Menchu v. US Department of Health and Human Services

Filing 40

ORDER: The Court ADOPTS Magistrate Judge Acosta's Findings and Recommendation 35 except as set out in this Order, and, accordingly, REFERS this matter back to Magistrate Judge Acosta for further limited proceedings. Signed on 08/14/2013 by Judge Anna J. Brown. See attached 4 page Order. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JERRY ALEXANDER MENCHU,
Plaintiff,

3:12-cv-01366-AC
ORDER

v.
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Defendant.
BROWN, Judge.
Magistrate Judge John V. Acosta issued Findings and
Recommendation (#35) on July 1, 2013, in which he recommends
this Court deny Defendant’s Motion (#20) for Summary Judgment,
grant Plaintiff’s Cross-motion (#24) for Summary Judgment, and
order Defendant to provide to Plaintiff an unredacted copy of the
"Notes" (i.e., the three pages of notes from a telephone
interview conducted on March 13, 2012).
Defendant filed timely Objections to the Findings and
Recommendation.

The matter is now before this Court pursuant to

28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).

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ORDER

When any party objects to any portion of the Magistrate
Judge’s Findings and Recommendation, the district court must make
a de novo determination of that portion of the Magistrate Judge’s
report.

28 U.S.C. § 636(b)(1).

See also Dawson v. Marshall, 561

F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003)(en banc).
Defendant argued before the Magistrate Judge that the Notes
were protected under the law-enforcement exemption of the Privacy
Act, 5 U.S.C. § 552a(k)(2).

The Magistrate Judge found

Defendant’s arguments were not persuasive, and, as noted, the
Magistrate Judge recommended this Court order Defendant to
provide to Plaintiff an unredacted copy of the Notes.
Defendant now, however, objects to the Findings and
Recommendation by arguing that the interview notes are protected
under 5 U.S.C. § 552a(d)(5), a separate provision of the Privacy
Act that provides an individual shall not be allowed “access to
any information compiled in reasonable anticipation of a civil
action or proceeding.”

Courts have construed this exemption to

shelter documents prepared in anticipation of quasi-judicial
hearings when those hearings are adversarial, include discovery
proceedings, and are subject to the rules of evidence.

See,

e.g., Martin v. Office of Special Counsel, Merit Sys. Protection
Bd., 819 F.2d 1181, 1188 (U.S. App. D.C. 1987).

The § 552a(d)(5)

exemption is not confined to the work-product privilege and was

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ORDER

intended to afford broad protection to “any information compiled
in reasonable anticipation of a civil action or proceeding . . .
prepared by either a potential party to such a proceeding or by a
potential material participant in that same proceeding.”

Mobley

v. C.I.A., Nos. 11-2072, 11-2073 (BAH, 2013 WL 452932, at *31
(D.D.C. Feb. 7, 2013).

This exemption also extends to

investigatory documents.

Id., at *30.

In Defendant’s Motion (#20) for Summary Judgment, Defendant
submitted evidence that the documents at issue are notes of an
interview conducted during the investigation of Plaintiff’s
civil-rights complaint by the Office of Civil Rights.
Decl. (#22) at 2-3; Eckert Decl. (#23) at 3, ¶6.

Connor

Although

Plaintiff does not dispute the interview notes were compiled
during the official investigation of his civil-rights complaint,
he argues the notes “were created as a result of merely a
‘compliance evaluation’ and not prepared prior to litigation.”
Pl.'s Resp. (#39) at 2.
On this record the Court concludes factual and legal
disputes exist as to whether these documents were prepared “in
reasonable anticipation of a civil action or proceeding” within
the meaning of 5 U.S.C. § 552a(d)(5).

It appears that additional

briefing and proceedings may be required to resolve this issue.
As to the remaining findings and recommendations of the
Magistrate Judge, the Court has carefully considered Defendant’s

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ORDER

arguments and concludes they do provide a basis to modify the
Findings and Recommendation.

The Court also has reviewed the

pertinent portions of the record de novo and does not find any
error in the Magistrate Judge’s Findings.

CONCLUSION
The Court ADOPTS Magistrate Judge Acosta’s Findings and
Recommendation (#35) except as set out above and, accordingly,
REFERS this matter back to Magistrate Judge Acosta for further
limited proceedings.
IT IS SO ORDERED.
DATED this 14th day of August, 2013.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

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ORDER