Center for Medicare Advocacy v. U.S. D.H.H.S.

• Citation: 577 F.Supp.2d 221
• Decision Date: 17 September 2008
• Docket Number: Civil Action No. 05-2266 (RBW).
• Parties: CENTER FOR MEDICARE ADVOCACY, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — District of Columbia

Page 221

577 F.Supp.2d 221

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

Civil Action No. 05-2266 (RBW).

United States District Court, District of Columbia.

September 17, 2008.

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Patricia Baggs Nemore, Washington, DC, for Plaintiff.

Michael Jeffrey Sherman, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

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 video-conferencing ... 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.").¹ 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).²

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...