Chief Judge Beryl A. Howell of the District of Columbia District Court denied cross-motions for summary judgment in a Freedom of Information Act (FOIA) request case by both parties disagreeing on whether a records search that ended in a “no records response” by the defendants was adequate.
Plaintiff DaVita Inc. originally alleged that the Department of Health and Human Services and the Centers for Medicare and Medicaid Services (CMS) did not fulfill their obligation under FOIA to release records that the plaintiff requested, which consisted of 36 public comments submitted in 1990 on a rule finalized five years later, “because they conducted an inadequate search for responsive records,” the court explained.
The plaintiff made the FOIA request to CMS on Nov. 22, 2019, because the 1995 rule in question proposed implementing provisions of the Medicare Secondary Payer Act (MSP), the meaning and application of which the plaintiff was litigating. In its request for access to the 36 comments, “in PDF format if possible,” the plaintiff sought expedited processing “because the comments may be materially relevant to the outcome of an ongoing federal court case,” according to the FOIA request.
CMS received the request the same day it was submitted but on Dec. 4, 2019, declined to provide expedited processing, which the plaintiff did not appeal. CMS began its search, and in April 2020, sent a letter requesting that CMS “furnish the requested records as soon as possible”; it did not receive a response, so on July 2, 2020, the plaintiff brought HHS and CMS to court. CMS eventually found through the Archives Records Center Information System (ARCIS) that the records had been set to be transferred to the National Archives and Records Administration (NARA) in 2018, but remained in temporary storage at the Washington National Records Center (WNRC). With litigation already underway, CMS requested the box from the WNRC, the court explained.
However, upon inspection, the box did not contain any public comments, and after more searching involving various agencies, CMS concluded that “(g)iven the passage of time” since the rule was proposed in 1990, “there is no one currently available to speak to what the procedures were and how the records were packaged,” and the agencies have exhausted all possible places where the records likely would reside. CMS provided a final “no records response” to the plaintiff on Nov. 2, 2020.
In dispute is the adequacy of the defendants’ responsive records search. The plaintiff claimed that the very fact that CMS could not recover the 36 public comments made the search “unreasonable and inadequate,” the court said. The judge found that the plaintiff could not meet its burden for summary judgment because “the question is not whether the agency can pinpoint the exact whereabouts of the missing documents, but whether the agency can show that its search is adequate despite its failure.” Regarding any entitlement to the found box, the court held that the defendant argued sufficiently that the contents were non-responsive to the original FOIA request and thus, CMS need not provide access.
The defendant argued that it sufficiently described its determinations for where to search for the records and how it exhausted its options, but the judge found that the defendant did not use enough detail to meet the burden for summary judgment in illustrating the searches carried out by certain agencies, and, on remand, it must include “an explanation of the search methodology used by these components and any relevant search terms.”
The plaintiff is represented by Arnold & Porter Kaye Scholer LLP.