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Susan B. Long and David Burnham v. United States Department of Justice

March 25, 2011

SUSAN B. LONG AND DAVID BURNHAM, PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief Judge:

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

Plaintiffs Susan B. Long and David Burnham brought this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to challenge the response by defendant, the United States Department of Justice ("DOJ"), to their FOIA requests for records from, or relating to, the DOJ Civil Division's ("the Division") case management system database ("CASES"). Presently before the Court is the DOJ's motion for reconsideration of the portion of the Court's prior Memorandum Decision and Order which granted summary judgment to plaintiffs and directed that the DOJ release the vaccine type and date of vaccine administration information as contained in the CASES database. Plaintiffs oppose this motion.

II. BACKGROUND

A. Procedural History

Both parties previously moved for summary judgment. In a Memorandum Decision and Order entered on March 25, 2010, the Court granted summary judgment for the DOJ in connection with the adequacy of the DOJ's search, the DOJ's decision to withhold JCON IDs*fn1 as exempt, the DOJ's decision to withhold attorney time reporting information as exempt, and the DOJ's failure to indicate the redaction of sealed cases. The Court granted plaintiff's cross-motion for summary judgment with respect to vaccine type and date of administration and directed defendant to release the information in those fields. The Court otherwise denied the parties' motions and directed further briefing and supplemental evidentiary submissions on the remaining issues. Presently before the Court is the DOJ's motion pursuant to Rule 54(b) of the Federal Rules of Civil Procedure for reconsideration of the Court's decision to grant plaintiffs' motion for summary judgment with respect to the information in the vaccine type and date of administration fields in the CASES database.*fn2 Plaintiffs oppose the DOJ's motion for reconsideration.

B. Factual Background

Familiarity with the factual background in this case is assumed. The Background section in the prior Memorandum Decision and Order summarizes the parties' submissions on summary judgment regarding: the Transactional Records Access Clearinghouse ("TRAC"), a data gathering, data-research and data-distribution organization plaintiffs founded at Syracuse University; CASES, the "current computerized case information system used for tracking basic data on filed civil cases as well as unfiled matters handled in the various litigating components (Branches and Sections) of the Civil Division" of the DOJ; the contents of plaintiff's FOIA request; and the parties' exchange of information in connection with the DOJ's attempt to fulfill plaintiff's FOIA request. See Memorandum Decision and Order, Dkt. no. 43, pp. 2-8 (Mar. 25, 2010).

In his original declaration in support of the DOJ's motion for summary judgment, James Kovakas, the Attorney-In-Charge of the Freedom of Information and Privacy Acts Office of the Civil Division, DOJ, stated that he: withheld vaccine information under Exemption 6 to protect personal privacy of individuals in the type of vaccine administered and the date the vaccine was administered. The names of the individuals who filed suit in the relevant vaccine litigation were already released in the form of case captions. The individuals so identified are either the individual who received the vaccine or someone acting on that person's behalf, so disclosing the details of the vaccine that was administered would provide specific medical information about named individuals.

Dkt. No. 26-4, ¶ 30. The DOJ principally relied on 42 U.S.C. § 300aa-25*fn3 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 et seq., ("Vaccine Act"),*fn4 which governs the recording of vaccine administration and the reporting of adverse events and reactions related to vaccines by health care providers and vaccine manufacturers, in support of its decision to withhold this information from disclosure. The Court found, however, nothing in that provision justified the DOJ's decision to withhold the type of vaccine administered or the date of vaccination. Accordingly, the Court held that the DOJ failed to satisfy its burden of justifying the withholding of this information under Exemption 6, 5 U.S.C. § 552(b)(6), which protects from disclosure information implicating personal privacy interests.

In its present motion, the DOJ now argues that 42 U.S.C. § 300aa-25 is inapplicable to the information in the type of vaccine and date of administration fields in the CASES database. The DOJ avers that 42 U.S.C. § 300aa-12(d)(4)(A),*fn5 which governs the disclosure of information submitted to the United States Court of Federal Claims in connection with a petition filed under the National Vaccine Injury Compensation Program (VICP"), is the relevant statutory provision. Accordingly, the DOJ asserts, it properly withheld the information under Exemption 3, 5 U.S.C. § 552(b)(3), because § 300aa-12(d)(4)(A) prohibits disclosure. The DOJ further argues that, in any event, under Exemption 6, the privacy interests of the individuals connected with this information outweighs the public's need for it. Plaintiffs oppose this motion.

For the reasons set forth below, the Court finds that 42 U.S.C. § 300aa-25 is inapplicable. Thus, reconsideration is warranted to correct a legal error and prevent the manifest injustice resulting from the of disclosure of private individuals' personal information based upon reliance on the incorrect statutory provision. Accordingly, the DOJ's motion is granted and the Court will reconsider the DOJ's motion for summary judgment regarding the information in the vaccine type and date of vaccine administration fields in the CASES database.

III. EVIDENCE ON THE MOTION FOR RECONSIDERATION

A. DOJ

In support of its motion for reconsideration, the DOJ submitted declarations by Kovakas and David E. Benor, the Associate General Counsel for Public Health, Office of the General Counsel, Department of Health and Human Services ("HHS"). Kovakas states:

After reviewing the Court's Order, my office contacted a member of the Vaccine Litigation unit in the Civil Division in order to inquire whether that unit had any concern with respect to the Court's ruling. The Vaccine Litigation unit, in turn, contacted the Office of General Counsel in the Department of Health and Human Services ("HHS"). After HHS reviewed the Court's decision, I was alerted to the fact that HHS was concerned that the Court had erroneously cited 42 U.S.C. § 300aa-25 as governing the disclosure of information in the CASES database, when that statute had no connection to the litigation carried out pursuant to the VICP, as established by 42 U.S.C. §§ 300aa-10 to -17 as part of the . . .Vaccine Act . . . 42 U.S.C. §§ 300aa-1 et seq. I was informed that, to the contrary, § 300aa-25 applies only to reports submitted through the national vaccine injury reporting system, which has nothing to do with litigation, the Civil Division, or the CASES database. I was also alerted to the fact that HHS has identified one subsection of the provision that governs judicial proceedings under the VICP, 42 U.S.C. § 300aa-12(d)(4), as a statute that qualifies as an exemption statute for purposes of FOIA's Exemption 3.

After being made aware of HHS's position, as well as of the relevant statutory framework, I reviewed the statutes in question and consulted with Vaccine Litigation unit personnel. I concluded that the "vaccine type" and "date of administration" fields in CASES must be withheld under Exemption 3 because 42 U.S.C. § 300aa-12(d)(4) prohibits the disclosure of this information without the written consent of the petitioner filing a case in the Court of Federal Claims. . .

The relevant CASES database entries are part of the Civil Division's electronic litigation tracking database. The "vaccine type" and "date of administration" fields occur in the ZVACCINECD table. This table is part of the Vaccine Litigation module, which tracks cases handled by the Civil Division's Vaccine Litigation unit.

The information in the "vaccine type" and "date of administration" fields is taken directly from a petitioner's submissions to a special master or the Court of Federal Claims in VICP proceeding. . . . . . . they are also exempt under Exemption 6 because this information qualifies as confidential medical information about identified individuals, and its disclosure would constitute a clearly unwarranted invasion of privacy.

Dkt. No. 44-4, ¶¶ 4-5, 7-8.

According to Benor, the CASES database contains information regarding cases filed under the VICP which are litigated by the [DOJ] on behalf of the Secretary of [HHS]. . . . . . .

As a result of the confidentiality provision [contained in § 300aa-12(d)(4)], identifiable information regarding VICP cases is exempt from disclosure under the FOIA, with the exception of the statutorily mandated Federal Register notice that contains only a list of petitions filed. See section 300aa-12(b)(2). That list includes only petitioners' names, their city and State, and the claim number assigned by the Court of Federal Claims. Other than this limited information publicly released in the Federal Register, release of any medical or other private information that a VICP petitioner submits to a special master or the Court of Federal Claims, including the relevant vaccine and the date of administration, would result in a disclosure of confidential information, in violation of the statute. See section 300aa-12(d)(4)(A). In addition, if the released information could be linked with the information in the Federal Register notice, or could otherwise be linked to specific petitioner, such that additional submitted information were revealed, this would also violate the statute because it would constitute an additional prohibited disclosure. . . . . . . . . . section 300aa-25 . . . relates to an important arm of the Department-wide vaccine safety reporting system known as the Vaccine Adverse Events Reporting System (VAERS). VAERS is a national vaccine safety surveillance program co-sponsored by two components of HHS, the Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA). VAERS is a post-marketing safety surveillance program, collecting information about possible side effects that occur after the administration of vaccines licensed for use in the United States . . . . Individuals for whom VAERS reports have been filed may or may not have cases filed in the VICP, but there is no connection between VICP litigation and VAERS reports. Because the CASES database tracks VICP litigation, what gets reported to VAERS, and what may be disclosed from VAERS, would not be relevant to CASES. Dkt. No. 44-3, ¶¶ 3, 5, 7.

B. Plaintiffs

In response, plaintiffs submitted a declaration by plaintiff Susan Long and a declaration by Paul Lang, Managing Clerk in plaintiffs' attorneys' law office. In her declaration, Long describes the Vaccine Act, the increase in the number of petitions filed pursuant to the VICP, and defendant's budget for handling such cases. Long asserts that the "public can only test [the DOJ's] vaccine-case related budget requests if it knows the vaccine type at issue in each of the cases [the DOJ] handles." Long further asserts that "[o]f the vaccine petitions filed, there is a wide variance in the percentages of those cases where the underlying injury is compensated, based on the type of vaccine, that merits public inquiry into [the DOJ's] handling of cases involving different vaccine type to assess what explains these differential results."

Lang states that he spoke with clerk's office personnel at the Court of Federal Claims. According to Lang, the clerk's office employee told him that "petitions filed under the Vaccine Injury Compensation Program are accompanied by a cover sheet" that petitioners must complete. The cover sheet contains fields requiring the petitioner to provide the vaccine type and the date of vaccination. Lang further states that the clerk's office employee advised him "that the date of vaccination is included in the Docket Text accompanying the filing of the petition as part of the routine entry of information into the ECF system by the Clerk's Office." Lang avers that he reviewed the docket sheets in five vaccine cases, all of which "were readily available to me as a member of the public", and that each docket sheet contained the type of vaccine and the vaccination date.

IV. Motion for ...


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