Nat'l Whistleblower Ctr. v. Dep't of Health & Human Servs.
| Decision Date | 28 March 2012 |
| Docket Number | Civil Action No. 10–2120 (JEB). |
| Citation | 849 F.Supp.2d 13 |
| Parties | NATIONAL WHISTLEBLOWER CENTER, et al., Plaintiffs, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
OPINION TEXT STARTS HERE
David K. Colapinto, Stephen M. Kohn, Kohn, Kohn & Colapinto, LLP, Washington, DC, Kelly Brian McClanahan, National Security Counselors, Arlington, VA, for Plaintiffs.
Marian L. Borum, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.
Plaintiffs, who are the National Whistleblower Center and six current and former employees of Defendant Department of Health and Human Services, have brought this action to gain access to records related to the individuals' employment with that Agency. Plaintiffs' Second Amended Complaint challenges the decisions of various HHS components and other agencies to withhold documents, and it asserts claims under a variety of statutes including, but not limited to, the Freedom of Information Act, the Privacy Act, and the Administrative Procedure Act.
The records at issue in the parties' current Cross–Motions for Partial Summary Judgment are contained in two investigative case files maintained by HHS's Office of the Inspector General. While OIG has already released hundreds of pages from these files to Plaintiffs, it has withheld, in whole or in part, hundreds more, citing exemptions to disclosure under FOIA and the Privacy Act. Through this Motion, Plaintiffs are now challenging a subset of OIG's withholding decisions, as well as the procedure HHS followed when processing their related administrative appeals. Defendants oppose Plaintiffs' Motion, arguing their withholdings and processing procedures are correct.
Having considered OIG's sworn representations regarding the content of these withheld records and the necessity of withholding them, and having reviewed in camera many of the actual pages at issue, the Court now upholds the majority of OIG's withholding decisions, but not all. In addition, because the Court finds that Plaintiffs lack standing to bring their procedural claims alleging OIG's failure to adjudicate their appeals, summary judgment will be granted to Defendants on that claim.
Plaintiffs Ewa Czerska, Paul Hardy, Julian Nicholas, Robert Smith, R. Lakshmi Vishnuvajjala, and Nancy Wersto claim that they are witnesses, complainants, or targets of two HHS OIG investigations related to whistleblowing activities. Plfs. Mot. (ECF No. 14), Exh. A (Declaration of Kelly McClanahan), ¶ 5. They contend that these whistleblowing activities relate to HHS's improper approval of medical devices. Plfs. Mot. at 2. Between July 26 and November 4, 2010, all individual Plaintiffs, in concert with the National Whistleblower Center, submitted requests under FOIA, 5 U.S.C. § 552, et seq., and the Privacy Act, 5 U.S.C. § 552a, et seq., for various records pertaining to their employment with HHS. Sec. Am. Compl., ¶¶ 17, 51, 64, 102, 155, 168. Different agency components treated the requests differently. As to OIG, after initially denying their requests under Exemption 7(A), on the ground that the files related to an ongoing investigation, it processed Plaintiffs' requests and released to them over 800 pages of relevant, non-exempt documents, some with redactions. See Def. Opp./Mot., Attach. 1 (Declaration of Robin Brooks), ¶¶ 11–12, 18–19, 24–25, 30–31, 36–37, 43–44.
Plaintiffs filed this action on December 15, 2010, and have twice since amended their Complaint. The parties' instant Cross–Motions for Partial Summary Judgment are limited to Counts 1, 6, 7, 12, 19, 20, and 28, which relate only to Plaintiffs' requests for documents maintained by HHS's OIG and not any other component.1 The documents at issue in these counts are contained in two OIG Investigative Case Files: H–08–20505–3 and H–10–00248–3. File H–08–20505–3 (H–08) contains documents relating to OIG's “investigation into managerial misconduct [at FDA] based on Plaintiffs' allegations.” Plfs. Opp. (ECF No. 68) at 3. File H–10–00248–3 (H–10) contains documents relating to OIG's investigation into Plaintiffs' “alleged unauthorized disclosure of confidential information.” Id. at 4. See Defendant HHS's Statement of Material Facts as to Which there Is No Genuine Issue, ¶¶ 4, 6; Plaintiffs' Response to Defendants' Statement of Material Facts, ¶¶ 4, 6.
OIG initially released 481 pages in full and 25 pages with redactions from File H–08. Brooks Decl., ¶ 49. Another 366 pages were released in full and 5 pages were released with redactions from File H–10. Id., ¶ 73. HHS withheld in full 839 pages and 52 pages, respectively, from those two files under FOIA Exemptions 4, 5, 6, 7(C), and 7(E). Id., Exhs. 15–16 ( Vaughn Indices 1–2). Finally, OIG referred 182 pages to the Food and Drug Administration (the original creator of the documents) for consultation. See Defs. Supp. Mot. (ECF No. 59) at 3; Plfs. Opp. at 2–3.
Plaintiffs initially filed the Motion for Partial Summary Judgment now at issue on April 27, 2011, in conjunction with a Motion for Preliminary Injunction. Defendants opposed Plaintiffs' Motions and cross-moved for summary judgment on May 18, 2011. On June 3, the Court stayed briefing on Defendants' Cross–Motion pending a ruling on Plaintiffs' Motion for Preliminary Injunction. Plaintiffs' filed their Reply on June 10. Following a hearing on June 20, the Court, two days later, denied Plaintiffs' request for injunctive relief and lifted the stay on Defendants' Cross–Motion. See Order Denying Plaintiffs' Motion for Preliminary Injunction (ECF No. 28).
Since initially filing their Cross–Motions, the parties have worked cooperatively to narrow the areas of their disagreement. On June 23, 2011, OIG completed its consultation regarding the 182 pages at issue that had originated with FDA and released to Plaintiffs an additional 51 complete pages and 73 pages with redactions, while withholding 58 pages. See Defs. Supp. Mot. at 3. At this time OIG also released an additional 35 pages to Plaintiffs, including all withholdings from File H–10 previously made under Exemption 7(E). See Joint Notice Regarding Modification of Exemption 7(E) Withholdings (ECF No. 29) at 1.
Some time in June 2011, OIG began an additional search to confirm that all records responsive to Plaintiffs' requests were in fact contained in Investigative Files H–08 and H–10. See Defs. Supp. Mot. at 2. During this search, additional responsive documents were located in boxes in the case agent's office. Id. at 3. OIG's FOIA Officer, Robin Brooks, determined that 923 pages were responsive to Plaintiffs' requests. Id. On August 30 and September 2, 2011, OIG released to Plaintiff an additional 312 pages in their entirety, released 289 pages with redactions, and withheld in their entirety 322 pages located during this additional search. Id.
On September 26, Defendants filed a Supplement to their Cross–Motion for Summary Judgment in order to address the withholding of the documents discovered during OIG's additional search and those initially referred to FDA for consultation, as well as to address Counts 27 and 28. (ECF No. 59). Plaintiffs filed their Opposition to Defendants' Motion and Supplement on October 26, and Defendants filed a Reply on November 16. The Motions are now ripe.
Throughout their briefing, the parties have—admirably, in the Court's opinion—continued to work together to narrow their disputes. Plaintiffs have agreed, for the purpose of these Motions, to limit the list of OIG withholdings that they seek to contest. The withholdings Plaintiffs presently oppose are:
• From Investigative File H–08–20505–3:
• Withheld in part: Pages 1, 9, 25, 48, 49, 52, 53, 135, and 207–212*. 2
• Withheld in full: Pages 6, 11–13, 15–16, 18–19, 21, 24, 28–47, 50–51, 54–57, 60, 62–63, 68–93, 94–101, and 217–234*.
• From Investigative File H–10–00248–3:
• Withheld in part: Pages 3–5*, 6–10*, 14–40*, 551*, and 553.
• Withheld in full: Pages 42–54*, 126–27, 447, 450–51, 498–503, 543–44, 554–55, and 558–59.
• Additional Search (AS) Records 3:
• Withheld in part: Pages 77–81, 83–87, 93–98, 106–114, 115, 197–98, 199, 289–96, 378, 381–82, 392–94, 705, 770, 774–78, 784, 806, and 828–29.
• Withheld in full: Pages 20–29, 31, 33, 36–48, 66, 74–76, 264, 274, 276, 278–80, 324, 390, and 427–635.
See Plfs. Opp. at 3–4.
Plaintiffs are “also voluntarily removing from controversy any challenge to the withholding of any names, titles, phone numbers, social security numbers, office numbers, and comparable Personally Identifiable Information (‘PII’) that may be located in the above indicated pages.” Plfs. Opp. at 6. Plaintiffs note, however, that “this concession is made with the caveat that Plaintiffs narrowly define PII as just these types of unique identifiers, as opposed to ... anything that could be used to identify a person.” Id. (emphasis added). As an example, Plaintiffs challenge the notion that “the fact that [an individual]was in a particular meeting and that Plaintiffs would be able to use that information to deduce the person's identity based on the fact that they knew who was present at that meeting” qualifies as personally identifiable information exempt from disclosure. Id.
In order to more accurately evaluate OIG's withholding decisions, on March 13 and 20, 2012, the Court ordered OIG to submit for in camera review 279 pages that the Agency contends are exempt from disclosure, along with a declaration further explaining the non-public nature of the law-enforcement techniques withheld under Exemption 7(E). OIG complied with these orders, and the Court has reviewed the documents in question.
While Counts 1, 6, 7, 12, 19, and 20 all relate to Plaintiffs' challenges to specific OIG withholdings, Count 28—“Failure to Adjudicate Appeals”—is procedural in nature. See Sec. Am. Compl., ¶¶ 217–225. Here Plaintiffs state: ...
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