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Center for Medicare Advocacy, Inc. v. United States Department of Health and Human Services

September 17, 2008

CENTER FOR MEDICARE ADVOCACY, INC. PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The plaintiff filed this lawsuit on November 23, 2005, against the defendant pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2000). Complaint ("Compl."). Specifically, the plaintiff asserts that it requested from the defendant pursuant to the FOIA "[a]ll articles, reports, studies, memoranda, letters and writings of any kind concerning videoconferencing . . . that have been or are being reviewed and/or used in designing and/or establishing the Medicare administrative law judge hearings by [video-conferencing] that are described at 42 C.F.R. §§ 405.1036, et seq." Id. ¶ 4. Further, the plaintiff contends that the "[d]efendant failed to comply with the timeliness requirement for responding to [the] plaintiff's request for information." Id. ¶ 7. The plaintiff requests that the defendant's failure to produce the documents be declared "unlawful" and that the defendant be ordered "to make the requested records available to [the] plaintiff." Id. at 3. Currently before the Court are the Memorandum of Points and Authorities in Support of Plaintiff's Motion for Injunction ("Pl.'s Mot.") and the Defendant's Cross-Motion for Summary Judgment ("Def.'s Cross-Mot.").*fn1 For the reasons set forth below, both parties' motions are granted in part and denied in part.

I. Background

The plaintiff, the Center for Medicare Advocacy, Inc., "is a non-profit corporation that educates and advocates for medicare beneficiaries across the nation." Compl. ¶ 3. The plaintiff has offices in Connecticut, Arizona, and here in Washington, D.C. Id. In a letter dated August 25, 2005, the plaintiff requested pursuant to the FOIA, 5 U.S.C. § 552, that the defendant, the Department of Health and Human Services (HHS), provide to it all documents pertaining to the design and establishment of Medicare administrative law judge hearings conducted with the use of video-conferencing technology. Pl.'s Mot., Exhibit ("Ex.") A (Letter from Sally Hart, Counsel for Center for Medicare Advocacy, Inc., to Freedom of Information Officer Centers for Medicare & Medicaid Services, dated August 25, 2005) ("Hart Aug. 25, 2005 Letter"); Defendant's Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Injunction and in Support of Defendant's Cross-Motion for Summary Judgment ("Def.'s Cross-Mot. Mem."), (Declaration of Robert Eckert, Director, Freedom of Information/Privacy Acts Division, Office of the Assistant Secretary for Public Affairs, Department of Health and Human Services) ("Eckert Decl.") ¶ 4, Ex. 1 (Hart Aug. 25, 2005 Letter). The plaintiff further requested that the defendant waive any applicable fees associated with its request, and asked that the defendant process the plaintiff's request on an expedited basis. Pl.'s Mot., Ex. A (Hart Aug. 25, 2005 Letter); Def.'s Cross-Mot. Mem., Eckert Decl., Ex. 1 (Hart Aug. 25, 2005 Letter).

By letter dated October 3, 2005, the defendant acknowledged receipt of the plaintiff's document request. Pl.'s Mot., Ex. B (Letter from Michael Marquis, Director of Freedom of Information Group, Department of Health & Human Services, Centers for Medicare & Medicaid Services, to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated October 3, 2005 ) ("Marquis Oct. 3, 2005 Letter"); Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 4, Ex. 2 (Marquis Oct. 3, 2005 Letter). The defendant also requested that the plaintiff provide further information concerning its request for a fee waiver so as to enable the defendant to make a determination on this request. Pl.'s Mot., Ex. B (Marquis Oct. 3, 2005 Letter); Def.'s Cross-Mot. Mem., Eckert Decl., Ex. 2 (Marquis Oct. 3, 2005 Letter).

Having not received the requested documents from the defendant or an indication that the fee for producing the documents had been waived, the plaintiff informed the defendant by letter that it was construing the non-responsiveness as a denial of its requests. Pl.'s Mot., Ex. C (Letter from Sally Hart, Counsel for Center for Medicare Advocacy, Inc., to Michael Marquis, Director of Freedom of Information Group, Department of Health & Human Services, Centers for Medicare & Medicaid Services, dated October 31, 2005 ) ("Hart Oct. 31, 2005 Letter");

Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 6, Ex. 3 (Hart Oct. 31, 2005 Letter). The plaintiff also informed the defendant in its letter that it was administratively appealing both the defendant's failure to produce the requested documents and its denial of the plaintiff's fee waiver request.

Pl.'s Mot., Ex. C (Hart Oct. 31, 2005 Letter). The defendant acknowledged receipt of the plaintiff's October 31, 2005 appeal by letter on November 16, 2005. Pl.'s Mot., Ex. D (Letter from Michael Marquis, Director of Freedom of Information Group, Department of Health & Human Services, Centers for Medicare & Medicaid Services, to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated November 16, 2005 ) ("Marquis Nov. 16, 2005 Letter"); Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 7, Ex. 4 (Marquis Nov. 16, 2005 Letter).

The plaintiff commenced this judicial action on November 23, 2005. See Compl. Subsequently, by letter dated December 27, 2005, the defendant informed the plaintiff that its requests had been referred to Robert Eckert, Director of HHS's Freedom of Information/Privacy Acts Division, Office of the Assistant Secretary for Public Affairs. Pl.'s Mot., Ex. E (Letter from Michael Marquis, Director of Freedom of Information Group, Department of Health & Human Services, Centers for Medicare & Medicaid Services, to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated December 27, 2005 ) ("Marquis Dec. 27, 2005 Letter"); Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 10, Ex. 5 (Marquis Dec. 27, 2005 Letter). This letter further informed the plaintiff that Mr. Eckert's office would respond both to the plaintiff's request for records and to its request for a fee waiver. Pl.'s Mot., Ex. E (Letter from Michael Marquis, Director of Freedom of Information Group, Department of Health & Human Services, Centers for Medicare & Medicaid Services, to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated December 27, 2005 ) ("Marquis Dec. 27, 2005 Letter"); Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 10 (indicating that the Centers for Medicare & Medicaid Services Freedom of Information Group advised the plaintiff by letter that Mr. Eckert's office would respond to the plaintiff's fee waiver request), Ex. 5 (Marquis Dec. 27, 2005 Letter).

On January 18, 2006, the defendant filed its Answer to the plaintiff's Complaint. By letter dated January 19, 2006, the defendant mailed the plaintiff its first interim response to the plaintiff's requests. Pl.'s Mot., Ex. F (Letter from Robert Eckert, Director of Freedom of Information Privacy Acts Division, Department of Health & Human Services, to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated January 19, 2006) ("Eckert Jan. 19, 2006 Letter"); Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 11, Ex. 6 ("Eckert Jan. 19, 2006 Letter"). In this letter, the defendant informed the plaintiff that, as of the date of the letter, it had reviewed thirty-seven pages of responsive records and had determined that thirty-three pages could be released in full and that an additional page could be partially released. Pl.'s Mot., Ex. F (Eckert Jan. 19, 2006 Letter); Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 11, Ex. 6 (Eckert Jan. 19, 2006 Letter). The remaining portion of the redacted page was withheld pursuant to Exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5), as were the other three pages of records that were withheld in their entirety. Pl.'s Mot., Ex. F (Eckert Jan. 19, 2006 Letter); Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 11, Ex. 6 (Eckert Jan. 19, 2006 Letter). The defendant further informed the plaintiff that it had determined that of the records it had reviewed, ten pages in full and portions of an additional page contained information originating with the Social Security Administration ("SSA"). Pl.'s Mot., Ex. F (Eckert Jan. 19, 2006 Letter); Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 11, Ex. 6 (Eckert Jan. 19, 2006 Letter). The defendant therefore advised the plaintiff that these records were being referred to the SSA for processing and its direct response to the plaintiff. Pl.'s Mot., Ex. F (Eckert Jan. 19, 2006 Letter); Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 11, Ex. 6 (Eckert Jan. 19, 2006 Letter). The defendant's letter also informed the plaintiff that it was denying the plaintiff's requests for a total fee waiver and for expedited processing. Id. The plaintiff again appealed the fee waiver denial by letter dated February 21, 2006. Pl.'s Mot., Ex. G (Letter from Patricia Nemore, Counsel for Center for Medicare Advocacy, Inc., to the Deputy Assistant Secretary for Public Affairs (Media), Department of Health & Human Services, dated February 21, 2006) ("Nemore Feb. 21, 2006 Letter"); Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 12, Ex. 7 (Letter from Patricia Nemore, Counsel for Center for Medicare Advocacy, Inc., to the Deputy Assistant Secretary for Public Affairs (Media), Department of Health & Human Services, dated February 21, 2006) (Nemore Feb. 21, 2006 Letter).*fn2

In a letter dated March 2, 2006, the SSA informed the plaintiff that it was withholding in full, pursuant to Exemption 5 of the FOIA, the ten pages and one partial page referred to it by the defendant. Pl.'s Mot., Ex. H (Letter to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., from Joyce Schaul, Freedom of Information Officer, Social Security Administration, dated March 2, 2006) ("Schaul March 2, 2006 Letter"); Def.'s Cross-Mot. Mem., Declaration of Ethel Burrows, Social Insurance Specialist in the Office of Pubic Disclosure of the Social Security Administration ("Burrows Decl."), Ex. iii (Schaul March 2, 2006 Letter). Subsequently, the plaintiff administratively appealed the SSA's decision to withhold the documents. Pl.'s Mot., Ex. I (Letter from Sally Hart, Counsel for Center for Medicare Advocacy, Inc., to the Executive Director, Office of Public Disclosure, Social Security Administration, dated March 8, 2006) ("Hart Mar. 8, 2006 Letter"); Def.'s Cross-Mot. Mem., Burrows Decl. ¶ 13, Ex. iv (Letter from Sally Hart, Counsel for Center for Medicare Advocacy, Inc., to the Executive Director, Office of Public Disclosure, Social Security Administration dated March 8, 2006) ("Hart Mar. 8, 2006 Letter"). On the same day, March 8, 2006, the defendant made its second interim response to the plaintiff's document request. Pl.'s Mot., Ex. J (Letter from Department of Health & Human Services, to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated March 8, 2006) ("HHS Mar. 8, 2006 Letter"); Def.'s Cross-Mot. Mem., Eckert Decl., Ex. 8 (Letter from Department of Health & Human Services to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated March 8, 2006) ("HHS Mar. 8, 2006 Letter"). This response resulting in the defendant releasing to the plaintiff an additional 250 pages in full and the withholding of an additional 7159 pages were withheld pursuant to Exemption 5 of the FOIA. Pl.'s Mot., Ex. J (HHS Mar. 8, 2006 Letter); Def.'s Cross-Mot. Mem., Eckert Decl., Ex. 8 (HHS Mar. 8, 2006 Letter).

The defendant advised the plaintiff in a letter dated March 20, 2006, that it had received the plaintiff's appeal of the denial of its August 25, 2005 fee waiver request. Pl.'s Mot., Ex. K (Letter from Robert Eckert, Director of Freedom of Information/Privacy Acts Division Office of Public Affairs, Department of Health & Human Services, to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated March 20, 2006) ("Eckert Mar. 20, 2006 Letter"); Def.'s CrossMot. Mem., Eckert Decl. ¶ 14, Ex. 9 (Letter from Robert Eckert, Director of Freedom of Information/Privacy Acts Division Office of Public Affairs, Department of Health & Human Services, to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated March 20, 2006) ("Eckert Mar. 20, 2006 Letter"). The defendant's letter further informed the plaintiff that it had identified an additional 425 pages of responsive records that would be released to the plaintiff. Pl.'s Mot., Ex. K (Eckert Mar. 20, 2006 Letter); Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 14, Ex. 9 (Eckert Mar. 20, 2006 Letter). When combined with the 284 pages previously released by the defendant on January 19 and March 8, 2006, the defendant's fee for processing the plaintiff's document request totaled $60.90, based on a ten cents per page charge, excluding any charge for the initial 100 pages. Pl.'s Mot., Ex. K (Eckert Mar. 20, 2006 Letter); Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 14, Ex. 9 (Eckert Mar. 20, 2006 Letter). The defendant stated that the plaintiff would have to agree to pay the processing fee before the defendant would conduct any further processing of the document request. Pl.'s Mot., Ex. K (Eckert Mar. 20, 2006 Letter); Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 14, Ex. 9 (Eckert Mar. 20, 2006 Letter).

By letter dated April 7, 2006, the plaintiff informed the defendant that it was appealing the withholding of the documents reference in the defendant's second interim document response. Def.'s Cross- Mot. Mem., Eckert Decl. ¶ 15, Ex. 10 (Letter from Sally Hart, Counsel for Center for Medicare Advocacy, Inc., to Deputy Assistant Secretary for Public Affairs (Media), United States Department of Health and Human Services, dated April 7, 2006) ("Hart Apr. 7, 2006 Letter"); Pl.'s Mot., Ex. L (Letter from Sally Hart, Counsel for Center for Medicare Advocacy, Inc., to Deputy Assistant Secretary for Public Affairs (Media), United States Department of Health and Human Services dated April 7, 2006) ("Hart Apr. 7, 2006 Letter"). On April 13, 2006, the plaintiff filed its Motion for Injunction, seeking the release of all responsive documents, a Vaughn*fn3 Index describing the withheld documents, a fee waiver, and attorney fees. See Pl.'s Mot. at 10. By letter dated April 17, 2006, the SSA denied the plaintiff's administrative appeal of its withholding of the documents it had received from the defendant in its initial referral to the SSA. Def.'s Cross-Mot. Mem., Burrows Decl. ¶ 14, Ex. v (Letter from Jonathan Cantor, Executive Director, Office of Public Disclosure, Social Security Administration, to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated April 17, 2006) ("Cantor Apr. 17, 2006 Letter").

By letter dated May 15, 2006, the defendant again denied the plaintiff's administrative appeal of its denial of the plaintiff's fee waiver request. Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 16, Ex. 11 (Letter from Christina Pearson, Deputy Assistant Secretary for Public Affairs (Media), to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated May 15, 2006) ("Pearson May 15, 2006 Letter"). This administrative appeal decision outlined the standards the defendant uses in adjudicating fee waiver requests, which includes evaluating (1) whether the requested documents pertain to activities of the federal government; (2) whether disclosure would reveal meaningful information about government operations that is not already public knowledge; (3) will the disclosure advance knowledge to the public at large, as opposed to just a narrow segment of the public; and (4) whether the contribution to public knowledge will be significant. Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 17, Ex. 11(Pearson May 15, 2006 Letter). It then explained how in several ways the plaintiff had failed to satisfy these standards. Def.'s Cross-Mot. Mem., Eckert Decl. ¶¶ 18-21, Ex. 11 (Pearson May 15, 2006 Letter). For example, some of the responsive records were determined not to concern government operations or activities. Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 18, Ex. 11 (Pearson May 15, 2006 Letter). It further noted that because the vast majority of records released to the plaintiff at this point were already publicly available, the plaintiff had not shown how further dissemination of the documents to it would significantly benefit the public. Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 19, Ex. 11 (Pearson May 15, 2006 Letter). Finally, the defendant's letter explained that because some of the responsive records concerned mere internal HHS administrative matters, those records likewise would not enlighten the public in a significant way about the operations or activities of the government. Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 20, Ex. 11 (Pearson May 15, 2006 Letter ). Because the defendant determined that the plaintiff had failed to satisfy factors (1), (2), and (4), of the standards listed above, the plaintiff's request for a fee waiver was denied. Def.'s Cross-Mot Mem., Eckert Decl. ¶ 21, Ex. 11 (Pearson May 15, 2006 Letter).*fn4

In an e-mail dated June 29, 2006, the plaintiff agreed to pay the applicable processing fees if the defendant's fee waiver denial was ultimately upheld by the Court. Def.'s Cross-Mot., Eckert Decl. ¶ 13, Ex. 13 (E-mail from Gill Deford, Counsel for Center for Medicare Advocacy, Inc., to Frances Wharton, dated June 29, 2006) ("Deford June 29, 2006 E-mail"). On July 10, 2006, the defendant made a further interim release of responsive documents to the plaintiff.

Def.'s Cross-Mot. Mem., Eckert Decl. ¶¶ 23-24, Ex. 14 (Letter from Robert Eckert, Director of Freedom Of Information/Privacy Acts Division Office of Public Affairs, to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated July 10, 2006) ("Eckert July 10, 2006 Letter"). This resulted in the release in full of 319 additional documents. Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 24, Ex. 14 (Eckert July 10, 2006 Letter). The defendant withheld a portion of one document pursuant to FOIA Exemption 6.*fn5 Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 24, Ex. 14 (July 10, 2006 Letter). It also withheld portions of two pages and ninety-nine pages in full pursuant to Exemption 5 of the FOIA. Def.'s Cross-Mot. Mem., Eckert Decl. ¶¶ 23-24, Ex. 14 (July 10, 2006 Letter). Additionally, the defendant informed the plaintiff that it had referred 251 more pages of responsive documents that had originated with SSA to that agency for processing and its direct response to the plaintiff. Def.'s Cross-Mot. Mem., Eckert Decl. ¶¶ 23-24, Ex. 14 (July 10, 2006 Letter). The defendant further informed the plaintiff that based upon this new release of documents, the plaintiff now owed the defendant $359.70 in fees. Def.'s Cross-Mot. Mem., Eckert Decl. ¶¶ 23-24, Ex. 14 (July 10, 2006 Letter). Finally, this letter corrected inadvertent mistakes in the page counts associated with the defendant's prior releases of documents to the plaintiff. Def.'s Cross-Mot. Mem., Eckert Decl. ¶¶ 23-24, Ex. 14 (July 10, 2006 Letter).

On July 12, 2006, the defendant completed its processing of the documents responsive to the plaintiff's request. Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 25, Ex. 15 (Letter from Robert Eckert, Director of Freedom of Information/Privacy Acts Division Office of Public Affairs, to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated July 12, 2006) ("July 12, 2006 Letter"). This resulted in the release of an additional ten pages in full to the plaintiff and another 459 pages were withheld pursuant to FOIA Exemption 5. Id. Because of the limited number of additional pages released, the defendant informed the plaintiff that no additional fees would be assessed. Id. Then, on July 13, 2006, the SSA informed the plaintiff of the results of the processing that it had undertaken of the second set of documents referred to it by the defendant. Def.'s Cross-Mot. Mem., Burrows Decl. ¶ 10, Ex. vii (Letter from Willie Polk, Freedom of Information Officer, Social Security Administration, to Sally Hart, Counsel for Center for Medicare Advocacy, dated July 13, 2006) ("Polk July 13, 2006 Letter"). The SSA released in full to the plaintiff 70 pages of documents, released in part three pages of documents, and withheld in full 178 pages of documents. Id. The completely and partially withheld documents were withheld pursuant to Exemptions 5 and 6 of the FOIA. Id.

In its subsequent preparation of the Vaughn Index, the defendant's legal counsel determined that some of the records the defendant had previously withheld from the plaintiff could be released. Def.'s Cross-Mot. Mem., Eckert Decl. ¶ 30. As a result of this assessment, the defendant made three supplemental releases to the plaintiff, resulting in the release of an additional 65 pages. Id. All of the documents or partial documents the defendant continued to withhold following the completion of the Vaughn index have been withheld under Exemption 5 of the FOIA. Id. ¶ 31.

Among the responsive documents located by the defendant and not released to the plaintiff were draft reports prepared by the Government Accountability Office ("GAO"), which is "an agent of the legislative branch." Def.'s Cross-Mot. Mem., Declaration of Patricia Mantoan, Attorney, General Law Division, Office of the General Counsel in the United States Department of Health and Human Services ¶ 4. In cover letters that accompanied these draft reports when they were presented to the defendant, the GAO specifically instructed the defendant that the drafts remained the property of the GAO, their contents were not to be shared or released for any purposes, and that upon request by the GAO all electronic copies of the documents were to destroyed and any hard copies of drafts were to be returned to the GAO. Id., Ex. a (Letter from the United States Government Accountability Office to Leslie Aronovitz, Director, Health Care-Program Administration and Integrity Issues, dated August 27, 2004). In addition to its refusal to produce these draft reports, the defendant and the SSA have withheld documents pursuant to the deliberative process privilege of Exemption 5 of the FOIA. Def.'s Cross-Mot. Mem., Eckert Decl. ¶¶ 31-33; Burrows Decl. ¶¶ 13-14. These documents consist of drafts, proposals, recommendations, and requests for advice concerning the transfer of the Medicare appeals hearing from the SSA to the defendant and the use of video-conferencing technology to conduct the hearings. Def.'s Cross-Mot. Mem., Eckert Decl. ¶¶ 32-33; Burrows Decl. ¶¶ 13-14. The defendant contends that these documents are either internal HHS documents, are documents exchanged between the defendant and other Executive Branch agencies, are draft responses to GAO or to congressional members, are documents containing advice and recommendations about draft HHS comments on GAO reports concerning the transfer of the Medicare appeals function from SSA to HHS, or are documents exchanged between the defendant and a contractor who upon request had provided its expert opinion on the feasibility of using video-conferencing technology to conduct the ...


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