UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NANCY J. SWICK,

Plaintiff, v. Civil Action No. 18-1658 (JDB) UNITED STATES DEPARTMENT OF THE ARMY,

Defendant.

MEMORANDUM OPINION

Plaintiff Nancy Swick brought this action pro se under the Freedom of Information Act

(“FOIA”),

, against defendant U.S. Department of the Army seeking a psychiatric

report and personnel records from her former employment at Fort Belvoir Community Hospital

(“FBCH”). The Court denied the parties’ original cross-motions for summary judgment because

the “record [was] neither sufficiently clear nor sufficiently detailed” as to what searches had been

conducted. Mem. Op. (July 2, 2020) (“July Mem. Op.”) [ECF No. 31] at 1; see also Order (July

2, 2020) (“July Order”) [ECF No. 30]. Now before the Court are the parties’ renewed cross-

motions for summary judgment. For the reasons explained below, the Court will grant the Army

summary judgment on Swick’s request for her psychiatric report, but deny both sides summary

judgment on her request for her personnel file. As a result, the Court will again require the Army

to provide additional information about the thoroughness and substance of its search for Swick’s

personnel file before submitting any renewed dispositive motions.

Background

The facts and procedural history of this case are more fully set forth in the Court’s decision

denying the parties’ earlier motions for summary judgment. See July Mem. Op. at 1–3. As

1 relevant here, Swick worked as an OB/GYN nurse practitioner at FBCH in Fort Belvoir, Virginia

from 2011 to 2013. See Ex. to Compl. [ECF No. 1-1] at 3, 24. In 2017, Swick submitted two

FOIA requests to FBCH seeking : (1) a report from a psychiatric evaluation she was apparently

ordered to undergo during her employment there; and (2) “any and all documents with [her] name,

social security number, [and] date of birth” that were stored either in her personnel file or “that are

being maintained/filed separately due to privacy laws and regulation[s].” See

, 14–15, 20–

21. FBCH denied both requests, see Oct. 2, 2018 Letter from FBCH [ECF No. 20-2] at 1, and

after exhausting her administrative remedies, Swick filed the instant lawsuit, see Compl. [ECF No.

1]; Ex. to Compl. at 39, 57; Am. Compl. [ECF No. 12] ¶¶ 1, 13.

In September 2019, the parties filed their first cross-motions for summary judgment. See

Def.’s Mot. for Summ. J. [ECF No. 20] at 1; Pl.’s Cross-Mot. for Summ. J. [ECF No. 22] at 1. In

support of its motion, the Army asserted that FBCH “[had] not search[ed] Ms. Swick’s medical

records” for her psychiatric evaluation because she had “not submitted the proper paperwork”

under the Health Insurance Portability and Accountability Act (“HIPAA”) “for FBCH to do so.”

Def.’s Mot. for Summ. J. at 10. The Army also contended that, because Swick left FBCH’s employ

in 2013, her personnel file was now located at the National Personnel Records Center (“NPRC”)

and the Office of Personnel Management (“OPM”), not the Army, had custody of it.

at 11 &

n.2. Even so, the Army filed two affidavits attesting that four searches had been conducted for the

requested files—one of records held by the Department of the Army Civilian Human Resources

Agency (“CHRA”) and three of FBCH’s own records—and that no responsive records had been

found. See Decl. of Aubrey Jones (“Jones Decl.”) [ECF No. 20-3] ¶¶ 5–6; Decl. of Debbie Davis

(“Davis Decl.”) [ECF No. 20-6] ¶¶ 7–8.

In denying summary judgment to both sides, this Court concluded that the Army had not

2 established that an adequate search for Swick’s psychiatric evaluation and personnel file had been

conducted. July Mem. Op. 6–14. As to the psychiatric evaluation, the Court rejected the Army’s

assertion that HIPAA barred “disclosure to Swick of her own medical records through FOIA.”

. Moreover, the Court explained that it could not “determine the adequacy of the search” for

Swick’s evaluation because “the Army state[d] both that FBCH searched Swick’s medical records

and that it refrained from doing so due to HIPAA,”

, and because the Army “failed to

respond adequately to Swick’s suggestion that her psychological evaluation may not have been

labeled a ‘medical record’ in the first place because she was not a patient of FBCH, but rather an

employee,”

.

With respect to Swick’s personnel file, the Court concluded that the Army had established

an adequate physical search, but not an adequate electronic search.

at 10–11. For starters, the

Court found that neither affidavit “clearly explain[ed] the search terms that were used to search

the electronic records of FBCH or CHRA.”

. Although FBCH’s FOIA officer, Debbie

Davis, “state[d] that ‘FBCH personnel no longer [had] access to Ms. Swick’s electronic Official

Personnel Folder,’” Davis “fail[ed] to explain how she came to that conclusion, including which

databases or search terms she used in her search.”

And while CHRA’s FOIA officer, Aubrey

Jones, “mention[ed] that ‘Ms. Swick was found in the Civilian Personnel On-Line (CPOL)

[database],’ which was how [he] concluded that Swick had been separated from her job and that

her personnel files had been transferred to the NPRC,” he “[did] not explain if this CPOL database

[was] the only relevant part of ‘CHRA’s computer network’ for purposes of finding Swick’s

records.”

.

Separately, the Court determined that although “the present record [was] sufficiently clear

to establish the physical location of Swick’s personnel records at NPRC,” it remained unclear

3 whether FBCH or the Army “still [had] legal custody over the records and [could] request them

from NPRC.”

at 13–14. The Army cited OPM guidelines that “when an employee departs the

agency, the agency ships the physical personnel records to the [NPRC] and disables its access to

the former employee’s electronic Official Personnel Folder”; and that “normally” this happens

“within 120 days after the employee separates.” See Def.’s Mot. for Summ. J. at 14 (citing OPM

Operating Manual: The Guide to Personnel Recordkeeping (“OPM Manual”) [ECF No. 32-8] at

7-1, 7-8). But the Court explained that “[w]hile these statements may be true and the policies well

established, they do not address whether the Army in this case has actually transferred legal

custody and disabled all access to Swick’s personnel folder.” July Mem. Op. at 14.

In light of these deficiencies, the Court ordered the Army to include in its renewed motion

for summary judgment:

a supplemental declaration, as well as any relevant supporting documents, addressing (a) whether FBCH has found Swick’s psychological evaluation and is withholding it due to a FOIA exemption and/or HIPAA; (b) if FBCH has not yet found Swick’s psychological evaluation, whether it has searched Swick’s medical records; (c) whether FBCH may have labeled or stored Swick’s psychological evaluation as something other than a medical record (for instance, as a personnel record) and, if so, whether FBCH has searched those other types of files as well; (d) the specific electronic databases searched and the search terms used to locate Swick’s psychological evaluation and personnel file; and (e) whether FBCH or the Army retains legal custody of Swick’s personnel file, notwithstanding its physical transfer to NPRC.

July Order at 1–2; see also July Mem. Op. at 15. The parties have now filed renewed cross-motions

for summary judgment, which have been fully briefed and are ripe for consideration. See Def.’s

Renewed Mot. for Summ. J. [ECF No. 32] (“Def.’s Br.”); Pl.’s Renewed Cross-Mot. for Summ. J.

(“Pl.’s Br.”) [ECF No. 34].

4 Legal Standard

“FOIA cases typically and appropriately are decided on motions for summary judgment.”

Defs. of Wildlife v. U.S. Border Patrol,

(D.D.C. 2009). Summary judgment

is warranted when the pleadings and evidence demonstrate 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).

“It is the agency’s burden to prove that it has complied with its obligations under FOIA.”

Democracy Forward Found. v. Ctrs. for Medicare & Medicaid Servs., Civil No. 18-635 (JDB),

, at *1 (D.D.C. Nov. 27, 2019). This means that an agency must “demonstrate

beyond material doubt that its search was reasonably calculated to uncover all relevant

documents.” Valencia–Lucena v. U.S. Coast Guard,

(D.C. Cir. 1999) (internal

quotation marks omitted). To carry this burden, an agency may submit affidavits that, in

reasonable detail and in a non-conclusory fashion, set forth the scope and method of its search,

Morley v. CIA,

(D.C. Cir. 2007), and such affidavits are “accorded a

presumption of good faith,” SafeCard Servs. v. SEC,

(D.C. Cir. 1991).

Although an “affidavit need not go into exhaustive detail about every aspect of the search,” Yunes

v. DOJ, No. CV 14-1397 (JDB),

, at *3 (D.D.C. Aug. 26, 2016), it must “set[]

forth the search terms and the type of search performed, and aver[] that all files likely to contain

responsive materials (if such records exist) were searched,” Oglesby v. U.S. Dep’t of Army,

(D.C. Cir. 1990).

Analysis

1. Adequacy of Search for the Psychiatric Evaluation Report

The Army has conducted an adequate search for Swick’s psychiatric evaluation report. In

support of its renewed motion for summary judgment, the Army filed a supplemental declaration

5 from Davis. See Decl. of Debbie Davis (“Suppl. Davis Decl.”) [ECF No. 32-7] at ¶ 4. Specifically,

Davis responds to the Court’s inquiries as follows: (a) “FBCH does not have a psychiatric

evaluation for Swick in any of its records. As a result, FBCH is not withholding Swick’s

psychiatric evaluation under HIPAA or FOIA”; (b) “I have searched Swick’s medical records

repeatedly, but I have not found a psychiatric evaluation for Swick”; (c) “FBCH has not labeled

or stored Swick’s psychiatric evaluation as something other than a medical record”; and (d) “I have

searched the following specific databases for Swick’s psychiatric evaluation: the Armed Forces

Longitudinal Technology Application (‘AHLTA’), which is the military’s comprehensive

electronic health records; the Health Artifact and Image Management Solution [database]. . . and

Swick’s occupational health file. I used the following search terms: searched by patient name,

appointment date, discipline, and specialty (psychiatry).”

at ¶¶ 4–9.

This supplemental declaration “set[s] forth the scope and method of the agency’s search”

“in reasonable detail and in a non-conclusory fashion,” identifying the search terms used. See

Morley,

; Oglesby,

. And together, Davis’s declarations make clear

that FBCH would have stored Swick’s psychiatric evaluation as a medical record, if it existed, and

that the medical records searched are the only ones “likely to contain responsive materials.” See

Oglesby,

; see also Davis Decl. ¶ 7; Suppl. Davis Decl. ¶ 9.

Swick raises two narrow objections to the Army’s search for her psychiatric evaluation,

neither of which is compelling. To begin, Swick questions whether Davis applied all four search

terms at once, or in succession. Pl.’s Br. at 17. Specifically, Swick hypothesizes that if FBCH

had done a combined search for files tagged with a “discipline” of OB-GYN and a “specialty” of

psychiatry, that search would not be reasonably calculated to yield responsive results because

Swick is “not . . . an OB-GYN Nurse Practitioner with a specialty in psychiatry.” See

The

6 problem with this argument is that Davis never avers that she searched for medical records

associated with a “discipline” of OB-GYN, see Suppl. Davis Decl. at ¶ 9, and Swick’s hypothetical

assertions to the contrary do not prove otherwise, see Oglesby, 920 F.3d at 67 n.13

(“[H]ypothetical assertions are insufficient to raise a material question of fact with respect to the

adequacy’s of the agency’s search.”). Swick interprets the search term “discipline” to refer to her

own discipline as an OB-GYN nurse practitioner, see Pl.’s Br. at 17, but that interpretation is

unfounded. Not every hospital patient is a health professional, like Swick, with a medical

“discipline”; rather, as the Army clarifies in its briefing, in the context of an electronic health

records database, the term “discipline” naturally refers to that of the attending physician, not the

patient. See Def.’s Br. at 10. Swick does not otherwise challenge the search terms used, and the

Court finds them reasonable under the circumstances. See Bigwood v. U.S. Dep’t of Def.,

(D.D.C. 2015) (“Where the search terms are reasonably calculated to lead to

responsive documents, a court should neither ‘micromanage’ nor second guess the agency’s

search.”).

Swick also faults the Army for “not discuss[ing] the digital version of [her] Civil Employee

Medical Record (‘CEMR’),” which documents “occupational and nonoccupational health

information for civilian employees.” See Pl.’s Br. at 17–18. But as Swick herself acknowledges,

the CEMR is “maintained in AHLTA,” see id. at 17, and therefore, any separate search of a CEMR

database would be futile since FBCH has already searched AHLTA. See Span v. U.S. Dep’t of

Justice,

(D.D.C. 2010) (denying plaintiff’s request for additional searches

that “would have been redundant”).

2. Adequacy of Search for the Personnel File

The Court continues to lack sufficient information to evaluate the adequacy of the Army’s

7 search for Swick’s personnel records. Inexplicably, the Army has not—despite the Court’s explicit

order—provided any supplemental declaration or supporting documentation addressing “the

specific electronic databases searched and the search terms used to locate Swick’s . . . personnel

file.” See July Order at 1–2. Davis’s supplemental declaration only details FBCH’s searches for

Swick’s psychiatric evaluation, see Suppl. Davis Decl. at ¶ 9, and the Army has not submitted

additional affidavits from Jones or any other CHRA officer to clarify the record. Instead, the Army

continues to rely on Jones’s original declaration to establish that the Army “conducted an

exhaustive search for Plaintiff’s personnel records and determined that they are presently located

at the NPRC, not FBCH.” Def.’s Mem. in Supp. of Def.’s Opp’n to Pl.’s Cross-Mot. for Summ.

J. and Reply in Supp. of Def.’s Renewed Mot. for Summ. J. (“Def.’s Reply”) [ECF No. 37] at 8

(citing Jones Decl. ¶¶ 4–6); see also Def.’s Br. at 12 (citing Jones Decl. ¶¶ 5–6). But, as

summarized above, the Court already detailed in its prior opinion why that declaration did not

establish an adequate electronic search for Swick’s personnel file. See July Mem. Op. at 11–12

(stating that “Jones’s declaration . . . fails to set forth his search terms” and “does not explain if

th[e] CPOL database is the only relevant part of ‘CHRA’s computer network’ for purposes of

findings Swick’s records.”).

Therefore, the Court will—once again—require the Army “to clarify through sworn

affidavit or declaration, or through relevant documentation, the exact nature of the electronic

search by FBCH and CHRA for Swick’s personnel files, including a specific description of which

databases were searched and which search terms were used.” See id. at 12. That submission

should also “describe at least generally the structure” of FBCH’s and CHRA’s electronic file

systems, see Int’l Counsel Bureau v. U.S. Dep’t of Def.,

(D.D.C. 2009)

(citation omitted), and provide “the agency’s rationale in identifying [any] specific [databases]”—

8 such as CPOL—“with potentially responsive records,” see Bigwood,

.

Additionally, the Army has not sufficiently addressed “whether FBCH or the Army retains

legal custody of Swick’s personnel file, notwithstanding its physical transfer to NPRC.” See July

Order at 2. As the Court previously explained, FOIA does not typically require a responding

agency to produce records that it no longer possesses or has custody over, but when the records

pertain to an ex-employee, the “agency must establish definitively that [those] records are located

at the NPRC,” July Mem. Op. at 12–13 (citing Parker v. Exec. Office for U.S. Att’ys,

(D.D.C. 2012)), and “that [the agency] has transferred not only physical control, but also

legal custody of the records,”

at 13 (citing Fleming v. Medicare Freedom of Info. Grp., Civil

Action No. 1:15-cv-01135 (EGS/GMH),

at *1 (D.D.C. Oct. 24, 2019)).

Davis’s supplemental declaration addresses the issue of legal custody as follows:

FBCH does not retain ‘legal custody’ of Swick’s personnel file. Swick’s personnel file is, and remains under the custody and control of the Office of Personnel Management (OPM). The FBCH access to OPM personnel records on Swick was terminated in or about one year after Swick, or any employee, leaves FBCH employ which is completed by OPM in accordance with OPM policy and practice.

Suppl. Davis Decl. at ¶ 10. No supporting documentation is provided, except for OPM’s Guide to

Personnel Recordkeeping, which the Army had supplied in support of its original motion for

summary judgment, too.

At the outset, this supplemental declaration does not address whether the Army—

separately from FBCH—has legal custody of Swick’s personnel files. See July Order at 2

(ordering the Army to address “whether FBCH or the Army retains legal custody of Swick’s

personnel file) (emphasis added). Hence, the Army’s filing is plainly deficient in this regard.

Moreover, as Swick asserts, see Pl.’s Statement of Material Facts in Genuine Dispute [ECF No.

34-1] at 6–7, 9, the Army still has not provided any evidence that FBCH “actually transferred legal

9 custody and disabled all access to Swick’s personnel folder,” July Mem. Op. at 14. Rather, Davis

only offers conclusory statements that “FBCH does not retain ‘legal custody’ of Swick’s personnel

file” and that OPM terminated FBCH’s access to Swick’s records “in accordance with OPM policy

and practice.” See Suppl. Davis Decl. at ¶ 10. Without any explanation of how Davis came to

these conclusions, including which databases or search terms she used in her search, the Court

lacks any basis to assess whether a transfer took place.

The Army’s continued reliance on OPM’s Guide to Personnel Recordkeeping as evidence

that the Army lacks custody of Swick’s personnel records is also misplaced. See Def.’s Br. at 13.

As the Court already instructed, the Guide’s statement that “the losing agency, after completion

and verification of a transfer of an electronic personnel folder, must disable its access to the

electronic version of the personnel folder,” see OPM Manual at 7-1, does not establish that FBCH

or CHRA did so in Swick’s case. See July Mem. Op. at 14. Moreover, Davis’s assertions that

OPM disabled FBCH’s access to Swick’s personnel file one year after she separated from FBCH,

see Suppl. Davis Decl. at ¶ 10, are not even fully consistent with the practices stated in the OPM

Guide, which dictate that the “losing agency”—meaning the “last employing agency”—must

disable its access to the personnel file, typically within ninety days after an employee separates,

see OPM Manual at 7-1, 7-6.

The Army’s argument that OPM is the real custodian of Swick’s personnel file fails for a

similar reason. See Def.’s Reply at 5–6. The Army explains that, although the employing agency

typically serves as the custodian of the OPF during an employee’s tenure with that agency, custody

transfers to OPM after the employee leaves federal service. See

; see also

(c), (d)(1), (5). However, as the Army itself acknowledges, the employing agency only

relinquishes custody “once the OPF has been transferred to and accepted by the NPRC.” See

10 Def.’s Reply at 6 (quoting

(d)(4)). And OPM only acquires custody of the OPF

“[o]nce NPRC has approved the transfer.”

(d)(5). Hence, because the Army

provides no evidence that Swick’s files were “accepted by the NPRC” or that the “NPRC has

approved the transfer,” this argument does not further its case or resolve the Court’s inquiries. See

Brewer v. U.S. Dep’t of Justice, Civil Action No. 3:18-CV-1018,

, at *3 (N.D.

Tex. Dec 3, 2018) (concluding that defendant failed to establish OPM had “legal custody” over

ex-employees’ personnel files because no evidence showed “that the records have been transferred

to and accepted by” the NPRC); see also Parker,

(denying summary judgment

to agency where “there had been no clear factual showing” that the ex-employee’s “records were

actually moved or received”).

Moreover, because the Army discusses the OPF at great length in its briefing, the Court

finds it prudent to reiterate that Swick’s FOIA request is not so limited. That request covers “any

and all documents with [her] name, social security number, [and] date of birth” that were stored

either in her “OPM personnel file” or “that are being maintained/filed separately due to privacy

laws and regulation[s].” Ex. to Compl. at 14. As Swick references, see Pl.’s Statement of Material

Facts in Genuine Dispute at 7–8; Pl.’s Reply at 17, a federal employee’s “personnel records” may

include both an OPF and an Employee Medical Folder (“EMF”). See OPM Manual at 1-6–1-8.

An EMF houses an employee’s “occupational medical records,”

, and is stored

separately from the OPF due to federal regulations,

§ 293.505(b). An agency “must establish

an EMF when the employee leaves the employing agency and occupational medical records for

that employee exist.” Id. § 293.505(a). And when an employee separates from federal service,

“the EMF must be forwarded to the NPRC with the OPF.” Id. § 293.510(b). Therefore, any further

briefing on whether the Army has legal custody of or electronic access to Swick’s personnel

11 records should address both Swick’s OPF and her EMF, if one was created for her.

This brings the Court to a final discrepancy: despite Davis’s assertion that FBCH lacks any

access to Swick’s personnel records, her supplemental declaration reveals that FBCH still has

electronic access to “Swick’s occupational health file.” See Suppl. Davis. Decl. at ¶ 9. Whether

or not this file is, in fact, Swick’s EMF is not evident from the current record, as an EMF only

contains those “occupational medical records . . . designated for retention” by the agency. See

. However, given that FBCH has apparently “retained” some occupational

medical records for Swick, the Court will ask the Army to clarify the nature of this file, as well as

why it does not otherwise contain documents responsive to Swick’s FOIA request for “any and all

documents with [her] name, social security number, [and] date of birth that are being

maintained/filed separately” from her OPM personnel file “due to privacy laws and regulations.”

See Ex. to Compl. at 14.

Conclusion

For the foregoing reasons, the Court will grant the Army’s renewed motion for summary

judgment as it relates to Swick’s FOIA request for her psychiatric evaluation and will deny Swick’s

renewed cross-motion on this issue; but the Court will deny without prejudice both parties’

renewed motions for summary judgment as they relate to Swick’s FOIA request for her personnel

file. With respect to that request, the Court will require the Army to provide more specific

information as to: (1) the structure of FBCH’s and CHRA’s electronic systems for storing

personnel records and the rationale for identifying certain databases with potentially responsive

files; (2) the specific electronic databases searched and the search terms used to locate Swick’s

personnel file; (3) whether FBCH or the Army retains legal custody of or electronic access to

Swick’s personnel file (including her OPF and any EMF that was created for her), notwithstanding

12 the file’s physical transfer to NPRC; and (4) whether “Swick’s occupational health file” at FBCH

is indeed her EMF and, if not, why that file is not otherwise responsive to her FOIA request. A

separate order will be issued on this date.

/s/ JOHN D. BATES United States District Judge Dated: November 9, 2020

13