DaVita Inc. v. HHS, No. 20-1798, 2021 WL 980895 (D.D.C. Mar. 16, 2021) (Howell, J.)

DaVita Inc. v. HHS, No. 20-1798, 2021 WL 980895 (D.D.C. Mar. 16, 2021) (Howell, J.)

Re:  Request for records concerning thirty-six public comments submitted in 1990 regarding a proposed rule that was finalized in 1995

Disposition:  Denying defendants' motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "defendants have carried their burden at summary judgment to explain how they identified repositories where the comments were likely to be found and why no other locations were likely to contain records responsive to the FOIA Request, and were not required to search surrounding boxes."  "They have not, however, described their supplemental searches of [four components] with sufficient detail to determine whether these searches were adequate, and summary judgment must therefore be denied."  Regarding the initial search, the court relates that, as a response to defendant being unable to locate the requested records, "[a]s evidence that the thirty-six comments existed at the time of the Final Rule's promulgation in 1995, plaintiff points to the Final Rule's explicit reference to and brief description of them."  "The records schedule approved by [National Archives and Records Administration ("NARA")] with respect to [Centers for Medicare and Medicaid Services's ("CMS")] predecessor subagency required permanent retention of an 'official Rulemaking record file,' including 'all public comments received in response to the proposed rule,' while CMS's current records schedule requires '[p]ermanent' retention of '[a]ny records documenting the policy of CMS, including policy and regulations [and] substantial cases related to rulemaking records.'"  "Giving defendants the presumption of regularity, 'that agency employees comply with applicable law' when carrying out agency business, . . . plaintiff has demonstrated that the thirty-six comments should have existed somewhere in the agency's records at the time of the search."  "Defendants do not challenge this conclusion."  "Even when an agency's failure to locate known records casts doubt on its affidavits, however, as plaintiff appears to acknowledge . . . review still 'centers on the adequacy of the agency's efforts to locate the missing records rather than the success of those efforts' . . . ."  "When a plaintiff identifies documents not found by the agency, the agency must 'explain those holes in the record,' . . . such that the Court is 'able to ascertain if [the agency] has explained the . . . absence' of the responsive records from the results of the search . . . ."  "Defendants represent that, '[b]ecause of the age of the rulemaking records, they likely would have been sent to the . . . warehouse for [temporary] storage,' and because of the subject matter of the Proposed Rule, 'input on the agency response to the comment letters would most likely [have] come from' [three components] while [another component] might have had responsive records in its custody at some point as a result of its role as the overseer of CMS's regulatory processes."  "As a result, they argue, CMS's records databases and the single warehouse box to which they directed the FOIA Group and the program offices searched by defendants are the only offices and locations likely to contain responsive records."  "They further note that, '[g]iven the passage of time,' nobody with personal knowledge of either the processing of these records or the then-controlling records retention procedures 'is . . . currently available' for consultation."  "This explanation of why the agencies' search was limited to Box 14, [and four components], paired with the additional details offered by CMS's FOIA Officer as to how Box 14 and the program offices were identified, described below, is sufficient to carry the agency's burden."  "After a manual search of Box 14 revealed that the thirty-six comments were not inside, . . . the FOIA Group took additional steps to evaluate whether any other warehouse boxes were likely to contain responsive records."  "[Regulations Development Group] initiated new searches of its databases to confirm that no other boxes were associated with the Proposed Rule, and expanded its search of those platforms using the regulation tracking number for the Final Rule as a search term."  "[Defendants'] database searches did not identify an additional transfer number that could be searched."  The court holds that "Defendants have met that standard with respect to their search of records in storage by using the appropriate records databases to identify Box 14 and to confirm that no other boxes are associated with the Proposed Rule or the Final Rule and then searching every page within that box."  "They are not obligated to undertake an untold number of searches of additional warehouse boxes, nor are they obligated, as plaintiff suggests, 'to explain why such a step would not be feasible,' . . . in the absence of any concrete evidence that other warehouse boxes are likely to hold the comments."
  
  Separately, while the court finds appropriate "the selection of [four components] as the proper offices to carry out supplemental searches," the court finds that "defendants' declarations do not '"set[ ] forth the search terms and the type of search performed"' for the thirty-six comments 'with the specificity [this Circuit's] precedent requires' . . . ."