Baser v. Department of Veterans Affairs et al

Filing 36

ORDER Denying 20 MOTION for Summary Judgment and Notice Setting Scheduling Conference ( Scheduling Conference set for 11/4/2014 03:00 PM before District Judge Denise Page Hood) Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ONUR BASER,
Plaintiff,
v.

CASE NO. 13-CV-12591
HON. DENISE PAGE HOOD

DEPARTMENT OF VETERANS
AFFAIRS,
Defendant.
_____________________________/

ORDER DENYING MOTION FOR SUMMARY JUDGMENT
and
NOTICE SETTING SCHEDULING CONFERENCE

I.

BACKGROUND
On June 13, 2013, Plaintiff Onur Baser filed the instant suit against Defendants

Department of Veterans Affairs (“VA”), Secretary of Veterans Affairs (“Secretary”)
and Director of Freedom of Information Act Office for Veterans Health
Administration (“Director of FOIA”) alleging one count of a violation under the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(6)(A). (Comp., ¶ 26) The
Secretary and Director of FOIA were dismissed pursuant to a Stipulation and Order
on December 12, 2013. (Doc. No. 18)

Plaintiff filed two FOIA requests with the VA’s Veterans Health
Administration (“VHA”) on March 15, 2013 and March 20, 2013. (Comp., ¶ 7) The
March 15, 2013 request sought an electronic copy of certain datasets of information
from patient files during the time period from October 1, 2012 through March 1,
2013. (Comp., ¶ 9) The March 20, 2013 request sought an electronic copy of certain
datasets of information from patient files during the period October 1, 2001 through
September 30, 2005. (Comp., ¶ 10) Various communications were exchanged
between Plaintiff’s counsel and VA representatives, and, as of the filing date of the
Complaint, Plaintiff had not received responses to his March 15 or March 20, 2013
FOIA requests. (Comp., ¶ 24)
The VA formally denied Plaintiff’s FOIA requests on November 20, 2013,
indicating that the FOIA requests were subsumed by the litigation. (Doc. No. 20, Ex.
13) The VHA, through its National Data Systems (“NDS”), began the highlytechnical and time-intensive process of assembling and processing the data request,
which the VA claims encompassed more than a billion rows of data. The VA so
notified Plaintiff indicating that the requested data was time consuming to assemble.
In addition, the NDS increasingly became concerned that the release of such
information, without personal identifiers, would affect the individual’s privacy
concerns as to the medical records. Without a final decision from the VA, Plaintiff
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filed the instant suit.
This matter is before the Court on Defendant’s Motion for Summary Judgment.
A response, reply, sur-reply, supplemental brief by the VA and Motion to Strike the
supplemental brief were filed.

The Court allowed the parties to file further

supplemental briefs which have now been filed. A hearing was held on the matter on
July 17, 2014.
II.

SUPPLEMENTAL BRIEFS
In its Supplemental Brief filed May 29, 2014, Defendant asserts that since the

filing of its summary judgment motion, the parties have engaged in settlement
discussions. During the discussions, the VA further analyzed Plaintiff’s FOIA
requests. It analyzed the level of risk of re-identification it could apply as part of its
own Expert Determination, potentially allowing release of the information with
appropriate redactions. Consistent with guidelines established by the Department of
Health and Human Services (“HHS”) under the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”), the VA determined that application of a 1%
risk of re-identification of veteran/patient identities at the dataset level and a 0.05%
maximum risk of threshold at the patient level would allow release of certain
information in response to Plaintiff’s requests. The VA is now willing to produce
some information subject to the redactions/withholdings of variables and other
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specific information identified in the protocol attached to the supplemental brief. The
protocol indicates which variables of each dataset the VA was willing to produce.
(Doc. No. 30, Ex. A) The VA has now released the redacted responsive information
to Plaintiff for the datasets requested in Plaintiff’s first FOIA request for data between
October 1, 2012 through March 1, 2013. (Doc. No. 30, Ex. B) The VA will now turn
to Plaintiff’s second FOIA request for the datasets between October 1, 2001 through
September 30, 2005. The VA notes that the release of the information will not
resolve the case.
In its Motion to Strike Supplemental Brief filed June 3, 2014, Plaintiff asserts
that the brief and exhibits: are not supported by any admissible evidence; was
produced without allowing Plaintiff’s experts to respond; and was produced in
violation of Rule 408 of the Rules of Civil Procedure in that the parties were in
settlement negotiations.
On June 13, 2014, the VA filed a Second Supplemental Brief indicating that
it could supply information to Plaintiff applying certain methodology to protect
patient information under HIPAA. The VA continues to insist that the release of full
datasets and information as Plaintiff requested would lead to a risk of re-identification
of patients, which outweighs any public benefit Plaintiff’s research may have.
On June 27, 2014, Plaintiff filed a response to the VA’s supplemental brief.
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Plaintiff claims that the VA’s production was extremely limited and did not provide
data useful to Plaintiff’s medical researcher. Plaintiff claims the VA continues to
ignore the public interest in production of the information and fails to refute the
findings of Plaintiff’s two experts who concluded that a more substantial amount of
data can be produced with a minimum risk of disclosure. Plaintiff claims the
production changes nothing about the parties’ arguments and that summary judgment
should be granted in Plaintiff’s favor.
Plaintiff also now refers to the “political firestorm” that has erupted from the
disclosure of waiting lists at the VA facilities and the deep concern about the
operation of the VA. However, Plaintiff has not shown how this affects the
information he requests from the VA and whether the “waiting list” issue is relevant
to the data sought by Plaintiff. Plaintiff claims that the parties are still at the same
point and with the same arguments as when the summary judgment briefings were
initially filed.
Plaintiff’s Motion to Strike Defendant’s supplemental briefs is denied since
Plaintiff filed a response to the supplemental briefs and had the opportunity to argue
the issues at the hearing.
III.

ANALYSIS
A.

Standard of Review
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Rule 56(a) of the Rules of Civil Procedures provides that the 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). The presence of factual disputes will preclude granting of summary
judgment only if the disputes are genuine and concern material facts. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is
“genuine” only if “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. Although the Court must view the motion in the light
most favorable to the nonmoving party, where “the moving party has carried its
burden under Rule 56(c), its opponent must do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). Summary judgment must be entered against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial. In such a
situation, there can be “no genuine issue as to any material fact,” since a complete
failure of proof concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A
court must look to the substantive law to identify which facts are material. Anderson,
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477 U.S. at 248.
B.

FOIA Review

Under FOIA, 5 U.S.C. § 552(a)(3)(A), each “agency” upon “any request” for
records shall make the records “promptly available to any person,” unless one of nine
specific exemptions applies under 5 U.S.C. § 552(b)(1)-(9). Because of FOIA’s
objective of disclosure, these exemptions are to be “narrowly construed.” ACLU of
Michigan v. F.B.I., 734 F.3d 460, 465 (6th Cir. 2013)(citing Akron Std. Div. of EaglePicher Indus, Inc. v. Donovan, 780 F.2d 568, 571 (6th Cir. 1986)). The FOIA
requires a reasonable search tailored to the nature of the request. Rugiero v. United
States Dep’t of Justice, 257 F.3d 534, 547 (6th Cir. 2001). The agency has the burden
of justifying its withholding, which is reviewed by the district court de novo. ACLU,
734 F.3d at 465.
FOIA cases are generally decided on summary judgment, since the primary
question is a legal one: whether the withheld documents are covered by one of the
statutory exemptions. Id. (citing Rimmer v. Holder, 700 F.3d 246, 255 (6th Cir.
2012)). In FOIA cases, a plaintiff does not have access to the documents requested
so a plaintiff can only challenge the agency’s application of the legal standard to the
description provided by the agency, not the actual content of the underlying
documents. Id. (citing Jones v. FBI, 41 F.3d 238, 242 (6th Cir. 1994)). To prevail
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on summary judgment, the agency must show that it made a “good faith effort to
conduct a search for the requested records using methods reasonably expected to
produce the requested information” and that any withholding of materials was
authorized by a statutory exception. Rimmer, 700 F.3d at 255. In support of its
position, the agency must submit detailed affidavits and a descriptive index, known
as the Vaughn Index, with “a relatively detailed analysis” of “manageable segments”
of the documents. ACLU, 734 F.3d at 465 (citing Vaughn v. Rosen, 484 F.2d 820,
826 (D.C. Cir. 1973)). A court must have access to sufficient data concerning any
potentially exempt documents to determine whether the disclosure restrictions apply.
Osborn v. IRS, 754 F.2d 195, 196 (6th Cir. 1986).
The Vaughn Index must include a summary of the requested documents and
must meet the following criteria: 1) the index should be contained in one document,
complete in itself; 2) the index must adequately describe the withheld document or
deletion from a released document; 3) the index must state the exemption claimed for
each deletion or withheld document, and explain why the exemption is relevant,
sufficiently specific to permit a reasoned judgment as to whether the material is
exempt under FOIA, but need not be so detailed as to reveal that which the agency
wishes to conceal. Id. The declarations submitted by the agency are entitled to a
“presumption of good faith.” ACLU, 734 F.3d at 465.
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If the plaintiff is able to show bad faith or that the agency’s declarations are
insufficient to meet its burden, the court may examine the withheld documents in
camera. Id. (citing 5 U.S.C. § 552(a)(4)(B)). If the agency adequately describes the
content of the material withheld and adequately states its grounds for nondisclosure,
and if those grounds are reasonable and consistent with the applicable law, the district
court should uphold the government’s position. Rugiero, 257 F.3d at 544. The
district court’s primary role is to review the adequacy of the affidavits and other
evidence. Id. The question focuses on the adequacy of the agency’s search, not on
whether additional documents exist that might satisfy the request. Id. at 547.
C.

Reviewing the VA’s affidavits and exhibits
1.

Exemption 6

In its Motion for Summary Judgment, the VA asserts it has not provided the
records requested by Plaintiff because they contain the private, confidential medical
information of military veterans who have sought treatment from the VA. The VA
submitted the declarations of: Kellie N. Robinson, a FOIA officer at the VHA; Deana
M. Marakowski, a FOIA Officer at the VHA; and Lijia Guo, Ph.D., Deputy Chief
Actuary and Service Director of the Office of the Actuary, Department of Veterans
Affairs; and Susan Hickey, Supervisory Program Analyst, National Data Systems
(“NDS”), a division of the VHA’s Office of Health Information.
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The VA claims the information sought in Plaintiff’s FOIA request is exempted
under Exemptions 3 and 6 of the FOIA. 5 U.S.C. § 552(b)(3) & (6). The VA
primarily relies on Exemption 6 in denying Plaintiff’s FOIA requests. Exemption 6
permits the withholding of information about individuals in “personnel and medical
files and similar files” when the disclosure of such information “would constitute a
clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). A two-part
analysis must be made as to Exemption 6: 1) does the file include personnel, medical
or similar data; and 2) if so, would disclosure be a clearly unwarranted invasion of
personal privacy. Heights Cmty. Cong. v. VA, 732 F.2d 526, 528 (6th Cir. 1984). If
the information meets the first part of the test, the agency must balance the
individual’s right to privacy against the public’s interest in disclosure to determine
whether it meets the second part. Id. at 529.
The first part of the two-part analysis has been met in that the requested
information is medical in nature. As to balancing the private interest against the
public’s interest in disclosure, the VA argues that the risk of re-identification is more
than theoretical or speculative and that the risk is real. The VA submitted a law
review article indicating that there is no guarantee of anonymity even if personal
identifiers are not released. The VA analyzed the specific date Plaintiff sought to
determine the risk of re-identification. It found that even with “de-identified” data,
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a unique patient can be identified, attributes and diagnoses learned and, when
combined with public data, the patient can be identified by name. (Doc. No. 20, Ex.
8, ¶ 19) In the FOIA context, this is called the “mosaic” or “compilation” approach
and it contemplates that even apparently harmless pieces of information, when
assembled together with other data, could reveal otherwise privacy-protected and
FOIA-exempt information. The Supreme Court has recognized this “mosaic”
approach as a basis for an agency to exempt information from disclosure under the
FOIA. CIA v. Sims, 471 U.S. 159, 178 (1985)(Bits and pieces of data may aid in
piecing together bits of other information which may put the questioned item of
information in its proper context.).
Although Plaintiff did not request the names, addresses, or identifying numbers
of the veteran-patients in his two FOIA requests, the information sought was for
extensive datasets that included patient-level information such as age, gender, race,
marital status, means tested income status, homeless status, prisoner of war status,
geographic information (including patients, treatment facility and providers’ zip code
and state), and up to 64 other distinguishing data elements. Dr. Guo and her team
confirmed that the data elements even in the de-identified data could be used to reidentify unique patients when linked with other record-level data files that are either
publicly available or commercial data files that are available for purchase. (Doc. No.
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20, Ex. 9, ¶¶ 3 & 7, & Ex. A) Dr. Guo also found that risk of re-identification would
remain even if the HIPAA Safe Harbor guidance in combination with additional
protections. (Doc. No. 20, Ex. 9, ¶ 20) Dr. Guo demonstrated such re-identification
which resulted in re-identifying a veteran with full name, address, date of birth and
social security number. (Doc. No. 20, Ex. 9, ¶ 7) The VA claims it has shown that the
VHA properly excluded the information because of significant privacy interest in this
information.
The VA argues that Plaintiff has shown no public interest in the requested
information since the requests were for the use of his private business. Plaintiff may
have alleged some public interest because of public benefit in the research and work
his company performs with the requested datasets.
Plaintiff responds that the VA overstated its “mosaic” argument and that there
is no meaningful risk of re-identification if the VHA properly de-identifies the data.
Given the data requested, the cost, difficulty to a lay person in properly understanding
the data, and amount of specific knowledge required about a person in order to make
an attempt at re-identification, Plaintiff argues that the possibility of a reidentification is remote. Plaintiff also claims that the VA misapplied HIPAA in
attempting to de-identify the data. Under HIPAA, the Expert Determination is
satisfied when a person with appropriate knowledge determines the risk is very small
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that the information could be used, alone or in combination with other reasonably
available information, by an anticipated recipient to identify an individual who is
subject of the information. 45 C.F.R. § 164.514(1). HIPAA regulations also create
a “safe harbor” where if certain identifiers are removed, then the data is considered
de-identified. 45 C.F.R. § 164.514(2). In his supplemental brief, Plaintiff now argues
that HIPAA is not a standard that governs in the FOIA context.
Plaintiff claims that the VA has improperly conflated the two HIPAA processes
for de-identification in that the VA applied the HIPAA safe harbor provision and
then, on top of that, applied an “expert determination” that the information cannot be
safely released. Plaintiff asserts that HIPAA is clear that either method is appropriate,
not that both are required. Plaintiff submitted two experts, Dr. Daniel Barth-Jones
and Dr. Joseph Gardiner, who both reviewed the conclusions of Dr. Guo and Ms.
Hickey. Both conclude that the required datasets, if properly de-identified consistent
with the needs of a medical researcher such as Plaintiff, could be safely provided with
only a minimal risk of re-identification.
Plaintiff asserts that the Court is not required to give the VA’s experts’
conclusions deference since he has provided contradicting evidence in his experts’
opinions. Plaintiff has previously received data from the VHA and is aware of what
variables are at issue and what type of information could be used to re-identify
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patients. Plaintiff also claims there may be bad faith based on communications from
VHA doctors to Plaintiff that suggest the data is being withheld for anti-competitive
purposes. Plaintiff argues that any presumption of deference in favor of the VA must
“dissipate” and that he is entitled to the data requested, properly de-identified.
Plaintiff claims there exists a public interest. The public interest expands
beyond merely whether the VHA is effectively using tax dollars to care for veterans.
The VHA has a limited population but its effectiveness or lack of effectiveness
should be studied to answer the fundamental questions about whether the government
can or cannot provide cost-effective, quality health care. Plaintiff queries if the
government cannot provide quality, cost-effective health care to its veterans, can it
be trusted to provide health care to a broader population?
Plaintiff also asserts that the VA’s position is extremely threatening to
academic research in general because it would serve to quash an enormous amount
of productive research in the sciences and social sciences, even where a person could
show that the risk of re-identification is non-existent or, at most, extremely small.
Reviewing the affidavits submitted by the VA, they all address the reidentification risks. However, the affidavits submitted by Plaintiff’s experts also
address the re-identification risks. In light of the fact that the VA has now rereviewed its position and has undergone another analysis regarding re-identification
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risks and has now agreed to produce certain data to Plaintiff, the VA’s position on reidentification is now in question. Plaintiff has presented sufficient evidence to rebut
the VA’s position as to re-identification. The VA’s Motion for Summary Judgment
must be denied.
2.

Exemption 3

Exemption 3 excludes from disclosure materials that are “specifically exempted
from disclosure by statute ..., provided that such statute (A) requires that the matters
be withheld from the public in such a manner as to leave no discretion on the issue,
or (B) establishes particular criteria for withholding or refers to particular types of
matters to be withheld.” 5 U.S.C. § 552(b)(3). The VA argues two statutes protect
the veterans’ names and home addresses: 38 U.S.C. § 5701 (names and addresses
shall be confidential and privileged) and 38 U.S.C. § 7332(a) (confidentiality of the
identity and other information of any patient receiving treatment relating to drug
abuse, alcoholism or alcohol abuse, HIV or sickle cell anemia).
Plaintiff argues that the VA’s main argument under Exemption 3 is reidentification. For the same reasons set forth above, because re-identification is
minimal, Plaintiff claims that Exemption 3 is inapplicable.
For the same reasons above, because Plaintiff has submitted evidence to create
a genuine issue of material fact that re-identification does not pose a significant risk
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once the data is properly de-identified, the VA’s Motion for Summary Judgment on
its Exemption 3 argument must also be denied.
D.

Plaintiff’s Cross-Motion for Summary Judgment

In his response, Plaintiff moves for summary judgment in his favor. The E.D.
Mich. CM/ECF rules provide that “a response or reply to a motion must not be
combined with a counter-motion” and papers filed in violation of this rule “will be
stricken.” CM/ECF Pol. & Proc. R5(e). The Court, therefore, will not consider
Plaintiff’s cross-motion for summary judgment contained in its response brief.
Even if the Court were to consider Plaintiff’s cross-motion for summary
judgment, for the reasons set forth above, there remain genuine issue of material fact
as to whether the VA can balance the patient’s right to privacy against the public’s
interest in disclosure of the information. The VA and Plaintiff’s experts do not agree
that the patient’s information cannot be re-identified.
IV.

CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendant’s Motion for Summary Judgment (Doc. No.

20) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike Supplemental
Brief (Doc. No. 32) is DENIED.
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IT IS FURTHER ORDERED that a Scheduling Conference is set for Tuesday,
November 4, 2014, 3:00 p.m.

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: September 30, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of
record on September 30, 2014, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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