Kurzon v. HHS

Kurzon v. HHS                           CV-00-395-JD   07/17/01
                UNITED STATES DISTRICT COURT FOR THE
                      DISTRICT OF NEW HAMPSHIRE


George M . Kurzon, Jr., M.D.

     v.                              Civil N o . 00-395-JD
                                     Opinion N o . 

Department of Health and
Human Services,
Public Health Department

                               O R D E R

     The plaintiff, George M. Kurzon, Jr., challenges the
decision of the Department of Health and Human Services (“HHS”),
which denied his request, under the Freedom of Information Act
(“FOIA”), seeking the names and addresses of applicants whose
grant applications were not funded by the National Institute of
Mental Health (“NIMH”).     HHS moves to dismiss or in the

alternative for summary judgment.     Kurzon also moves for summary
judgment.



                          Standard of Review
     HHS contends that Kurzon’s case must be dismissed for lack
of subject matter jurisdiction because it has not improperly
withheld documents under the Freedom of Information Act. See 

(a)(4)(B).1    In order to establish that it has not

     1
      Because HHS has file
                         ed its answer, the motion to dismiss
would be considered as a motion for judgment on the pleadings.
See Fed. R. Civ. P. 12(c)
improperly withheld documents, however, HHS moves for summary
judgment in its favor on Kurzon’s claims. Therefore, in essence,
the parties have filed cross motions for summary judgment.
     Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.”     Fed. R. Civ. P.
56(c).   The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v . Catrett, 

 (1986).   All
reasonable inferences and all credibility issues are resolved in
favor of the nonmoving party.   See Barreto-Rivera v . MedinaVargas, 

 2 , 45 (1st Cir. 1999).   In considering crossmotions for summary judgment, “the court must consider each
motion separately, drawing inferences against each movant in
turn.”   Reich v . John Alden Life Ins. Co., 

 , 6 (1st
Cir. 1997).

     When the party moving for summary judgment also bears the
burden of proof at trial, summary judgment will not be granted in
the movant’s favor unless, based on the record taken in the light
most favorable to the nonmoving party, no reasonable jury could
find for the nonmoving party.   See Winnacunnet v . National Union,

 2 , 35 (1st Cir. 1996); see also Laningham v . United

                                 2
States Navy, 

 (D.C. Cir. 1987).      In opposing a
motion for summary judgment, “[o]n issues where the nonmovant
bears the ultimate burden of proof, he must present definite,
competent evidence to rebut the motion.”      Mesnick v . Gen. Elec.
Co., 

 (1st Cir. 1991); see also Invest Almaz v .
Temple-Inland Forest Prods. Corp., 

 7 , 76 (1st Cir.
2001).   An absence of evidence on a material issue weighs against
the party who would bear the burden of proof at trial on that
issue.   See Perez v . Volvo Car Corp., 

 (1st Cir.
2001).


                            Background2

     On July 9, 1999, George M. Kurzon, Jr. sent a FOIA request

to NIMH, seeking disclosure of “a list of the names and addresses

of all scientists who were unfunded in the last round of

extramural grants made by the NIMH.”      Def. Attach. A .   Kurzon

referenced a previous FOIA request he made for similar

information from the National Cancer Institute. See Kurzon v .

Dep’t of Health & Human Servs., 

 (1st Cir. 1981).          The

NIMH and the National Cancer Institute are both components of the

National Institutes of Health (“NIH”), and FOIA requests to NIMH

     2
      Since Kurzon did not provide a statement of material facts
either in support of his own motion or in opposition to HHS’s
motion, all properly supported material facts in HHS’s factual
statement will be deemed admitted. See LR 7.2(b).

                                 3
are handled by the NIH Freedom of Information Office.
     Wendy Baldwin, the Deputy Director for Extramural Research
at NIH explained the grant process in her declaration.
Extramural grants are for research performed outside of NIH but
funded by NIH.   Institutions propose a research project for
funding by submitting a grant application. Each application
identifies a principal investigator who is the individual chiefly
responsible for the project.   Applications are selected for
funding through a system of peer review, which is kept

confidential.    NIMH, the component of NIH at issue here, receives
about 2,670 applications each year and grants funding to only 30%
of the applicants.

     The grant application “kit” explains the process and
policies for grant applications.3     While the agency makes
information about awarded grants available to the public,
generally, the agency does not release to the public competing
grant applications which were not funded.     According to its
policy, if the NIH determines that information may be exempt from
disclosure under the FOIA, it will notify the applicant or
grantee of a FOIA request and consult with the investigator or
the institution about releasing the requested information.

    3
      The excerpt of a grant application “kit” submitted with
Baldwin’s declaration pertains to Public Health Service grant
applications. The excerpt of a policy statement attached to
Baldwin’s declaration was from the “NIH Grants Policy Statement.

                                  4
    In response to Kurzon’s current FOIA request, Susan Cornell
of the NIH Freedom of Information Office began the search for the
requested information.   Cornell learned that the NIH Office of
Extramural Research maintained a computer database of all grant
applications. That database contained the grant application
number, a number code identifying whether the application was
withdrawn, the identity of the principal investigator, the
investigator’s business address, and the amount of funding
granted, if any.   Cornell requested the list of applications
involved in the May 1999 round of grant application review and
received forty-nine pages, which included both successful and
unsuccessful applicants.

     After reviewing the information, Cornell decided that the
information about unsuccessful grant applicants was protected
from disclosure under Exemption 6 of the FOIA.   Cornell concluded
that information about the successful applications was not
responsive to Kurzon’s request and that the grant numbers for
those applications were also protected by Exemption 6.
Therefore, she found no responsive information that could be
disclosed and withheld the entire list, denying Kurzon’s request
in its entirety.

     Kurzon’s appeal of Cornell’s decision was denied.   Kurzon
filed suit, seeking review of the decision to deny his FOIA
request.   HHS states that further review of the list has led to a

                                5
determination that most of the addresses associated with the
unsuccessful applications could be released because they are
business addresses that would not reveal the identities of the
rejected individual investigators who filed the applications. On
February 2 0 , 2001, Cornell sent Kurzon’s counsel a list of the
addresses with all information that could identify the individual
investigators redacted.


                            Discussion

     FOIA requires government agencies to make their records

available to the public upon request, unless a specified

exemption applies. See 

(a)(3), & ( b ) . The

purpose and policy of FOIA support broad disclosure and narrow

interpretation of claimed exemptions. See Church of Scientology

Internat’l v . United States Dep’t of Justice, 

(1st Cir. 1994) (stating FOIA policy and purpose and citing

cases).   A government agency seeking to withhold materials

requested under FOIA must provide a relatively detailed

justification, one sufficient to give “‘the FOIA requester a

meaningful opportunity to contest, and the district court an

adequate foundation to review, the soundness of the

withholding.’” 

 at 231 (quoting Wiener v . FBI, 

,

977-78 (9th Cir. 1991)).   When the agency’s decision to withhold

information is challenged, the court conducts a de novo review.

                                6
See id. at 228.
     An agency that withholds requested information bears the
burden of showing that a FOIA exemption justifies its action.
See § 552(a)(4)(B); Maynard v . CIA, 

 (1st
Cir. 1993).    HHS contends that Exemption 6, 

(b)(6), justifies withholding the information Kurzon requests.
Exemption 6 allows an agency to withhold “personnel and medical
files and similar files the disclosure of which would constitute
a clearly unwarranted invasion of personal privacy.”    § 552(b)(6)
(emphasis added).

     HHS argues, and Kurzon does not dispute, that information
which identifies individual principal investigators whose
applications were rejected is covered by “similar files” in §
552(b)(6).    See United States Dep’t of State v . Wash. Post Co.,

 (1982) (interpreting “similar files” to include
any information applicable to a particular individual).      The
parties do dispute whether disclosure of the information “would
constitute a clearly unwarranted invasion of personal privacy”
within the meaning of § 552(b)(6).    To resolve that question, the
court must weigh the public interest in disclosure against a
privacy interest in the requested information protected under the
FOIA.   See United States Dep’t of Justice v . Reporters Comm. for
Freedom of the Press (“Reporters Comm.”), 

(1989).

                                  7
A.   Privacy Interests
     Kurzon requested “a list of the names and addresses of all
scientists who were unfunded in the last round of extramural
grants made by the NIMH.”   Cornell Dec., Attach. A .    Since
institutions, not scientists, apply for grants, Kurzon’s request
is understood to ask for the names and business addresses of the
principal investigators on unfunded applications. HHS has
provided Kurzon’s counsel with a list of the addresses on those
applications, which are business or institution addresses, unless
the address identified the principal investigator.      HHS has
withheld the names and identifying information about the
principal investigators, contending that they have a significant
privacy interest in not being identified as rejected applicants
because of potential harm to their reputations, professional
status, and employment opportunities.



      1.   Affidavits4

     In support of the asserted privacy interest, HHS offers the
declarations of Susan Cornell, Freedom of Information Officer for
NIH; Wendy Baldwin, Deputy Director for Extramural Research at
NIH; and Faye Austin, Director for Research, Dana-Farber Cancer

     4
      The statements submitted by HHS are unsworn declarations
rather than affidavits. Since the declarations meet the
requirements of 

, however, they will be treated
as affidavits subject to the requirements of Rule 56(e).

                                 8
Institute, Associate Director for Administration, Dana-Farber/Harvard Cancer Center, and Deputy Director, DFCI-Beth
Israel Deaconess Medical Center-Children’s Hospital Center for
AIDS Research.   Baldwin and Cornell state that their declarations
are based on their “personal knowledge and upon information
available to [them]” in the course of their official capacities
and duties. Austin states that her declaration is based on the
“the consistently expressed expectations and social norms by
research scientists and others during my years as a researcher,
NIH administrator, and now at the Dana-Farber Cancer Institute.”
Dec. ¶ 8 .

     a.   Motion to strike.

     Kurzon moves to strike certain parts of Baldwin’s
supplemental declaration and Austin’s declaration on the grounds
that those parts do not comply with the requirements of Federal
Rule of Civil Procedure 56(e).   Rule 56(e) provides in pertinent
part that “[s]upporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein.”
“[P]ersonal knowledge is the touchstone” for an analysis under
Rule 56(e), and affidavit statements based upon information and




                                 9
belief do not meet the rule’s requirements.5       Perez, 

.

       Kurzon challenges paragraphs 2 , 1 5 , 1 6 , and part of 18 of
Baldwin’s supplemental declaration on the ground that the
declaration does not include facts showing that she is competent
to testify, based on her personal knowledge, about the matters
stated.    HHS argues that Baldwin’s personal knowledge of the
practices and concerns of academic and scientific communities
with respect to the expectation of privacy in rejected
applications may be inferred from her position at NIH.
Alternatively, she argues that her conclusions would be
admissible as lay opinions pursuant to Federal Rule of Evidence
701.

       Baldwin holds the position of Deputy Director for Extramural
Research at NIH, in which capacity she advises and assists the
Director on matters related to funding for medical research and
establishes and oversees the implementation of standard

procedures for the funding programs. In support of her argument
that an inference may be drawn of personal knowledge based on her
NIH position, Baldwin states that she has had a great deal of
contact with researchers and institutions. She does not explain,

       5
      HHS argues that the standard used in Perez is inapplicable
here because the affidavits are not offered to show the
defendant’s motive. The court does not agree that Perez is
limited to cases involving proof of motive.

                                    10
however, how such contact gave her personal knowledge, in

contrast to secondhand knowledge or information, about the

privacy interests of rejected applicants.6    Baldwin’s conclusions

would not be admissible as lay opinions pursuant to Federal Rule

of Evidence 701 due to the lack of foundation for her personal

knowledge of those matters. See United States v . Vega-Figueroa,

 4 4 , 755 (1st Cir. 2000); Swajian v . Gen. Motors Corp.,

 1 , 36 (1st Cir. 1990).

     In addition to the reasons discussed above, as to paragraphs

15 and 1 6 , Baldwin prefaces her statements as being based on her

belief, rather than her personal knowledge. Since statements

based on belief do not satisfy Rule 56(e), those statements are

also incompetent for that reason.

     Kurzon moves to strike paragraphs 6 and 7 of Baldwin’s

supplemental declaration, in which Baldwin states that most

people would infer that a rejected application lacked scientific


     6
      HHS argues that Baldwin’s experience at a faculty luncheon
“associated with a meeting of the Federal Demonstration
Partnership” shows that she has personal knowledge of the
practices of scientists, researchers, and academics with respect
to rejected grant applications. Supp. Dec. ¶ 9. Baldwin states
that she asked those attending the luncheon to express their
feelings about making the names of unsuccessful applicants
public. She reports that “many participants” at the luncheon
expressed concern, some said that such information would be
disruptive to careers, and some said that it would be a strike
against an applicant in the hiring process. To the extent
Baldwin’s knowledge and experience is based on informal polling
of unidentified luncheon participants, it is not persuasive.

                                 11
merit, that such inference would be correct statistically, and
that cumulative rejections could be used to develop individual
failure rates. Kurzon contends that those statements should be
stricken because they are merely conjecture and speculation.
Without addressing those statements specifically, HHS argues
generally that Baldwin has personal knowledge to support all of
her statements and that the statements would be admissible as lay
opinion.

     As discussed above, Baldwin does not provide any factual
basis for her personal knowledge of the practices of the academic
and scientific communities with respect to rejected grant
applications. Her opinion, that most people would draw negative
conclusions, absent foundational facts, would not be admissible
pursuant to Rule 701. Therefore, the challenged statements are
stricken.

     Kurzon moves to strike statements made by Austin in her
declaration that she has found it to be “the clear and universal
expectation that the fact that a research scientist had his/her
grant application rejected is private information” and her belief
that employers do not ask about grant applications.   Austin Dec.
¶ 8 & 2 3 . Austin bases her statements on “the consistently
expressed expectations and social norms by research scientists
and others during my years as a researcher, NIH administrator,
and now at the Dana-Farber Cancer Institute.”   

 ¶ 8 .   Although

                               12
Austin apparently has had more direct experience than Baldwin in
scientific and academic communities, like Baldwin, Austin’s
opinions are not based on her own experiences but on what she
says have been the experiences and expectations of others. Even
if her opinions were admissible as lay opinions, as HHS urges,
they are not persuasive.   In addition, her statement about the
practice of employers not to ask about grant applications is
based only on her belief, which is incompetent for Rule 56(e)
purposes.



     b.   Probative value of affidavits.

    Cornell states in her declaration that based on her

consultations with people at NIH, she understood that disclosing

the identities of rejected applicants would cause the principal

investigators great personal embarrassment and would negatively

impact their professional reputations and employment options.

Cornell also states that the NIH Grants Policy Statement gave

rejected applicants a reasonable expectation of privacy.    The

policy statement, to which she refers, does not promise privacy

to principal investigators whose applications are rejected, but

instead says that unfunded applications will “generally” be

withheld and repeats the protection of Exemption 6.   In addition,

the excerpts of the NIH policy and the application “kit,”

provided in the HHS materials, say that applicant institutions

                                13
and principal investigators will be consulted about releases of
information in response to FOIA requests. Cornell does not say
that she consulted with either the institutions or the principal
investigators implicated by Kurzon’s request. HHS provides no
affidavits from any rejected applicants or principal
investigators to support Cornell’s opinions.
     Baldwin, who is familiar with the NIH peer review process,
says in her declaration that “one inference that can be readily
drawn by being known as a scientist who is unsuccessful in
obtaining funding for his or her research proposals is that the
scientist, the techniques, or other aspects of the project do not
have adequate scientific merit or expertise.”   Baldwin Dec. ¶ 2 2 .
On the other hand, Baldwin says, “Although, in my experience,
most people assume that grants are unfunded because the

application lacked scientific merit, this is not always the case
. . . the pool of unfunded applications includes both excellent
ones that fell just beyond the payline, and applications with
serious scientific flaws.”   

 ¶ 2 3 . Perhaps anticipating the
conclusion drawn from such conflicting opinions in Kurzon, 

 9 , Baldwin says in her supplemental declaration that the
negative assumption against rejected applicants would be correct
more often that not.

     The inconsistencies persist, however.   Baldwin also reports,
in her supplemental declaration, concerns about the negative

                                14
effect disclosure would have on the reputations and careers of
young faculty and researchers.   In contrast, in her first
declaration Baldwin explains that reviewers consider the
experience and expertise of the principal investigator and the
research team, which would seem to necessarily tip the process
against applicants at the beginning of their careers.   Since
these criteria are not confidential, the potential stigma to a
younger or less experienced applicant would be relatively
minimized.

     Further, as Kurzon points out, to the extent a scientist’s
record in obtaining funding is germane to his or her career,
those who want to know about a particular scientist’s record need
only ask the scientist.   HHS’s protestations that confidentiality
permits scientists to avoid or hide their application records
with impunity is not a persuasive argument.

     Austin, who until 1998 worked at NIH in the administration
of the extramural research programs, now works at the Dana-Farber
Cancer Institute, assisting grant applicants through the

application process. Austin states that “the applicant’s history
of success or failure in obtaining grants is of paramount
importance to his/her opportunities for career progression.”
Dec. ¶ 9.    This is because, she says, the unsuccessful applicant
loses the money the grant would have provided and must spend more
time and money applying again and also loses the recognition that

                                 15
a successful application would provide. Austin recognizes that
all applicants know that more applications are rejected than are
granted, but has found that applicants, some more than others,
find it demoralizing to be rejected.
     Austin further states that in her experience people in
competitive institutions, including herself, draw negative
inferences from an individual’s failure to obtain grant funding.
By way of example, Austin says that NIH researchers with more
application failures were less likely to be asked to speak at NIH
conferences.   She warns against the harm of disclosing the names
of rejected applicants which would allow other institutions and
employers to use grant success and failure rates in their
decision-making, as NIH does.

     In contrast, Kurzon offers the affidavits of Bernard J.
Bergen, Ph.D., and Roger P. Smith, Ph.D., who taught and engaged
in research at Dartmouth Medical School. Bergen is now a
professor of psychiatry, emeritus, at Dartmouth, and Smith is
retired.   Bergen states that he applied for three grants from
NIMH, two of which were accepted.    Bergen says that the grant
application process was very public within his department and
that a rejected application did not remain private. Smith also
applied for NIH grants, and stated that the grant application
process, including the rejection of applications, was very open
in his department.   Smith states that he suffered no harm to his

                                16
reputation, professional status, or position due to the rejection
of his grant applications.
     HHS challenges the affidavits of Bergen and Smith as out of
date information based on their experience only at Dartmouth and
limited to disclosures within their departments. HHS, however,
has not provided evidence that the experiences of Bergen and
Smith no longer reflect the atmosphere in their departments at
Dartmouth.   Although those affidavits are limited to their own
experiences in only two departments at one institution, Bergen
and Smith provide first-hand information based on those
experiences, which is more persuasive than the opinions of
Baldwin, Cornell, and Austin, which are based on their

conclusions about others’ experiences and opinions. HHS also has
not shown that Bergen’s and Smith’s departments at Dartmouth have
changed or that academic departments elsewhere operate

differently.   In addition, according to HHS, the primary harm of
disclosure would be the resulting stigma within the scientist’s
peer group, so a lack of privacy within a scientist’s academic
department would be significant in view of the asserted harm.
Cf. Reporters Comm., 498 U.S. at 770 (“the fact that an event is
not wholly ‘private’ does not mean that an individual has no
interest in limiting disclosure or dissemination of the
information.”) (quotation omitted).



                                17
      2.   Kurzon v . Dep’t of Health and Human Servs.
      Kurzon also points to the First Circuit’s analysis of
similar privacy interests asserted by HHS in response to his
previous FOIA request. See Kurzon, 

.       In
Kurzon, the court considered the privacy interests implicated by
disclosing the names and addresses of unsuccessful grant

applicants in the context of whether that information constituted
“similar files,” within the meaning of Exemption 6.      See 

.   Since “similar files” was later interpreted by the Supreme
Court to mean any information about a particular individual, see
Wash. Post Co., 

 0 2 , the First Circuit’s more
restrictive interpretation no longer controls the application of
Exemption 6.    Nevertheless, the First Circuit’s analysis of the
privacy interests implicated by disclosing the names and

addresses of unsuccessful grant applicants is instructive in this
case.

      In Kurzon, the court concluded that “[r]ejection . . . is
not so rare an occurrence as to stigmatize the unfunded
applicant.”    Kurzon, 

 9 . As remains the case now,
between 1970 and 1979, only 30% of applicants were funded.       See

 at 6 9 , n.3. HHS has not presented any persuasive evidence
that being part of the 70% of applicants whose applications for
grants are rejected is more stigmatizing now than it was twenty
years ago.    Although Baldwin and Austin contend that the

                                 18
application process is now more competitive, that would suggest
less rather than more stigma for a rejected applicant.
     In addition, the Kurzon court noted that the NIH did not
promise anonymity to applicants, that applicants recognized the
public nature of the research and the application process, and
that anonymity was not necessary to secure applicants. See 

.   Similarly, nothing in the record presented here shows
that rejected applicants reasonably expect that their identities
will always be kept confidential. The cited provisions of the
application kit and policy statement simply repeat the language
from Exemption 6.   HHS has also provided no evidence, under seal
or otherwise, from any rejected applicants to support HHS’s
theory that they expected privacy or that disclosure of their
names would have a negative effect on them personally or

professionally.   In addition, HHS has not shown or even suggested
that the decision in Kurzon, requiring disclosure of the names
and addresses of rejected applicants, has had a negative effect
of any kind on rejected applicants whose names were disclosed or
on the application process.



     3.   Conclusion

    HHS argues persuasively that achieving grant funding is

important to scientists for personal and professional reasons.

Scientists who do not achieve grant funding for any reason,

                                19
including their failure to apply, will suffer the predictable
negative effects of a lack of funding.   That i s , a lack of
funding may make it untenable for a rejected applicant to achieve
or continue in a particular position or to maintain a research
project.   In that regard, a scientist’s successes and failures in
obtaining funding are likely to be apparent--some will have money
and some will not.   The record does not establish that the
primary harm of a rejected application is stigma, which might
support a privacy interest, rather than a lack of funding, which
is likely to be apparent rather than private. Given these
general realities shown by the summary judgment record, HHS has
not established that rejection of an NIH grant application is
significantly stigmatizing to the rejected applicant so as to
implicate a significant privacy interest.

     HHS has shown that the receipt of grant money is important
and that NIH believes that disclosure of the identities of
unsuccessful applicants for NIH grants would have a significant
stigmatizing effect. HHS has not shown, however, that NIH’s view
is widely held in pertinent research environments or by the
public in general. Therefore, while the record shows it is
better to be successful than unsuccessful, the record does not
show that unsuccessful applicants have a significant privacy
interest in withholding their identities.

     Taking the facts in the light most favorable to Kurzon, HHS

                                20
has not established a significant privacy interest in the
identities of rejected applicants in support of its own motion.
In the context of Kurzon’s motion, taking the facts in the light
most favorable to HHS, the court will accept that rejected
applicants have something more than a de minimis privacy interest
in that information but something less than a significant
interest.


B.   Public Interest

     The public interest side of the equation is based on the

relationship between the requested information and the FOIA

policy of full disclosure which “focuses on the citizens’ right

to be informed about ‘what their government is up to.’”

Reporters Comm., 

; accord FLRA v . United States

Dep’t of Navy, 

 9 , 56 (1st Cir. 1991).   “Official

information that sheds light on an agency’s performance of its

statutory duties falls squarely within that statutory purpose.”

Reporters Comm., 

. The specific purposes for

which the information was requested and the identity of the

requester do not affect the public interest analysis. See FLRA,

 6 .

     Kurzon contends that disclosure of the names and addresses

of unsuccessful applicants for NIMH grants is necessary to permit



                                21
public scrutiny of the peer review process of awarding grants.7

Kurzon believes that the peer review system does not sufficiently

recognize the value of innovative cutting-edge research.    Baldwin

establishes in her declaration that the peer review process is

kept entirely confidential by NIH.

     Kurzon argues that the names and addresses of unfunded

applicants would allow the public to assess the review process by
contacting unfunded applicants and developing further information

about the application and review process from them.    Kurzon also

contends that some evaluative information is provided by the

names of the rejected applicants alone because the names would

shed light on the process to the applicants’ colleagues within

the pertinent research area or peer group. HHS contends that the

public interest must be served directly by the requested

information, not by a derivative use of that information to

develop further information about the agency.
     The Supreme Court has declined to rule on the public

interest value of derivative use information.   See United States

Dep’t of State v . Ray, 

 (1991).   At a minimum,

however, public interest in derivative use information must be

based on more than “[m]ere speculation about hypothetical public

     7
      Kurzon’s own personal reasons for requesting the names and
addresses, to inform unfunded applicants of a website or other
sources for private funding, are irrelevant. See Bibles v .
Oregon Natural Desert Ass’n, 

 (1997).

                                22
benefits.”    Id. at 179. In the context of a request for home

addresses of union bargaining unit employees, the Supreme Court

held that the public’s interest in disclosure was “negligible, at

best” because “such disclosure would reveal little or nothing

about the employing agencies or their activities.”     United States

Dep’t of Defense v . FLRA., 

 (1994).

     Before those cases were decided, the First Circuit concluded

that disclosure of the home addresses of union bargaining unit

employees was not necessary to serve the public interest in

“tapping into a source of information about government

operations” and labor practices because the employers’ addresses

were available, which made it possible to contact the employees

at work.8    FLRA, 

 7 ; see also Navigator Publ’g,

L.L.C. v . United States Dep’t of Transp., 

(D. M e . June 4 , 2001).   The District of Columbia Circuit has

established a bright line rule that a public interest exists in
disclosure only if “‘the public would learn something directly

about the workings of the Government by knowing the names and

addresses [of certain private individuals].’”     LePelletier v .

FDIC, 

 7 , 47 (D.C. Cir. 1999) (quoting Nat’l Ass’n of

     8
      The court in Kurzon discussed the district court’s
evaluation of the public interest in the names and addresses of
unsuccessful applicants for research grants and identified the
proper public interest as an investigation into the peer review
method and its “possible stultifying effect on innovative
research.” See Kurzon, 

 8 .

                                   23
Retired Fed. Employees v . Horner, 

 (D.C. Cir.
1989)).   Other circuits also have been reluctant to afford weight
to a public interest based on the derivative use of information,
particularly when the asserted privacy interest is significant,
as in the case of home addresses, or the information is available
from other sources. See, e.g., Sheet Metal Workers v. Dep’t of
Veterans Affairs, 

 (3d Cir. 1998) (discussing
cases); Sheet Metal Workers Int’l Ass’n, Local N o . 9 v . United
States Air Force, 

 (10th Cir. 1995) (same);
Painting Indus. of Haw. v . Dep’t of Air Force, 

, 1485
(9th Cir. 1994) (same).

     The circumstances presented in this case are apparently
unique, however.   Kurzon seeks the names and business addresses
of unsuccessful principal investigators, not their home
addresses.   HHS has disclosed most of the addresses but has
withheld the principal investigators’ names and any address that
would identify the principal investigator. Kurzon requests
disclosure of the names so that unsuccessful principal

investigators can be contacted in their professional capacities
about the application and peer review process.9


     9
      Kurzon also argues that a direct public interest exists in
disclosure of the names themselves because colleagues and peers
of the rejected applicants, who are familiar with the proposed
projects, would then be able to evaluate the NIH process. The
“public” in this context is only the peer group of each

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     It is undisputed that NIH maintains the confidentiality of
the review process that resulted in rejection of the
applications. Although the institutions or businesses whose
applications were rejected could be contacted, HHS has not shown
that absent the name of the principal investigator, the public
would be able to effectively ask about particular rejected
applications. Successful applicants could also be contacted,
because their names and addresses are disclosed by the NIH, but
their experiences would shed no light on the review process which
leads to a rejection. Therefore, disclosure of the names of
unsuccessful principal investigators, coupled with their business
or institutional addresses, appears to be the only means for
public investigation into NIH’s application review process.    Of
course, the extent to which each individual scientist contacted
would cooperate in such an investigation would be entirely up to
that individual.

     Kurzon has identified a public interest in the disclosure of
the names of the principal investigators for unsuccessful NIMH
grant applications in the May 1999 round of grants to be used to



individual unsuccessful applicant. It appears to be equally
likely, based on the Smith and Bergen affidavits, that a peer
group, familiar with an unsuccessful applicant’s project, will
also know when an application is rejected. Disclosure of the
names of unsuccessful applicants, therefore, would not be
necessary to serve this asserted public interest.


                               25
obtain other information about the NIH application review
process.    Because derivative use information is of questionable
value in this context, the weight of the identified public
interest is uncertain.    For purposes of Kurzon’s motion for
summary judgment, the interests must be balanced to determine
whether HHS is justified in withholding the information.


C.   Balancing

     In order to determine whether disclosure of the names would

constitute a clearly unwarranted invasion of personal privacy,

the court must weigh the privacy interest in the information

against the public interest in disclosure. See Reporters Comm.,

. Here, based on the record presented, neither

the privacy interest nor the public interest is particularly

compelling.    For that reason, the balancing process leaves the

interests at near equipoise.     Nevertheless, “‘disclosure, not

secrecy, is the dominant objective of [FOIA].’”     Dep’t of

Interior v . Klamath Water Users Protective Ass’n, 121 S . C t .

1060, 1065 (2001) (quoting Dep’t of Air Force v . Rose, 

 (1976)).     For that reason, exemptions are to be applied

narrowly.   See 

      HHS bears the burden of showing that Exemption 6 applies.

To carry that burden, HHS must show that disclosure of the names

of the unsuccessful principal investigators constitutes a clearly

                                  26
unwarranted invasion of personal privacy.       HHS has not carried
that burden.      Based on the record presented for summary judgment,
HHS has not established that Exemption 6 justifies withholding
the names of unsuccessful principal investigators from the May
1999 round of application review or demonstrated that factual
issues remain for trial. Therefore, Kurzon is entitled to
summary judgment, and the requested names shall be disclosed.


                               Conclusion

      For the foregoing reasons, the plaintiff’s assented-to

motion for an extension of time to file a reply (document n o . 18)

and the motion to strike (document n o . 19) are granted.      The

defendant’s motion to dismiss or in the alternative for summary

judgment (document no. 5 ) is denied.       The plaintiff’s motion for

summary judgment (document n o . 8 ) is granted.

      The clerk of court shall enter judgment accordingly and

close the case.

      SO ORDERED.



                                        Joseph A . DiClerico, Jr.
                                        District Judge
July 1 7 , 2001

cc:   William L. Chapman, Esquire
      Gretchen Leah Witt, Esquire



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