July 28, 2021

Right to Life denied peek at family planning documents

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Life-ParenthoodBy Sheri Qualters, From The National Law Journal

A federal appeals court has rejected an antiabortion group’s demand under the Freedom of Information Act to documents involving a federal grant to a Planned Parenthood agency.

In New Hampshire Right to Life v. U.S. Department of Health and Human Services, the U.S. Court of Appeals for the First Circuit on Wednesday affirmed a September 2013 ruling by U.S. District Chief Judge Joseph LaPlante of New Hampshire, who denied the group’s request for some documents.

The First Circuit held that statutory exemptions allow the government to withhold documents about the family planning agency’s operations and also internal government documents related to the grant decision.

The dispute involves a 2011 direct U.S. grant to Planned Parenthood for family planning services. Earlier, the New Hampshire Executive Council canceled a state subgrant over concerns that Planned Parenthood might use some of the money for abortion services.

The First Circuit ruled that an exemption for confidential commercial information applies to details of Planned Parenthood’s medical standards, fees and collections policy.

“Although Planned Parenthood admittedly did not compete for the federal grant in 2011, it certainly does face actual competitors—community health clinics—in a number of different arenas,” Judge William Kayatta Jr. wrote. Judges Jeffrey Howard and Juan Torruella joined his opinion.

Kayatta said an exemption for government documents that are “predecisional and deliberative” and that “reflect advisory opinions” lets the agency keep under wraps government emails dated after the antiabortion group claims the government decided to award the direct grant. Also exempt, he said, are documents involving plans to publicly announce the grant and discussions about whether and how to respond to the state’s protest.

The federal agency’s general counsel’s office’s advice to a grant official that the direct grant was legal didn’t make the ultimate decision a “policy of the agency” that requires disclosure of that chain of communication, Kayatta said.

“It is a good thing that government officials on appropriate occasion confirm with legal counsel that what the officials wish to do is legal. To hold that the government must turn over its communications with counsel whenever it acts in this manner could well reduce the likelihood that advice will be sought,” he wrote.

The court balanced the competing interests correctly, said Seth Aframe, an assistant U.S. attorney in New Hampshire who argued for the government before the First Circuit in September.

A ruling the other way would give grant applicant’s competitors an unfair advantage, Aframe said. And the internal-government-document exemption allows an agency “to engage in its deliberative decision-making process in a free and open way, so it comes to the best decision possible.”

New Hampshire Right to Life director Jane Cormier disagreed. “Americans deserve to know how the federal government is spending their hard-earned tax money and if that money is being funneled to groups that are misusing it,” she said.

IMAGE: Anti-abortion rally in Washington, D.C., organized on the 35th anniversary of Roe v. Wade. January 22, 2008 Photo: Diego M. Radzinschi/NLJ

For more on this story go to: http://www.nationallawjournal.com/id=1202717144689/Right-to-Life-Denied-Peek-at-Family-Planning-Documents#ixzz3R1KXahEN


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