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No. 1:05CV2266 (D.D.C.), filed November 23, 2005

Updated: April 9, 2009


Issue: Whether HHS violated the Freedom of Information Act when it failed to respond to a request for documents about the videoconferencing technology to be employed in the new system for handling Medicare appeals to ALJs.


Relief sought: The production of the relevant documents.


Status: HHS has produced several hundred pages of documents, but is withholding many more contending that they are exempt from disclosure under the attorney-client and/or deliberative process privileges.  The parties briefed cross-motions for summary judgment in the fall of 2006, with the final brief filed on October 31, 2006.  On March 28, 2008, the court ruled largely in the defendant's favor, holding that HHS did not have to produce the requested documents.  The judge did grant plaintiff's request for a fee waiver, however.  The court stated that it would later issue an opinion explaining its ruling, and that the order would not take effect until that opinion was issued.


On September 17, 2008, the Court finally issued its decision. 577 F. Supp. 2d 221 (D.D.C. 2008).  In a lengthy analysis, the Court determined that, under the deliberative process and attorney-client privileges, the government had no obligation to provide any additional documents. In a victory for the plaintiff, the Court explained at some length why plaintiff's fee should be waived. See id. at 238-42. That aspect of the decision may be of some use for future FOIA requests by public interest entities.


Plaintiff did not appeal.  HHS filed a notice of appeal on the waiver of fees issue, but the district court clerk has stated that the notice has a defective signature so that the validity of the appeal is unclear.  Since no further action was taken on the defendant's defective notice of appeal, it is presumed that the appeal has not gone forward and that the case is at an end. 

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