Balch & Bingham LLP v. Centers for Medicare and Medicaid Services

Filing 27

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 3/19/15. (SAC )

FILED
2015 Mar-19 PM 04:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BALCH & BINGHAM, LLP,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Defendant.

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CIVIL ACTION NO.
2:14-CV-28-WMA

MEMORANDUM OPINION
Before the court is a motion for summary judgment filed by
defendant United States Department of Health and Human Services
(“HHS”). (Doc. 25).

Pursuant to the court’s February 6, 2015

order, plaintiff Balch & Bingham, LLP (“Balch”) was given until
February 27, 2015 to respond. (Doc. 26).

No response having been

received by the court, the motion automatically came under
submission on February 28, 2015.
The case involves various documentary requests by Balch
under the Freedom of Information Act (“FOIA”). 5 U.S.C. § 552.
“Generally, FOIA cases should be handled on motions for summary
judgment, once the documents in issue are properly identified.”
Miscavige v. I.R.S., 2 F.3d 366, 369 (11th Cir. 1993).

Summary

judgment is required when “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.” Bank of Brewton v.
Travelers Companies, Inc., 777 F.3d 1339, 1342 (11th Cir. 2015)
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(quoting F. R. Civ. P. 56(a)).

Yet, where a party fails to

respond to a motion for summary judgment, “the court may . . .
consider the fact[s] undisputed for purposes of the motion . .
[or] grant summary judgment if the motion and supporting
materials show that the movant is entitled to it.” F. R. Civ. P.
56(e).

For the reasons stated below, defendant’s motion for

summary judgment will be granted.
I.

Mootness
Before addressing the substance of HHS’s motion, the court

first addresses a threshold jurisdictional issue raised by HHS as
an alternative ground for dismissal. (Doc. 25 at 14-17).

“A

district court has jurisdiction over a complaint brought under []
FOIA ‘to enjoin the agency from withholding agency records and to
order the production of any agency records improperly withheld
from the complainant’ .. . [whereby] [j]urisdiction under this
statute is based upon the plaintiff's showing that an agency has
improperly withheld agency records.” Brown v. U.S. Dep't of
Justice, 169 F. App'x 537, 540 (11th Cir. 2006) (quoting
5 U.S.C. § 552(a)(4)(B)).
HHS argues its May 30, 2014 tendering of all non-exempt
records effectively moots Balch’s claim for injunctive relief
under FOIA.

Even though Balch did not file a response, in its

June 13, 2014 status report (Doc. 17) responding to court’s June
10, 2014 order (Doc. 16), Balch maintained that despite HHS’s

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disclosure, HHS still under cited FOIA exemptions “withheld
approximately 1,067 pages in full and [] redacted approximately
461 pages of documents.” (Doc. 17 at 3).

Balch further explained

that HHS “merely made such assertions but has not yet established
that the cited exemptions in fact apply . . . [leaving the]
correctness of [HHS’s] FOIA determinations applicable to [the]
more than 1,500 pages of information [] now ripe for the parties
to address.” (Doc. 17 at 3-4).

In its motion for summary

judgment, HHS establishes the basis for its assertion of certain
exemptions under FOIA. (Doc. 25 at 12-14).

While Balch has filed

no response to the motion, a live case and controversy persists
as to the appropriateness of the asserted exemptions by HHS. See
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 180-81 (2000).

Therefore, the issue is not moot

and the court has jurisdiction over the matter to address the
merits of HHS’s motion for summary judgment.
II.

HHS’s Compliance Under FOIA
To prevail on a motion for summary judgment under FOIA, an

agency “must establish (1) that it conducted a search reasonably
calculated to uncover all relevant documents . . . and (2) that
[withheld or redacted documents] . . . fall under an exemption to
[] FOIA, which excuses the [agency] from producing them to
[p]laintiff.” Karantsalis v. U.S. Dep't of Justice, 635 F.3d 497,
500 (11th Cir. 2011).

In this case while Balch failed to respond

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to the motion and dispute any material facts, on summary judgment
HHS still bears the burden of proving that it conducted a
sufficient search and that it properly invoked any FOIA
exemptions when it decided to withhold information. Miccosukee
Tribe of Indians of Florida v. United States, 516 F.3d 1235, 1258
(11th Cir. 2008).
a. Sufficient search under FOIA
“An affidavit from a government official concerning a
government agency's search in response to a FOIA request is
sufficient evidence to establish that the search was “reasonably
calculated to uncover all relevant documents” provided that the
affidavit is “relatively detailed, non-conclusory, and submitted
in good faith.” Karantsalis v. U.S. Dep't of Justice, 635 F.3d
497, 500 (11th Cir. 2011) (quoting Ray v. U.S. Dep't of Justice,
908 F.2d 1549, 1558 (11th Cir. 1990)).

Here, HHS provides two

affidavits from HHS officials detailing the search scope and
procedures used in response to Balch’s FOIA request. (Doc. 25-3
and 25-10).

HHS made an initial disclosure in March 2014 with

second and third disclosures in May 2014 as additional records
were located. (Doc 25-10 at 8-9).

Upon review of the evidence

and in the absence of any objection by Balch, as a matter of law
the search conducted by HHS was reasonably calculated to uncover
all relevant documents. Ray, 908 F.2d at 1558.
b. Exemptions under FOIA

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“FOIA's central purpose is to ensure that the Government's
activities be opened to the sharp eye of public scrutiny, not
that information about private citizens that happens to be in the
warehouse of the Government be so disclosed.” U.S. Dep't of
Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749,
774 (1989).

“Congress exempted nine categories of documents from

[] FOIA's broad disclosure requirements.” Id. at 755 (citing 5
U.S.C. § 552(a)-(b)).

“Because FOIA's purpose is to encourage

disclosure, its exemptions are to be narrowly construed [and]
[t]he government bears the burden of proving that a requested
document is exempted.” Moye, O'Brien, O'Rourke, Hogan, & Pickert
v. Nat'l R.R. Passenger Corp., 376 F.3d 1270, 1276-77 (11th Cir.
2004).

To withhold under a FOIA exemption, an agency can meet

its burden to provide an adequate factual basis for nondisclosure “through affidavits, a Vaughn Index, in camera review,
or through a combination of these methods.” Miccosukee Tribe of
Indians of Florida v. United States, 516 F.3d 1235, 1258 (11th
Cir. 2008); see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
HHS has provided to Balch and to the court both affidavits
(Doc. 25-3 and 25-10) and a Vaughn Index (Doc. 25-14), which
identifies the applicable exemptions, grounds for withholding,
and materials withheld.

In its first disclosure, HHS released

240 pages with minor redactions of personal information on 8
pages. (Doc. 25-10 at 8).

In its second disclosure, HHS released

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an additional 176 pages in full, 89 pages with redactions, and
110 pages with full redaction. (Doc. 25-10 at 8-9).

In its third

disclosure, HHS released 883 pages in full, 364 pages with
redactions, and 979 pages withheld in full. (Doc,. 25-10 at 9).
For those materials redacted or withheld, HHS relied on FOIA
exemptions four, five, and six. (Doc. 25 at 12-13).

Under

exemption four, which protects “trade secrets and commercial or
financial information obtained from a person and privileged or
confidential,” 5 U.S.C. § 552(b)(4), HHS redacted the internal
guidelines of a Medicare Part D sponsor and other information
voluntarily provided by outside organizations. (Doc. 25; Doc.
25-3; Doc. 25-10; Doc. 25-13).

Under exemption five, which

includes “inter-agency or intra-agency memorandums or letters
which 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), HHS
redacted various draft agency documents, internal discussions,
staff deliberations, and agency general counsel legal advice.
(Doc. 25; Doc. 25-3; Doc. 25-10; Doc. 25-13).

Finally, under

exemption six, which extends to “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),

HHS withheld certain personal information pertaining to named
individuals. (Doc. 25; Doc. 25-3; Doc. 25-10; Doc. 25-13).

While

the affidavits (Doc. 25-3 and Doc. 25-10) provide a general basis

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for non-disclosure under these exemptions, the Vaughn Index (Doc.
25-13) provides the particular basis for each withheld or
redacted document.

Given the affidavits and Vaughn Index

provided by HHS, and the absence of any objection by Balch, HHS
states an adequate factual basis for withholding the listed
information.
Therefore, summary judgment in favor of HHS is appropriate
because HHS conducted a reasonably sufficient search and provides
an adequate basis for its non-disclosure under various FOIA
exemptions.
CONCLUSION
For the reasons detailed above, the court will by separate
order grant defendant’s motion for summary judgment.

DONE this 19th day of March, 2015.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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