Skip to main content

Anand v. HHS, No. 21-1635, 2023 WL 3600140 (D.D.C. May 23, 2023) (Kollar-Kotelly, J.)

Date

Anand v. HHS, No. 21-1635, 2023 WL 3600140 (D.D.C. May 23, 2023) (Kollar-Kotelly, J.)

Re:  Requests for records concerning plaintiff

Disposition:  Granting defendants’ second motion for summary judgment
 

  • Procedural Requirements, Searching for Responsive Records: “[T]he Court finds that the Defendants have carried their burden of demonstrating that conducting a search [in response to plaintiff’s] request for ‘all reports from Blue Cross Blue Shield corporation to OIG concerning improper prescribing of opiates by specific physicians’ would be unreasonably burdensome.”  The court relates that “[a]s HHS OIG did not provide a detailed explanation as to why the search would be unreasonably burdensome, in its first Motion for Summary Judgment, the Court previously deemed HHS OIG’s explanation to be conclusory and deficient.”  “Defendants’ Second Motion for Summary Judgment now provides additional information . . . .” 

    “Defendants begin by explaining the database that holds reports that may be responsive to this part of [plaintiff’s] FOIA request.”  “OIG’s law enforcement database, which it uses to maintain all records of investigations, is a legacy system created in or around 2004 with limited search features.”  “The database is indexed by subject and, unless certain information was previously determined to be a complaint, cannot be sorted by submitter.”  “OIG’s search for complaints submitted by ‘Blue Cross Blue Shield,’ ‘BCBS,’ and ‘BC/BS’ yielded no results.”  “Therefore, given that there were no complaints, to locate ‘reports from Blue Cross Blue Shield corporation,’ as [plaintiff] requested, OIG could not search by submitter and would instead have to search all electronic case files in the database.”  “Additionally, database search results cannot be narrowed by date nor filtered through Boolean searches.”  “Finally, case files on the database contain documents embedded within other documents, some of which are not searchable electronically.”  “OIG must therefore open each document to make sure there are no embedded documents and, if there are, look through some of them manually.”  “In response to [the instant] part of [plaintiff’s] FOIA request, OIG ran seven searches related to terms in [plaintiff’s] request, some of which yielded zero results.”  “OIG identified 17,262 case results that hit on the term ‘Blue Cross Blue Shield,’ 13,146 case results that hit on the term ‘BCBS,’ and 2,320 case results that hit on the term ‘BC/BS.’”  “OIG cannot deduplicate results across these searches.”  “OIG conducted a sample test to determine how long it would take to review all of these case results for responsive records.”  “To do so, they selected a random sample of five case files from each of the three sets of search results to review . . . ; reviewing these fifteen case files took approximately 26 hours and 57 minutes . . . .”  “Defendants then concluded that ‘[g]iven the volume of records, at a rate of 52 weeks per year, 40 work hours per week, it would take someone more than 28 years to finish reviewing these records.’”  “As [defendant] explains, even if OIG’s entire FOIA staff worked solely on [plaintiff’s] request, it would take them over nine years.”  “The Court confirmed this calculation.”  “Defendants then explain that employing someone full-time for that period of time to review case files for records potentially responsive to [plaintiff’s] FOIA request would cost more than $3.5 million in salary alone, without taking into account yearly pay increases and the cost of benefits.”

    The court relates that "Plaintiff . . . argues that Defendants should have narrowed [plaintiff's] FOIA request to make it burdensome."  "However, agencies should read FOIA requests "as drafted, not as either agency officials or [the requester] might it was drafted."" "Agencies have no duty to narrow the scope of a FOIA request." 
Court Decision Topic(s)
District Court opinions
Procedural Requirements, Searching for Responsive Records
Updated June 23, 2023