Brook v. Teti

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ADAM BROOK, M.D., PH.D.,
Plaintiff,
v. Civil Action No. 15-02022 (TFH)
CATHERINE TETI, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff has sued the U.S. Department of Health and Human Services (“HHS” or “the
Agency”) and three individual HHS employees, alleging violations of the Privacy Act and the
Freedom of Information Act (“FOIA”) in connection with five requests he submitted to the
Health Resources & Services Administration (“HRSA”) for records concerning the National
Practitioner Data Bank (“NPDB”).
Upon consideration of the briefing, the relevant legal authorities, and the entire record
herein, and for the reasons stated below, the Court finds that HHS has established that it
conducted adequate searches for records responsive to Plaintiff’s requests and that it
appropriately withheld and redacted certain records. Accordingly, the Court will grant
Defendants’ Motion for Summary Judgment [ECF No. 32] and will deny Plaintiff’s Cross-
Motion for Partial Summary Judgment [ECF No. 35].
I. BACKGROUND
The National Practitioner Data Bank is a “web-based repository of reports containing
information on medical malpractice payments and certain adverse actions related to health care
practitioners, providers, and suppliers.” NPDB, About Us, https://www.npdb.hrsa.gov/
topNavigation/aboutUs.jsp (last visited Feb. 13, 2023). The NPDB is managed by the HRSA,
which is a component agency of HHS, and at issue here are five separate FOIA requests Plaintiff
submitted to HRSA for records related to the NPDB. 1 In total, HHS processed 3,057 pages of
records in response to Plaintiff’s five FOIA requests and released 2,469 pages in full or in part.
Flavin Decl. ¶¶ 15, 28, 42, 56 [ECF No. 32-3].
A. Request No. 1
Plaintiff’s first request, dated August 6, 2012, sought “all documents pertaining to me,
Adam Brook, that HRSA has.” Compl. ¶ 37; Flavin Decl. ¶ 7. HHS initially released
approximately 500 pages of responsive documents to Plaintiff, and after an additional search in
response to an administrative appeal filed by Plaintiff, HHS located approximately 200
additional pages of responsive documents. Flavin Decl. ¶¶ 11-13. HHS located 689 pages of
documents responsive to FOIA Request No. 1; pursuant to FOIA Exemptions 3, 5, and 6, 41
pages were withheld in full and 22 pages were released in part. Id. ¶¶ 15-20.
B. Request No. 2
Plaintiff’s second request, dated September 19, 2012, sought various NPDB registration
and subscriber documents. Compl. ¶ 38; Flavin Decl. ¶ 22. He requested “blank registration
forms, ‘the first and two most recent filings of NPDB registration documents for Peconic Bay
Medical Center,’ screenshots of webpages related to making a NPDB query, and records related
1
The genesis of this case is a 2009 report submitted to the NPDB by Plaintiff’s former
employer. For an account of the complex procedural history and factual background of the
related litigation between the parties, see, e.g., Brook v. Rogers, Civil Action No. 12-1229
(TFH), 2023 WL 1778792 (D.D.C. Feb. 2, 2023); Doe v. Rogers, 139 F. Supp. 3d 120 (D.D.C.
2015).
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to the June 8, 2010 release of Plaintiff’s NPDB reports.” Flavin Decl. ¶ 22. HHS located 43
pages of documents responsive to FOIA Request No. 2; no pages were withheld in full, and one
page was released in part pursuant to FOIA Exemption 3. Id. ¶¶ 28-29.
C. Request No. 3
Plaintiff’s third request, dated December 18, 2012, sought “all Adverse Action Reports
submitted to the National Practitioner Data Bank between December 1, 1989 and the present that
were subsequently voided by the Secretary . . . as well as any accompanying letters explaining
the Secretary’s decision.” Compl. ¶ 39; Flavin Decl. ¶ 30. HHS denied Plaintiff access to the
requested records pursuant to FOIA Exemption 3. Flavin Decl. ¶ 31. Plaintiff filed an
administrative appeal, and “HHS denied Plaintiff’s appeal on the basis that information
concerning specific reports and disputes could be utilized to ascertain the identities of other
practitioners who had been reported to the NPDB and other protected information.” Id. ¶¶ 33-
34.
D. Request No. 4
Plaintiff’s fourth request, dated January 29, 2013, sought “every e-mail [HRSA Dispute
Resolution Manager] Dr. [Anastasia] Timothy has ever sent and every e-mail Dr. Timothy has
ever received.” Compl. ¶ 41; Flavin Decl. ¶ 35. By letter dated October 9, 2014, Plaintiff agreed
to limit the scope of Request No. 4 to all emails dating from June 1, 2010 that contained any of a
list of 25 keywords. Compl. ¶ 55; Flavin Decl. ¶ 36. HHS located 364 pages of documents
responsive to FOIA Request No. 4; no pages were withheld in full, and 67 pages were released in
part pursuant to FOIA Exemptions 3, 5, and 6. Flavin Decl. ¶¶ 42-47.
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E. Request No. 5
Plaintiff’s fifth request, dated May 13, 2015, sought all emails sent or received by an
HRSA employee dating from June 1, 2010 containing any of a list of 30 keywords. Compl. ¶ 61;
Flavin Decl. ¶ 49. HHS located 1,961 pages of documents responsive to FOIA Request No. 5;
pursuant to FOIA Exemptions 3, 4, 5, 6, and 7, 547 pages were withheld in full and 304 pages
were released in part. Flavin Decl. ¶¶ 56-63.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 mandates that “[t]he court shall grant summary
judgment if the movant shows 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). A fact is material if it
“might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). With respect to cross-motions for summary judgment, “neither party
waives the right to a full trial on the merits by filing its own motion; each side concedes that no
material facts are at issue only for the purposes of its own motion.” Vaughan v. Amtrak, 892 F.
Supp. 2d 84, 91 (D.D.C. 2012) (quoting Sherwood v. Washington Post, 871 F.2d 1144, 1148 n.4
(D.C. Cir. 1989)).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
ViroPharma Inc. v. Dep’t of Health & Human Servs., 839 F. Supp. 2d 184, 189 (D.D.C. 2012).
“The agency is entitled to summary judgment if no material facts are genuinely in dispute and
the agency demonstrates that its search for responsive records was adequate, that any exemptions
claimed actually apply, and that any reasonably segregable non-exempt parts of records have
been disclosed after redaction of exempt information.” Prop. of the People, Inc. v. Off. of Mgmt.
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& Budget, 330 F. Supp. 3d 373, 380 (D.D.C. 2018) (citations omitted). An agency can sustain
its burden by means of affidavit, and where the affidavit “describes the justifications for
withholding the information with specific detail, demonstrates that the information withheld
logically falls within the claimed exemption, and is not contradicted by contrary evidence in the
record or by evidence of the agency’s bad faith, then summary judgment is warranted on the
basis of the affidavit alone.” Am. Civil Liberties Union v. Dep’t of Defense, 628 F.3d 612, 619
(D.C. Cir. 2011) (citations omitted).
III. ANALYSIS
A. Adequacy of Search
“An agency fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was reasonably calculated to uncover all relevant documents.” Valencia-
Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (internal citation and quotation
marks omitted). “At the summary judgment stage, where the agency has the burden to show that
it acted in accordance with the statute, the court may rely on ‘[a] reasonably detailed affidavit,
setting forth the search terms and the type of search performed, and averring that all files likely
to contain responsive materials (if such records exist) were searched.’” Id. at 326 (quoting
Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). Such affidavits “enjoy a
presumption of good faith, which will withstand purely speculative claims about the existence
and discoverability of other documents.” Ground Saucer Watch, Inc. v. Cent. Intel. Agency, 692
F.2d 770, 771 (D.C. Cir. 1981). “The law of this Circuit does not demand that ‘the affidavits of
the responding agency set forth with meticulous documentation the details of an epic search for
the requested records. Rather[,] . . . affidavits that explain in reasonable detail the scope and
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method of the search conducted by the agency will suffice to demonstrate compliance.’” Wolf v.
Cent. Intel. Agency, 569 F. Supp. 2d 1, 7 (D.D.C. 2008) (quoting Perry v. Block, 684 F.2d 121,
127 (D.C. Cir. 1982)).
Here, the 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. Plaintiff has failed to point to any evidence
showing that the Agency’s search was not “reasonably calculated to uncover all relevant
documents.” In support of its summary judgment motion, HHS submitted detailed declarations
from HRSA’s FOIA Officer, Thomas Flavin [ECF No. 32-3]; HRSA’s Deputy Director of the
Division of Practitioner Data Banks, Judy Rogers [ECF No. 32-4]; and HRSA’s Chief
Information Security Officer, Brent Kopp [ECF No. 32-5]. 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. Flavin Decl. ¶¶ 8,
23, 37, 50; Rogers Decl. ¶¶ 5-7, 9, 10; Kopp Decl. ¶¶ 5, 8. HHS is entitled to summary judgment
with respect to the adequacy of its searches.
B. Withholdings & Redactions
1. FOIA Exemption 3
Exemption 3 incorporates nondisclosure provisions contained in other federal statutes.
See 5 U.S.C. § 552(b)(3). 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). Flavin Decl. ¶¶ 16,
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43, 57. The Court agrees with HHS’s conclusion that Section 11137(b)(1) meets the
requirements of Exemption 3, which covers records that are “specifically exempted from
disclosure by statute . . ., if that statute (A)(i) requires that the matters be withheld from the
public in such a manner as to leave no discretion on the issue, or (ii) establishes particular criteria
for withholding or refers to particular types of materials to be withheld.” 5 U.S.C. § 552(b)(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 the Mr. Flavin’s Declaration and
the detailed Vaughn Index attached to his 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. HHS is entitled to summary judgment on its withholdings under Exemption 3.
2. FOIA Exemption 4
Exemption 4 protects “trade secrets and commercial or financial information obtained
from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). Here, 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. Flavin Decl. ¶ 58. As explained by HHS, “[t]his information constitutes
commercial or financial information that is confidential in nature.” Id. 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.
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3. FOIA Exemption 5
Exemption 5 protects “inter-agency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). As relevant here, “Exemption 5 incorporates the privileges that the Government
may claim when litigating against a private party,” including the attorney-client and attorney
work-product privileges and the deliberative process privilege. Abtew v. U.S. Dep’t of Homeland
Sec., 808 F.3d 895, 898 (D.C. Cir. 2015).
Here, 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,” Flavin Decl. ¶ 17, which qualify as “intra-agency” records. McKinley v. Bd. of
Governors of Fed. Reserve Sys., 647 F.3d 331, 336 (D.C. Cir. 2011) (“Under the ‘consultant
corollary’ to Exemption 5, however, we interpret ‘intra-agency’ ‘to include agency records
containing comments solicited from nongovernmental parties.’” (quoting Nat'l Inst. of Military
Justice v. U.S. Dep't of Defense, 512 F.3d 677, 680, 682 (D.C. Cir. 2008)).
i. Deliberative Process Privilege
To qualify for the deliberative process privilege, a document must be “both predecisional
and deliberative.” Machado Amadis v. U.S. Dep’t of State, 971 F.3d 364, 370 (D.C. Cir. 2020).
A document is predecisional “if it was generated before the adoption of an agency policy.”
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). This Circuit
recognizes that
[d]etermining whether a document is deliberative is less straightforward than
determining whether it is predecisional in part because of the sheer variety of ways
in which a document can be deliberative. As we have explained, the deliberative
process privilege is “dependent upon the individual document and the role it plays
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in the administrative process.” Coastal States, 617 F.2d at 867. In Senate of Puerto
Rico v. DOJ our court explained that the agency invoking the deliberative process
privilege must show (1) “what deliberative process is involved,” and (2) “the role
played by the documents in issue in the course of that process.” 823 F.2d 574, 585–
86 (D.C. Cir. 1987) (quoting Coastal States, 617 F.2d at 868). To “assist the court
in determining whether th[e] privilege is available,” the agency should also explain
(3) the “nature of the decisionmaking authority vested in the officer or person
issuing the disputed document,” and (4) the “relative positions in the agency's chain
of command occupied by the document's author and recipient.” Id. at 586.
Jud. Watch, Inc. v. U.S. Dep’t. of Justice, 20 F.4th 49, 55 (D.C. Cir. 2021).
Here, 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 the
Flavin 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.” Flavin Decl. ¶¶ 17, 44, 59; see also Vaughn Index. These
documents were properly withheld under Exemption 5.
ii. 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 Mr. Flavin’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.” Flavin Decl. ¶¶ 18, 45, 60. The
Vaughn Index confirms that Exemption 5 was properly invoked by HHS to withhold these
documents pursuant to the attorney-client privilege.
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iii. Attorney Work-Product Doctrine
Similarly, 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. Flavin Decl. ¶¶ 19, 46, 61. These documents were properly withheld
pursuant to Exemption 5, and HHS is entitled to summary judgment on its withholding under
Exemption 5.
4. FOIA Exemption 6
Exemption 6 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). Here, 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 on the basis that the release would “constitute a clearly
unwarranted invasion of personal privacy.” Flavin Decl. ¶¶ 20, 47, 62. If the requested
information is contained in a personnel, medical, or other similar file, the Court must then
“determine whether the information is of such a nature that its disclosure would constitute a
clearly unwarranted privacy invasion.” Natl. Ass’n of Home Builders v. Norton, 309 F.3d 26, 32
(D.C. Cir. 2002) (citing U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 598 (1982)). As the
D.C. Circuit has further explained,
[t]o establish that the release of information contained in government files would
result in a clearly unwarranted invasion of privacy, the court first asks whether
disclosure would compromise a substantial, as opposed to a de minimis, privacy
interest. If a significant privacy interest is at stake, the court then must weigh that
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interest against the public interest in the release of the records in order to determine
whether, on balance, disclosure would work a clearly unwarranted invasion of
personal privacy. The public interest to be weighed against the privacy interest in
this balancing test is the extent to which disclosure would serve the core purposes
of the FOIA by contributing significantly to public understanding of the operations
or activities of the government. Thus, unless a FOIA request advances the citizens’
right to be informed about what their government is up to, no relevant public
interest is at issue.
Id. at 33-34 (internal citations and quotations omitted).
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.
5. FOIA Exemption 7
Exemption 7(C) protects “records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement records or information . . . (C)
could reasonably be expected to constitute an unwarranted invasion of personal privacy.” See
Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (“[O]ur decisions have
consistently supported nondisclosure of names or other information identifying individuals
appearing in law enforcement records, including investigators, suspects, witnesses, and
informants.”). 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. Flavin Decl. ¶ 63. 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.
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IV. CONCLUSION
For the foregoing reasons, the Court finds that the Agency’s search was reasonably
calculated to uncover all responsive records and that it properly withheld certain information
pursuant to FOIA Exemptions 3, 4, 5, 6, and 7. Accordingly, the Court will grant Defendants’
Motion for Summary Judgment [ECF No. 32] and will deny Plaintiff’s Cross-Motion for
Summary Judgment [ECF No. 35]. This case will be dismissed with prejudice. An appropriate
Order accompanies this Opinion.
February 17, 2023 _______________________________
THOMAS F. HOGAN
SENIOR UNITED STATES DISTRICT JUDGE
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