Perioperative Services And Logistics, LLC v. DVA, No. 21-5223 (D.C. Cir. 2023)
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Perioperative Services and Logistics, LLC, sells medical devices to the Department of Veterans Affairs (VA). After someone emailed the VA accusing Perioperative of selling counterfeit implants, the VA’s National Center for Patient Safety posted an internal recall, requiring agency facilities to sequester Perioperative products. Forty days later, after an investigation yielded no support for the accusation, the VA lifted the recall. Seeking to unmask the complainant, Perioperative filed a FOIA request for the complaint. The VA denied the request, relying on Exemption 6, which shields “personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Perioperative filed suit in district court, and the VA moved for summary judgment. The district court accepted an ex parte declaration and concluded that the requested record was exempt.
The DC Circuit affirmed. The court explained that the district court relied on a declaration that the company cannot see, let alone rebut. But that dilemma is inherent in those FOIA cases where, as here, an ex parte declaration is the only way to “decid[e] the dispute without . . . disclosing the very material sought to be kept secret.” Further, the court held that the complainant’s substantial privacy interest outweighs any public interest in disclosure. Accordingly, the VA has demonstrated that the complaint is exempt from disclosure under FOIA Exemption 6.
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