Heffernan v. Azar

317 F.Supp.3d 94

Henry G. HEFFERNAN, Plaintiff,

v.Alex AZAR,¹ in his official capacity as Secretary of the United States Department of Health and Human Services, Defendant.

Civil Action No. 15–2194 (RBW)

United States District Court, District of Columbia.

Signed June 27, 2018

Cathy Ann Harris, Juliette Markham Niehuss, Kator, Parks, Weiser & Harris, PLLC, Washington, DC, for Plaintiff.

Marina Utgoff Braswell, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiff, Henry G. Heffernan, initiated this action against the defendant, Alex Azar, in his official capacity as Secretary of the United States Department of Health and Human Services ("HHS"), alleging multiple violations of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2012). See generally Complaint ("Compl."). Currently before the Court are the Defendant's Motion for Summary Judgment ("Def.'s Mot."), ECF No. 25, and the Plaintiff's Opposition to Summary Judgment and Cross–Motion for Summary Judgment ("Pl.'s Mot."), ECF No. 27. Upon careful consideration of the parties' submissions,² the Court concludes for the reasons that follow that it must grant in part and deny in part without prejudice the defendant's motion for summary judgment and deny the plaintiff's cross-motion for summary judgment.

I. BACKGROUND

The undisputed facts relevant to the parties' cross-motions are the following. See generally Pl.'s Resp. (not disputing any of the facts contained in the defendant's statement of facts); Def.'s Resp. (not disputing any of the facts contained in the plaintiff's statement of facts). The "[p]laintiff ... is a Roman Catholic Priest who served for two decades as a Roman Catholic chaplain within the HHS, National Institute of Health (NIH) Clinical Center's Department of Spiritual Ministry, Department of Spiritual Care (‘SMD’)." Pl.'s Facts ¶ 1. "In 2007, the NIH Clinical Center assembled an outside panel of experts in spiritual ministry chaplaincy to review the operations of the Department of Spiritual Ministry and make recommendations for the policies and practices to ensure that [it] met the best standards for professional spiritual ministry practice."Id. ¶ 2. "As a staff chaplain at the NIH Clinical Center, [the plaintiff] participated in the [ ] 2007 [o]perational [r]eview discussions with the outside experts." Id. ¶ 7; see also id. ¶ 8 (noting some of the ways in which the plaintiff participated in the operational review). Ultimately, "[t]he review panel made recommendations to HHS. However, not all of those recommendations were communicated to the chaplains." Id. ¶ 9. Based on the panel's recommendations, the Clinical Center began considering changes to its operations and policies. See id. ¶¶ 10–18 (discussing team meetings and the use of focus groups facilitated by an outside consultant to determine what changes were necessary). The plaintiff "retired from HHS in 2013." Id. ¶ 1.

On March 19, 2014, the plaintiff submitted to the defendant a FOIA request

seeking certain specified records concerning [ (1) ] the [o]perational [r]eview of the Department of Spiritual Ministry that occurred in approximately July 2007, [ (2) ] the Clinical Research Advisory Board [m]eeting that occurred in approximately September 2007, [ (3) ] the Marit 2008–2009 Organization Development Focus Group Study of the Department of Spiritual Ministry/Department of Spiritual Care, conducted by Diana Marit Kunkel, Ph.D., and (4) all current approved policies, procedures and standards of practice ... specific to the Department of Spiritual Ministry/Department of Spiritual Care.

Def.'s Facts ¶ 1; see also Pl.'s Resp. ¶ 1 (not disputing these facts). On July 22, 2014, the defendant provided the plaintiff with an initial response to his FOIA request by "ma[king] an interim release ... consisting of [thirty-five] pages." Def.'s Facts ¶ 2; see also Pl.'s Resp. ¶ 2. On September 25, 2014, the defendant "made a final release to [the] plaintiff consisting of 614 pages of responsive records," some of which contained information that was withheld pursuant to Exemptions 5 and 6 of the FOIA. Def.'s Facts ¶ 3; see also Pl.'s Resp. ¶ 3. "On October 29, 2014, [the p]laintiff appealed [the d]efendant's ‘final response’ " internally according to the defendant's FOIA procedures, Pl.'s Facts ¶ 26; see also Def.'s Resp. ¶ 26, and on December 17, 2015, while the defendant was processing that appeal, the plaintiff filed his Complaint commencing this case, see Pl.'s Facts ¶ 28; see also Def.'s Resp. ¶ 28.

After the filing of this case, "[o]n April 22, 2016, the [d]efendant produced its first Vaughn Index and sworn declaration." Pl.'s Facts ¶ 30; see also Def.'s Resp. ¶ 30. The plaintiff challenged certain discrepancies in the defendant's Vaughn Index, "asked for clarification regarding missing explanations for [certain] redactions," and requested that the defendant conduct "a search for records responsive to [certain i]tems ... and [to produce] a list of records that appear[ed] to be missing." Pl.'s Facts ¶¶ 32–33; see also Def.'s Resp. ¶¶ 32–33. The defendant agreed to conduct the additional search for responsive documents requested by the plaintiff and to provide the plaintiff with the requested supplemental information. See Pl.'s Facts ¶ 36; see also Def.'s Resp. ¶ 36. On August 15, 2016, the defendant "produced its [s]econd Vaughn Index, [but] without a supplemental declaration." Pl.'s Facts ¶ 39; see also Def.'s Resp. ¶ 39. The plaintiff had largely the same concerns with the defendant's second Vaughn Index as already expressed, see Pl.'s Facts ¶¶ 40–42; see also Def.'s Resp. ¶¶ 40–42, and the defendant also failed to provide the plaintiff with the agreed-upon supplemental information, see Pl.'s Facts ¶¶ 43–44; see also Def.'s Resp. ¶¶ 43–44. The parties discussed the situation, and the defendant again agreed to provide the plaintiff with the supplemental information. See Pl.'s Facts ¶¶ 45–47; see also Def.'s Resp. ¶¶ 45–47. Because he did not receive the supplemental information as promised, on November 14, 2016, the "[p]laintiff filed a Motion for a Complete Vaughn Index." Pl.'s Facts ¶ 48; see also Def.'s Resp. ¶ 48. "Subsequent to that filing, the [defendant] agreed [ ] once again" to provide the plaintiff with the supplemental information, Pl.'s Facts ¶ 49; see also Def.'s Resp. ¶ 49, and on January 2, 2017, "[t]he Court affirmed that agreement," Pl.'s Facts ¶ 50; see also Def.'s Resp. ¶ 50.

On January 31, 2017, the defendant produced "its [t]hird Vaughn Index and [an additional] declaration from [its a]cting FOIA Officer." Pl.'s Facts ¶ 51; see also Def.'s Resp. ¶ 51. The defendant "also produced a few additional pages[ ] and re-produced documents previously produced without certain prior redactions." Pl.'s Facts ¶ 52; see also Def.'s Resp. ¶ 52. And, on February, 21, 2017, the defendant made an additional production that corresponded with the Third Vaughn Index. Pl.'s Facts ¶¶ 55, 57; see also Def.'s Resp. ¶¶ 55, 57. Later, on July 19, 2017, the defendant filed its motion for summary judgment on the plaintiff's claims, asserting that it "conducted adequate searches for responsive records, and it [provided to the] plaintiff all of the records to which he is entitled." Def.'s Mem. at 1. The plaintiff then filed his opposition to the defendant's motion for summary judgment, along with his cross-motion for summary judgment, arguing that the defendant failed to conduct adequate searches and that it improperly withheld information pursuant to several FOIA exemptions. See generally Pl.'s Mem. Given that the parties have now fully briefed their cross-motions for summary judgment, these motions are now ripe for the Court's review.

II. STANDARD OF REVIEW

The Court must grant a motion for 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). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ). The Court must therefore draw "all justifiable inferences" in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party, however, cannot rely on "mere allegations or denials." Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ). Thus, "[c]onclusory allegations unsupported by factual data will not create a triable issue of fact." Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (Garland, J., concurring) (alteration in original) (quoting Exxon Corp. v. FTC, 663 F.2d 120, 126–27 (D.C. Cir. 1980) ). If the Court concludes that "the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). At bottom, "in ruling on cross-motions for summary judgment, the [C]ourt shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed." Shays v. FEC, 424 F.Supp.2d 100, 109 (D.D.C. 2006).

"FOIA cases typically are resolved on a motion for summary judgment." Ortiz v. U.S. Dep't of Justice, 67 F.Supp.3d 109, 116 (D.D.C. 2014) ; see also Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). "[The] FOIA requires federal agencies to disclose, upon request, broad classes of agency records unless the records are covered by the statute's exemptions."...