Swick v. Ramberg ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NANCY J. SWICK,
Plaintiff,
v. Civil Action No. 18-1658 (JDB)
UNITED STATES DEPARTMENT OF THE
ARMY,
Defendant.
MEMORANDUM OPINION
Plaintiff Nancy Swick brought this action pro se under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, against defendant U.S. Department of the Army seeking records related
to her employment at Fort Belvoir Community Hospital (“FBCH”). Now before the Court are the
Army’s motion for summary judgment and Swick’s cross-motion for summary judgment. At issue
is whether the Army’s search for Swick’s records was adequate. For the reasons explained below,
the current record is neither sufficiently clear nor sufficiently detailed to warrant summary
judgment for either side. As a result, both motions will be denied without prejudice. The Court
will require the Army to provide further information as to the thoroughness and substance of its
search before submitting any further dispositive motions.
Background
From 2011 to 2013, Nancy Swick served as an OB/GYN nurse practitioner at FBCH in
Fort Belvoir, Virginia. See Ex. to Compl. [ECF No. 1-1] at 3, 24. Swick submitted a FOIA request
to the Directorate of Human Resources, Administrative Services Division at FBCH in March 2017
seeking a copy of the report from a psychiatric evaluation she was apparently ordered to undergo
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as part of her previous employment. Id. On March 20, 2017, the Administrative Services Division
referred Swick’s request to FBCH. Id. at 5.
Swick submitted a second FOIA request directly to FBCH on June 1, 2017, in which she
requested “any and all documents with [her] name, social security number, [and] date of birth”
that were stored either in her personnel file or “that are being maintained/filed separately due to
privacy laws and regulations.” Id. at 14–15, 20–21; see also Am. Compl. [ECF No. 12] ¶ 5
(“[P]laintiff asked for all documents in her employee personnel file on June 1, 2017, by written
FOIA request.”). In her request, she also mentioned her prior FOIA request for her psychological
examination report and noted that she had “received no [written] response or acknowledgement,”
but when she called, she had been told “that [her] request was known of, yet no action had been
taken to satisfy the request.” Ex. to Compl. at 14. FBCH eventually denied Swick’s FOIA requests
on July 25, 2017, citing FOIA Exemption (b)(6), which protects “personnel and medical files and
similar files the disclosure of which would constitute a clearly unwarranted invasion of personal
privacy,” 5 U.S.C. § 552(b)(6). See Ex. to Compl. at 22.
Swick subsequently sent a letter to FBCH challenging the invocation of Exemption (b)(6)
“to withhold from a requestor information pertaining only to himself/herself.” Id. at 29–30. On
September 11, 2017, FBCH responded, informing Swick that “[t]he denial of [her] request citing
to the authority of § 552(b)(6) was incorrect.” Id. at 27, 33. FBCH nevertheless highlighted that
there was a “more convenient process” for Swick to acquire her psychological evaluation: the
Health Insurance Portability and Accountability Act (“HIPAA”). Id. FBCH noted that
“[r]equesting a copy of [her] protected health information through the FOIA process is unnecessary
and will cause delays as both the records custodian and FOIA office must both review the requested
protected health information.” Id.
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On September 22, 2017, Swick submitted an administrative appeal of FBCH’s decision to
the Office of General Counsel, Defense Health Agency. See id. at 39, 57. She did not receive a
response to this appeal, and on July 5, 2018, filed this lawsuit. See Am. Compl. ¶ 13. Then, on
October 2, 2018, FBCH sent yet another letter to Swick, again informing her that the proper avenue
to request her psychological evaluation records was via a HIPAA request. See Oct. 2, 2018 Letter
from FBCH (“Oct. 2 Letter”) [ECF No. 20-2] at 1. The letter explained that “[p]rotected health
information, and any disclosures, is governed by HIPAA” and requires a “written record request,
signed by [Swick] (the patient),” which is “necessary for maintaining a record of each disclosure,
as required by law.” Id. The letter also stated that “FBCH does not possess [Swick’s] personnel
records/documents” and that she should instead request these records from the Office of Personnel
Management (“OPM”). Id. at 2. According to FBCH, four separate searches were conducted for
the requested records—one of records held by the Department of the Army Civilian Human
Resources Agency (“CHRA”), see Decl. of Aubrey Jones (“Jones Decl.”) [ECF No. 20-3] ¶¶ 5–6,
and three of FBCH’s own records on May 9, June 10, and August 20, 2019, see Decl. of Debbie
Davis (“Davis Decl.”) [ECF No. 20-6] ¶¶ 7–8.
As far as the Court can tell, no records have been released to Swick to date. Both parties
have now filed motions for summary judgment, see Def.’s Mot. for Summ. J. (“Def.’s Mot.”) [ECF
No. 20]; Pl.’s Cross-Mot. for Summ. J. (“Pl.’s Cross-Mot.”) [ECF No. 22], and the matter is ripe
for consideration.
Legal Standard
FOIA “sets forth a policy of broad disclosure of Government documents in order ‘to ensure
an informed citizenry, vital to the functioning of a democratic society.’” FBI v. Abramson, 456
U.S. 615, 621 (1982) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)).
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The Act requires the release of properly requested federal agency records, unless the requested
materials fall within one of the nine statutory exemptions. See Milner v. Dep’t of the Navy, 562
U.S. 562, 565 (2011).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). Summary judgment
is appropriate when the pleadings and evidence demonstrate that “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“It is the agency’s burden to prove that it has complied with its obligations under FOIA.”
Democracy Forward Found. v. Ctrs. for Medicare & Medicaid Servs., Civil No. 18-635 (JDB),
2019 WL 6344935, at *1 (D.D.C. Nov. 27, 2019). To determine whether an agency has met this
burden, courts may rely on agency affidavits or declarations that demonstrate the adequacy of the
search for responsive records and the applicability of any claimed exemptions. See Morley v. CIA,
508 F.3d 1108, 1116 (D.C. Cir. 2007). An agency’s affidavits and declarations must be “relatively
detailed and non-conclusory,” but are given “a presumption of good faith.” SafeCard Servs. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quotation omitted).
A responding agency “must show beyond material doubt [] that it has conducted a search
reasonably calculated to uncover all relevant documents.” Morley, 508 F.3d at 1114 (quoting
Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). “The question is not ‘whether there
might exist any other documents possibly responsive to the request, but rather whether the search
for those documents was adequate.’” Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting
Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). “The court applies a reasonableness
test to determine the adequacy of a search methodology, consistent with congressional intent tilting
the scale in favor of disclosure.” Morley, 508 F.3d at 1114 (internal quotations and citations
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omitted). This “reasonableness” inquiry is necessarily “dependent upon the circumstances of the
case.” Davis v. DOJ, 460 F.3d 92, 103 (D.C. Cir. 2006) (quotation omitted).
Analysis
Swick raises several potential issues with the Army’s response to her FOIA requests, but
these arguments can be boiled down to two main challenges. First, she rejects the Army’s assertion
that the proper way to obtain her psychological evaluation report is to file a request and
accompanying waiver under HIPAA; second, she questions the adequacy of the Army’s search for
both her psychological evaluation and her personnel files. See Pl.’s Cross-Mot. at 25–30; Pl.’s
Casebrief in Supp. of Pl.’s Opp’n to Def.’s Cross-Mot. for Summ. J. & Reply in Supp. of Pl.’s
Mot. for Summ. J. (“Pl.’s Opp’n”) [ECF No. 27] at 4–6. The Court will examine each argument
in turn.
1. Whether HIPAA Precludes Swick’s FOIA Request
Turning first to the question of whether HIPAA bars the Army from disclosing Swick’s
psychological evaluation, the Court concludes that it does not. To begin, the Army itself never
explicitly states and explains why FOIA cannot provide an adequate basis for requesting the
records. Rather, the Army suggests that there may be a tension between the two statutes that bars
following the normal FOIA process. See, e.g., Oct. 2 Letter at 1 (“Protected health information,
and any disclosures, is governed by HIPAA. Your request for a copy . . . must be submitted in
writing and include personally identifying information . . . .”); Davis Decl. ¶ 6 (“[T]he letter
informed Ms. Swick that she would have to make a request under HIPAA . . . for her medical
records . . . .” (emphasis added)).
But while HIPAA may provide a streamlined approach, Swick was not wrong to rely on
FOIA to acquire her medical records. A person requesting someone else’s medical records needs
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to complete certain HIPAA forms, but the same rules do not apply for individuals requesting their
own records. See 45 C.F.R. § 5.22(h) (“If you are requesting the medical records of an individual
other than yourself from a government program that pays or provides for health care . . . , you
should submit a [HIPAA] compliant release authorization form signed by the subject of records or
the individual’s legally authorized representative.” (emphasis added)). Moreover, in her FOIA
requests, Swick provided all of the relevant information listed by FBCH in its October 2 letter,
including her signature, see Exhibits to Compl. at 3–4, thereby enabling FBCH to comply with its
stated recordkeeping responsibilities, cf. Oct. 2 Letter at 1.
Thus, regardless of any efficiency that may be associated with requesting the psychological
evaluation under HIPAA rather than FOIA, the Army has not explained why it cannot provide
Swick’s records based upon the FOIA requests submitted. Moreover, the Court is aware of no
prohibition on such a disclosure to Swick of her own medical records through FOIA.
2. Adequacy of Search for the Psychological Evaluation Report
Notwithstanding its suggestion that HIPAA should govern the release of Swick’s
psychological evaluation, the Army also argues that it has conducted an adequate search for
Swick’s psychological evaluation report. See Def.’s Mot. at 9–10. To support this claim, the
Army submitted an affidavit from its FOIA officer, Debbie Davis. See Davis. Decl. ¶ 1. Davis
states that “a search was conducted of Ms. Swick’s medical records, FBCH Occupational Health
records, and queries to the FBCH Occupational Health Clinic on May 9, 2019, and again on June
10, 2019,” and that a search was also undertaken “of Ms. Swick’s medical records and
queries . . . to the FBCH Behavioral Health Department (Outpatient Clinic) Clinic Leadership” on
August 20, 2019. Davis. Decl. ¶¶ 7–8. Although none of these searches produced any responsive
records, the Army argues that the “adequacy of [its] search is not determined by the results of the
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search or by the quantity of information ultimately released,” but “by the appropriateness of the
methods used to carry out the search.” Def.’s Mot. at 5 (quoting Iturralde v. Comptroller of the
Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)). According to the Army, the use of the methods
described by Davis was an “appropriate” response to Swick’s requests, and the agency is therefore
entitled to summary judgment.
Swick, in turn, raises a number of challenges in response, ranging from questioning the
categorization of her psychological evaluation as a “medical record” given that she was never a
patient at NBCH, see Pl.’s Cross-Mot. at 26; Pl.’s Opp’n at 5–6, to a general challenge to the
adequacy of FBCH’s searches, see Pl.’s Cross-Mot. at 26–27; Pl.’s Opp’n at 5–9.
Without addressing each of these arguments, the Court concludes that Swick has raised
valid concerns about the adequacy of FBCH’s search for her psychological evaluation.1 Based on
the declarations in the record, it is unclear whether FBCH possesses her psychological evaluation
and is withholding it because of HIPAA’s privacy restrictions, or instead simply does not possess
her psychological evaluation and could not produce it even if she did submit a request and waiver
under HIPAA. See Pl.’s Cross-Mot. at 27, 34. Moreover, there is serious inconsistency in the
Army’s arguments as to whether FBCH or another Army agency has actually searched Swick’s
medical records, and whether the psychological evaluation would even be categorized as a medical
record in FBCH’s system, given that Swick was an employee of FBCH rather than a patient there.
While inconsistencies stemming from “typographical errors and minor ambiguities” are
tolerable in FOIA responses, SafeCard Servs., 926 F.2d at 1202, inconsistencies concerning
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Swick’s argument that the Army is limited to its initial proffered reason that her psychological evaluation
was withheld under FOIA Exemption (b)(6), see Pl.’s Cross-Mot. at 6, 9 n.4, is unavailing. Agencies are permitted
to correct and amplify their reasoning during the often iterative process of responding to a FOIA request, and the
Army’s additional follow-up letter represents just such an extension of the administrative process. See Mead Data
Ctr., Inc. v. Dep’t of Air Force, 566 F.2d 242, 259 (D.C. Cir. 1977) (taking into account additional reasons, not
included in an initial decision to deny disclosure).
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material questions, like whether a search has even taken place, provide grounds for denying
summary judgment, see DBW Partners, LLC v. USPS, Civil Action No. 18-3127 (RC), 2019 WL
5549623 at *10 (D.D.C. October 28, 2019) (denying summary judgment where “inconsistencies”
in the content of redactions were “noticeable” and suggested “a less-than-precise review”); Nat’l
Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 147–48 (D.D.C. 2013) (concluding that, where there
were inconsistencies in the content of the redacted material, the “positions cannot simultaneously
be accurate” and therefore there was “failure to abide by the terms of the FOIA” (quoting Payne
Enters. Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988)).
The inconsistencies in the present case are material. The Court cannot determine the
adequacy of the search when it is unclear which records have been searched and whether certain
sets of records (like Swick’s health records) have been searched at all. Specifically, the Army
states both that FBCH searched Swick’s medical records and that it refrained from doing so due
to HIPAA. Compare Davis Decl. ¶¶ 7–8, 11 (describing three searches “of Ms. Swick’s medical
records . . . result[ing] in no responsive documents being discovered” and leading FBCH to
conclude “that they do not possess any records responsive to Ms. Swick’s request”), with id. ¶ 10
(“If Ms. Swick submitted a completed [HIPAA form] . . . to request a copy of her psychiatric
examination report, she would have received the requested records.”); Def.’s Mot. at 10 (noting
that “FBCH properly did not search Ms. Swick’s medical records for the psychiatric examination
report”). This discrepancy raises a material question as to the adequacy of the search for Swick’s
psychological evaluation, as well as FBCH’s reason for not producing the requested document.
Cf. Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 185 F. Supp. 3d 26, 27 (D.D.C. 2016)
(stating that the “inconsistencies have created a real question in the court’s mind . . . sufficient to
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warrant limited discovery”). Based on Davis’s declaration, as well as the Army’s briefing, it is
unclear whether the Army is in possession of her psychological evaluation record.
The Army has also failed to respond adequately to Swick’s suggestion that her
psychological evaluation may not have been labeled a “medical record” in the first place because
she was not a patient of FBCH, but rather an employee, see Pl.’s Cross-Mot. at 26–27. The Army
argues that, if Swick was never a patient at FBCH, “it is unclear how the agency’s search could be
inadequate if her records never existed at FBCH.” See Def.’s Mem. in Supp. of Def.’s Opp’n to
Pl.’s Cross-Mot. for Summ. J. & Reply in Supp. of Def.’s Mot. for Summ. J. (“Def.’s Opp’n”)
[ECF No. 23] at 8. But Swick’s point is not that she never received a psychological evaluation or
that a record of that evaluation does not exist. Rather, she is arguing that, because the evaluation
was conducted as part of her employment, it may be categorized not as a “medical record” but as
part of a personnel file, or the like. See Pl.’s Cross-Mot. at 26–27. Notwithstanding Davis’s
statement that she searched “the only locations the records Ms. Swick requested would be if they
were in the possession of FBCH,” Davis Decl. ¶ 11, the question how FBCH would have
categorized Swick’s psychological evaluation merits further clarification.
In sum, the Court will require the Army to clarify (1) whether FBCH has found Swick’s
psychological evaluation and is withholding it due to a FOIA exemption and/or HIPAA; (2) if
FBCH has not yet found Swick’s psychological evaluation, whether it has searched Swick’s
medical records; and (3) whether FBCH may have labeled or stored Swick’s psychological
evaluation as something other than a medical record (for instance, as a personnel record) and, if
so, whether FBCH has searched those other types of files as well.
3. Adequacy of the Search for the Personnel File
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The Army next contends that its search for Swick’s personnel file was adequate under the
standard required by FOIA law, arguing that the Davis declaration was “submitted in good faith.”
See Def.’s Mot. at 11 (citing Weisberg, 705 F.2d at 1351). According to the Davis declaration,
the Army concluded that FBCH did not possess Swick’s personnel records after “a search was
conducted of Swick’s medical records, FBCH Occupational Health records, and queries to the
FBCH Occupational Health Clinic on May 9, 2019, and again on June 10, 2019,” as well as a
search of “the FBCH Behavioral Health Department (Outpatient Clinic) Clinic Leadership” on
August 20, 2019. See Davis. Decl. ¶¶ 7–8. FBCH also forwarded Swick’s request to the Army’s
Civilian Human Resources Agency (“CHRA”) to determine if the records were there. See Def.’s
Mot. for at 11–12. Aubrey Jones, CHRA’s FOIA officer, conducted a physical and electronic
search that uncovered none of Swick’s records, and concluded that Swick’s Official Personnel File
was located at the National Personnel Records Center (“NPRC”). See id. at 12–13.
The Army notes that such a transfer to the NPRC is a standard operating practice for federal
agencies, and it cites the Office of Personnel Management (“OPM”) Operating Manual, which
explains that former employees should direct their FOIA requests for personnel files to NPRC.
See id. at 13; see also Reference Ex. to Def.’s Mot. (“OPM Manual”) [ECF No. 20-7] at 81. Based
on these searches, as well as the OPM guidelines, the Army argues that FBCH no longer has access
to Swick’s personnel file and is therefore not responsible under FOIA for producing those records.
See Def.’s Opp’n at 4; see also Def.’s Mot. at 13 (stating that “[n]ormally, the agency sends
[personnel records to the NPRC] within 120 days after the employee separates” and that the
originating agency “must disable its access to the electronic version of the personnel folder”).
For the most part, the Court agrees that the Army’s search has been adequate. The Army
has submitted two separate affidavits detailing which records were searched, by whom, and
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through what process. See Davis Decl. ¶ 7 (stating that “a search was conducted of Ms. Swick’s
medical records, FBCH Occupational Health records, and queries to the FBCH Occupational
Health Clinic . . . by the Clinic Nurse in Charge for records responsive to Ms. Swick’s request”);
Jones Decl. ¶¶ 4–6 (stating that he identified and “personally conducted a physical and electronic
search” of those areas that might contain Swick’s personnel records—specifically, “(1) physical
file cabinets; (2) physical records holding areas; and (3) CHRA’s computer network”). These
statements are sufficiently detailed to satisfy the Army’s burden to demonstrate an adequate
search. Indeed, Swick herself does not appear to contest the sufficiency of the physical search, but
she questions the methodology and thoroughness of the electronic search. See Pl.’s Cross-Mot. at
28–30.
Here, the Court agrees with Swick. “In compliance with the reasonableness standard, [an
agency’s] affidavits ‘must . . . set forth the search terms and the type of search performed, and aver
that all files likely to contain responsive materials (if such records exist) were searched.’” See
Bigwood v. Dep’t of Def., 132 F. Supp. 3d 124, 135 (D.D.C. 2015) (some alterations omitted)
(quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)). Neither
declaration clearly explains the search terms that were used to search the electronic records of
FBCH or CHRA. Davis’s declaration fails to make clear which areas that were searched were
physical and which were electronic databases, and her conclusory statement that “FBCH personnel
no longer have access to Ms. Swick’s electronic Official Personnel Folder” fails to explain how
she came to that conclusion, including which databases or search terms she used in her search. See
Davis Decl. ¶ 9. As for CHRA, Jones’s declaration also fails to set forth his search terms. He
does describe “searching the files and records alphabetically for the name ‘Swick,’” Jones Decl.
¶ 6, but that reference comes in the context of a paragraph describing his physical search for
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Swick’s files. He also mentions that “Ms. Swick was found in the Civilian Personnel On-Line
(CPOL) [database],” which was how Jones concluded that Swick had been separated from her job
and that her personnel files had been transferred to the NPRC. Id. But, once again, Jones does not
explain if this CPOL database is the only relevant part of “CHRA’s computer network” for
purposes of finding Swick’s records. Id. ¶¶ 5–6. The Court will thus require the Army to clarify
through sworn affidavit or declaration, or through relevant documentation, the exact nature of the
electronic search by FBCH and CHRA for Swick’s personnel files, including a specific description
of which databases were searched and which search terms were used.2 Cf. Reporters Comm. for
Freedom of Press v. FBI, 877 F.3d 399, 402 (D.C. Cir. 2017) (“To prevail on summary judgment,
an ‘agency must show that it made a good faith effort . . . ,’ which it can do by submitting ‘[a]
reasonably detailed affidavit, setting forth the search terms and the type of search performed . . . .’”
(quoting Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)).
Moreover, even assuming that the physical and electronic searches by FBCH and CHRA
were adequate and demonstrate that the records are solely accessible through NPRC, that
conclusion still does not end the inquiry. Judges in this District generally do not require agencies
to produce records under FOIA when they are not the custodian of those records. See Thornton-
Bey v. Exec. Office for U.S. Att’ys, 844 F. Supp. 2d 159, 161 (D.D.C. 2012) (stating that “as [the
attorney] was no longer employed by the Department of Justice, plaintiff would have to seek his
records through the [NPRC] . . . .”); cf. Bloomgarden v. DOJ, 10 F. Supp. 3d 146, 153 (D.D.C.
2014) (stating that defendant had “no legal obligation” to obtain records located at the NPRC).
But there is a caveat to this general rule: a responding agency must establish definitively that the
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The Army’s response to Swick’s request for her psychological evaluation raised concerns beyond the search
terms used. The Court will also require the Army to provide a specific description of which exact databases were
searched and which search terms were used in looking for her psychological evaluation as well.
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responsive records are located at the NPRC. See Parker v. Exec. Office for U.S. Att’ys, 852 F.
Supp. 2d 1, 9 (D.D.C. 2012) (“[T]he Court cannot conclude that responding to the FOIA request
in this case fell within [the National Archives and Records Administration’s] purview instead of
the DOJ’s because no one has been able to inform plaintiff or the Court where the records are
actually located.”). And the agency must demonstrate that it has transferred not only physical
control, but also legal custody of the records. See Fleming v. Medicare Freedom of Info. Grp.,
Civil Action No. 1:15-cv-01135 (EGS/GMH), 2019 WL 6330719 at *1 (D.D.C. Oct. 24, 2019)
(denying summary judgment because “EOUSA still had legal custody of [the responsive records]
although they had been physically transferred to the [NPRC]”); see also Conway v. U.S. Agency
for Int’l Dev., 99 F. Supp. 3d 171, 179–80 (D.D.C. 2015) (“The determinative question,
therefore, . . . is whether those documents have been legally transferred to the National Archives’
permanent custody or whether the records remain in the legal custody of USAID.”).
The Army has not sufficiently established that it has ceased to have legal custody over
Swick’s personnel files. As noted above, the present record is sufficiently clear to establish the
physical location of Swick’s personnel records at NPRC. See Jones Decl. at ¶ 6. But the record
is less clear when it comes to whether FBCH transferred legal control over the records—in other
words, whether it still has legal custody over the records and can request them from NPRC.
Cf. 36 CFR § 1235.22 (“Legal custody of records passes from the agency to [National Archives
and Records Administration] when the appropriate [National Archives] official signs [a form]
acknowledging receipt of records.”).3 Defendant’s briefing suggests that legal custody may have
already been transferred to the NPRC along with physical custody, but the Jones declaration does
3
See National Personnel Records Center, National Archives (Jan. 8, 2020),
https://www.archives.gov/personnel-records-center (“The National Personnel Records Center (NPRC) is one of the
National Archives and Records Administration’s (NARA) largest operations.”).
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not establish this transfer with sufficient clarity. This distinction is material to the outcome of the
case, and here prevents the Court from granting summary judgment for the Army.
The Army asserts that “[w]hen an employee departs the agency, the agency ships the
physical personnel records to the [NPRC] and disables its access to the former employee’s
electronic Official Personnel Folder.” See Def.’s Mot. at 13; see also Davis Dec. ¶ 6 (stating that
“when an employee leaves the respective agency, the Human Resource Specialists must disable
[their] access to the electronic version of the personnel folder to ensure compliance with the
Privacy Act”); OPM Manual at 7-8 (“Normally, the agency sends the Folder within 120 days after
the employee separates.”). While these statements may be true and the policies well established,
they do not address whether the Army in this case has actually transferred legal custody and
disabled all access to Swick’s personnel folder. See 36 CFR § 1235.22; see also Fleming, 2019
WL 6330719 at *1.
Until legal custody has been transferred to the NPRC, “records remain in the legal custody
of the agencies that created them,” and “[r]equests for access . . . should be made directly to the
originating agency.” 36 CFR § 1250.8(c). The thoughtful practice of other judges in this District
counsels the Court to deny summary judgment at this stage and to require the Army to “address
the possibility that, although [it] did not have physical custody of the records, it might have legal
custody of them.” Fleming, 2019 WL 6330719 at *3. Therefore, the Court will require the Army
to clarify through sworn affidavit or declaration, or through relevant documentation, whether it
still has access to and legal custody over Swick’s personnel file, physical transfer notwithstanding.
If the Army does still have legal custody, it should request the responsive records from the NPRC
and provide them to Swick as requested.
Conclusion
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For the foregoing reasons, the Court will deny without prejudice the Army’s motion for
summary judgment and will deny without prejudice Swick’s cross-motion for summary judgment.
Moreover, the Court will require the Army to provide additional, more specific information as to
(1) whether FBCH has found Swick’s psychological evaluation and is withholding it due to a FOIA
exemption and/or HIPAA; (2) if FBCH has not yet found Swick’s psychological evaluation,
whether it has searched Swick’s medical records; (3) whether FBCH may have labeled or stored
Swick’s psychological evaluation as something other than a medical record (for instance, as a
personnel record) and, if so, whether FBCH has searched those other types of files as well; (4) the
specific electronic databases searched and the search terms used to locate Swick’s psychological
evaluation and personnel file; and (5) whether FBCH or the Army retains legal custody of Swick’s
personnel file, notwithstanding its physical transfer to NPRC.
/s/
JOHN D. BATES
United States District Judge
Dated: July 2, 2020
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