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David Duncan Mccann v. United States Department of Health and Human Services

December 15, 2011

DAVID DUNCAN MCCANN,
PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
DEFENDANT.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

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 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. 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)).

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).*fn1 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. ΒΆ 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, 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 ...


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