Brook v. Teti, No. 15-02022, 2023 WL 2072442 (D.D.C. Feb. 17, 2023) (Hogan, J.)

Brook v. Teti, No. 15-02022, 2023 WL 2072442 (D.D.C. Feb. 17, 2023) (Hogan, J.)

Re:  Request for records concerning the National Practitioner Data Bank (“NPDB”)

Disposition:  Granting defendants’ motion for summary judgment; denying plaintiff’s cross-motion for partial summary judgment

• Litigation Considerations, Adequacy of Search:  “[T]he Court concludes that HHS has met its burden of demonstrating beyond material doubt that its searches for each of the five requests received from Plaintiff were reasonably calculated to uncover all relevant documents.”  “These declarations explain in detail the searches that were performed for documents responsive to Plaintiff’s five requests, and establish that ‘all files likely to contain responsive materials’ were searched.”
   
• Exemption 3:  The court relates that “HHS applied Exemption 3 to withhold certain records containing the identities of other health care practitioners reported to the NPDB and other details of their reports contained in various communications on the basis that the information is exempted from disclosure under the confidentiality provisions of 42 U.S.C. § 11137(b)(1).”  “The Court agrees with HHS’s conclusion that Section 11137(b)(1) meets the requirements of Exemption 3 . . . .”  “Section 11137(b)(1) states that information reported to the NPDB ‘is considered confidential and shall not be disclosed’ except (1) with respect to professional review activity; (2) as necessary to comply with requests for information from hospitals as required by 42 U.S.C. § 11135; or (3) in accordance with NPDB regulations.”  “Based upon a review of [defendant’s] Declaration and the detailed Vaughn Index attached to [its] declaration, none of the information withheld from disclosure by HHS falls within these exceptions.”  “The Agency’s withholding of NPDB reporting information related to other health care providers, as required by section 11137(b)(1), was proper.”
   
• Exemption 4:  The court relates that “HHS applied Exemption 4 to withhold a presentation prepared by a government contractor regarding the manner in which the NPDB contractor processes credit card transactions and a financial analysis of the options.”  “As explained by HHS, ‘[t]his information constitutes commercial or financial information that is confidential in nature.’”  “Plaintiff does not present any evidence that contradicts HHS’s reasoning for withholding this presentation, and HHS is entitled to summary judgment on its withholding under Exemption 4.”
   
• Exemption 5, Threshold:  The court finds that “HHS withheld internal HHS documents (inter-agency records) and documents ‘exchanged with contractor who is responsible for assisting in the day-to-day operations of the NPDB,’ . . . which qualify as ‘intra-agency’ records.”
   
• Exemption 5, Deliberative Process Privilege:  The court holds that “HHS has established that the documents it withheld pursuant to the deliberative process privilege under Exemption 5 were both predecisional and deliberative.”  “As detailed in [defendant’s] Declaration and the supporting Vaughn Index, the documents exchanged with the contractor contained ‘advice, recommendations, opinions and draft documents.’”  “‘Many of the materials . . . were draft documents, suggested language for draft documents, or contained advice about draft documents.’”  “‘The drafts at issue contained the authors’ recommendations about what the final documents should say.’”  “These documents were properly withheld under Exemption 5.”
   
• Exemption 5, Attorney-Client Privilege:  “The Court likewise finds HHS has demonstrated it properly withheld certain documents on the basis of attorney-client privilege.”  “As explained in [defendant’s] declaration, ‘[t]he redacted materials include communications with agency attorneys regarding draft dispute resolution letters, analysis of the merits of ongoing litigation, litigation strategy, allegations of improper access to the NPDB, and review of agency guidance.’”
   
• Exemption 5, Attorney Work-Product Privilege:  “Similarly, [the court finds that] HHS withheld certain records pursuant to the attorney work-product doctrine, including: an agency attorney’s advice concerning a draft letter connected to ongoing litigation; an agency attorney’s legal analysis of litigation; materials related to a litigation hold; a draft declaration for a litigation, and an agency attorney’s advice concerning compilation of an administrative record.”  “These documents were properly withheld pursuant to Exemption 5, and HHS is entitled to summary judgment on its withholding under Exemption 5.”
   
• Exemption 6:  The court relates that “HHS applied Exemption 6 to redact the identities of cell phone numbers, the identities of practitioners reported to the NPDB and other details regarding their NPDB reports, and other personal information.”  The court finds that “Plaintiff has not identified any documents that he claims were improperly withheld under Exemption 6, and the Court finds that the Agency has established that release of the information at issue would result in an unwarranted invasion of privacy.”  “HHS is entitled to summary judgment on its withholdings under Exemption 6.”
   
• Exemption 7(C):  The court relates that “HHS applied Exemption 7 to redact the identity of an Office of Inspector General investigator from guidance prepared and sent by the Director of Medicaid Fraud Policy and Oversight Division.”  “The Court agrees that this information was properly redacted to avoid the unwarranted invasion of personal privacy, and HHS is entitled to summary judgment on its withholding under Exemption 7.”