N.Y. Times Co. v. Dep't of Health & Human Servs.

• Decision Date: 13 January 2021
• Docket Number: 20 Civ. 3063 (GWG)
• Citation: 513 F.Supp.3d 337
• Parties: The NEW YORK TIMES COMPANY, Plaintiff, v. DEPARTMENT OF HEALTH & HUMAN SERVICES, Defendant.
• Court: U.S. District Court — Southern District of New York

513 F.Supp.3d 337

The NEW YORK TIMES COMPANY, Plaintiff,

v.DEPARTMENT OF HEALTH & HUMAN SERVICES, Defendant.

20 Civ. 3063 (GWG)

United States District Court, S.D. New York.

Signed January 13, 2021

Alexandra Perloff-Giles, Gibson, Dunn & Crutcher LLP, Alexandra Settelmayer, David Edward McCraw, The New York Times Company, New York, NY, for Plaintiff.

Jennifer C. Simon, US Attorneys Office SDNY, New York, NY, for Defendant.

OPINION AND ORDER

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

This Freedom of Information Act suit was brought by The New York Times, The Wall Street Journal and a reporter seeking to force the Indian Health Service ("IHS") to release a report that it commissioned from a private consultant to investigate numerous acts of rape and sexual abuse committed by Stanley Patrick Weber, a former IHS pediatrician, against Native American children. IHS has taken the position that the report is protected from disclosure by a statute that affords confidentiality to reports on the "quality of medical care" — a position we reject. We also find that the report is not protected under the litigation privilege exemption of the Freedom of Information Act and thus order that it be produced.

I. BACKGROUND

This case consists of two consolidated actions brought under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA") against the United States Department of Health and Human Services ("HHS"), which oversees IHS. The parties have cross-moved for summary judgment.¹

As noted, plaintiffs seek a report commissioned by IHS to investigate the actions of Stanley Patrick Weber, a former IHS pediatrician who was convicted in September 2018 and again in September 2019 for sexual abuse of Native American children. Merrell Decl. ¶¶ 7-8; Press Release, Department of Justice, Convicted Former Pine Ridge Indian Health Service Pediatrician Sentenced to Five Consecutive Life Sentences for Multiple Sex Offenses Against Children (Feb. 10, 2020), annexed as Exhibit 17 to Kelley Decl. Weber's indictments attracted media attention and The Wall Street Journal jointly investigated Weber's crimes with Frontline PBS, resulting in a published article and documentary in February 2019. Christopher Weaver et al., A Pedophile Doctor Drew Suspicions for 21 Years. No One Stopped Him., Wall St. J., Feb. 8, 2019, at 1, annexed as Exhibit 1 to Kelley Decl.

In the aftermath of Weber's first conviction, IHS responded to the controversy in a number of ways relevant to this lawsuit. First, on October 16, 2018, IHS issued a "Sources Sought Notice" announcing its intention "to perform an internal patient safety medical quality assurance review of the [IHS's] policies and procedures regarding the reporting of allegations of sexual abuse of IHS patients by IHS clinical staff," noting that this would involve "a review of whether policies and procedures have been and are being followed with regard to protecting patients from sexual abuse by providers in the health care delivery environment, and to identify any improvements IHS could implement to better protect both patients and staff." Sources Sought Notice at 1-2, posted Oct. 16, 2018, annexed as Exhibit 24 to Kelley Decl. ("Sources Sought Notice"). Second, IHS's then-acting head, Rear Admiral Michael Weahkee, issued a "Dear Tribal Leader" letter on October 26, 2018, stating that IHS had "taken immediate steps to affirm and enhance safeguards to protect our patients," including "[d]rafting a new policy to further stress zero tolerance for abuse of children," and "[i]nitiating an internal patient safety medical quality assurance review." Letter from Michael D. Weahkee at 1, dated October 26, 2018, annexed as Exhibit 20 to Kelley Decl.

On February 6, 2019, IHS updated the Indian Health Manual with a new chapter, entitled "Protecting Children from Sexual Abuse by Health Care Providers." See Transmittal Notice 19-03 at 1, dated Feb. 6, 2019, annexed as Exhibit 21 to Kelley Decl. As noted in the transmittal notice, the new chapter was meant "to provide professional standards and guidance to protect against sexual abuse or exploitation of children by health care providers."

Id. The new policies included requirements that chaperones be allowed during examinations of children and requirements regarding reporting suspected child abuse. See U.S. Dep't of Health and Human Services, Office of Inspector General, Indian Health Service Has Strengthened Patient Protection Policies but Must Fully Integrate Them into Practice and Organizational Culture 8-12 (2019), annexed as Exhibit 8 to Kelley Decl. ("OIG Report").

A few weeks later, on February 22, 2019, "IHS issued a contracting opportunity to find a contractor to perform" the purported "medical quality assurance review[.]" Merrell Decl. ¶ 7; see also Solicitation Number: IHS-19-236-SOL-00002, annexed as Exhibit 26 to Kelley Decl. (the "Solicitation"). The Solicitation stated that "IHS intends to perform an internal patient safety medical quality assurance review of the Indian Health Service's (IHS) policies and procedures regarding the reporting of allegations of sexual abuse of IHS patients by IHS clinical staff." Solicitation at 2. It described its scope as follows:

We seek a comprehensive analysis showing how IHS could significantly improve the identification of, and response to complaints of patient abuse, especially sexual abuse of minors. The contractor will perform a fact-finding inquiry and record review at the Oklahoma Area IHS, Billings Area IHS and Great Plains Area IHS, and IHS Headquarters in Rockville, MD. The period of the records to review are from 1986 to 2018.

Id. The Solicitation further described the following objectives:

(a) identify facts relating to IHS's policies and procedures regarding the reporting of allegations of sexual abuse of IHS patients by clinical staff; (b) identify any possible process or system failures and the contributing causes of any such process or system failures; and (c) make recommendations for improvement.

Id. The Solicitation noted that the review was specifically meant to both

assess how effective agency policies have been since 1986, and to develop and/or improve policies and procedures that focus on:

a. Timely reporting of suspected or known sexual abuse of IHS patients by IHS providers to appropriate authorities;

b. Supervisory or other line management handling of reported suspicion of sexual abuse;

c. Prompt action to temporarily remove a suspected abusive provider out of the work environment to facilitate an administrative or criminal investigation;

d. Providing timely and complete information to support internal or external reviewers or investigators to promote an effective and informative investigation;

e. Taking prompt and effective remedial action on specific conclusions reached in an investigation;

f. Avoiding a transfer or "passing around" within the agency of problem providers or other staff.

Id. at 2-3. The Solicitation stated that, within 180 days of being awarded the contract, the contractor should "[s]ubmit a final written report to IHS with recommendations for improvement and elimination of root causes." Id. at 4. The Solicitation also noted that "[i]nformation supplied to the Contractor in connection with the work will include private, personnel sensitive, and HIPAA protected information. The Contractor must maintain the confidentiality of this information and use it only to perform the work contemplated ...." Id. Representatives from the Contractor were required to sign non-disclosure agreements. Id. The Solicitation warned that breaching such confidentiality could result in "penalties as provided by law." Id.

In May 2019, IHS awarded the contract to Integritas Creative Solutions LLC. See Merrell Decl. ¶ 10. Integritas then "performed a fact-finding inquiry and record reviews" at various IHS locations, and also interviewed "current and former IHS employees, community members, tribal members, law enforcement, and others." Id. ¶ 11. Eight months later, in January 2020, Integritas provided IHS with its final product – a document we will refer to as the "Report." IHS characterizes it as "a report detailing [Integritas's] review, its conclusions, and its recommendations for protecting IHS patients and thereby ensuring their access to proper medical care." Id. ¶ 14. The Report on its first page and repeatedly thereafter identifies itself as "medical quality assurance review."

Shortly after the Report was completed and delivered to IHS, the plaintiffs in these cases submitted requests for copies of the Report. Id. ¶ 17. IHS replied to those requests by stating that the Report "is a privileged and confidential medical quality assurance record under 25 U.S.C. § 1675." Letter from Evonne Bennett at 1, dated May 21, 2020, annexed as Exhibit 33 to Kelley Decl. ("IHS Letter"). Accordingly, the "entire report(s) is privileged and confidential under 25 U.S.C. § 1675, and is also being withheld in full pursuant to Exemption 3 of the FOIA ...." Id.

These lawsuits followed. After briefing was completed, the Court ordered and subsequently reviewed the Report in camera as permitted by 5 U.S.C. § 552(a)(4)(B). See Order, filed November 20, 2020 (Docket # 29).

II. LEGAL STANDARD

FOIA's purpose is to "ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) (citations omitted); accord Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) ("FOIA is often explained as a means for citizens to know what their Government is up to.") (quotation marks and citation omitted); Associated Press v. U.S. Dep't of Def., 554 F.3d 274, 283 (2d Cir. 2009) ("[FOIA] was designed to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.") (quotation marks...