A federal judge in Seattle Thursday blocked the U.S. Department of Health and Human Services (HHS) from publicly disclosing a Title X grant application submitted by the Northwest’s largest Planned Parenthood group, after the federal agency initially told the nonprofit it had received a request for the document when it had not.
U.S. District Judge John C. Coughenour noted in his 12-page order that HHS later revised its justification for opting to make public the 187-page application from Planned Parenthood of the Great Northwest and the Hawaiian Islands (PPGNHI) by admitting it hadn’t actually received a federal Freedom of Information Act (FOIA) request for the document, but rather was preparing for “proactive disclosure” of the application because it expected to get requests.
The judge didn’t find the agency’s alternative explanation any more convincing than its false one.
“The Court is particularly skeptical of HHS’s proactive disclosure justification, given that it initially represented to the Plaintiff, falsely, that the agency had received a FOIA request seeking the FY18 Application,” Coughenour wrote. “HHS’ misrepresentation of the actual basis for its disclosure decision strikes the Court as a stalking horse for the true reason behind the agency’s actions.”
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In granting the injunction, Coughenour ruled that HHS must seal the Planned Parenthood of the Great Northwest and the Hawaiian Islands’ application pending the outcome of nonprofit’s lawsuit against the agency over the matter.
Hannah Brass Greer, chief legal counsel for Planned Parenthood group, praised Coughenour’s ruling Thursday, saying the injunction is a necessary step to prevent the federal agency from distributing “a road map” for winning grant funding that was years in the making.
“The fact that (HHS was) misleading in the first place, and then with the larger context of the administration’s attack on Planned Parenthood in general, this seems like a clear indication to us that this is all part of an effort to make Planned Parenthood and organizations like us less competitive in the Title X grant application process,” she said.
HHS did not immediately respond to a request for comment on Thursday.
A spokeswoman for the U.S. Attorney’s Office in Seattle, which defended the case, said only: “Judge Coughenour’s decision speaks for itself.”
The Planned Parenthood of the Great Northwest and the Hawaiian Islands — headquartered in Seattle and serving Alaska, Hawaii and parts of Washington and Idaho — contends it’s among the latest Planned Parenthood groups targeted by the Trump administration’s repeated efforts to eliminate federal funding and grant opportunities for the family-planning services and health care nonprofit’s affiliates and clinics. Anti-abortion conservatives, which oppose abortion services provided by the nonprofit, have sought federal defunding of Planned Parenthood groups nationwide.
Earlier this month, the Planned Parenthood group sued HHS and its secretary, Alex M. Azar II, after the agency notified the nonprofit on Nov. 2 that, unless it obtained a court injunction, HHS planned to disclose a redacted version of the group’s May 24, 2018 grant application. The decision came despite the nonprofit’s written objections to the department’s false claim in a September “predisclosure letter” notifying the group that the agency had received a FOIA request for the application materials and planned to release them.
The Planned Parenthood group’s lawsuit contends the application, which was awarded a $588,000 grant for family planning services in Hawaii, contains trade secrets and commercial or financial information exempted from disclosure under FOIA. The suit also argues HHS’ plans to release the application on Nov. 9 — just two days after the agency announced next year’s grant application process — aimed to give a leg up to other groups competing for grants provided under Title X of the Public Service Act, which makes family planning services publicly available for free or at low-cost.
“Disclosure of the application, which contains confidential commercial information belonging to PPGNHI (Planned Parenthood of the Great Northwest and the Hawaiian Islands), would result in substantial competitive harm … by giving its competitors the playbook that PPGNHI has followed for years to compete for and provide exceptional family planning services in Hawaii, as well as in Washington, Idaho and Alaska, through the Title X program,” according to the group’s lawsuit, filed on Nov. 7 in U.S. District Court in Seattle.
Assistant U.S. Attorney Katie Fairchild’s response to the nonprofit’s motion for the injunction argued it wasn’t necessary because HHS agreed to extend an already-issued temporary restraining order preventing the application’s disclosure until Dec. 31. Fairchild wrote the agency also was withdrawing its Nov. 2 letter notifying the Planned Parenthood group that the agency planned to release application materials over the nonprofit’s objections.
Coughenour concluded HHS “failed to provide a reasoned explanation for its disclosure decision,” while Planned Parenthood of the Great Northwest and the Hawaiian Islands had “demonstrated a likelihood” that it would prevail in its arguments that the decision to disclose the application was “arbitrary and capricious and contrary to law” and would cause “irreparable harm” to the nonprofit.