Anand v. HHS, No. 21-1635, 2023 WL 2646815 (D.D.C. Mar. 27, 2023) (Kollar-Kotelly, J.)

Anand v. HHS, No. 21-1635, 2023 WL 2646815 (D.D.C. Mar. 27, 2023) (Kollar-Kotelly, J.)

Re:  Request for records concerning plaintiffs

Disposition:  Granting in part and denying in part defendants’ motion for summary judgment as to one plaintiff

• Litigation Considerations, Adequacy of Search:  Regarding plaintiff’s request to HHS’s OIG, first, “the Court finds that OIG’s search related to these three categories of [one plaintiff’s] request was adequate under the legal standard.”  “[Defendants’] descriptions, as sworn to in [its] affidavit, denote which files were searched, by whom, and what search terms were utilized, and reflect a systematic approach to locating potentially responsive documents, as is required.”  Second, “[t]he Court . . . turns to category (4) [of one plaintiff’s request] . . . .”  “Per [defendants’] affidavit, ‘a statement of work and/or contract with [a contractor corporation], to the extent they exist, would be outside the scope of OIG’s investigative work.’”  “In other words, OIG determined that it would not be likely to have any records responsive to this part of [plaintiff’s] request.”  “The Court finds that OIG’s initial determination regarding this category of [one requester’s] request was reasonable.”  “FOIA requires only that the agency search for and produce documents in its possession, not search for records across the entire federal government.”  “In other words, there is no ‘affirmative obligation to search for records in all agencies.’”
  
  “Finally, the Court turns to category (5) as delineated above:  ‘all reports from Blue Cross Blue Shield corporation to OIG concerning improper prescribing of opiates by specific physicians[] was too vague and did not reasonably describe the records he sought.’”  “The Court reads Defendants’ briefing as providing two different explanations for why OIG did not conduct a search for this information:  first, that [plaintiff] did not reasonably describe the records sought; second, that [plaintiff’s] request would be too burdensome.”  “The Court finds that neither explanation is sufficient.”  The court finds that “Plaintiff . . . requested ‘all reports from Blue Cross Blue Shield corporation to OIG concerning improper prescribing of opiates by specific physicians.’”  “Courts in this Circuit routinely hold that similar requests seeking all documents or reports concerning a particular topic or person do not reasonably describe the records sought.”  Additionally, “the Court believes there is latitude in what constitutes ‘improper prescribing of opiates’ such that it would not allow HHS to identify the records sought.”  “The Court agrees with Defendants that Plaintiff’s FOIA request for ‘all reports from Blue Cross Blue Shield corporation to OIG concerning improper prescribing of opiates by specific physicians’ does not reasonably describe the records sought.”  “However, OIG did not follow the proper protocol to notify Plaintiff of this deficiency.”  “Plaintiff claims that ‘[n]either . . . HHS nor OIG, nor any administrative appeal agency mention[ed] that Plaintiff[’]s requests were “vague and did not reasonably describe the records sought.”’”  “Defendants do not contest the fact that they did not inform Plaintiff that his request was too vague during the course of their processing of records.”  “Instead, they say that ‘Plaintiffs have pointed to no statute or regulation that prohibits HHS from arguing this issue in connection with its first motion for summary judgment’ and that ‘HHS has timely raised this issue in its opening motion for summary judgment.’”  “The Court disagrees.”  The court reviews defendant’s FOIA regulations and finds that “[the] requirement to attempt to contact a FOIA requester is in place to ensure that the requester will have ‘an opportunity to cooperate with the agency to narrow the scope of [their] request’ or otherwise tailor it so that it reasonably describes the records sought ‘without judicial intervention.’”
  
  The court relates that “Defendants offer what the Court interprets as a second reason for their failure to conduct a search for this information.”  “Defendants explain that ‘[b]ecause OIG reports are indexed by the subject of the investigation, not submitter, OIG cannot retrieve all reports from Blue Cross Blue Shield Corporation to OIG concerning improper prescribing of opiates by specific physicians.’”  “Defendants claim that as a result, ‘[Plaintiff’s] . . . request would effectively require HHS to review every single case file and identify whether any reports from Blue Cross Blue Shield Corporation exist within that case file.’”  The court finds that “[h]ere, Defendants have not included any information regarding the time and expense of conducting this search, nor any additional details to support that it would be burdensome.”  “Rather, they rely on [defendant’s] conclusory statement that there would be a ‘voluminous amount’ of non-responsive records, . . . to argue that Plaintiff’s search ‘would effectively require HHS to review every single case file’ . . . .”  “Based on these assertions, the Court cannot find that HHS’s search was adequate as to this part of [plaintiff’s] request on these grounds either.”
  
  Regarding plaintiff’s request to DEA, “[t]he Court finds that the DEA has satisfactorily demonstrated that they conducted an adequate search for responsive records as for all of [plaintiff’s] FOIA request.”  “Here, the DEA offered [a] sworn declaration, which is ‘accorded a presumption of good faith.’”  “The . . . declaration avers that all files likely to contain responsive materials were searched:  DEA searched [its Narcotics and Dangerous Drugs Information System], the centralized system that indexes all records maintained in [the DEA Investigative Reporting and Filing System], which houses all of the DEA’s criminal law enforcement investigative records.”  “Additionally, the . . . affidavit explains the search terms that were utilized, reflecting a systematic approach to locating potentially responsive documents, as is required.”  “The Court therefore finds that the DEA has satisfactorily demonstrated that they conducted an adequate search for responsive records for [plaintiff’s] request for ‘all drug enforcement agency documents concerning [himself and certain companies].”
   
• Exemption 7, Threshold:  “As HHS is ‘entitled to deference in its determination that the records were compiled for a law enforcement purpose,’ . . . the Court finds that the documents withheld were in fact compiled for law enforcement purposes.”  “Defendants explain that ‘while HHS is not a law enforcement agency . . . it may [ ] assert Exemption 7 to protect records or information compiled for law enforcement purposes.’”  “Per [defendant’s] Declaration, [plaintiff’s] case file included witness statements and associated HHS-OIG agent notes, Medicare and Medicaid claims information, and information provided by [a contractor corporation] to HHS, all of which were prepared [f]or the purpose of investigating possible health care fraud.”  “HHS had also compiled records including names and identifying information of case agents involved in the investigation, which was done for law enforcement purposes.”
  
  Similarly, regarding the DEA investigation, “[t]he Court again finds that Defendants have sufficiently shown that Plaintiff . . . is subject to an ongoing criminal proceeding.”  The court explains that “the DEA is a law enforcement agency and has compiled investigatory documents for a law enforcement purpose.”
   
• Exemption 7(A):  “[T]he Court concludes that the OIG’s withholding of all of the responsive materials in [plaintiff’s] case file was properly justified on the basis of Exemption 7(A).”  “Defendants contend that they ‘determined that disclosure of all records pertaining to Plaintiffs’ investigations could reasonably be expected to interfere with Plaintiffs’ criminal proceedings.’”  “In particular, [defendant] explains that the ‘premature disclosure of: evidence; witness information; prospective testimony; identification of the evidence likely to be relied upon by the government; the activity under continuing investigation during the litigation; the direction of the government so far; government strategy; the presence or absence of whistleblowers or other undisclosed sources; the scope and limits of the government’s investigation; and attorney work product; along with other confidential information’ could interfere with these proceedings.”  “[Defendant] continues that ‘[d]isclosures concerning the details of the investigation risk witness intimidation and the possible silencing of other information sources,’ and that ‘[d]isclosure of these records also risks the concealment of damaging evidence and the fabrication of false evidence.’”  Additionally, the court relates that “[n]ot only did OIG assert FOIA Exemption 7(A) to shield disclosure of [plaintiff’s] case file in its entirety, but they also asserted other FOIA exemptions for certain materials within the case file.”  “[F]or a complete analysis, the Court discusses OIG’s additional justifications for withholding documents in [plaintiff’s] case file where appropriate.”
  
  Similarly, “the Court concludes that the DEA’s withholding of all of the responsive materials requested by [plaintiff] is properly justified, in full, on the basis of Exemption 7(A).”  “Defendants contend that they ‘determined that disclosure of all records pertaining to Plaintiffs’ investigations could reasonably be expected to interfere with Plaintiffs’ criminal proceedings.’”  “[Defendant] states that [plaintiff’s] ‘criminal proceedings involve alleged violations of the C[ontrolled] S[ubstances] A[ct], the enforcement of which is one of DEA’s primary law enforcement missions.’”  “[Defendant] continues that the release of DEA’s investigative case records ‘could reveal information that [plaintiff] . . . would not otherwise have access to and would undermine the United States’ prosecution in the pending proceedings as well as in any criminal appellate process.’”  The court finds that “Plaintiff . . . has provided no basis to doubt this representation, and the Court concludes that the agency has shown that the release of responsive documents could reasonably be expected to interfere with the ongoing criminal proceedings against [plaintiff].”
   
• Exemption 3:  First, the court relates that “OIG withheld Taxpayer Identification Numbers in the [contractor company] statement of work and official contract pursuant to 26 U.S.C. § 6103.”  “OIG also withheld Tax Identification Numbers located in closed investigative reports that were responsive to its June 2022 search for ‘Pill Mill Doctor Project’ pursuant to the same statute.”  The court finds that “[i]t is ‘beyond dispute’ that 26 U.S.C. § 6103 ‘is the sort of nondisclosure statute contemplated by FOIA Exemption 3’ . . . .”  “In addition, § 6103 provides that tax returns and return information ‘shall be confidential’ and prohibits any ‘officer or employee of the United States’ from disclosing such information, subject to certain exceptions.”  “Accordingly, the Court finds that OIG properly invoked Exemption 3 for these withholdings pursuant to § 6103.”
  
  Second, the court relates that “OIG also withheld the Social Security Number of a deceased individual, located in closed investigative reports responsive to its June 2022 ‘Pill Mill Doctor Project’ search, pursuant to 42 U.S.C. § 1306c.”  “That statute exempts from FOIA disclosure information contained in the Death Master File during the three-year period beginning on the date of that person’s death.”  “[Plaintiff] avers that said individual’s death occurred within the past three years.”  “The Court finds that OIG properly invoked Exemption 3 for this withholding pursuant to 42 U.S.C. § 1306c.”
  
  “Finally, although OIG withheld in full [plaintiff’s] case file pursuant to Exemption 7(A), they also asserted Exemption 3 for grand jury material contained within that case file.”  “Specifically, the material withheld included ‘the substance of what was said to the grand jury,’ ‘any references to any particular witnesses who testified before the grand jury,’ ‘questions and answers to and from witnesses[,] as well as the surveillance reports and notes.’”  “As Rule 6(e) is a statute within the meaning of Exemption 3, grand jury information within the scope of Rule 6(e) would be exempt.”  “Here, the information described by [defendant] falls within the scope of 6(e), which is ‘necessarily broad’ and ‘encompasses not only the direct revelation of grand jury transcripts but also the disclosure of information which would reveal “the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of the jurors, and the like.”’”  “The Court finds that OIG properly withheld grand jury material under FOIA Exemption 3.”
   
• Exemption 4:  The court relates that “OIG withheld certain information in the [contractor company] statement of work and official contract under Exemption 4, specifically ‘contract amounts, including Total Estimated Costs, Total Award Fee, Costs, Base Fees, Award Fees, Billing Rate, and Indirect Cost Ceiling Rate.’”  “According to [defendant], ‘[t]he bid amounts incorporated into the contract are commercial information that bidders submit to the agency but otherwise keep confidential.’”  “Because OIG withheld commercial information obtained from [the contractor company] that was confidential, . . . the three requirements for exemption, as articulated above, are satisfied.”  “The Court finds that OIG properly withheld this information under FOIA Exemption 4.”
   
• Exemption 5, “Inter-Agency or Intra-Agency” Threshold Requirement, Deliberative Process Privilege, Attorney-Client Privilege:  The court relates that “OIG withheld HHS-OIG agent notes about witness statements under Exemption 5, claiming that such notes fell under the deliberative process privilege.”  “[Defendant] asserts that these notes are ‘inter-agency, deliberative, and predecisional’ and that they ‘represent the thoughts and impressions of the HHS-OIG agents as they built their case against [plaintiff].’”  “[Defendant] explains that ‘[r]eleasing these notes would reveal aspects of the government’s strategy in its case against [plaintiff] and would impede the government’s ability to prosecute him.’”  “The Court finds that OIG has satisfactorily shown that these notes were predecisional in that they were created before they began their case against [plaintiff].”  “OIG has also satisfactorily shown that the notes were deliberative, as they express ‘thoughts and impressions’ on the government's case against [plaintiff].”  “Finally, the deliberative decision-making process of which these notes were a part was building the case against, and ultimately prosecuting, [plaintiff].”  “Therefore, [the court finds that] this withholding was proper under Exemption 5.”
  
  “OIG also asserted Exemption 5 for [the contractor company’s] analysis of claims data and communications with [the contractor company].”  “[Defendant] claims that because [the contractor company] served as a consultant to the Department, the inter-agency threshold of Exemption 5 is satisfied.”  “Certain communications between an agency and an outside consultant can be considered ‘inter-agency or intra-agency’ records under FOIA Exemption 5 if the records of communications were ‘created for the purpose of aiding the agency’s deliberative process.’”  “Here, Defendants assert that ‘[the contractor company] analyzed Medicare and Medicaid claims information to look for trends in billing information and to determine outlier providers that were potentially overbilling.’”  “The analysis that [the contractor company] conducted was certainly created for the purpose of aiding OIG in determining how to proceed with certain investigations; accordingly, the Court finds that these communications satisfy the Exemption 5 threshold.”  “[Defendant] then explains that this analysis was ‘part of OIG’s deliberations in deciding how best to use its resources’ which, if disclosed, would ‘reveal aspects of the government’s strategy in its case against [plaintiff] and others and would impede the government’s ability to prosecute individuals who defraud the government.’”  “The Court finds that this satisfies the deliberative process privilege as well and therefore the withholding was proper under Exemption 5.”
  
  “Lastly, OIG applied Exemption 5 to ‘deliberative and predecisional communications with [DOJ] and within OIG regarding the results of surveillance reports, bank records, and information gleaned from consensual monitoring’ as well as ‘regarding [plaintiff’s] case’ more generally.”  “According to [defendant], ‘[t]hese communications reflect the analytical stage of an investigation that precedes a decision to charge an individual with a crime’ and ‘reflect deliberations as to the import and persuasiveness of individual pieces of evidence, the release of which would handicap the government’s ability to present its case against [plaintiff] at trial.’”  “The Court again finds that these communications fall squarely within the deliberative process privilege to justify withholding under Exemption 5.”  “[Defendant] also notes that these withholdings also included attorney-client communications reflecting legal advice from DOJ and agency counsel about litigation theories and strategies,  . . . which would be an additional layer of privilege.”
   
• Exemption 6:  First, “[t]he Court finds that all information withheld by OIG under Exemption 6 constituted a ‘similar file.’”  The court relates that, “[p]ursuant to Exemption 6, OIG withheld names and identifying information of various individuals: the ‘Key Personnel’ list under the task order in the . . . [contractor company] statement of work and official contract, . . . ; the names and contact information of various case agents, . . . ; and ‘names, dates of birth, contact information, and other Personally Identifiable Information [ ] of beneficiaries, federal agents, investigators, complainants, witnesses, and other investigation subjects’ found in closed investigative reports that were responsive to its June 2022 search for ‘Pill Mill Doctor Project’ . . . .”  “The Court finds that there is a significant privacy interest in nondisclosure of this information.”  The court also finds that “there is little if any public interest in this personal information of the various individuals whose names and information OIG withheld.”
  
  “OIG also withheld ‘witness statements and any references to witnesses in the HHS-OIG agent notes’ under Exemption 6.”  “[Defendant] explains that while disclosure could lead to harassment of those individuals and therefore implicates a ‘significant privacy interest,’ ‘there is no public interest in disclosure because [the statements and notes] do not shed light on the government's actions.’”  “For the same reasons as above, the Court finds these withholdings justified.”
  
  “Finally, OIG withheld communications with [the contractor company] as well as [the contractor company’s] analysis of claims data under Exemption 6.”  “[Defendant] avers that the ‘claims information contains sensitive medical information about individuals that the Department compiled for purposes of its investigations.’”  “The release of this information ‘could cause embarrassment both independent and by virtue of a link to a criminal investigation,’ and [t]he public does not have an interest in this sensitive medical information.’”  “Again, the Court finds for the same reasons that the privacy interests at stake far outweigh a public interest in disclosure and therefore OIG's assertion of Exemption 6 was proper.”
   
• Exemption 7(C):  The court relates that “OIG withheld information regarding third parties – witness statements, as well as agency notes regarding those witnesses – under Exemption 7(C).”  “Defendants contend that ‘[r]elease of the personally identifiable information of these individuals to the public could subject them to harassment or embarrassment, as well as undue public attention, resulting in potential professional and social repercussions.’”  “As [defendant] explains, these witnesses have a strong privacy interest in not being associated with possible health care fraud and there is no public interest in disclosure because the documents do not shed light on the government’s actions.”  “The Court agrees that there are significant private interests at stake.”  “Plaintiff does not present any argument that this withheld information regarding third parties would advance any public interest.”  “Accordingly, the Court finds that the private interest outweighs any public interest and, therefore, OIG properly withheld this information under Exemption 7(C).”
  
  “OIG also withheld ‘the names of the case agents as well as the agents involved in the digital analysis/examination of the digital devices’ under Exemption 7(C).”  “[Defendant] explains that the agents’ privacy interest in avoiding harassment outweighs any public interest in knowing the names of individuals serving in sensitive government positions.”  “It is well settled that law enforcement personnel and government employees have a substantial interest in anonymity.”  “Accordingly, where Plaintiff again does not present any argument as to why this withheld information would advance any public interest, and considering this significant privacy interest, the Court finds that OIG properly withheld the names of these agents under Exemption 7(C).”
   
• Exemption 7(E):  The court relates that “OIG withheld DEA ‘registration numbers, which the government uses to regulate the prescription of controlled substances,’ that were located in closed investigative reports responsive to its June 2022 search for ‘Pill Mill Doctor Project.’”  “[Defendant] explains that ‘the release of the numbers is reasonably expected to risk circumvention of law as individuals could use these numbers to forge prescriptions.’”  “The Court finds that these registration numbers fall within the scope of 7(E).”  “[Defendants’] statements logically explain how this information could help others circumvent the law, which suffices to justify invocation of Exemption 7(E).”
  
  “OIG also withheld information regarding investigational techniques under Exemption 7(E) including questions and answers from witnesses, types of surveillance used, surveillance reports, types of software used to examine digital media, and more.”  The court finds that “[t]his information falls squarely within the scope of 7(E).”  “[Defendant] explains that ‘[t]he methods by which HHS-OIG investigated [plaintiff] are not well-known to the public and revealing them could result in similar individuals purposely evading detection, thereby nullifying the effectiveness of those methods’ and even ‘provid[ing] a roadmap for circumvention.’”  “The Court finds the same is true here as above, and this withholding was also appropriate.”
   
• Exemption 7(F):  The court relates that, “[u]nder Exemption 7(F), OIG withheld ‘the names of the case agents,’ the names of ‘agents involved in the digital analysis/examination of the digital devices,’ and ‘names and contact information, including email addresses and phone numbers, of OIG agents.’”  “[Defendant] explains that ‘OIG field agents have been subject to violent threats, and disclosing their identity could put them in harm's way.’”  “The Court finds that there is a connection between disclosure and possible harm such that the information was properly withheld under Exemption 7(F).”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  The court finds “that OIG complied with its segregability obligations.”  “Outside of the partially withheld records, [defendant] avers that [it] ‘reviewed the records line by line’ and, ‘[a]fter extensive review of the records at issue, [HHS OIG] has determined that there is no further non-exempt information that can be reasonably segregated and released without revealing exempt information.’”
  
  Similarly, “[t]he Court finds the DEA complied with its segregability obligations.”  The court relates that “[DEA] avers that ‘[e]very effort is made to release all segregable information without disclosing law enforcement techniques or procedures.’”  “‘No additional information may be segregable for disclosure without revealing the protected information.’”
   
• Exemption 6, “Glomar” Responses & Exemption 7(C), The “Glomar” Response:  The court relates that “in response to [plaintiff’s] request for documents concerning [a third party], the DEA issued a Glomar response pursuant to FOIA Exemptions 6 and 7(C).”  The court notes that “‘[w]hen information is claimed to be exempt from disclosure under both provisions, courts “focus . . . on Exemption 7(C) because it provides broader privacy protection than Exemption 6 and thus establishes a lower bar for withholding material.”’”  “Defendants write that ‘DEA meets the requirements of a law enforcement agency,’ . . . and that ‘[g]iven the nature and context of DEA’s investigative records, the disclosure of any information could potentially tip-off a criminal or drug trafficking organization that they are the subject of a DEA investigation, or potentially subject an individual to unwarranted attention,’ . . . .”  “The DEA is ‘entitled to deference in its determination that the records were compiled for a law enforcement purpose.’”  “The Court finds that this first prong is satisfied . . . .”  The court relates that “[defendant] explains that ‘[t]he disclosure of even the existence of DEA law enforcement records concerning a third party . . . could reasonably be expected to subject him to unwarranted invasions of personal privacy.”  “[The third party at issue] has a substantial privacy interest in not being associated with a DEA law enforcement investigation.’”  “The Court agrees that there is a significant private interest at stake here.”  “Plaintiff does not present any argument that this withheld information would advance any public interest.”  “Accordingly, the Court finds that no public interest outweighs [the third party’s] privacy interests.”  “Therefore, because the existence or nonexistence of DEA records concerning [the third party] falls within FOIA Exemption 7(C), . . . and because merely acknowledging the existence of responsive records could cause harm by invading this privacy interest, . . . the Court holds that the DEA’s Glomar response was justified.”