Center for Medical Progress v. U.S. Department of Health and Human Services

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CENTER FOR MEDICAL PROGRESS, Plaintiff, Civil Action No. 21-642 (BAH) v. Judge Beryl A. Howell U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant. MEMORANDUM OPINION Over six years ago, in April 2020, plaintiff Center for Medical Progress (“CMP”), made a record request, under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to the National Institutes of Health (“NIH”), a component of defendant U.S. Department of Health and Human Services, for information about certain grant applications submitted to NIH, and now, after resolution of two prior rounds of summary judgment motions and a truncated appeal to the D.C. Circuit, the FOIA case is again before the Court for a third round of cross-motions for summary judgment. The case was remanded, on defendant’s request for vacatur of this Court’s grant of summary judgment to defendant, because defendant noticed “inaccuracies in [its own] declarations and briefing on which the district court relied in upholding certain withholdings.” Appellee’s Mot. for Voluntary Remand at 2, Ctr. for Med. Progress v. U.S. Dep’t of Health & Hum. Servs., No. 23- 5224, 2024 WL 2262634, at *1 (D.C. Cir. May 15, 2024). The pending cross-motions reprise multiple issues previously addressed and decided in this case. See Def.’s Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 74; Pl.’s Cross-Mot. for Summ. J. & Opp’n to Def.’s Mot. (“Pl.’s Mot.”), ECF No. 76. Now, with the benefit of a factual record 1 presumably corrected by defendant, for the reasons explained below, defendant’s motion for summary judgment is again granted, and plaintiff’s cross-motion for summary judgment is denied. I. BACKGROUND Background for this longstanding FOIA dispute is described at length in two prior decisions resolving two separate rounds of summary judgment briefing, see Ctr. for Med. Progress v. U.S. Dep’t of Health & Hum. Servs. (“CMP I”), No. 21-cv-642 (BAH), 2022 WL 4016617 (D.D.C. Sept. 3, 2022); Ctr. for Med. Progress v. U.S. Dep’t of Health & Hum. Servs. (“CMP III”), 685 F. Supp. 3d 8 (D.D.C. 2023), vacated and remanded, No. 23-5224, 2024 WL 2262634 (D.C. Cir. May 15, 2024), and that background is incorporated by reference here. After a brief review of the factual and procedural background, including the conclusions reached in the prior decisions, the case’s course before the D.C. Circuit and thereafter is summarized. A. Plaintiff’s FOIA Request and Defendant’s Productions Plaintiff’s FOIA request seeks grant applications submitted to NIH by three entities, with only one remaining at issue in this case, namely, the grant application submitted by the University of Pittsburgh. CMP I, 2022 WL 4016617, at *1 & n.1. The University of Pittsburgh had applied to NIH for a grant to serve as a GenitoUrinary Development Molecular Anatomy Project (“GUDMAP”) Tissue Hub and Tissue Gathering site for NIH’s subcomponent, the National Institute of Diabetes and Digestive and Kidney Diseases (“NIDDK”), and was awarded the grant. Id. at *1. The grant awarded funds to the University of Pittsburgh’s project to collect certain human tissue samples, store them, and then distribute them to researchers working on genitourinary development. See First Decl. of Gorka Garcia-Malene, FOIA Officer, NIH (“First NIH Decl.”) ¶¶ 20, 22, ECF No. 17-3. The University of Pittsburgh sometimes collects fetal tissue samples, though the record is somewhat unclear whether such collection occurs using funds provided under 2 this NIH grant or only in related processes and other grants through its preexisting Health Science Tissue Bank. Compare id. ¶ 31 (“While the released grant applications and related documents do not involve the provision of fetal tissue, the grant refers to fetal tissue research performed by the University of Pittsburgh.”), with Def.’s Mot., Ex. 1 (“Revised Release of Letters of Support”) at 1, ECF No. 74-2 (writing in support of the University of Pittsburgh obtaining this grant and referring to the project as one to “develop a Fetal Genitourinary Tissue Bank”). When defendant failed to make a timely determination as to plaintiff’s FOIA request, plaintiff filed suit alleging that defendant had violated FOIA and seeking judicial supervision of production. CMP I, 2022 WL 4016617, at *2. Following completion of production of responsive records, the parties cross-moved for summary judgment, with plaintiff challenging defendant’s invocations of FOIA Exemptions 4, 5, and 6. Id. After additional releases by defendant during summary judgment briefing, the singular withholding under Exemption 5 was corrected to reference Exemption 6, and therefore plaintiff’s objections to the invocation of Exemption 5 were moot. Id. In total, of the 193 pages identified by defendant as responsive to plaintiff’s request, four pages were withheld in full and others in part, under Exemption 4 and six categories of information under Exemption 6. Id.; see also Seventh Decl. of Gorka Garcia-Malene, FOIA Officer, NIH (“Seventh NIH Decl.”) ¶ 9, ECF No. 62-1 (correcting the record as to the number of responsive pages). B. CMP I: First Round of Cross-Motions for Summary Judgment In September 2022, summary judgment was denied to both parties as to two categories of information about which the record was insufficient to determine whether the claimed exemptions applied. 1 Otherwise, summary judgment was granted to defendant on all contested withholdings, 1 These categories of information, neither of which is at issue in the instant round of summary judgment briefing, were (1) certain information withheld under Exemption 4 “due to insufficient information to determine 3 four categories of which are now, again, at issue and challenged by plaintiff. CMP I, 2022 WL 4016617 at *12, *15. The four categories of information, for which summary judgment was granted to defendant and for which plaintiff again seeks disclosure in the instant pending cross-motions, were withheld under Exemptions 4 and 6. The first category of withheld information under Exemption 4 is “the number of tissue disbursements made and shipped.” Id. at *6. Based on the record before the Court, this information was found to be commercial because the number of tissue disbursements made “pertains to the University of Pittsburgh’s strategies for obtaining grants,” and “‘reflect[s] the volume of business conducted’ by the University of Pittsburgh.” Id. (quoting First NIH Decl. ¶ 25, then Revised Vaughn Index (Aug. 23, 2022) at 5-6, 20-21, 63-64, ECF No. 23-1). Taken along with other information also withheld, the number of tissue disbursements and their recipients would be the “equivalent to releasing line-item pricing information for individual services,” allowing other grant-seekers to underbid the University of Pittsburgh. Id. (quoting First NIH Decl. ¶ 27). These data were also confidential because, although defendant “concede[d] that the total number of disbursements made in the calendar year . . . was publicly available,” this was not so as to “the number of tissue samples disbursed to an individual investigator per year,” and, moreover, this information had been shared by the University of Pittsburgh with NIH under assurances of privacy. Id. at *8, *11. Finally, foreseeable harm associated with release was established because of the potential for others to undercut the University of Pittsburgh’s grant pricing and therefore whether the parties dispute that such categories contain confidential commercial information,” and (2) certain information withheld under Exemption 6, “detailed as names of NIH staff involved in administering the grant . . . due to insufficient information to determine whether the asserted privacy interests outweigh the public interest in this information.” CMP I, 2022 WL 4016617 at *18 (internal quotation marks omitted). 4 negate the university’s competitive edge. Id. at *11. Accordingly, defendant was granted summary judgment as to this category of information. The second category of information withheld, pursuant to Exemption 4, was “the average number of abortions performed and the breakdown of the number of abortions done at Magee- Womens Hospital,” id. at *9, as a subcategory of “the anticipated number of tissue collections for GUDMAP per year,” since, like the number of tissue disbursements, that information “pertains to the University of Pittsburgh’s strategies for obtaining grants” and “the volume of business conducted,” id. at *6 (quoting First NIH Decl. ¶ 25, then Revised Vaughn Index at 5-6, 20-21, 63-64), which are “clearly instrumental to the university’s commercial fortunes and fall[] squarely within the types of information courts in this Circuit have recognized as ‘commercial,’” id. (citing Braintree Elec. Light Dep’t v. U.S. Dep’t of Energy, 494 F. Supp. 287, 290 (D.D.C. 1980)). The information was “confidential” because, while Pennsylvania law requires Magee to report “the total number of abortions performed within the hospital,” that information is not made public unless the hospital had received “State-appropriated funds within the 12-calendar-month period immediately preceding the filing of the report.” Id. at *9 (quoting 18 PA. STAT. AND CONS. STAT. ANN. § 3214(f)). Moreover, the “withheld information is ‘not part of quarterly filings to the State,’ but in fact ‘represents calculated numbers covering an unknown number of years generated by the university, and inextricably intertwines in the data . . . a category of information that is discussed in the statute.’” Id. at *10 (quoting Third Decl. of Gorka Garcia-Malene, FOIA Officer, NIH (“Third NIH Decl.”) ¶ 12, ECF No. 23-2). A declaration from the University of Pittsburgh’s Vice- Chancellor of the University’s Office of Research Protections confirmed that these numbers were kept confidential, id. (citing First NIH Decl., Ex. E., Decl. of Bill Yates, Vice-Chancellor, University of Pittsburgh, Office of Research Protections, (“Yates Decl.”) ¶¶ 7-8, ECF No. 17-3), 5 and plaintiff did not contest that this information was submitted to the government “under an assurance of privacy,” id. at *11. Since disclosure of this information would put the University of Pittsburgh at a “competitive disadvantage” when seeking future grants, foreseeable harm associated with its release was established, id., and defendant was therefore granted summary judgment as to this category of information. The third category of information withheld, pursuant to Exemptions 4 and 6, was the “location of tissue procurement sites,” including information about the physical layout of Magee-Womens Hospital and where the tissue procurement sites are located within the hospital. Id. at *9, *12. As to Exemption 4, this information was deemed “commercial” because, like the Magee abortion statistics, “it pertains to the University of Pittsburgh’s pricing mechanisms” in that “the procurement site location and size factor[] into ‘the costs of administering the grant’” and “disclose[] the university’s internal supply arrangements.” Id. at *6 (quoting First NIH Decl. ¶ 27). Additionally, this information was confidential because, while the fact that the University of Pittsburgh procured some tissue from Magee had been made public, the specific sites within the hospital had not, id. at *9, and plaintiff conceded this information was “submitted [as part of the grant application] under an assurance of privacy,” id. at *11. For the same reasons, namely the potential impact on the university’s “commercial fortunes” by putting the University of Pittsburgh at a “competitive disadvantage” in grant applications, defendant had demonstrated foreseeable harm. Id. at *6, *11. Exemption 6 also independently protected the specific tissue procurement sites within Magee-Womens Hospital. Id. at *14. Plaintiff conceded these pieces of information constituted “similar files” potentially subject to Exemption 6. Id. at *12. A substantial privacy interest existed because “defendant ha[d] fairly asserted fetal tissue-related violence and harassment as a privacy interest for the names, addresses, titles, and other identifying information 6 for persons and locations associated with fetal tissue research,” and there was therefore a “potential for harm that could result if harassers or those with violence on their minds learned the specific locations within the hospitals where individuals worked on fetal tissue research, procurement, or processing.” Id. at *13-14. This privacy interest outweighed any public interest because plaintiff did “not articulate how the release of any of the disputed categories of information, which involve non-agency third parties, will shed light on how the agency operates in ways that ha[ve] not already been disclosed by the released information,” such as the fact that Magee-Womens Hospital was, in general, a source of tissue samples. Id. at *14. As to this category of information’s withholding under Exemption 6, plaintiff lodged no challenge to satisfaction of the foreseeable harm requirement, and defendant was granted summary judgment. Id. at *15. The fourth category of information addressed plaintiff’s dispute that redacted letters of support submitted alongside the University of Pittsburgh’s grant application, id. at *2, *16, were “commercial,” within the meaning of Exemption 4, and whether identifying information about the authors of those letters was properly subject to Exemption 6, id. at *7, 12. The Court noted that “[n]either the initial nor the revised Vaughn index cite[d] Exemption 4 as a basis for withholding the letters of support,” but “in light of defendant’s consistent claims in its briefing and declarations that Exemption 4 applies to the letters of support, . . . address[ed] whether defendant has met all the requirements to claim withholding of information related to client identities under Exemption 4.” Id. at *7 n.10. The Court held that the letters of support were commercial, since, according to the then-operative NIH declarations, (1) those letters “identif[ied] clients of the university that purchase the tissue it[] procures,” and (2) “some of the letters also disclose[d] the location of procurement sites,” which had been found to be protected confidential commercial information. Id. at *7 (citing First NIH Decl. ¶ 28; Second Decl. of Gorka Garcia-Malene, FOIA 7 Officer, NIH (“Second NIH Decl.”) ¶ 8, ECF No. 21-1). Plaintiff did not dispute that this information was confidential, so Exemption 4 applied. Id. at *8 n.12. Separately, Exemption 6 was also determined to apply to identifying information about these third-party letter writers. Id. at *15. These individuals had a substantial privacy interest in keeping their names from disclosure because “the record establishe[d] a clear risk that disclosure of the withheld information would likely subject persons associated with fetal tissue procurement and research to targeting, harassment, and potentially violence.” Id. at *13. This interest outweighed any public interest in the names of these individuals, particularly given the D.C. Circuit’s caution that “Exemption 6 ‘provides greater protection to private individuals, including applicants for federal grants and officials of regulated private companies, and to low-level government employees, than to government officials with executive responsibilities.’” Id. at *15 (quoting Common Cause v. Nuclear Regul. Comm’n, 674 F.2d 921, 938 (D.C. Cir. 1982)). Since disclosure of this information “would foreseeably cause competitive harm ‘because competitors could attempt to underbid the University of Pittsburgh for its clients,’” foreseeable harm was established, id. *11 (quoting First NIH Decl. ¶ 28), and summary judgment was granted to defendant, id. at *15. Finally, in addition to granting summary judgment to defendants on these four specific categories, among others, defendant was found to have met its segregability obligations by showing that all reasonably segregable, nonexempt information had been released and by attesting to a line-by-line review of documents and to multiple iterations of re-release. Id. at *16. Plaintiff’s two objections to this finding were rejected. First, plaintiff argued that the iterative release of more information indicated that more segregable information may still be hiding in the documents, which argument was rejected on the basis that these iterative releases in fact showed a “good-faith 8 effort on the [agency’s] part to segregate nonexempt information where possible.” Id. (alteration in original) (quoting Schoenman v. FBI, 575 F. Supp. 2d 136, 161 (D.D.C. 2008)). Second, “plaintiff dispute[d] defendant’s claim that the letters of support contain information protected by Exemptions 4 and 6 and . . . so intertwined with non-exempt information that NIH could not reasonably segregate any portion due to the fact that at least some Exemption 4 withholdings have now been removed.” Id. (internal quotation marks and citation omitted). Plaintiff, however, offered “nothing beyond speculation” to support this. Id. Although noting the inconsistency between the Vaughn index, which did not list Exemption 4 as a basis for certain withholdings, and defendant’s briefing, which invoked Exemption 4 for the same withholdings, the Court concluded that since Exemption 6 also fully justified all withholdings, and defendant had obtained summary judgment on Exemption 4 based on the record before the Court at the time, these inconsistencies were insufficient to call the agency’s segregability determinations into question. Id. C. CMP II: Plaintiff’s Motion for Reconsideration Following disposition of the first round of summary judgment motions, the parties proposed a schedule for another round of dispositive briefing on the withholdings for which the Court found the record to be insufficient to reach resolution. Pl.’s Status Report (Sept. 15, 2022), ECF No. 29. Before that briefing began, however, plaintiff moved to alter or amend the first summary judgment decision, pursuant to Federal Rule of Civil Procedure 59(e), “challenging factual assertions about employee harassment and abortion numbers included in defendant’s Third Declaration of Gorka Garcia-Malene . . . referenced in the Memorandum Opinion.” CMP III, 635 F. Supp. at 12. Specifically, plaintiff reiterated arguments that “Magee Women’s Hospital had reported data regarding the abortions performed there in quarterly statements to the Pennsylvania Department of Health,” and that defendant “failed to present concrete evidence of . . . harassment” 9 of fetal tissue researchers. CMP II, 2022 WL 17976633, at *2. That motion for reconsideration was denied, since both arguments had already been addressed and rejected. Id. at *2-3. D. CMP III: Second Round of Cross-Motions for Summary Judgment In the second round of dispositive briefing, plaintiff sought release of redacted names of NIH employees withheld under Exemption 6, and three categories of records withheld under Exemption 4. CMP III, 635 F. Supp. 3d at 12. During briefing, defendant released two of the three challenged categories withheld under Exemption 4, and “lifted” certain other Exemption 4 redactions, mooting the challenges plaintiff raised in summary judgment briefing to withholdings under Exemption 4. Id. at 12-13. Plaintiff withdrew a challenge to one category of Exemption 6 withholdings. Id. at 13. “In summary, what remain[ed] [was] plaintiff’s challenge to Exemption 6 withholdings of two categories of information: (1) the name of the ‘NIH Program Official’; and (2) the name of the ‘NIH Grants Management Specialist.’” Id. Summary judgment was granted to defendant as to both, for reasons not relevant here except that “plaintiff [again] claim[ed] a complete lack of factual support for defendant’s contention that [individuals] affiliated with this grant project are subject to risks of harassment.” Id. at 17. That argument was rejected, given that “[p]laintiff [had] seize[d] a third opportunity to decry a supposed dearth of evidence of harassment[,] [and] such an effort to force the Court to revisit its prior findings based on arguments already rejected twice [was] both unsuccessful and unacceptable.” Id. at 18. E. Appeal and Remand Plaintiff appealed. While the appeal was pending, defendant moved before the D.C. Circuit to vacate the second summary judgment order in its favor and remand the case because defendant had identified certain “inaccuracies in declarations it filed in district court.” CMP, 2024 WL 10 2262634, at *1. The D.C. Circuit vacated the judgment while expressly disclaiming that the remand “reflect[ed] a view on the order’s merit.” Id. Upon direction from this Court to “identify[] precisely” the inaccuracies previously presented in submitted declarations, Min. Order (July 11, 2024), defendant clarified as follows: “in discussions with the University of Pittsburgh that took place after the Center for Medical Progress filed its appeal, the University informed NIH that researchers do not purchase tissue from the GUDMAP tissue hub when they use the tissue for GUDMAP-supported research; in those instances, the tissue is provided free of charge.” Def.’s Status Report (July 24, 2024) ¶ 5, ECF No. 62 (citing Seventh NIH Decl. ¶ 7). “Therefore, though NIH did not know it at the time, it was inaccurate for the government’s declaration to describe the authors of the letters of support as ‘employees of the clients that purchase the tissue the University of Pittsburgh procures using grant funds.’” Id. (quoting First NIH Decl. ¶ 28). Additionally, defendant identified that “shortly after the government filed its motion for summary judgment [in the first round of summary judgment motions], . . . NIH lifted its Exemption 4 withholdings from the[se] [same] letters of support and rereleased them to [plaintiff] without any marked Exemption 4 redactions.” Id. ¶ 6 (citing Seventh NIH Decl. ¶ 6). “Yet, the government’s subsequent briefs and the NIH’s later declarations continued to argue that the letters of support were covered by Exemption 4,” id., a discrepancy noted in the Memorandum Opinion deciding the first round of cross-motions for summary judgment, CMP I, 2022 WL 4016617, at *7 n.10. Nevertheless, the same information previously marked as exempt in conjunction with Exemption 4 was withheld under Exemption 6. Def.’s Status Report (July 24, 2024) ¶ 6. At the 11 time of the status report, defendant was “considering whether to remove some portions of the Exemption 6 redactions on the letters of support.” Id. 2 Additionally, defendant pointed out two additional and previously unidentified errors. First, “the government neglected to mark certain information identifying tissue procurement and processing sites as covered by Exemption 6, and instead marked them only as covered by Exemption 4.” Id. ¶ 8 (citing Seventh NIH Decl. ¶ 19). Defendant emphasized that “[o]ther instances where procurement and processing sites are identified were marked as covered by both exemptions, and NIH’s existing declarations thoroughly explain why Exemption 6 applies to the identification of those sites.” Id. Second, defendant identified a “typographical error” in the total number of pages located during the search—though initially stated as 192, the correct number was 193. Id. F. Mediation and Instant Third Cross-Motions for Summary Judgment Defendant subsequently re-released all letters of support to plaintiffs with all Exemption 4 notations removed and certain Exemption 6 withholdings lifted, resulting in the released letters containing only small, piece-meal redactions under Exemption 6 of names and other information that could be used to identify the authors. Jt. Status Report (Aug. 9, 2024), ECF No. 63. The case was referred to mediation in May 2025 upon request of the parties. Min. Order (May 27, 2025). Mediation failed, and the parties proposed a briefing schedule for a third round of summary judgment briefing, which was entered by the Court. Min. Order (Nov. 26, 2025). The parties subsequently cross-moved for summary judgment, again, and these two motions became ripe for 2 In response to the Court’s query about how these errors arose and why the government continued to argue for the application of Exemption 4 to these letters of support, despite not actually asserting Exemption 4 as to these letters, defendant said, in short, that it had no idea how these mistakes had happened or whether the choice to withdraw Exemption 4 assertions as to these letters was related to the discovery that tissue is provided to GUDMAP researchers free of charge. Id. ¶ 7. 12 resolution at the end of April 2026, shortly after the fifth anniversary of the filing of this lawsuit. See Def.’s Reply in Support of Mot. for Summ. J. & Opp’n to Pl.’s Mot. for Summ. J. (“Def.’s Reply”), ECF No. 79; Pl.’s Reply in Support of Cross-Mot. for Summ. J. (“Pl.’s Reply”), ECF No. 81. II. LEGAL STANDARD A movant is entitled to summary judgment “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 Soundboard Ass’n v. FTC, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (“A party is entitled to summary judgment only if there is no genuine issue of material fact and judgment in the movant’s favor is proper as a matter of law.”). “‘The mere existence of some alleged factual dispute between the parties’ will not defeat summary judgment; ‘the requirement is that there be no genuine issue of material fact.’” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (emphasis omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). Most FOIA cases “can be resolved on summary judgment.” Evans v. Fed. Bureau of Prisons, 951 F.3d 578, 584 (D.C. Cir. 2020) (quoting Brayton v. Off. of U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011)). “Agencies may withhold from disclosure information that falls within one of the Act’s nine enumerated exemptions,” but “[t]hose ‘limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.’” Hum. Rts. Def. Ctr. v. U.S. Park Police, 126 F.4th 708, 712-13 (D.C. Cir. 2025) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)). “This ‘strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents.’” Id. at 713 (quoting U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)). “The agencies may carry that burden by submitting declarations 13 attesting to the basis for the agency’s decision.” Am. First Legal Found. v. U.S. Dep’t of Agric., 126 F.4th 691, 694 (D.C. Cir. 2025) (internal quotation marks omitted) (quoting Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just., 58 F.4th 1255, 1262 (D.C. Cir. 2023)). “In FOIA cases, ‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.’” Aguiar v. Drug Enf’t Admin., 865 F.3d 730, 734-35 (D.C. Cir. 2017) (quoting Jud. Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013)). III. DISCUSSION The extended litigation in this case has been necessitated by defendant’s initial provision of an incomplete record and defendant’s multiple corrections over time to the factual record, thereby providing plaintiff with renewed opportunities to obtain reconsideration of its arguments. At this time, plaintiff has four remaining objections: (1) to withholdings, under Exemption 4, of the number of tissue disbursements issued by the University of Pittsburgh, see Pl.’s Mem. in Support of Cross-Mot. for Summ. J. (“Pl.’s Mem.”) at 16-17, ECF No. 76; (2) to withholdings, under Exemption 4, of “Magee abortion statistics,” id. at 17-18; (3) to withholdings, under Exemption 6, of “the signatories and the institutions who supported the Tissue Hub grant,” from letters of support submitted with the University of Pittsburgh’s grant application seeking NIH funds to function as a tissue hub and collection site for GUDMAP, id. at 7-8; and (4) to withholding, under Exemption 6, of two pages comprising the “the physical description of Magee Women’s Hospital,” specifically the tissue procurement and processing sites within the hospital, id. at 13-14. Each of these contested withholdings has been previously addressed, with summary judgment granted to defendant. See CMP I, 2022 WL 4016617, at *12 (tissue disbursement 14 numbers and Magee abortion statistics fall under Exemption 4); id. at *15 (identifying information about letter of support authors and specific procurement site location information fall under Exemption 6). These disputes are discussed seriatim in light of plaintiff’s continuing challenges and defendant’s factual corrections to the record. A. Information Withheld Pursuant to Exemption 4 Exemption 4 exempts from disclosure “trade secrets and commercial or financial information obtained from a person” that is “privileged or confidential.” 5 U.S.C. § 552(b)(4). Where withheld records do not contain trade secrets, an agency must establish that the records are “(1) commercial or financial, (2) obtained from a person, and (3) privileged or confidential” to sustain the burden of showing that Exemption 4 was properly applied. Pub. Citizen Health Rsch. Grp. v. Food & Drug Admin., 704 F.2d 1280, 1290 (D.C. Cir. 1983). Here, the parties do not dispute that all of the documents came from a “person,” meeting this prerequisite for application of Exemption 4, Pl.’s Mem at 16 n.10, and leaving only the “commercial” and “confidential” prongs under dispute. Upon satisfying the Exemption 4 requirements, the government must then also satisfy FOIA’s statutory foreseeable-harm requirement. See 5 U.S.C. § 552(a)(8)(A)(i)(I) (“An agency shall withhold information . . . only if the agency reasonably foresees that disclosure would harm an interest protected by [one of the nine FOIA exemptions] . . . .”). Here, plaintiff challenges whether categories of information qualify as confidential commercial information subject to protection under Exemption 4: (1) the number of tissue disbursements made and shipped by the University of Pittsburgh; and (2) statistics regarding the number of abortions performed at Magee-Womens Hospital. Pl.’s Mem. at 16. As already noted, these same challenges to application of Exemption 4 were previously rejected, with summary judgment granted to 15 defendant. See CMP I, 2022 WL 4016617, at *6, *8-9; see also CMP II, 2022 WL 17976633, at *2 (rejecting plaintiff’s attempt to relitigate the confidentiality of the Magee abortion statistics). Upon reconsideration, summary judgment is once again granted to defendant. 1. Sufficiency of Showing that the Withheld Information Is Commercial The term “commercial” is not defined in the FOIA. Absent a precise statutory definition or clarity from the legislative history, the D.C. Circuit has “consistently held that [this] term[] . . . in [Exemption 4] should be given [its] ordinary meaning[].” Pub. Citizen Health Rsch. Grp., 704 F.2d at 1290; see also Citizens for Resp. & Ethics, 58 F.4th at 1263 (“Because FOIA does not define the word ‘commercial,’ we have given that term its ordinary meaning.”). “[I]nformation is ‘commercial’ under this exemption if, ‘in and of itself,’ it serves a ‘commercial function’ or is of a ‘commercial nature.’” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 38 (D.C. Cir. 2002) (quoting Am. Airlines, Inc. v. Nat’l Mediation Bd., 588 F.2d 863, 870 (2d Cir. 1978)). Thus, “records that actually reveal basic commercial operations, such as sales statistics, profits and losses, and inventories, or relate to the income-producing aspects of a business,” fall within the scope of “commercial” information. Pub. Citizen Health Rsch. Grp., 704 F.2d at 1290. For instance, “revenue, net worth, income, and EBITDA” information in requested documents is plainly commercial. Kahn v. Fed. Motor Carrier Safety Admin., 648 F. Supp. 2d 31, 36 (D.D.C. 2009); see also Greenberg v. Food & Drug Admin., 803 F.2d 1213, 1216 (D.C. Cir. 1986) (holding that customer lists constitute commercial information); Racal-Milgo Gov’t Sys., Inc. v. Small Bus. Admin., 559 F. Supp. 4, 6 (D.D.C. 1981) (finding that Exemption 4 “shielded information much more sensitive than mere prices,” such as “audits of private concessions in national parks; technical proposals for development of a system to analyze gases generated by petroleum refineries; general selling prices, inventory balances, profit margins, purchase activity, freight charges, costs of goods 16 sold, and customer names, obtained from a utility in the course of a government investigation; appraised value for customs duty assessment purposes of imported machinery parts; design recommendations, design concepts, a customer list, and biographical data on key employees; and computer usage, manpower allocation, travel costs, biographical data on employees, and detailed cost data from a contract with the Government” (footnotes omitted)). The scope of “commercial” information has also been applied more broadly to records containing information in which the provider of the records has “a commercial interest.” Baker & Hostetler LLP v. U.S. Dep’t of Com., 473 F.3d 312, 319-20 (D.C. Cir. 2006) (finding letters describing favorable market conditions for domestic lumber companies “plainly contain commercial information within the meaning of Exemption 4”); Pub. Citizen Health Rsch. Grp., 704 F.2d at 1290 (finding information to be commercial when it was helpful or “instrumental” to the provider’s business interests). Although “commercial harms a business might suffer following disclosure” are not “alone . . . sufficient to establish that information is ‘commercial’ under Exemption 4”—i.e., the information must still “in and of itself . . . serve[] a commercial function”—such consequences are certainly “relevant” and can “reinforce[]” the commercial nature of the information. Citizens for Resp. & Ethics, 58 F.4th at 1268. Further, the “commercial” inquiry does not turn on the provider’s status as a for-profit or not-for-profit entity. See N.H. Right to Life v. U.S. Dep’t of Health & Human Servs., 778 F.3d 43, 50 (1st Cir. 2015) (rejecting an argument that “a non-profit organization . . . cannot be said to possess commercial information within the meaning of Exemption 4” because “[t]he term ‘commercial’ as used in the statute modifies ‘information’ and not the entity supplying the information” (citing 5 U.S.C. § 552(b)(4)); Gov’t Accountability Project v. U.S. Dep’t of State, 699 F. Supp. 2d 97, 102 (D.D.C. 2010) (rejecting an argument that Exemption 4 did not protect information from a non-profit federal grant 17 recipient where the organization’s operations “ha[d] no logical connection to making a profit” (internal citations omitted)); Smolen v. Fed. Aviation Admin., No. 22-CV-44 (LJL), 2023 WL 3818105, at *6 (S.D.N.Y. June 2, 2023) (“Non-profit organizations as well, just like public or private organizations, engage in commerce and have commercial and financial information which is protected by FOIA Exemption 4.”); cf. Critical Mass Energy Project v. Nuclear Regul. Comm’n, 830 F.2d 278, 281 (D.C. Cir. 1987), vacated on other grounds, 975 F.2d 871 (D.C. Cir. 1992) (en banc) (determining that the defendant’s “non-profit status is not determinative of the character of the information it reports”). 3 Nor does information lose its commercial nature “when supplied to get [a federal] grant.” N.H. Right to Life, 778 F.3d at 50 n.6. a. Tissue Disbursement Numbers This Court previously held that the tissue disbursement numbers were commercial because they “pertain[] to the University of Pittsburgh’s strategies for obtaining grants” by “reflect[ing] the volume of business conducted by the University of Pittsburgh” and therefore are “clearly instrumental to the university’s commercial fortunes and fall[] squarely within the types of information courts in this Circuit have recognized as commercial.” CMP I, 2022 WL 4016617, at *6 (internal quotation marks and citations omitted). This all remains true, notwithstanding the clarification that for tissue disbursements issued specifically under the GUDMAP grant, the University of Pittsburgh provides them free of charge. See Seventh NIH Decl. ¶ 7. The number of tissue disbursements, whether or not without charge, still serves a commercial function because it indicates that the University of Pittsburgh is a reliable source of tissue samples for researchers 3 The D.C. Circuit’s en banc opinion in Critical Mass Energy Project clarified the “test for determining when financial or commercial information in the Government’s possession is to be treated as confidential under Exemption 4,” and vacated the panel opinion due to its flawed confidentiality analysis. See Critical Mass Energy Project v. Nuclear Regul. Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc). The Court, however, agreed that the information at issue was commercial in nature without revisiting the panel’s reasoning. Id. at 880. 18 in the field, thereby demonstrating the University of Pittsburgh’s commercial strengths and competitive position as a potential grant recipient. Plaintiff revives this dispute about whether tissue disbursement numbers are commercial by arguing solely that, since “[f]ederal law prohibits the selling or transferring of human fetal tissue for ‘valuable consideration,’” and “legally prohibited activity cannot form a basis for commercial enterprises,” information about the number of tissue disbursements cannot be “commercial” to fall under Exemption 4. Pl.’s Mem. at 16-17 (quoting 42 U.S.C. § 289g-2). Certainly, as defendant confirms, nothing in the corrected record “suggest[s] that the University of Pit