Freedom of (some) information: SCOTUS rejects hearing on NHRTL case

DSCF9895The Supreme Court of the United States giveth, and the Supreme Court taketh away, and sometimes the Supreme Court says “go away.” An important New Hampshire case got the go-away treatment on November 16, as the Court declined to hear New Hampshire Right to Life v. Department of Health and Human Services. 

As my constitutional law professor stressed to me years ago, “A decision not to make a decision is still a decision.” This one went the wrong way.

NHRTL president Jane Cormier said, ““We would have been thrilled if the U.S. Supreme Court had taken on our case. NHRTL has been very concerned with the lack of transparency within the Obama administration. Despite the fact the NH Executive Council voted down the funding of PPPNE in 2011, US Health and Human Services chose to fund Planned Parenthood without going through proper state approval or even follow federal regulations requiring competitive bidding.”

Jane Cormier, NHRTL President (E. Kolb photo)
Jane Cormier, NHRTL President (E. Kolb photo)

This was effectively a victory for Planned Parenthood of Northern New England, which since 2011 has fought efforts by New Hampshire residents to find out how a federal grant to PPNNE seemed to appear out of nowhere after the New Hampshire Executive Council in June 2011 denied a PP contract proposal. NHRTL sought documents under the federal Freedom of Information Act (FOIA) to find out how the federal grant was made. PP produced some of the requested documents, with parts redacted. It refused to produce others – in particular, its Manual of Medical Standards and Guidelines. FOIA grants exemptions for “trade secrets” and material that could harm a party in a future competitive bidding process, and PP successfully claimed that the Manual falls under that exemption.


By the way, NHRTL’s FOIA request for the Manual was not out of line. PP had to produce its Manual to the government in order to get the federal grant – a point made by two Justices who dissented from yesterday’s announcement.

It would have taken four out the nine Supreme Court justices to accept the case. Normally, denials are made without comment. In this case, though, Justice Clarence Thomas took the trouble to publish his reasons for wanting to grant a hearing, and he was joined by Justice Antonin Scalia. They are troubled by conflicting lower-court rulings in FOIA cases about documents that are exempt from release. “The First Circuit’s decision warrants review. It perpetuates an unsupported interpretation of an important federal statute and further muddies an already amorphous test. For these reasons, I respectfully dissent from the denial of certiorari.” (See the PDF of Justice Thomas’s remarks at page ten of this link at supremecourt.gov.)

Neither Thomas nor Scalia took the side of one party over the other. They simply pointed out that lower courts in FOIA cases around the country have made conflicting rulings about what can be exempted from FOIA requests. That’s the sort of situation that normally makes a case ripe for Supreme Court review. I wonder if the Court would have taken the NHRTL case if the names of the parties had been different.

Alliance Defending Freedom, which with local attorney Michael Tierney represented NHRTL in court, released a statement after this week’s Court action. “HHS says it can’t release the documents because doing so might affect Planned Parenthood’s ‘competitive position’ if it faces a commercial grant competitor in the future. HHS also refused to produce information about its own debates over how to sell the controversial decision to the public.”

A related but separate petition arising from the 2011 Executive Council decision is pending before the New Hampshire Supreme Court, New Hampshire Right to Life and Jackie Pelletier v. New Hampshire Director of Charitable Trusts Office (docket #2015-0366).

“New Hampshire’s Executive Council recently voted to again eliminate state funding for Planned Parenthood,” noted Cormier. “We will need to be vigilant to ensure this type of back-door unaccountable funding does not occur again.”

Meanwhile, as it did in 2011, PP blames the Executive Council for attacking women’s health care by denying PP a contract a few months ago. It’ll be interesting to see PP’s 2015 financial statements, which should reveal how much or how little PP is shifting its priorities away from public policy ($1.5 million in 2014, plus a lobbyist’s salary) and towards clinical care.