Menchu v. U.S. Dep't of Health & Human Servs.
| Decision Date | 14 August 2013 |
| Docket Number | No. 3:12–cv–01366–AC.,3:12–cv–01366–AC. |
| Citation | 965 F.Supp.2d 1238 |
| Parties | Jerry Alexander MENCHU, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant. |
| Court | U.S. District Court — District of Oregon |
OPINION TEXT STARTS HERE
Jerry Alexander Menchu, Portland, OR, pro se.
Kevin C. Danielson, U.S. Attorney's Office, Portland, OR, for Defendant.
Magistrate Judge John V. Acosta issued Findings and Recommendation (# 35) on July 1, 2013, in which he recommends this Court deny Defendant's Motion (# 20) for Summary Judgment, grant Plaintiff's Cross-motion (# 24) for Summary Judgment, and order Defendant to provide to Plaintiff an unredacted copy of the “Notes” ( i.e., the three pages of notes from a telephone interview conducted on March 13, 2012).
Defendant filed timely Objections to the Findings and Recommendation. The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).
When any party objects to any portion of the Magistrate Judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1). See also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir.2009); United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) ( en banc ).
Defendant argued before the Magistrate Judge that the Notes were protected under the law-enforcement exemption of the Privacy Act, 5 U.S.C. § 552a(k)(2). The Magistrate Judge found Defendant's arguments were not persuasive, and, as noted, the Magistrate Judge recommended this Court order Defendant to provide to Plaintiff an unredacted copy of the Notes.
Defendant now, however, objects to the Findings and Recommendation by arguing that the interview notes are protected under 5 U.S.C. § 552a(d)(5), a separate provision of the Privacy Act that provides an individual shall not be allowed “access to any information compiled in reasonable anticipation of a civil action or proceeding.” Courts have construed this exemption to shelter documents prepared in anticipation of quasi-judicial hearings when those hearings are adversarial, include discovery proceedings, and are subject to the rules of evidence. See, e.g., Martin v. Office of Special Counsel, Merit Sys. Protection Bd., 819 F.2d 1181, 1188 (D.C.Cir.1987). The § 552a(d)(5) exemption is not confined to the work-product privilege and was intended to afford broad protection to “any information compiled in reasonable anticipation of a civil action or proceeding ... prepared by either a potential party to such a proceeding or by a potential material participant in that same proceeding.” Mobley v. C.I.A., 924 F.Supp.2d 24, 61 (D.D.C.2013). This exemption also extends to investigatory documents. Id. at 59–60.
In Defendant's Motion (# 20) for Summary Judgment, Defendant submitted evidencethat the documents at issue are notes of an interview conducted during the investigation of Plaintiff's civil-rights complaint by the Office of Civil Rights. Connor Decl. (# 22) at 2–3; Eckert Decl. (# 23) at 3, ¶ 6. Although Plaintiff does not dispute the interview notes were compiled during the official investigation of his civil-rights complaint, he argues the notes “were created as a result of merely a ‘compliance evaluation’ and not prepared prior to litigation.” Pl.'s Resp. (# 39) at 2.
On this record the Court concludes factual and legal disputes exist as to whether these documents were prepared “in reasonable anticipation of a civil action or proceeding” within the meaning of 5 U.S.C. § 552a(d)(5). It appears that additional briefing and proceedings may be required to resolve this issue.
As to the remaining findings and recommendations of the Magistrate Judge, the Court has carefully considered Defendant's arguments and concludes they do provide a basis to modify the Findings and Recommendation. The Court also has reviewed the pertinent portions of the record de novo and does not find any error in the Magistrate Judge's Findings.
The Court ADOPTS Magistrate Judge Acosta's Findings and Recommendation (# 35) except as set out above and, accordingly, REFERS this matter back to Magistrate Judge Acosta for further limited proceedings.
IT IS SO ORDERED.
Introduction
Plaintiff, Jerry Alexander Menchu (“Menchu”), appeals the withholding of information requested by him under the Freedom of Information Act (5 U.S.C. § 552) (the “Information Act”) and the Privacy Act (5 U.S.C. § 552a)(the “Privacy Act”) from defendant, United States Department of Health and Human Services (the “Agency”). The Agency moves for summary judgment, arguing that the information was properly withheld under Exemptions 6 and 7(C) of the Information Act. In his cross-motion for summary judgment, Menchu asserts that the information is accessible under section 552a(k)(2) of the Privacy Act.
The court finds that the information withheld should have been provided to Menchu under the Privacy Act. Accordingly, the court recommends granting Menchu's motion for summary judgment and denying the Agency's motion for summary judgment.
In his complaint, Menchu alleges jurisdiction based on the Information Act. (Compl. at 1.) Menchu also alleges that he is entitled to access to information requested under the Information Act, 5 U.S.C. § 522(c)(3). (Compl. at 2.) Based on these allegations, the Agency moved for summary judgment arguing only that the information requested is exempt from disclosure under Information Act. However, Menchu responded to the Agency's motion for summary judgment by filing a cross-motion for summary judgment and arguing that he is entitled to disclosure of the information under the Privacy Act.
While the complaint is void of any mention of the Privacy Act, a letter dated May 16, 2012, and addressed to the Agency, which was filed as an exhibit to the complaint, clearly establishes that Menchu requested the information under both the Privacy Act and the Information Act (the “Letter”). (Compl. Ex. 1 at 3.) In the Letter, Menchu specifically requests:
Basically all information related to my case Jerry A. Menchu complainant (OCR Transaction No. 12–133131) dated from September 22, 2012 to May 10, 2012 that was received by your agency HHS (OCR) and all information received from your office from September 22, 2012 to May 10, 2012 from defendant Legacy Health System in case OCR Transaction No. 12–133131 allowed by the Privacy Act of 1974, 5 U.S.C. 552a, and the Freedom of Information Act (FOIA), 5 U.S.C. 552, that govern the use of personal information collected by OCR.
An individual seeking information about himself may proceed under both the Privacy Act and the Information Act. Viotti v. United States Air Force, 902 F.Supp. 1331, 1337 (D.Co.1995). While Menchu did not specifically allege his right to the information under the Privacy Act in his complaint, he clearly asserted such right before the Agency by requesting the information under both acts. In light of Menchu's pro se status, the attachment of the Letter as an exhibit to the complaint, the lack of any prejudice to the Agency based on their actual knowledge of Menchu's claim under the Privacy Act as evidenced by the Letter, the Agency's substantive response to Menchu's Privacy Act arguments in his cross-motion for summary, and the absence of an objection from the Agency to Menchu pursuing his Privacy Act claims in this action, the court finds that Menchu has adequately alleged claims under both the Information Act and the Privacy Act. Accordingly, the court will address both claims, as necessary, in this Findings and Recommendation.
The court adopts the following factual statement offered by the Agency and not disputed by Menchu.
In October of 2011, the Office for Civil Rights for HHS received a complaint from Plaintiff that Legacy Health System (“Legacy”) engaged in unlawful discrimination against him based on his national origin (Latino) and sex (male).1 Plaintiff alleged that on January 24, 2011, Legacy falsely accused him of harassing and stalking one of its employees and then barred him from Legacy facilities unless he was seeking emergency medical care. Prior to this time, Plaintiff worked as a medical interpreter for a company that provided services to Legacy.
The Office for Civil Rights (“OCR”) is responsible for enforcing Title VI of the Civil Rights Act of 1964 which prohibits discrimination on the basis of race, color, or national origin for organizations like Legacy that receive federal assistance.
In addition, OCR has the authority to investigate complaints of sex discrimination.
OCR investigated Plaintiff's complaint of discrimination against Legacy. The investigation included an interview of the Legacy employee who filed a complaint against him. One other Legacy employee was interviewed as part of the investigation. In response to Plaintiff's FOIA request, the interview notes were redacted and only the transaction number, the date of the interview, and the fact that it was a phone interview were released to Plaintiff.
In May of 2012, Plaintiff's FOIA request sought all records related to the investigation performed by the OCR in response to his complaint which was designated as Transaction 12–133131. HHS conducted a search and located 1,151 pages of response records and provided 1,125 pages to Plaintiff. Portions of those documents were redacted under various FOIA exemptions and 26 pages were withheld in their entirety. On appeal, additional information was provided to him. As stated, the only remaining dispute involves three pages of interview notes which were taken during the investigation.
(Def.'s Mem. in Supp. of Motion for Summ. J. at 2–3.)
Menchu filed this action on July 30, 2012, seeking the production of the information withheld by the Agency. The parties have reached agreement on all but the...
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...within an agency's files. Additionally, Plaintiff cites Ray v. FBI , 441 F.Supp.2d 27 (D.D.C.2006), and Menchu v. U.S. Dep't of Health and Human Servs. , 965 F.Supp.2d 1238 (D.Or.2013), see Pl.'s Reply at 6-8, but both cases are inapposite. Ray concerned a confidential informant's request f......