McCann v. United States Department of Health and Human Services

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DAVID DUNCAN MCCANN,

Plaintiff,

v. Civil Action No. 10-1758 (JEB)

UNITED STATES DEPARTMENT OF

HEALTH AND HUMAN SERVICES,

Defendant.

MEMORANDUM OPINION

Pro se Plaintiff David Duncan McCann seeks the release of agency records he requested

from Defendant United States Department of Health and Human Services on October 15, 2009,

pursuant to the Freedom of Information Act, 5 U.S.C. § 552. Following HHS’s release of more

than 1,100 responsive pages, Plaintiff filed this civil action to challenge the agency’s

withholding of 35 pages under FOIA Exemptions 5, 6, and 7(C). See 5 U.S.C.

§ 552(b). HHS now moves for summary judgment under Fed. R. Civ. P. 56, which Plaintiff

opposes. As the agency’s claimed exemptions are appropriate, the Court will grant its Motion.

I. Background

In 2006, Plaintiff filed two complaints with HHS’s Office of Civil Rights, alleging that

his health care provider had provided “political appointees” in Akron, Ohio, access to his “drug

records” in violation of the Health Insurance Portability and Accountability Act and seeking an

investigation. See generally Compl. ¶¶ 5-18; Resp. to the Dep’t of Justice’s Opp’n to Pl.’s

Disputes of Material Fact (“Pl.’s Surreply”) at 2. After HHS’s OCR found no violations, see

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Compl., ¶¶ 17-18, Plaintiff submitted a FOIA request electronically to HHS on Oct. 15, 2009,

seeking all records between August 2006 and July 2009 pertaining to the foregoing complaints.

Decl. of Robert Eckert [Dkt. # 13-1], Ex. 1. Plaintiff also requested the telephone logs of 10

individuals apparently for that same time period. Id.

On March 16, 2010, HHS released to Plaintiff 1,176 of “approximately 1,217 pages of

responsive documents.” Id., Ex. 2. It withheld 41 pages in their entirety under FOIA

Exemptions 5, 6, and 7(C), see 5 U.S.C. § 552(b), and withheld portions from certain released

pages under those same exemptions. Eckert Decl. ¶ 5 (acknowledging that the “response letter

incorrectly calculated the withheld pages at 31 [and that] proper calculations subsequently

revealed that 41 pages were withheld”). On April 5, 2010, Plaintiff appealed only HHS’s

withholding of the 41 pages. Id., Ex. 3. In response to Plaintiff’s administrative appeal, HHS

released six of the previously withheld pages on August 31, 2010. Id., Ex. 4.

Based on the agency’s decision to “uphold the denial of the remaining thirty-five (35)

pages . . . under FOIA Exemptions (b)(5), (b)(6) and (b)(7)(C),” id., Plaintiff initiated this civil

action on October 18, 2010. During the preparation of the index prepared in accordance with

Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), Defendant “decided to make a release of

20 pages of redacted emails.” Eckert Decl. ¶ 8. In the release letter of May 9, 2011, Defendant

redacted information from those pages under Exemption 5. Id., Ex. 6. Fifteen pages – a three-

page document and a 12-page document – remain withheld in their entirety. See id., Ex. 5

(Vaughn index, Doc. Nos. 1, 10).

II. Legal Standard

Summary judgment may be granted 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.

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56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). “A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by citing to particular parts of materials in the

record.” Fed. R. Civ. P. 56(c)(1)(A). The moving party bears the burden of demonstrating the

absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

“[A] material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party” on an element of the claim. Liberty Lobby, Inc., 477 U.S. at

248. Factual assertions in the moving party's affidavits or declarations may be accepted as true

unless the opposing party submits his own affidavits, declarations, or documentary evidence to

the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

FOIA cases typically and appropriately are decided on motions for summary judgment.

Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v.

United States Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In a FOIA case, the

Court may grant summary judgment based solely on information provided in an agency's

affidavits or declarations if they are relatively detailed and when they describe “the documents

and the justifications for nondisclosure with reasonably specific detail, demonstrate that the

information withheld logically falls within the claimed exemption, and are not controverted by

either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit

Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are

accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims

about the existence and discoverability of other documents.’ ” SafeCard Servs., Inc. v. Sec. &

Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v.

Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).

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III. Analysis

Plaintiff first contests HHS’s redacting of information under FOIA Exemption 5 from the

20 e-mail messages released to him in May 2011. He also challenges HHS’s withholding of the

three-page document in its entirety under Exemptions 6 and 7(C) and its withholding of the 12-

page document now under Exemption 7(E). 1 The Court will address each in turn.

A. Exemption 5

Exemption 5 generally protects documents that would be unavailable to an opposing

party through discovery in civil litigation. See U.S. v. Weber Aircraft Corp., 465 U.S. 792, 800

(1984); Martin v. Off. of Special Counsel, 819 F.2d 1181, 1185 (D.C. Cir. 1987) (Exemption 5

“unequivocally” incorporates “all civil discovery rules”). Disclosure of records is only

compelled where such records would “routinely be disclosed” in litigation. Weber, 465 U.S. at

800. Accordingly, courts do not consider the requester's need for the documents. Martin, 819

F.2d at 1184 (“[T]he needs of a particular plaintiff are not relevant to the exemption's

applicability.”).

HHS redacted from the 20 e-mail messages information revealing the “internal

deliberations, among HHS employees, regarding Plaintiff’s HIPAA complaints,” specifically

“advice, recommendations, suggestions, opinion, and analysis about Plaintiff’s HIPAA claims.”

Eckert Decl. ¶ 11; see Vaughn index Doc. Nos. 2-9. “One of the traditional evidentiary

privileges available to the Government in the civil discovery context is the common-sense,

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The fact that Defendant did not invoke Exemption 7(E) at the administrative level does not

preclude it from invoking it in this proceeding. See Barnard v. Dep’t of Homeland Security, 598

F. Supp. 2d 1, 24 (D.D.C. 2009) (“[T]here is no requirement that an agency administratively

invoke an exemption [under either the FOIA or the Privacy Act] in order to later rely on it in

federal court.”) (citing cases).

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common-law deliberative process privilege.” Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 772

(D.C. Cir. 1978), overruled on other grounds by Crooker v. Bureau of Alcohol, Tobacco &

Firearms, 670 F.2d 1051, 1053 (D.C. Cir. 1981). This encompasses three main policy purposes,

two of which are applicable to this dispute: (1) to encourage open, frank discussions on matters

of policy between subordinates and superiors; and (2) to protect against public confusion that

might result from disclosure of reasons and rationales that were not in fact ultimately the grounds

for an agency's action. See Russell v. Dep't of Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982);

see also Missouri ex rel. Shorr v. U.S. Army Corps of Eng'rs, 147 F.3d 708, 710 (8th Cir. 1998)

(“The purpose of the deliberative process privilege is to allow agencies to freely explore

alternative avenues of action and to engage in internal debates without fear of public scrutiny.”).

Two requirements must be met to permit valid invocation of this privilege. The

communication to be withheld must be predecisional — i.e., “antecedent to the adoption of an

agency policy,” Jordan, 591 F.2d at 774, and it must be deliberative — i.e., “a direct part of the

deliberative process in that it makes recommendations or expresses opinions on legal or policy

matters.” Vaughn v. Rosen, 523 F.2d 1136, 1143–44 (D.C. Cir. 1975); accord Loving v. Dep’t of

Defense, 550 F.3d 32, 38 (DC. Cir. 2008). A record or document can be predecisional in nature

even when an agency subsequently makes a final decision on the issue discussed in the record or

document. See Fed. Open Mkt. Comm. v. Merrill, 443 U.S. 340, 360 (1979).

As Defendant’s descriptions of the redacted portions of these emails fall squarely within

the parameters of the privilege, see Eckert Decl. ¶ 11; Vaughn index Doc. Nos. 2-9, the Court

finds that it has properly justified withholding such portions as deliberative-process material

protected by Exemption 5.

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B. Exemptions 6 and 7(C)

The Court turns next to the withholding of the three-page document under Exemptions 6

and 7(C). The privacy interest in Exemption 6 is narrower than in Exemption 7(C), so if the

withholdings satisfy the former, no examination of the latter is necessary. Exemption 6 protects

withholdings under the following criteria: first, the information must be contained within

“personnel and medical files and similar files”; second, the disclosure of the information “would

constitute a clearly unwarranted invasion of personal privacy”; and third, if the first two

requirements are met, the privacy interest must be weighed against the public interest in

disclosure. See 5 U.S.C. § 552(b)(6); see also Armstrong v. Executive Office of the President, 97

F.3d 575, 582 (D.C. Cir. 1996).

Defendant withheld Doc. No. 1 in full under Exemptions 6 and 7(C). See Eckert Decl. ¶¶

14-15 & Vaughn index. The document “consist[s] of witness interview summaries” that “applied

to a particular individual.” Eckert Decl. ¶ 13; see also Vaughn index, Doc. No. 1 (“This

document contains personal information about individuals who were interviewed as part of an

investigation into alleged HIPAA violations.”). Defendant asserts that it withheld the

information because “[d]isclosure . . . would constitute an invasion of privacy of [] individuals

who provided information to an investigator who was conducting an investigation into Plaintiff’s

HIPAA complaint.” Id. ¶ 14. Because the individuals were Plaintiff’s co-workers, Defendant

asserts that “it would be easy to identify [them] if [it] released information from the witness

interviews.” Id. Defendant further asserts that “[r]evealing the withheld information could

reasonably be expected to cause potential harassment or misuse of the [witness’] information . . .

.” Id.

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In United States Department of State v. Washington Post Co., 456 U.S. 595 (1982), the

Supreme Court held, based upon a review of the legislative history of FOIA, that Congress

intended the term “similar files” to be interpreted broadly, rather than narrowly. Id. at 599–603.

The Court stated that the protection of an individual's privacy “surely was not intended to turn

upon the label of the file which contains the damaging information.” Id. at 601 (citing H.R.Rep.

No. 89–1497 at 11, 1966 U.S.C.C.A.N. 2418, 2428 (1966)); see Judicial Watch, Inc. v. FDA, 449

F.3d 141, 152 (D.C. Cir. 2006) (“The Supreme Court has read Exemption 6 broadly, concluding

the propriety of an agency's decision to withhold information does not ‘turn upon the label of the

file which contains the damaging information.’ ”) (quoting Wash. Post, 456 U.S. at 601). Rather,

the Court made clear that all information that “applies to a particular individual” meets the

threshold requirement for Exemption 6 protection. 456 U.S. at 602. “[I]nformation about an

individual should not lose the protection of Exemption 6 merely because it is stored by an agency

in records other than ‘personnel’ or ‘medical’ files.” Id. at 601.

The Court now turns to the third requirement of weighing the competing interests.

According to Defendant, each individual’s privacy interests outweighed any public interest in

disclosure of their information. Eckert Decl. ¶ 14. Plaintiff disagrees. He counters generally

that “[t]he release of the 15 pages of documents, and unredacted material will allow the plaintiff

and the public to determine the diligence of the HHS/OCR investigations . . . [and] instill[]

confidence in the investigative procedures of a governmental agency.” Response to DOJ’s

Opp’n to Pl.’s Disputes of Material Fact at 5. But to overcome the privacy interests at stake,

Plaintiff must show that the exempt information is necessary to “shed any light on the

[mis]conduct of any Government agency or official.” United States Dep’t of Justice v. Reporters

Comm. for Freedom of the Press, 489 U.S. 749, 772-73 (1989); accord SafeCard Services, Inc.,

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v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991); see Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir.

2011) (“The relevant question . . . is whether Blackwell has shown government misconduct

sufficient to overcome Exemption 7(C)'s protection for personal privacy under the test outlined

in National Archives & Records Admin. v. Favish, 541 U.S. 157 (2004).”). “Both Exemptions 6

and 7(C) require the balancing of the strong privacy interests in the nondisclosure of third-party

records against any asserted public interests in their disclosure. The analysis is the same under

both exemptions.” Sonds v. Huff, 391 F. Supp. 2d 152, 158 (D.D.C. 2005) (citations omitted).

Plaintiff has the burden of demonstrating the requisite public interest by “produc[ing]

evidence that would warrant a belief by a reasonable person that the alleged Government

impropriety might have occurred.” Favish, 541 U.S. at 174. If a requester can demonstrate that

disclosure would serve to “check against corruption and to hold the governors accountable to the

governed,” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978), he can generally

satisfy the public interest requirement. But the balancing test does not even come “into play”

when the requester has produced no evidence of impropriety. Favish, 541 U.S. at 175.

Plaintiff’s desire only to “determine the diligence of [the agency’s] investigations” does not

present a public interest to trigger the balancing requirement. Therefore, no basis exists for

compelling the release of the three pages of interview notes Defendant properly withheld under

Exemption 6.

C. Exemption 7(E)

The final withholding concerns the 12-page document – actually, two copies of the same

six-page document, see Vaughn index, Doc. No. 10 – under Exemption 7(E). To qualify for

protection under Exemption 7, agency records must have been compiled for law enforcement

purposes. To satisfy this requirement, an agency “need only ‘establish a rational nexus between

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the investigation and one of the agency's law enforcement duties and a connection between an

individual or incident and a possible security risk or violation of federal law.’” Blackwell, 646

F.3d at 40 (quoting Campbell v. Dep't of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998)). The

requested records were “compiled to conduct investigations into Plaintiff’s civil rights

complaints,” Eckert Decl. ¶ 15, and a violation of the HIPAA Privacy Rule could subject one to

civil or criminal penalties. See 42 U.S.C. § 1320d-5.

As the D.C. Circuit explained in Jefferson v. Dept. of Justice, 284 F.3d 172 (D.C. Cir.

2002), “[I]f the investigation is for a possible violation of law, then the inquiry is for law

enforcement purposes, as distinct from customary surveillance of the performance of duties by

government employees.” Id. at 177 (citation omitted); see also Lurie v. Dept. of Army, 970 F.

Supp. 19, 36 (D.D.C. 1997) (“An agency investigation is considered to be for law enforcement

purposes if it focuses directly on specifically alleged illegal acts, illegal actions of particular

identified officials, acts which could, if proved, result in civil or criminal sanctions.”) (internal

quotation marks and citation omitted) As this case involved the investigation of a health care

provider for HIPAA violations, the threshold law enforcement requirement is met. See Ortiz v.

Dept. of Health & Human Services, 70 F.3d 729, 732-33 (2d Cir. 1995) (Exemption 7 applicable

to HHS Inspector General, who engaged in law enforcement activities when investigating

possible Social Security fraud; no requirement of actual existence of a crime); Sakamoto v. EPA,

442 F. Supp. 2d 1182, 1194-95 (N.D. Cal. 2006) (Exemption 7’s law-enforcement purposes

applicable to EPA’s OCR’s investigation of complaints of discrimination). 2

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Given this determination, the Court notes that Defendant also properly withheld Doc. No. 1

under Exemption 7(C), insofar as this exemption “categorically exempt[s]” third-party records

from disclosure in the absence of an overriding public interest. Nation Magazine, Washington

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Exemption 7(E) protects from disclosure law enforcement records “to the extent that the

production of such . . . records or information . . . would disclose techniques and procedures for

law enforcement investigations or prosecutions, or would disclose guidelines for law

enforcement investigations or prosecutions if such disclosure could reasonably be expected to

risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). The District of Columbia Circuit has

“set[] a relatively low bar for the agency to justify withholding” such records, insofar as the

agency is required only to “demonstrate logically how the release of the requested information

might create a risk of circumvention of the law.” Blackwell, 646 F.3d at 42 (quoting Mayer

Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009)).

Defendant relied on this exemption in withholding Doc. No. 10, which is a six-page

internal document and a duplicate that contain “procedures, techniques, and guidelines for

investigating potential violations of the HIPAA Privacy Rule by hybrid entities.” Eckert Decl. ¶

18 & Vaughn index. According to Eckert, the release of the document would “disclose methods

used in law enforcement and could reduce or nullify the effectiveness of the methods [because] it

would alert entities as to how they can fashion their operations so as to elude compliance with

the HIPAA Privacy Rule.” Id. Considering the availability of civil and criminal penalties for

HIPAA violations, Defendant reasonably contends that the disclosure of information about the

agency’s investigatory tools could “risk circumvention of the law.” Eckert Decl. ¶ 18.

Bureau v. United States Customs Service, 71 F.3d 885, 896 (D.C. Cir. 1995); see Blackwell, 646

F.3d at 41 (“As a result of Exemption 7(C), FOIA ordinarily does not require disclosure of law

enforcement documents (or portions thereof) that contain private information.”) (citing cases).

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D. Segregability of Withheld Documents

The Court is also required to determine whether Defendant properly withheld Doc. Nos.

1 and 10 in their entirety. See Trans-Pacific Policing Agreement v. United States Customs

Service, 177 F.3d 1022, 1028 (D.C. Cir. 1999) (instructing that district court has “an affirmative

duty to consider the segregability issue sua sponte” if not otherwise raised by the parties).

Eckert indicates that the documents were “scrutinized” for segregability, Eckert Decl.

¶ 14, and states that “[f]or records withheld in their entirety, there was no reasonably segregable

material or [any] non-exempt information amounted to essentially meaningless words and

phrases.” Id. ¶ 19. Defendant has thus properly justified withholding Doc. Nos. 1 and 10 in full.

See Mays v. DEA, 234 F.3d 1324, 1327 (D.C. Cir. 2000) (“[A]ny non-exempt information must

be segregated and released . . . unless the exempt and nonexempt information are ‘inextricably

intertwined,’ such that the excision of exempt information would impose significant costs on the

agency and produce an edited document with little informational value.") (quoting Neufeld v.

IRS, 646 F.2d 661, 666 (D.C. Cir. 1981)) (other citation and internal quotation marks omitted).

IV. Conclusion

Because HHS properly redacted information from the released e-mail messages under

FOIA Exemption 5 and properly withheld Document 1 under Exemptions 6 and 7(C) and

Document 10 under Exemption 7(E), the Court will grant Defendant’s motion for summary

judgment. A separate Order accompanies this Memorandum Opinion.

/s/ James E. Boasberg

JAMES E. BOASBERG

United States District Judge

Date: December 15, 2011

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