Dayton Newspapers v. Department of Veteran Affairs, C-3-40-235.

• Decision Date: 23 January 2003
• Docket Number: No. C-3-40-235.,C-3-40-235.
• Citation: 257 F.Supp.2d 988
• Parties: DAYTON NEWSPAPERS, INC., et al., Plaintiffs, v. DEPARTMENT OF VETERAN AFFAIRS, Defendant.
• Court: U.S. District Court — Southern District of Ohio

257 F.Supp.2d 988

DAYTON NEWSPAPERS, INC., et al., Plaintiffs, v. DEPARTMENT OF VETERAN AFFAIRS, Defendant.

No. C-3-40-235.

United States District Court, S.D. Ohio, Western Division.

January 23, 2003.

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Robert Perry Bartlett, Jr., David Philip Pierce, Coolidge Wall Womsley & Lombard, Christopher R. Conard, Dayton, OH, for Plaintiffs.

Gregory Gordon Lockhart, Dayton, OH, for Defendant.

EXPANDED OPINION; DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (DOC. # 11); OVERRULING DEFEDANT'S MOTION TO DISMISS (DOC. # 17-1) AND SUSTAINING IN PART AND OVERRULING IN PART DEFENDANT'S ALTERNTIVE MOTION FOR SUMMARY JUDGMENT (DOC. # 17-2); DEFENDANT GIVEN 60 DAYS TO SUBMIT A VAUGHN INDEX ON PURPORTED PRIVILEGED INFORMATION TO WHICH PLAINTIFFS MAY RESPOND PURSUANT TO S.D. OHIO CIV. R. 7.2(a)(2)

RICE, Chief Judge.

The matter before the Court concerns the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. In their Complaint (Doc. # 1), Plaintiffs Dayton Newspapers, Inc. ("DNI"), and Russell Carollo ask the Court to order Defendant United States Department of Veterans Affairs ("VA") to release certain information related to tort claims filed against the VA between the years of 1985 and 1995. Carollo, within the scope of his employment as a reporter for DNI's Dayton Daily News, had previously submitted an FOIA request to the VA for such information. Pending before the Court is Plaintiffs' Motion for Summary Judgment (Doc. # 11) and Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. # 17-1), or, in the Alternative, for Summary Judgment (Doc. # 17-2)(filed nunc pro tunc).¹

I. Factual Background²

A. Carollo's FOIA Request

Plaintiff Carollo is a reporter for the Dayton Daily News (First Carollo Aff., Doc. # 11 at Ex. 1, ¶ 2), a newspaper published by Plaintiff DNI. On February 16, 1995, pursuant to the FOIA, and acting in his capacity as a journalist, Carollo submitted a written request to the VA's Office of General Counsel ("OGC") for "access to and copies of the Tort Claims database and/or a database of similar name and/or all computer records of legal claims for the past 10 years." (Doc. # 1 at Ex. 1.) He resubmitted his request on March 13, 1995, clarifying that he would accept the information "in a variety of deliminated computer forms," as acceptable to the VA. (Plaintiffs' Reply and Memorandum Contra (Doc. # 15) at Ex. 9.)

Although he only discovered the name of it at a later point in time, the VA "database" to which Carollo referred in his request letter is known as the Tort Claims Information System, or TCIS. (First Carollo Aff. ¶ 6; Hunter Decl., Doc.l # 7 at Ex. B, ¶ 1.) Prior to his 1995 request, Carollo had attempted to retrieve the same TCIS information in his capacity as a employee of the The News Tribune, in Tacoma, Washington, in 1993. (Second Carollo Aff., Doc. # 15 at Ex. 5, H 1.)

B. VA's Database System-TCIS

In addition to the OGC, the VA maintains twenty-three Offices of Regional Counsel ("regional counsel" or "regional offices") around the country. (Richman Deck, Doc. # 17 at Ex. A, ¶ 3.) Tort claims filed against the VA are considered in the first instance by the appropriate regional counsel. (Id. ¶ 4.) Prior to the development of the TCIS, regional offices maintained pertinent tort claim data under their own systems, and submitted reports on the relevant data to the OGC on a quarterly basis. (Id. ¶ 11.) The TCIS was developed through the combined efforts of the OGC and the Veterans Health Administration ("VHA"),³ with several goals in mind, including the ability to maintain a uniform VA tort claims tracking system across the country, and the establishment of a means for the VHA to track malpractice claims at its various medical facilities and hospitals. (Id. ¶ 12.)

The central TCIS database, maintained at the OGC, retrieves certain information off of the regional TCIS databases on a nightly basis. (Hunter Decl. ¶ 3.) A tort claim against the VA is initiated when the claimant completes and submits the VA's standardized claim form: Standard Form 95, or SF95. (Richman Decl. ¶ 4 & attachment A.A.) Once the SF95 is forwarded to the appropriate regional office, the information provided on the SF95 is entered into the TCIS. (Id. ¶ 15.) As necessary, the regional counsel may request additional information to supplement that which is contained on the SF95. (Id.) As a result, the TCIS database contains data fields which are occupied by information other than that culled from the SF95. (Id.) Importantly, not all of the TCIS data fields which may be occupied by data at the regional level are collated into the central TCIS database at the OGC. (Id. ¶ 4.) The entire set of potentially occupiable data fields on the central database is set forth in what the VA calls the TCIS Global Map Data Dictionary ("GMDD"). (Id. ¶ 3 & attachment B.B.) The VA provided Carollo with a printout of the GMDD. Based on his interpretation of the document, Carollo contends that there are 119 data fields in the TCIS database. (First Carollo Aff. ¶ 8.) However, the VA states that while there may be over 100 potential data fields, the OGC's central database collects information from, at most, only thirtythree of those fields during its nightly sweep of the regionally-maintained databases. (Hunter Decl. ¶ 3 & attachment B.A.) Finally, the TCIS is also programmed to accept additional data fields as created and maintained at the regional offices, which are not maintained on the central database at the OGC. (Id. ¶ 5.)

The significance of the facts just presented can be summarized as follows: the central TCIS database maintained at the OGC does not contain all of the information related to every tort claim filed against the VA. First, the central database only collects information concerning, at most, thirty-three of the TCIS data fields. (Id. ¶ 3.) Second, regional offices have the capability to create additional data fields that are not even recognized on the GMDD and over which the OGC maintains no control. (Id. ¶ 5.)

C. The Dispute Between Carollo and the VA

The VA did not respond to Carollo's request as adequately as he had hoped. In separate responses to his respective FOIA requests, the VA informed Carollo that if he wanted the requested information in a digital format, it could only supply such in a format compatible with the rather esoteric programming language in which the TCIS program was written, one which Carollo likely could not not procure unless he were willing to undertake a significant expense. (Doc. # 1 at Ex. 2, at 2; Dodson Decl., Doc. # 17 at Ex. C, attachment C.3, at 1.) In its response to his February 16, 1995, request, the VA informed Carollo that it could not, itself, convert its information into a digital format agreeable to him without assuming its own great expense, but that, alternatively, it could provide him with paper records at a cost of $1,372.20. (Doc. # 1 at Ex. 2.) In its response to his March 13, 1995, request, the VA actually sent Carollo a redacted copy of the records he sought in the digital format it had mentioned it could provide. (Dodson Decl., attachment C.3.) Construing both responses as rejections of his respective FOIA requests, Carollo filed administrative appeals as to both, the first filed on March 18, 1995 (Doc. 1 at Ex. 3),⁴ and the second on July 21, 1995 (Doc. # 15 at Ex. 10.) His appeals, presumably consolidated, were denied on December 14, 1995. (Doc. # 1 at Ex. 4.)

The VA stated four reasons for the denial of his appeal(s), the first three related to the substance of his FOIA request, and the fourth related to the format in which he requested the information be provided. First, the VA asserted its right to withhold certain names pursuant to 5 U.S.C. § 552(b)(3) ("Exemption 3"). (Doc. # 1 at Ex. 4.) Exemption 3 provides that agency information is exempted from mandatory disclosure if another federal law prohibits its disclosure. Thereunder, the VA invokes 38 U.S.C. § 5701(a) and 38 U.S.C. § 7332 for protection from disclosure. 38 U.S.C. § 5701(a) prohibits the disclosure of the names of former or current members of the Armed Forces and their dependents. 38 U.S.C. § 7332 prohibits disclosure of VA patient records concerning any form of treatment for drug or alcohol use or abuse, sickle cell anemia, or HIV.⁵ Second, the VA asserted its right to withhold certain names and other identifying information pursuant to 5 U.S.C. § 552(b)(6) ("Exemption 6"), which exempts the disclosure of "personnel and medical and similar files" where such disclosure would constitute an unwarranted invasion of privacy. (Id.) Third, the VA asserted its right to withhold certain information pursuant to 5 U.S.C. § 552(b)(5) ("Exemption 5"), which generally exempts the disclosure of certain agency letters and memoranda that would ordinarily be privileged under the Federal Rules of Evidence. (Id.) Finally, the VA informed Carollo that it had no legal obligation to provide any of the information he had requested in the format he had requested, and that it would not do so unless it could compile said information in two person-hours or fewer. (Id.)

The latter issue was apparently resolved, as, subsequent to the denial of his appeal, on April 11, 1996, the VA provided Carollo with certain TCIS information in a readable format. (Dodson Decl., attachment C.6.) Nevertheless, because certain information had been redacted, Carollo pursued his objections to the redactions (Doc. # 15 at Ex. 11; Dodson Decl., attachment C.7),⁶ and the VA again responded that said redactions were necessary for privacy and privilege reasons. (Dodson Decl., attachment C.8.)

D. The Specific Information at Issue

The issue of format aside, Carollo states that the VA agreed from the outset to provide to him information contained in several data fields, including that regarding the following: (1) case...