. Ill. Jan. 10, 1996) (citing Carney
v. U.S. Dept. of Justice, 19 F.3d 807, 812 (2d Cir. 1994)).
“Affidavits or declarations supplying facts indicating that the
agency has conducted a thorough search and giving reasonably
detailed explanations why any withheld documents fall within an
exemption are sufficient to sustain the agency’s burden.”

Id.

The CDC argues that it is entitled to summary judgment because

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it has fully complied with plaintiff’s FOIA request. In support of
its redaction, the CDC relies on FOIA Exemption 6 which protects
from disclosure “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion
of personal privacy.”
whenever
invasion”

disclosure
of

5 U.S.C. § 552(b)(6).
would

personal

constitute

privacy.

See

a

Exemption 6 applies
“clearly

U.S.

Dept.

unwarranted
of

State

v.

Washington Post Co., 456 U.S. 595, 602 (1982).
In response, plaintiff points out that the CDC has essentially
given him the information which the CDC now wants to redact.
Plaintiff has provided evidence that back in 2008 the CDC provided
him

with

both

the

PFGE

patterns

laboratory identification numbers.

and

the

corresponding

CDC

Plaintiff summarily argues,

without elaboration, that the CDC has not identified any privacy
interests at stake here.1
In assessing the applicability of Exemption 6, courts weigh
the privacy interests in nondisclosure against the public interests
in disclosure.

See Lakin Law Firm, P.C. v. F.T.C., 352 F.3d 1122,

1

While plaintiff does not use the word “waiver,” a fair
reading of his response certainly suggests it. Although neither
side addresses the issue, a finding of waiver would not be
appropriate here because the Seventh Circuit has made clear that an
agency cannot waive an individual’s privacy protections found
within FOIA. See Lakin Law Firm, P.C. v. F.T.C., 352 F.3d 1122,
1124 (7th Cir. 2003) (citing Sherman v. U.S. Dept. of the Army, 244
F.3d 357, 363-64 (5th Cir. 2001) (“[O]nly the individual whose
informational privacy interests are protected by Exemption 6 can
effect a waiver of those privacy interests.”).
4

1125

(7th

Cir.

2003).

The

CDC

redacted

the

state

lab

identification number, submitter, submitter identification and the
date received from the Minnesota and South Carolina samples. Based
upon its prior experience with similar matters, the CDC determined
that an unredacted response for the Minnesota and South Carolina
samples would increase the probability that plaintiff would be able
to ascertain the identity of one or both of these individuals, and
thus would be able to match private information obtained from the
samples with these individuals.2

While true that the CDC does not

walk through all the steps that would be necessary to tie a
particular name to the samples at issue, I note that the CDC has
submitted an affidavit from Katherine S. Norris, the CDC’s FOIA
Officer, who averred that “[t]he decision to redact was based upon
prior CDC FOIA Office experience, in which the release of such
information in an unredacted fashion was later discovered to have
allowed the identification of the individual(s) involved, by means
of deduction from contextual clues.”

Norris Aff. ¶5.

“Without

evidence of bad faith, the veracity of the government’s submissions
regarding

reasons

questioned.”

for

withholding

documents

should

not

be

Matter of Wade, 969 F.2d 241, 246 (7th Cir. 1992).

2

The CDC explained that it assigns a “CDC laboratory number”
to each sample received.
In addition, information that is
submitted to the CDC from a state health department will also have
a state identifier associated with the same sample.
The CDC
includes the state health department identifier and the CDC
laboratory number on reports sent back to the state.
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Given the possibility that this information could be used to
identify the individuals, there are privacy interests implicated
here.3
Likewise,

I

reject

plaintiff’s

argument

that

the

prior

disclosure in 2008 negates these individuals’ privacy interests.
The 2008 reproduction produced by the CDC did not – due to the fact
that the results are basically unreadable – actually reveal the
information plaintiff now seeks.

In essence, because plaintiff

cannot read the results for the Minnesota and South Carolina
samples in any meaningful way, it is as if plaintiff never received
the first production. Thus, despite what may have been produced in
2008, there remain protectable privacy concerns here.
Against this privacy interest, I must evaluate any public
interest at stake. The Supreme Court has held that the only public
interest that is relevant to this balancing test is “the shining of
a light on an agency’s performance of its statutory duties.”
Lakin, 352 F.3d at 1125 (citing U.S. Dep’t of Justice v. Reporters

3

Plaintiff cites to a one district court case from California,
Lahr v. Nat’l Transp. Safety Bd., 453 F. Supp. 2d 1153, 1183 (C.D.
Cal. 2006), to support his statement that there is no privacy
interest in the identification numbers themselves. While plaintiff
makes no attempt to discuss the Lahr case or how it applies here,
I have nonetheless reviewed the case and find it unavailing. In
Lahr, the alleged privacy interest (a witness’ right to be free
from unofficial questioning about an airplane accident) is quite
different from the highly personal nature of human samples at issue
here. Further, it is not clear what arguments were actually made
by the parties as the Lahr court provided very little explanation
of its holding concerning witness identification numbers.
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Comm. For Freedom of Press, 489 U.S. 749, 773 (1989)).

Here,

plaintiff provides no argument whatsoever that release of the
identifying information would substantially further any public
interest.

Instead, plaintiff seeks the information for purely

personal reasons. In the end, plaintiff “has failed to carry [his]
burden of ‘identifying with reasonable specificity the public
interest

that

would

be

identifying information.”

served

by

release’

of

the

withheld

Id. (quoting Hale v. U.S. Dept. of

Justice, 973 F.2d 894, 900 (10th Cir. 1992)).

Because it falls

within Exemption 6, the CDC is entitled to withhold the identifying
information.
Defendant’s motion for summary judgment is granted.

Because

I conclude that this case is more appropriate for resolution on
summary judgment, plaintiff’s motion to dismiss is denied as moot.
Because defendant moved to dismiss and for summary judgment,
defendant’s motion to dismiss, or in the alternative, for summary
judgment [15] is granted in part and denied in part.
ENTER ORDER:

____________________________
Elaine E. Bucklo
United States District Judge
Dated:

April 2, 2012

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