Reason Found. v. BOP, No. 23-0440, 2024 WL 3617482 (D.D.C. Aug. 1, 2024) (Cooper, J.)

Reason Found. v. BOP, No. 23-0440, 2024 WL 3617482 (D.D.C. Aug. 1, 2024) (Cooper, J.)

Re:  Request for internal reports, known as mortality reviews, created whenever inmate dies in custody to document and assess medical care inmate received

Disposition:  Granting in part and denying in part defendants’ motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment

• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations:  “The Court finds that the agency properly withheld most – but not all – of the challenged material . . . .”  First, the court finds that “the mortality reviews are predecisional.”  The court finds that “the final agency decision here is a determination by a BOP official of whether the inmate received adequate care and, if not, what should be done about it.”  “And the mortality review is prepared to assist the official in reaching that ultimate judgment.”  Second, the court finds that “[t]he redacted information reflects the opinions of the Mortality Review Committee.”  Specifically, “the Mortality Review Committee’s ‘recommendations’ and views on any ‘strengths and weaknesses’ in the care received fall in the heartland of the deliberative process privilege.”  Similarly, the court finds that “timeliness, appropriateness, and acceptability are all matters of subjective opinion.”  And, “[b]ecause ‘[m]edical care is a reflection of the clinical judgment of a licensed provider,’ there will be ‘meaningful variation’ between providers about what qualifies as a problem or complication.”  “[These categories] are thus deliberative.”  However, the court takes issue with one withholding.  The court relates that “[i]n the section of the mortality review about emergency medical care, the form states, ‘Response to medical emergency notification timely’ and then lists a series of providers:  ‘Physician,’ ‘Physician Assistant,’ ‘Nurse Practitioner,’ ‘Nurse(s),’ ‘Emergency Medical Techs,’ and ‘Others.’”  “Next to the providers are checkboxes for ‘Yes,’ ‘No,’ or ‘NA.’”  “These prompts ask the Mortality Review Committee to evaluate whether the listed providers ‘timely’ responded to the medical emergency, and – for the reasons described above – the prompts therefore qualify as deliberative.”  “But the form does not end there.”  “Beneath the providers, the form then states ‘CPR’ and ‘ACLS List protocol(s) used (if appropriate)’ with checkboxes and, in the case of the ACLS List protocols, blank lines for narrative text.”  “BOP redacted the responses to the CPR field in the mortality reviews, and [plaintiff] now challenges those redactions.”  “The Court cannot resolve this dispute because it is unclear from the materials provided to the Court whether the CPR field asks the Mortality Review Committee to state whether CPR was administered (a factual question) or to evaluate whether the administration of CPR was timely (a matter of opinion).”  “Due to this uncertainty, as well as the absence of a full airing of the competing interpretations in the briefing, the prudent course is to allow the parties an opportunity to work this issue out themselves.”  “Failing that, BOP may renew its motion for summary judgment on this issue with the aid of a supporting declaration explaining how it interprets the CPR prompt.”
  
  Finally, the court relates that “[t]hough [plaintiff] does not employ the language of waiver, its briefs suggest that BOP waived the privilege in several places.”  “The Court finds BOP did effect a waiver, but over only a subset of the redactions that [plaintiff] challenges.”  “BOP waived the privilege for redactions to checkbox questions where it disclosed the narrative response to the same question.”  “Because BOP voluntarily disclosed the Mortality Review Committee’s views of what constituted (or did not constitute . . . ) a ‘problem[ ],’ it waived the deliberative-process privilege over its checkbox response to that same question.”  “[Plaintiff’s] other waiver contention comes up short.”  “It suggests that BOP waived the privilege for answers that can be ‘presumed’ based on released sections of the reviews.”  The court finds that it does not matter “whether the answer seems ‘obvious’ based on BOP’s disclosure of related information.”
  
  Regarding foreseeable harm, the court finds that “BOP satisfied this requirement.”  “[Defendant] explained that the mortality reviews are part of BOP’s ‘peer-review process,’ whereby BOP staff, who are ‘ideally . . . not involved in the deceased [patient’s] care, [ ] evaluate actions of those who provided care [and] [ ] judge whether the provided services were medically acceptable.’”  “‘Peer reviews,’ [defendant] continued, ‘rely on confidentiality to protect professional relationships and team dynamics.’”  “And ‘[t]he potential’ that peer reviewers’ opinions might be ‘made public [would] deter BOP employees from acknowledging mistakes in the future’ and would therefore ‘significantly impact the [agency’s] healthcare delivery model.’”  “With this explanation, BOP has offered the necessary ‘focused and concrete demonstration of why disclosure of the particular type of material at issue will, in the specific context of the agency action at issue, actually impede those same agency deliberations going forward.’”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court finds that “BOP fulfilled its obligation.”  “[Defendant] averred that she ‘personally reviewed the releases in this matter, including the documents partially released, and [ ] determined that no documents contain releasable information which could be reasonably segregated from the non-segregable portions.’”  “Based on this representation and its own review of the sample mortality reviews, the Court is satisfied that BOP released reasonably segregable material.”