Doctor concerned with health care law

Breaking news and expert analysis on legal and compliance issues

[Back To Home][Back To Archives]

From Health Law Daily, February 5, 2015

Direct award Title X grant documentation properly withheld by HHS

By Kathryn S. Beard, J.D.

While responding to a request under the Freedom of Information Act (FOIA), HHS properly claimed exemptions for withholding confidential commercial information and inter- or intra-agency memoranda. The First Circuit affirmed the district court’s decision that non-profit organization documentation can be considered “commercial,” and the attorney–client privilege is not waived when a federal agency adopts the conclusion of legal counsel (New Hampshire Right to Life v. HHS, February 4, 2015, Kayatta, W.).

Background. HHS awards federal grants under Title X of the Public Health Services Act to provide financial assistance for the establishment and operation of voluntary family planning projects that offer a broad range of methods and services (42 U.S.C. §300(a)). The use of Title X funds in programs where abortion is a method of family planning is prohibited (42 U.S.C. §300a-6). New Hampshire was a recipient of Title X grants prior to 2011; the state dispersed a combination of federal and state funds through subgrants to various entities, including Planned Parenthood. In June 2011, the New Hampshire Executive Council expressed concern that taxpayer funds were being used to subsidize abortions at Planned Parenthood’s clinics, and therefore the state chose not to award any subgrant to Planned Parenthood. New Hampshire was unable to find a replacement Title X services provider in the areas previously served by Planned Parenthood, and the state relinquished the federal funds that would have gone to Planned Parenthood.

After considering alternative options, HHS approved a sole source replacement grant based upon the urgent need to reinstate services in the affected areas. Planned Parenthood applied for the direct award grant, and HHS formally provided a Notice of Grant Award to Planned Parenthood. Planned Parenthood was required to submit “institutional files” on “a variety of policies and procedures” to HHS as a condition of the replacement grant. In response, Planned Parenthood submitted its Manual of Medical Standards and Guidelines (Manual) and information about its fee schedule and personnel policies.

FOIA challenge. Seeking documents related to HHS’ decision to use the direct award process, documents from Planned Parenthood’s application, and documents related to HHS’ awarding the grant to Planned Parenthood, New Hampshire Right to Life filed a lawsuit under FOIA (5 U.S.C. §552). In response, HHS released more than 2,500 pages of documents. After Planned Parenthood provided HHS with justification, the agency withheld or redacted portions of the Manual and other Planned Parenthood documents as confidential commercial information under FOIA Exemption 4 (5 U.S.C. §552(b)(4)). HHS also withheld email chains and drafts of a public announcement under the attorney–client and work product privileges, FOIA Exemption 5 (5 U.S.C. §552(b)(5)). The district court found that HHS properly withheld these documents, and Right to Life appealed, seeking disclosure of the withheld or redacted documents.

Holding. FOIA obligates federal agencies to provide whatever records the agency possesses to any requesting person, unless the records fall within nine listed exemptions. The First Circuit determined that HHS properly invoked Exemption 4 with respect to documents provided by Planned Parenthood because the requested information is both commercial and confidential. Planned Parenthood’s status as a non-profit organization does not prevent its documentation from being “commercial.” HHS also properly invoked Exemption 5, which shields agency documents that would otherwise be immune from civil discovery including those protected by the deliberative process and attorney-client privileges. Some of the documents are protected because they were created before HHS decided to proceed with a direct award process; others because they deal with other decisions that HHS had not yet completed. Lastly, adopting the legal advice of counsel does not waive the attorney–client privilege. Therefore, the First Circuit affirmed the district court’s decision.

The case is No. 14-1011.

Attorneys: Catherine Glenn Foster (Alliance Defending Freedom), and Joseph Gardner Mattson (Wadleigh Starr & Peters PLLC) for New Hampshire Right to Life. Seth R. Aframe, United States Attorney's Office, for United States Department of Health & Human Services.

Companies: New Hampshire Right to Life; United States Department of Health & Human Services

MainStory: TopStory ConfidentialityNews MaineNews MassachusettsNews NewHampshireNews PuertoRicoNews RhodeIslandNews

Health Law Daily

Introducing Wolters Kluwer Health Law Daily — a daily reporting service created by attorneys, for attorneys — providing same-day coverage of breaking news, court decisions, legislation, and regulatory activity.


A complete daily report of the news that affects your world

  • View full summaries of federal and state court decisions.
  • Access full text of legislative and regulatory developments.
  • Customize your daily email by topic and/or jurisdiction.
  • Search archives for stories of interest.

Not just news — the right news

  • Get expert analysis written by subject matter specialists—created by attorneys for attorneys.
  • Track law firms and organizations in the headlines with our new “Who’s in the News” feature.
  • Promote your firm with our new reprint policy.

24/7 access for a 24/7 world

  • Forward information with special copyright permissions, encouraging collaboration between counsel and colleagues.
  • Save time with mobile apps for your BlackBerry, iPhone, iPad, Android, or Kindle.
  • Access all links from any mobile device without being prompted for user name and password.