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From Health Reform WK-EDGE, April 8, 2019

HHS and OMB improperly withheld ACA emails to Congress

By Jeffrey H. Brochin, J.D.

Freedom of Information Act (FOIA) requests cover agency emails which contain prior exchanges with Congressional staff, as long as the exchanges were included as in-line text in the agencies’ sent emails.

A federal district court in the District of Columbia has granted summary judgment to American Oversight, a political watchdog group, in its lawsuit against the HHS and the Office of Management and Budget (OMB) for improperly withholding or redacting content of requested emails to Congress. The Freedom of Information Act (FOIA) request sought communications from the agencies to Members of Congress and congressional staff about potential administrative actions related to the implementation of the Patient Protection and Affordable Care Act (ACA) (P. L. 111-148) (American Oversight v. HHSMarch 30, 2019, Jackson A.).

Concern over ACA repeal and replacement. On May 4, 2017, the non-profit organization sent identical FOIA requests to HHS and OMB seeking the two categories of records: (1) A copy of any letter or memorandum sent on or about March 23, 2017 to Congressional Republicans outlining potential regulatory actions related to the ACA; and, (2) any other communications from the agencies to any member of Congress or congressional staff concerning potential administrative actions relating to implementation of the ACA. The organization was interested in the information due to stalled legislative efforts in Congress to repeal and replace the ACA.

The organization filed suit on July 20, 2017, and the agencies began making rolling productions in November 2017. By February 2018, both agencies had completed their productions, however, the organization objected to emails being withheld or redacted by the agencies, and both parties filed cross motions for summary judgment.

Production and exemption. To prevail in a FOIA action, an agency must first demonstrate that it has made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested, and, the agency must show that the requested material falls within a FOIA exemption. Any reasonably segregable information in a responsive record must be released and non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions. Most FOIA cases are appropriately resolved on motions for summary judgment, and the court may award summary judgment solely on the information provided in affidavits or declarations that describe the justifications for nondisclosure with reasonably specific detail, demonstrating that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.

Disclosure of a record as a unit. FOIA does not provide for withholding responsive but non-exempt records or for redacting nonexempt information within responsive records. Therefore, once an agency identifies a record it deems responsive to a FOIA request, the statute compels disclosure of the responsive record—as a unit—except insofar as the agency may redact information falling within a statutory exemption. Unless information within a record can be withheld by invoking one of the narrowly construed FOIA exemptions, a responsive record must be produced in its entirety.

Defining the term ‘record’. FOIA does not define the term "record," but agencies in effect define a "record" when they undertake the process of identifying records that are responsive to a request. The court noted that it appears that what is deemed "responsive to the request" should dictate what constitutes the record. In the instant case, the agencies contended that they properly redacted large portions of the agencies’ email chains based on their definition of what would constitute a "record," and that rather than treating entire email chains as a "record," they took a narrower approach and defined a "record" to be each individual email in the chain based on whether the author was an official at one of the agencies.

Too literal and "stingy". The court found the agencies’ approach to be unduly literal and stingy, and it agreed that the nonprofit’s position was more consistent with the day-to-day reality of electronic communication as well as the general legal principles to be applied in FOIA cases. Although the nonprofit could have been clearer in framing its request, it is commonly understood that an email chain operates as a single record. The very nature of a "reply"—as opposed to a "new message"—necessarily implies that the communication is responsive to the message that came before, and therefore it incorporates what came before, and the two form a unified exchange. The prior messages received from Congress not only appeared physically within the agencies’ outgoing emails, but they were incorporated into the agencies’ communications.

Based on the foregoing, the court found that the FOIA request covered the redacted information so long as it was included as in-line text in the agencies’ sent emails, regardless of whether the agency authored each email in the chain, and the court granted summary judgment in favor of American Oversight.

The case is No. 1:17-cv-01448-ABJ.

Attorneys: Sara Kaiser Creighton (Williams & Connolly LLP) for American Oversight. Michael Hendry Baer, U.S. Department of Justice, for U.S. Department of Health and Human Services.

Companies: American Oversight; U.S. Department of Health and Human Services

Cases: CaseDecisions AgencyNews GeneralNews ProgramIntegrityNews DistrictofColumbiaNews NewsFeed

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