SEMPER FIDELEILIS – ALWAYS FAITHFUL
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PUBLIC COMMENT
June 16, 2022
by Robert Hammond
foiacompliance@gmail.com
Copy to: Senate Judiciary, Senator Patrick
Leahy, House Oversight, Vanita Gupta
whistleblower@judiciary-rep.senate.gov
Graphic by PoweredTemp
DOD Massive False FOIA
Reporting
Part 1
2018 Letter to Secretary of Defense
2017 Complaints to DOJ OIP and
NARA OGIS
DOD Admissions of Massive Error to
FY 2020 Annual FOIA Report
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1.
BLUF – Bottom Line Up Front
2.
Recommendations
3.
DOD Admissions of False Reporting, FY 2020
4.
Chilling Example: Ten Aged Appeals & FOIA Requests
(1) OGIS’s Response Violates Law and Lacks Common Sense
(2) OGIS & OIP Do Nothing, DOD Continues False Reporting
5.
Letter to Secretary of Defense, January 27, 2018
6.
Joo Chung Response on Behalf of SECDEF
7.
Complaint to Attorney General; DOJ OIP FY 2017 Actions
• Enclosure 1, August 9, 2017 Sample Correspondence
• Enclosure 2, September 20, 2017 Sample Correspondence
• Enclosure 3, October 23, 2017 Sample Correspondence
• Enclosure 4, November 11, 2017 Sample Correspondence
• Enclosure 5, Email to Mr. Tillotson III Inaccurate 2017 Chief FOIA Officer
Report
(Based on information, belief, and records available to me)
Outline
BLUF – Bottom Line Up Front
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• This is Part 1 of a series on DOD False FOIA Reporting.
• DOD’s massive, widely known, longstanding False FOIA reporting by Walter Reed
National Military Medical Center, Navy, Defense Health Agency (DHA) since at least
2013 continues unabated.
• Department of Justice Office of Information Policy (DOJ OIP) and NARA’s Office of
Government Information Policy (OGIS), who have FOIA compliance oversight
responsibilities, have enabled it and done nothing to stop it.
• See my related presentation, Failure - FOIA Compliance Oversight & Funding.
Part 2. No Joking Matter” at Chief Freedom of Information Act (FOIA) Officers
Council | National Archives.
• Voluminous, incontrovertible record evidence given to OGIS, DOJ OIP, component FOIA
Officers, FOIA public liaisons, DOD’s Chief FOIA Officer (Ms. Joo Chung), DOD senior
leadership, service/agency secretaries, Secretary of Defense, Offices of Inspectors
General.
• In violation of law DOD never posted its FY 2016 FOIA Report Raw Data; FY 2017 DHA
data lacks case numbers. DOD failed to timely post its FY 2021 Annual FOIA Report,
which contains admissions of massive error to its FY 2020 Report. DOD has refused to
respond to FOIA requests for FOIA raw data and corrections records.
Recommendations
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• DOD should undergo a statistically significant audit of source FOIA and Appeals records
to electronic databases (e.g., FOIAonline). OGIS is responsible for this; however, the
FOIA Advisory Committee may recommend to Congress that GAO should do an audit.
• In any instance where an entity finds/admits error in a past FOIA report, DOJ must
require that the entity publicly post an amended prior report with amended raw
statistical data, in addition to keeping the original report.
o It is likely that annual reports may be amended multiple times, documenting
how flawed FOIA reporting is.
• In any instance where an entity finds error in a past FOIA report, DOJ must require that
the entity publicly post amended quarterly reports in addition to posting the original
report. DOJ is responsible for this.
• DOJ must amend data reported in FOIA.gov regarding agency reporting statistics.
DOD Admissions of False Reporting, FY 2020
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I am just getting started with my analysis of massive false FOIA reporting related to my
own FOIA requests and appeals (boy howdy!). In the past, when I notified DOD, DOJ OIP
& OGIS of significant error wrt my FOIA requests and appeals, DOD simply footnoted the
next Chief FOIA Officers Report or Annual FOIA Report to note error without ever
producing the associated raw data or adjusting the data previously reported. This is
wrong. DOD or any other entity must amend the errant reports to include the previously
omitted data.
If anyone doubts how screwed up DOD’s Annual FOIA Reports are, here are the
admissions to DOD’s FY 2020 Annual Reports in nearly every area as cited in the late
production and posting of DOD’s FY 2021 annual FOIA Report:
DOD Admissions of Error to FY 2020 Annual FOIA Report
1. After reviewing their databases, Air Force, AFRICOM, CENTCOM, DCSA, DIA, DLA,
DoDEA, Navy, NGA, NRO, NSA, and SOCOM updated the number of pending requests
as of the start of the Fiscal Year.
2. After reviewing their databases, Air Force, Army, DCSA, DHA, DLA, Navy, and NGA
updated the number of pending appeals as of the start of the Fiscal Year.
3. After reviewing their databases, CYBERCOM and DLA incorrectly reported their 10
oldest cases on FY20 annual report.
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4. After reviewing their databases, the following DoD components adjusted their pending
consults as of the start of the Fiscal Year: Air Force, CENTCOM, DIA, Navy, NRO, NSA,
and SOCOM.
5. After reviewing their databases, AF, DHA, and SOCOM updated the number of requests
received during Fiscal Year from Last Year's report. After reviewing their databases, Air
Force and DHA updated the number of requests processed during Fiscal Year from
Previous Annual Report.
6. After reviewing their databases, AF, DHA, and SOCOM updated the number of requests
received during Fiscal Year from Last Year's report. After reviewing their databases, Air
Force and DHA updated the number of requests processed during Fiscal Year from
Previous Annual Report.
7. After reviewing their databases, Air Force, DHA, and SOCOM updated the number of
Backlogged Requests, as of the end of the fiscal Year from Previous Annual Report.
8. After reviewing their databases, Air Force, ASBCA, DCAA, and DCSA updated the
number of Appeals Processed from Previous Annual Report.
9. After reviewing their databases, Air Force, ARMY, DCSA, DHA, DLA, DTRA, Navy, NSA,
NGA, and OSD/JS updated the number of Backlogged Appeals as of the end of the
Fiscal Year from Previous Annual Report.
Chilling Example: Ten Aged Appeals & FOIA Requests
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DOJ and OGIS fail to close cases, their data is not transparent, their
own FOIA reporting is inaccurate, and they loath holding agencies
accountable.
Massive, widely known, longstanding False FOIA reporting continues
unabated. For example:
In 2014, I submitted ten, confirmed receipt, expedited FOIA Requests to Walter
Reed, which Walter Reed did not answer or report as open in its Annual FOIA
Reports. I appealed to Walter Reed’s parent, Defense Health Agency (DHA), who
similarly did not respond or report the ten open appeals.
I provided correspondence that went to the entire DHA chain of command, DOD
FOIA chain of command, OGIS and DOJ OIP. In one of many follow-ups, on May
18, 2015, I advised the DHA and DOD chain of command:
“By the action that you are taking, you will be knowingly submitting a
false Annual FOIA Report to leadership, the Attorney General of the
United States and in tum to the United States Congress.”
OGIS’s Response Violates Law and Lacks Common Sense
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Regarding ten aged, unreported FOIA requests and appeals, OGIS’s ludicrous,
unlawful alleged mediation response
stated by letter of May 3, 2017:
“In response to our inquiry about the status of your pending appeals,
the Privacy Office explained that DHA will combine your ten appeals
regarding FOIA requests for personal information because the
requests/appeals are thematically linked and DHA’s appeal’s unit
received them within days of one another.”
---/
OGIS, I don't see the block on the Annual FOIA Report for requests/appeals that
are thematically linked and received within days of one another, thereby
allowing ten appeals to be combined into one. Also, Walter Reed apparently
never reported the 10 FOIA requests.
OGIS and DOJ knowingly then allowed DHA to submit a false FOIA report and
Chief FOIA Officers Report. False FOIA Reporting continues unabated despite
OGIS and DOJ OIP Compliance oversight responsibilities to review annual FOIA
Reports. I personally have several hundred examples.
OGIS & OIP Do Nothing, DOD Continues False Reporting
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Even after admitting to OGIS that they had not been reporting these ten
appeals, DHA and DOD continued knowingly submitting false reports,
consciously omitting these ten appeals and the associated FOIA requests.
DHA/DOD then brazenly submitted a knowingly false 2017 Chief FOIA Officer
Report to the Attorney General, falsely claiming at numbered page 24 that
“DHA closed their entire ten oldest [appeals].” DHA/DOD had also submitted a
false FY 2016 Annual FOIA Report, claiming that their oldest appeal was 327
days old. See https://open.defense.gov/Transparency/FOIA.aspx .
By email, I advised Mr. Tillotson David Tillotson III, DOD Chief FOIA Officer &
Assistant Chief Management Officer (ACMO), of incontrovertible discrepancies,
noting that he was personally aware of this discrepancy and that his staff was
currently reviewing the matter of the ten open, unreported appeals with DOJ
OIP as part of a DOJ compliance investigation. I further advised him that “The
number of aged, still open requests, appeals and consultations dating back to
2013 is staggering.” (February 19, 2018, 7:20 AM, Subject: Inaccurate FY 2017
DOD CIO [Chief FOIA Officer] Report to DOJ).
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Robert Hammond
January 27, 2018
Hon. Patrick M. Shanahan
Acting Secretary of Defense
1000 Defense Pentagon
Washington, DC 20301-1000
Subj: Request for Investigation into DOD’s Massive, Long-standing, Ongoing False FOIA Reporting to the Attorney General &
Congress
Dear Sir,
This is in furtherance to my prior correspondence to you. After consideration, I am now asking that you respond on behalf of DOD
addressing these matters, in lieu of Mr. Tillotson, and that you provide a copy to Senator Grassley. This has knowingly been going on
for far too long.
Mr. Tillotson did not respond to my correspondence of December 31, 2018, 9:50 AM, and has not taken concrete action on my many
specific examples of ongoing false reporting and other violations provided recently and over many years, as discussed in my
correspondence below.
False reporting to the Attorney General, Congress and the American people is abhorrent in its own right. People must be held
accountable. In this case, coupled with other action/inaction, it undermines our democracy.
The "FOIA is often explained as a means for citizens to know 'what their Government is up to.'"
The Supreme Court stressed that "[t]his phrase should not be dismissed as a convenient
formalism." Rather it, "defines a structural necessity in a real democracy."
The raw statistical data that DOD refuses to release, in violation of law, accounts for every FOIA request and appeal by requester and
agency-assigned tracking number, showing how/if each was processed. By refusing to release this data and submitting false reports that
Letter to Secretary of Defense, 1/27/2018
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omit years-old aged requests and appeals that would grab attention, agencies may simply ignore confirmed-receipt requests and appeals
and never act on them, no matter how many times one follows- up. I provided the entire DOD chain of command many incontrovertible
examples of this while it was occurring, yet false reporting and other violations continued unabated and are continuing today.
Please respond with a copy to Senator Grassley, whom I am notifying along with Mr. Tillotson.
With my deep respect,
/s/
Robert Hammond
Whistleblower
From: Bob Hammond
Sent: Sunday, January 27, 2019 3:03 PM
To: david.tillotson; 'Chung, Joo Y SES OSD ODCMO (US)'
Cc: james.p.hogan; cindy.l.allard; clinton.f.Faison; terry.j.moulton; thomas.b.Modly; raquel.c.bono.mil; Thomas.b.McCaffery
Subject: Request for Investigation into DOD False Reporting to DOJ & Congress. Whistleblower. Follow-up
Importance: High
Robert Hammond
1828 Wayland Street,
Oakton, VA 22124
Perseverance2013@aol.com
January 27, 2019
David Tillotson III, DOD Chief FOIA Officer &
Assistant Chief Management Officer
9010 Defense Pentagon
Washington D.C 20301-9010
Subj: Request for Investigation into DOD False Reporting to DOJ & Congress. Whistleblower.
Dear Mr. Tillotson,
This is in furtherance to my December 31, 2018 9:50 AM email addressing the matters below, regarding DOD’s non-compliance with the Freedom
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of Information Act (FOIA) and related statutes, and DOD’s widely-known, extensive, partially-admitted, long-standing and ongoing inaccurate
reporting to the Department of Justice (DOJ) and Congress, particularly with respect to Walter Reed National Military Medical Center, Defense
Health Agency (DHA) and Department of Navy (DON).
[i]
I have not received an answer.
Over many years and very recently, I have provided countless, incontrovertible examples of DOD’s ongoing false reporting, including
correspondence to DHA and Navy leadership, you personally and to the Chief Management Officer’s Director of Oversight and Compliance, Ms.
Chung.
[ii]
Yet, widespread false reporting continues.
First, please directly release/publish the raw statistical data used in DOD’s annual FOIA reports, which, in violation of multiple statutes, DOD has
refused to do.
[iii]
This suggests efforts to cover-up DOD’s false reporting. As to DHA’s data, which I and others are seeking (presumably also as to
false reporting), DHA has refused to release it in response to multiple FOIA requests.
[iv]
Also, Mr. James. P. Hogan of your office refused to
identify where it is. Others are also seeking records of the Department of Navy’s Office of the Judge Advocate General, as I have done.
Second, please provide a complete accounting of every single correction by request and appeal of any adjustments that DOD makes from its FY
2017 Annual Report to its FY 2018 Report, rather than simply inserting an innocuous, general footnote in your FY 2018 Annual report. Ms. Chung
and DHA’s Mr. Cygnarowicz state that DHA will provide this information in response to my whistleblower activity compelling admissions of past
false reporting.
[v]
Third, please account for every one of my open requests and appeals, including requests that I submitted under both the FOIA and the Privacy Act
(PA), which may only be excluded from FOIA reporting if they are exclusively PA and actually answered under PA.
[vi]
To the extent that such
requests remain unanswered, DOD is non-complaint with both Acts. Ms. Chung, DOD’s Senior Official for Privacy, has an outstanding PA
complaint in that regard, for which I am awaiting a response and proper reporting to Congress, per statute.
[vii]
There are other unreported PA
complaints.
Fourth, I am again requesting an independent audit of DHA’s and Navy’s known and partially admitted inaccurate FOIA reporting, accounting for
every one of my requests and appeals.
Fifth, upon timely completion of the above (within 45 days), initiate a request for a thorough DOD Inspector General investigation into maters of
potential intent, cover-up and violations of law. I want to actively participate.
Sixth, advise your staff and Department of Navy to promptly engage in alternative dispute resolution (ADR), as prescribed by multiple statutes and
DOD policy and per my specific requests.
[viii]
Had your office engaged my ADR requests, including my ADR request related to DHA’s FY 2015
FOIA requests’ and appeals’ raw statistical data and others, which address false reporting, DOD’s FOIA reports the Attorney General would have
been more accurate.
Thank you.
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With my deep respect,
/s/
Robert Hammond
Whistleblower
Copy to:
Hon. Patrick Shanahan, Acting Secretary of Defense
Lisa W. Hershman, Acting Chief Management Officer of the Department of Defense
Hon. Thomas McCaffery, Principle DASD for Health Affairs
Vice Admiral R. C. Bono, Director, DHA
Guy T. Kiyokowa, Deputy Director, DHA
Captain Mark A. Kobelja, Director Walter Reed
Hon. Thomas B. Modly, Under Secretary of the Navy/DON CIO
Capt. Damen Hofheinz, Director, Office of the CIO (OCIO).
Vice Admiral C. Forrest Faison, Surgeon General and Chief, Bureau of Medicine and Surgery
Rear Admiral Terry Moulton, Deputy Surgeon General and Deputy Chief, BUMED
DOD IG (for situational awareness at this time)
• Glenn A. Fine Principal Deputy Inspector General, performing the duties of the Inspector General
• Steven A. Stebbins, Chief of Staff
• Jacqueline L. Wicecarver, Deputy Inspector General for Audit
• Dermot F. O’Reilly, Deputy Inspector General for Investigations
• Marguerite C. Garrison, Deputy Inspector General Administrative Investigations
• Randolph R. Stone, Deputy Inspector General Policy and Oversight
Hon. Senator Chuck Grassley
Committee on the Judiciary.
135 Hart Senate Office Building
Washington, D.C. 20510
Phone: 202-224-3744
Fax: 202-224-6020
whistleblower@judiciary-rep.senate.gov
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[iii]
Section 8 of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, added to the FOIA the requirement that each agency “make the raw
statistical data used in its reports available electronically to the public upon request.” The FOIA Improvement Act of 2016 amended this provision to now require
agencies to proactively make the raw data from their final, published Annual FOIA Reports available without the need for a request. See 5 U.S.C. § 552(e)(3)(A)-
(C) (2014), amended by FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538. See “Posting the Raw Statistical Data from the Annual FOIA
Report” at https://www.justice.gov/oip/oip-guidance/new_requirements_agency_annual_foia_reports_2016. See also, “Summary of Agency Chief FOIA
Officer Reports” at https://www.justice.gov/OIP/Reports/2018Summary%26Assessment/download#2018.
[i]
As a result of my whistleblower activity, DHA's false statements and failure to report numerous aged appeals and requests in their annual reports through DOD
to the Attorney General and Congress is now partially documented. See DOD's FY 2017 Chief Information Officer Report at 26 [24 of 28 numbered] wrt DHA,
"...DHA closed their entire ten oldest [appeals]," and DOD's FY 2016 Annual FOIA Report (oldest appeal 327 days contra DOD’s FY 2017 Annual FOIA Report
at 31 - oldest appeal 726 days, tenth oldest appeal 596 days). See https://open.defense.gov/Transparency/FOIA.aspx. Following further whistleblower activity,
DHA made additional admissions, "DHA failed to report appeals older than previously reported on the ten oldest. “See “Department of Defense Chief Freedom of
Information Act Officer Report to the Department of Justice For 2018” at page 22. https://open.defense.gov/Transparency/FOIA.aspx. Navy’s U.S. Fleet
Forces Command stated recently that certain FOIA records previously withheld that were being released on appeal remand contained data that “was incomplete,
most likely incorrect, and provided to each FOIA coordinator as a tool to update or correct the FOIA online database.” USFFC ltr 5720, Ser N01P (2018-34-
007689),037, dtd August 28, 2018. Mr. Grant E. Lattin, Navy’s Office of the Judge Advocate General has made similar admissions ““the processing/reporting of
FOIA requests/appeals may have been compromised.” I notified Mr. Tillotson and Navy’s Ms. Fletcher by email on 2/17/2018 9:36:00 AM.
[ii]
Example: Hammond email of May 18 2015 advising DHA and the DOD chain of command: (“By the action that you are taking, you will be knowingly
submitting a false Annual FOIA Report to leadership, the Attorney General of the United States and in tum to the United States Congress”) [See also. Example:
Hammond email to Mr. Tillotson (regarding exact same issue w/ 3 more years of follow-ups and known false reporting), February 19, 2018 7:20 AM, Subject:
Inaccurate FY 2017 DOD CIO [Chief FOIA Officer] Report to DOJ: (“That cannot be true with respect to DHA… being reviewed by your staff together with
DOJ… The number of aged, still open requests, appeals and consultations dating back to 2013 is staggering”). Example: Hammond email to Mr. Tillotson &
DHA, Feb 25, 2017 9:18 am, Subject: Re: FOIA Non-Compliance by Walter Reed (15 examples). Numerous other specific examples.
[iv]
MuckRock.com (who services media originations and others), has also taken an interest in FOIA report records, e.g. Freedom of Information Request: FOIA
logs 2016-2017: Military (Defense Health Agency), FOIA logs 2016-2017: Military (US Navy Judge Advocate General), and various other FOIA Logs from
2010 – 2016.
[v]
DHA’s, Paul T. Cygnarowicz (who is responsible for open appeals,) now states, “Regarding your complaints of incorrect annual FOIA reporting, the DHA will
provide a list of corrections to the DOD chain of command contemporaneous with filing the annual FY 18 FOIA report.” Ms. Joo Chung states, “DHA… will
update the Department accordingly for reporting purposes.” This, says nothing of the mandatory interim quarterly reports to DOJ, which remain inaccurate.
[vi]
“The Annual FOIA Report is designed to capture an agency's FOIA activities and therefore should not include requests for records handled exclusively under
the Privacy Act of 1974 (PA)… Agencies should still give incoming requests the potential benefit of access under both the PA and the FOIA.” DOJ Handbook for
Agency FOIA Annual Reports, at 6 (Scope).
[vii]
DoD Privacy and Civil Liberties Officer Reports (https://dpcld.defense.gov/Reports)
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Pursuant to Section 803 of the Implementing Recommendations of the 9/11 Commission Act of 2007, 42 U.S.C. § 2000ee-1 requires DoD privacy officers and
civil liberties officers to periodically, but not less than semi-annually, submit a report to:
▪
The appropriate committees of Congress, including the Committee on the Judiciary of the Senate, the Committee on the Judiciary of the House of
Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Government Reform of
the House of Representatives, the Select Committee on Intelligence of the Senate, and the Permanent Select Committee on Intelligence of the House of
Representatives;
▪
The head of such department, agency, or element; and
▪
The Privacy and Civil Liberties Oversight Board.
[viii]
References:
(a)
The Freedom of Information Act (FOIA) Improvement Act of 2016 (Public Law No. 114-185), available at https://www.justice.gov/oip/freedom-
information-act-5-usc-552
(b)
Administrative Instruction 106, “Alternative Dispute Resolution (ADR) Program,” January 30, 2014
(c)
DoD 5400.11-R, “Department of Defense Privacy Program,” May 14, 2007
(d)
DoD Directive 5145.01, “General Counsel of the Department of Defense (GC DoD),” December 2, 2013, as amended
(e)
DoD Directive 5145.04, “Defense Legal Services Agency (DLSA),” April 16, 2012
(f)
DoD Directive 5400.11, “DoD Privacy Program,” October 29, 2014
(g)
DoD Manual 8910.01, Volume 1, “DoD Information Collections Manual: Procedures for DoD Internal Information Collections,” June 30, 2014
(h)
Executive Order 12988, “Civil Justice Reform,” February 5, 1996
(i)
Public Law 101-552, “Administrative Dispute Resolution Act,” November 15, 1990
From: perse[email protected] <[email protected]>
Sent: Monday, December 31, 2018 9:50 AM
To: david.tillotson; joo.y.chung
Cc: james.p.hogan; cindy.l.allard; clinton.f.Faison; terry.j.moulton
Subject: Request for Investigation into DOD False Reporting to DOJ & Congress. Whistleblower.
Importance: High
Joo Chung Response on Behalf of SECDEF
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By letter dated May 7, 20198 Joo Chung, DOD’s Chief FOIA Officer responded on behalf
of the Secretary of Defense and refused to take any action, including conducting an audit
of Walter Reed, DHA and Navy quarterly and annual FOIA Reports.
“The Assistant to the Secretary of Defense, Privacy, Civil Liberties, and Transparency
(ATSD/PCLT), Ms. Joo Chung, is responsible for DoD Privacy Program and is the DoD Chief
FOIA Officer.”
Ms. Chung acknowledged receiving considerable correspondence from me, yet she
stated, “With this letter, I am considering the complaints that you submitted to the
Department regarding alleged false reporting under the FOIA as closed.”
When sought via FOIA, records of correspondence received by Ms. Chung regarding false
reporting, DOD failed: to produce significant records, to comply with format, and to
respond to my appeal. See CMO 20-A Joo Chung ADCMO DOD False FOIA Reporting
R ecords • MuckRock at https://www.muckrock.com/foi/united-states-of-america-10/
cmo-20-a-joo-chung-adcmo-dod-false-foia-reporting-records-104768/#file-917261
(Based on information, belief, and records available to me. I stand ready to correct any
errors brought to my attention). CURRENTLY EMBARGOED.
Complaint to Attorney General; DOJ OIP FY 2017 Actions
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Robert Hammond
REDACTED
March 30, 2019
Hon. Michael E. Horowitz
Inspector General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Subject: Complaint Regarding DOJ OIP Inaccurate FOIA Reporting to Congress and Facilitation of Same WRT DOD
Dear Sir:
I have not received any response to my letter of February 26, 2019 in which I complained that (in an unsigned letter
dated February 15, 2019) your OIG Investigation Division stated that, in lieu of investigating my December 23, 2018 complaint
(subject as above), DOJ referred the matter back to the DOJ OIP Director, Ms. Melanie A. Pustay, whom I am alleging
committed the wrongdoing.
False reporting to the Attorney General, Congress and the American people in published reports is a very serious matter worthy
of your attention.
Please reopen the investigation and bring all records of my communications with DOJ OIP, DOJ OIP’s internal
communications related to same and DOJ’s communications with DOD related to same into your investigation package.
Thank you.
With my respect,
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Robert Hammond
Copy to:
U.S. Department of Justice
Office of the Inspector General HOTLINE
950 Pennsylvania Avenue, N.W.,
Suite 4706
Washington, D.C. 20530-0001
Fax: (202) 616-9881
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Robert Hammond
REDACTED
December 23, 2018
Hon. Matthew G. Whitaker
Attorney General of the United States (Acting)
U.S. Department of Justice
950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
Hon. Robin C. Ashton
Chief of Office of Professional Responsibility
U.S. Department of Justice
950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
Hon. Michael E. Horowitz Inspector General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
I am writing to inform you of and to initiate a formal complaint regarding the Department of Justice Office of Information Policy, (DOJ
OIP) inaccurate Freedom of Information Act (FOIA) reporting to Congress with respect to the Department of Justice Freedom of
Information Act 2017 Litigation and Compliance Report and of DOJ OIP’s active facilitation of massively inaccurate reporting by the
Department of Defense (DOD), with respect to DOD’s FY 2017 Annual FOIA Report and DOD’s FY 2017 Chief Freedom of
Information Act (FOIA) Officer Report to the Department of Justice. What’s more, in violation of law, DOD has refused to publish the
raw statistical data for its annual FOIA reports, which would further expose their fraudulent reporting; and DOJ OIP, tasked with
overseeing agency compliance, has not done anything whatsoever about it.
BACKGROUND
The Office of Information Policy is responsible for developing policy guidance for Executive Branch agencies on the Freedom of
Information Act (FOIA), providing legal counsel and training to agency personnel on the procedural and substantive aspects of the Act,
and for overseeing agency compliance with the law. Ms. Melanie Ann Pustay has been the Director of the Office of Information Policy
since 2007. She reports to Mr. Jesse Panuccio.
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The Freedom of Information Act (FOIA) requires the Department of Justice to submit a report to Congress each year detailing the
Department’s efforts to encourage agency compliance with the law. 5 U.S.C. § 552(e)(6) (2016). DOJ’s 2017 submission is inaccurate,
and DOJ was aware of this before submitting the report.
The FOIA requires each federal agency to submit an Annual Report to the Attorney General each year. These reports contain detailed
statistics on the numbers of requests received and processed by each agency, the time taken to respond, and the outcome of each
request, as well as many other vital statistics regarding the administration of the FOIA at federal departments and agencies. DOJ OIP
reviews those reports for accuracy before they are finalized, made available to Congress, and published on public websites and. DOJ
OIP was well aware that DOD’s FY 2017 annual FOIA report was significantly inaccurate, based on my compliance inquiries, yet they
allowed DOD’s report to be finalized and published.
The 2009 Department of Justice's Freedom of Information Act (FOIA) Guidelines require the Chief FOIA Officer for each federal
agency to submit a report to the Attorney General containing a detailed description of the steps undertaken by the agency to improve
FOIA compliance and transparency. DOD’s 2017 Chief FOIA Officer’s reports is materially inaccurate with respect to Defense Health
Agency (DHA). DOJ OIP was well aware of the inaccuracies before these reports were published.
Section 8 of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, added to the FOIA the requirement that each
agency “make the raw statistical data used in its reports available electronically to the public upon request.” The FOIA Improvement
Act of 2016 amended this provision to now require agencies to proactively make the raw data from their final, published Annual FOIA
Reports available without the need for a request. See 5 U.S.C. § 552(e)(3)(A)-(C) (2014), amended by FOIA Improvement Act of 2016,
Pub. L. No. 114-185, 130 Stat. 538. The raw data identifies every FOIA request and appeal by date received, tracking number,
requester and disposition, allowing all requesters to see whether or not DOD has even been reporting their requests and appeals.
Together with the Annual FOIA Reports, this is an important safeguard, without which DOD can, and does, simply ignore requests and
appeals and never act on them. DOJ OIP knows that that DOD is refusing to release their raw statistical and that DOD’s raw statistical
data cannot be accurate. Again, DOJ OIP, tasked with overseeing agency compliance, has not done anything whatsoever about it.
FACTS FURTHER SUPPORTING THE NEED FOR INVESTIGATION OF OIP’S ACTIONS
The DOJ FOIA 2017 Litigation and Compliance Report states at paragraph K., Congressional and Compliance Inquiries:
In 2017, OIP responded to nine congressional inquiries pertaining to FOIA- related matters. OIP also received and looked into nine
matters from members of the public who had concerns about how the FOIA was being administered at an agency. In response to these
compliance inquiries, OIP discussed the issues with the agency involved and, whenever appropriate, made recommendations on the
steps needed to address the concern.
SEMPER FIDELIS – ALWAYS FAITHFUL
21
DOJ has yet to release records that I am seeking via FOIA pertaining OIP’s 2017 report, which will document that DOJ OIP did not act
on or report (as required by statute) four distinct compliance inquiries/complaints regarding DOD’s non-compliance with law and
DOD’s significant, documented, and incontrovertible false reporting. Records will show that DOJ’s refusal to act and failure to report
are not simple administrative error. In my view, record evidence suggests that DOJ participated in covering-up DOD’ extensive false
reporting that is widely known and is ongoing today. The few examples discussed below are just the tip of a very large iceberg.
On August 9, 2017, I sent DOJ correspondence showing that DHA had already admitted to the Office of Government Services (OGIS)
that they were knowingly not reporting ten open administrative appeals dating back to 2015, which I had been complaining about four
years. For example, I advised DHA on May 18, 2015 2:51 PM., “By the action that you are taking, you will be knowingly submitting a
false Annual FOIA Report to leadership, the Attorney General of the United States and in turn to the United States Congress.” Yet,
DHA still did not report the appeals, even after I advised the entire DHA/DOD reporting chain of this ongoing fraud, and even after
DHA admitted to OGIS that they were not reporting them. As to DOJ, on 7/2/2018 1:37:11, nearly a year after my complaint and after I
insisted that DOJ afford my inquiry the same deference as if it had been submitted by a member of Congress, DOJ sent me an undated
letter of reply. That undated letter states that DHA acknowledged the discrepant reporting, but unbelievably, blamed it on a lack of
standard operating procedures, rather the premediated, deliberate act documented in the records. See sample correspondence at
Enclosure 1.
On September 20, 2017, I sent a compliance inquiry regarding another unanswered DHA administrative appeal. DOJ has never
responded to that inquiry, allowing DOD to still not report it as open in their FY 2017 Annual FOIA Report. See Enclosure 2.
On October 23, 2017, I sent DOJ OIP a compliance inquiry in which Walter Reed National Military Medical Center was assigning FY
2017 FOIA case numbers to 16 open FOIA requests dating back to 2014, 2015 and 2016, despite Walter Reed having incontrovertibly
received the requests years earlier. Walter Reed was not reporting these open requests through DHA/DOD, and their entire reporting
chain of command/senior leadership was aware of it. DOJ took no action in 2017 and has still not issued any correspondence
responding to my inquiry.
See Enclosure 4.
On November 11, 2017, I sent DOJ OIP another compliance inquiry regarding another example of an aged, open DHA FOIA appeal.
DOJ OIP took no action in 2017, nor did they cause DOD to correctly report this open appeal. DOJ OIP has never responded to that
letter. See Enclosure 5.
Year 2017 came and went without any action by or response from DOJ OIP. Meanwhile DOD submitted its 2017 CIO report to DOJ,
which both DOD and DOJ knew full well was materially inaccurate Yet, DOJ published it anyway.
On February 19, 2018 I notified DOD’s Chief FIOA Officer, Mr. David Tillotson III, that DOD’s 2017 Chief FOIA Officer’s Report
could not be accurate in that it stated that DHA had cleared it’s ten oldest appeals, all the while his staff and DOJ OIP had my
SEMPER FIDELIS – ALWAYS FAITHFUL
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compliance inquiry of August 8, 2017 regarding ten specific aged appeals that were older than any that DOD had incontrovertibly not
reported. I notified Mr. Tillotson that, “The number of aged, still open requests, appeals and consultations dating back to 2013 is
staggering.” See Enclosure 5. I sent that same correspondence to DOJ OIP.
Before going to DOJ, I had advised everyone in DOD’s reporting chain of command of these and countless other specific instances of
false reporting, vastly beyond what is discussed here. I have repeatedly asked DOD’ Chief FOIA Officer and DOD’s Director of
Oversite and Compliance to conduct an independent audit of DHA (and Navy) FOIA reporting, which is within their responsibility, but
they have not done so. Rather than providing the American public and Congress a full accounting of DOD’s false reporting, it appears
that DOD and DOJ OIP plan to sweep this all under the rug with an innocuous footnote in DOD’s FY 2018 report simply stating
something to the effect of,” After reviewing their database, DHA, updated the number of appeals and requests pending as of the start of
the Fiscal Year.” So, for example, if DHA were to answer a five-year-old appeal, that appeal would never have been accounted for as
to its age but would rather be averaged into the processing time for all appeals (marginally affecting that statistic). I believe that DOJ
should hold DOD accountable and require to be published an addendum documenting by request and appeal every single adjustment to
DOD’s FY 2017 Annual FOIA Report rather than glossing over it.
In 2018, I provided DOJ OIP similar examples of DOD’s non-compliance, which I will address at a later date. DOJ has not yet
submitted its 2018 Litigation and Compliance Report.
PREEMPTIVE DISCLOSURE.
Whenever I address such matters with DOD, rather that responding accurately to their own misdeeds, DOD attacks me personally,
impugning my integrity.
Yes, I submit a lot of FOIA requests, largely related to the lack of integrity in DOD’s FOIA and Privacy Act processes and false
reporting related to those Acts. As a result of my open whistleblower activity, I now have countless records documenting same.
Yes, at my personal expense, I have been in active litigation with DOD since March 2016 seeking records of Walter Reed’s FY 2013-
2104 FOIA reports records, which are required by statute to be released. I am also seeking their Privacy Act reporting records and
addressing an alleged Privacy Act violation. There is no monetary gain in a FOIA case. None if this is relevant to the issues raised
herein.
Ax to grind? None. I have served the DOD with distinction in some capacity every day of my adult life since entering the Naval
Academy in 1972. They taught us to be truthful and accountable for our actions. My ax, I suppose, is that a few bad apples within DOD
believe that they are above the law, and leadership, in this instance, has not lived up to the high standards set by Defense Secretary
Mattis.
SEMPER FIDELIS – ALWAYS FAITHFUL
23
ACTIONS SOUGHT.
First, a DOJ IG investigation and a professional ethics investigation into DOJ OIP’s own false reporting to Congress, establishing what
occurred, who is responsible and why. Second, included in those investigations, an accurate investigation as to DOJ OIP’s active
facilitation of DOD’s false reporting, who is responsible and why it occurred. Third, a complete accounting of every single correction
by request and appeal of any adjustments that DOD makes from its FY 2017 to FY 2018 Annual Report. I expect the extent of those
adjustments to be enormous.
Congress and the American public have a right to know of this fraud.
I will appreciate an opportunity to participate in such DOJ investigations. Thank you,
[Based on information, belief and records available to me.]
With my respect,
/s/
Robert Hammond
Enclosures:
1. August 9, 2017 Sample Correspondence
2. September 20, 2017 Sample Correspondence
3. October 23, 2017 Sample Correspondence
4. November 11, 2017 Sample Correspondence
5. Enclosure 5, Email to Mr. Tillotson III; Inaccurate 2017 Chief FOIA Officer Report, As Forwarded
Copy to:
Hon Senator Chuck Grassley Committee on the Judiciary. 135 Hart Senate Office Building Washington, D.C. 20510
Phone: 202-224-3744
Fax: 202-224-6020
Enclosure 1, August 9, 2017 Sample Correspondence
ALWAYS FAITHFUL
SEMPER FIDELIS -
24
Subject: Fwd: Re: PART 1. GOT CAUGHT? Re: DHA FOIA Compliance-Aged DHA Administrative Appeal
Date: 8/9/2017 5:44:34 PM Eastern Standard Time From: REDACTED
Cc: REDACTED
Dear Sir:
Please assist. There are three emails related to this matter.
DHA has not acted on these ten aged administrative appeals dating back to 2014 (sought with expedited processing) and they did not
report them in the annual FOIA Reports to the Attorney General and to Congress. I confirmed this from publicly available records
and OGIS also confirmed this with DHA I am seeking assistance on both issues.
OGIS reports that DHA amended its FY 2016 Annual FOIA report to capture one of the ten appeals. Can you provide me information
on what was provided to your office in that regard? This is just one example of evident intentional massive under-reporting .This is
extremely serious.
Attached you will find two of the ten requests related to Ms. Judy Bizzell, Walter Reed's FOIA Officer. Walter Reed is a subordinate
command of DHA. You will also find release of the very same information with regard to DHA's own FOIA Officer, making any
refusal to release the requested information capricious and arbitrary.
Thank you in advance,
With my respect,
Robert Hammond
From: dha.walter.reed.foia.pa@gmal.com
To: REDACTED
Sent: 6/14/2017 5:21:21 AM Eastern Standard Time
Subject: Re: PART 1. GOT CAUGHT? Re: DHA FOIA Compliance-Aged DHA Administrative Appe...
On Wed, Jun 14, 2017 at 5:08 AM REDACTED wrote:
Enclosure 1, August 9, 2017 Sample Correspondence
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From: REDACTED
To: Linda.Thomas@dha.mil, [email protected], [email protected], [email protected],
dha.ncr.dgc-fc.list.ogc-foia- appeals-owners@mail.mil
Sent: 6/11/2017 10:32:48 A.M. Eastern Daylight Time
Subj: PART 1. GOT CAUGHT? Re: DHA FOIA Compliance-Aged DHA Administrative Appeals
PART 1. GOT CAUGHT?
Dear Ms. Thomas.
Will DHA now be reporting All ten of these expedited 2014 administrative appeals as open in your amended FOIA reports?
Surely these were all among those that you reported to ODCMO on March 23, 2017.
I don't see the block on the Annual FOIA Report for requests/appeals that thematically linked and received by DHA's appeals unit
within days of one another (Who writes this stuff?
Seriously ... Who?)
How will this match up with Walter Reed's FOIA Report?
Can you please clarify the process for amending official source Processing Log records after the Reports have been submitted? Does
this happen often?
Thank you.
With my respect,
Robert Hammond
In a message dated 2/17/2017 4:54:11 P.M. Eastern Daylight Time, REDACTED writes:
Dear Ms. Thompson,
Enclosure 1, August 9, 2017 Sample Correspondence
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Regarding the integrity of the Walter Reed and Defense Health Agency (DHA) FOIA and HI(PAA/Privacy Act processes and the
accuracy of reporting via reporting chains to the United States Attorney General and United States Congress respectively, perhaps it
is not the questions that are difficult. Perhaps it is the answers.
Some may have known for many years that Walter Reed and DHA may have been cooking the books - potentially submitting
inaccurate and incomplete FOIA and Privacy Act reports. There are many issues. I have related concerns regarding certified mail
processing.
Regarding this specific issue of the ten aged administrative appeals below, please see the DoD FY 2015 FOIA Annual Report, which
shows only five administrative appeals pending at the end of FY 2015, not necessarily five of the ten below
(Html:// OP-en.defense.gov I Portals/23/Documents/DoDFY2015AnnualFOIA Report.pdf ).
One might ask (for example) why DHA would not act on administrative appeals of FOIA Requests seeking the Performance
Standards (not evaluation ratings) of the Walter Reed Privacy Officer and the Walter Reed FOIA Officer, given that DHA has
released the standards for the DHA FOIA Officer and given that other entities within DoD have properly and promptly released such
records (see attached). One might also ask why Walter Reed would deny a FOIA Request seeking the records that the Walter Reed
Privacy Officer relied upon in denying a HIPAA/Privacy Act record amendment request by inaccurately stating that the health care
professional (Ms. Leung) was no longer assigned to Walter Reed when in fact records released by the Army Human Resources
Command show that she was still assigned. Why would DHA not act on the administrative appeal?
With respect to FOIA actions that still may be resolved within DoD, FOIA prescribes that:
"Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the
United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the
circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to
the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted
against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and
consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency
concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The
administrative authority shall take the corrective action that the Special Counsel recommends." 5 U.S.C. § 552(a)(4)(F)(i).
In my view, DoD senior leadership, including Vice Admiral Bono and Mr. Tollerton, have been poorly served by senior Walter Reed
and DHA legal and FOIA/HIPAA/Privacy Act staff members. In my view, it is time for Walter Reed, DHA and others interacting
with them to do the right, lawful and inevitable thing by making administrative adjustments to the next FOIA and Privacy Act reports
to pick up prior omissions and correct processing times and then by timely acting on open FOIA/HIPAA/Privacy Act matters. Such
Enclosure 1, August 9, 2017 Sample Correspondence
SEMPER FIDELIS – ALWAYS FAITHFUL
27
proactive action now may preserve scarce DoD litigation funds and may be a factor in assessing who may have the privilege of
retaining a security clearance.
Wouldn't it be better to properly act on and report FOIA/HIPAA/Privacy Act matters at the appropriate level rather than waiting for
Privacy Act complaints and/or other actions, some of which may ultimately be outside of DoD?
This correspondence is being forwarded to some potentially interested parties within DoD and may be forwarded to others later, so
you may receive additional inquiries from them.
With my respect,
Robert Hammond
In a message dated 1/10/2017 4:09:07 P.M. Eastern Standard Time, REDACTED writes:
Dear Ms. Thomas,
Please address each specific question as a matter of FOIA compliance; no generalizations. This clearly falls under your personal
responsibility as the DHA FOIA Liaison Officer. What do your performance standards say about this? Critical elements? 2+ years to
address expedited appeals? Governing laws regulations and policies are very specific.
Per DHA web site:
"Freedom of Information Act (FOIA)
The Defense Health Agency (DHA) Freedom of Information Service Center has principal authority to ensure Health Affairs (HA),
DHA, and its components are in full compliance with the FOIA.
Liaison Officer
If you are concerned about service received from the HA/DHA FOIA Service Center, please contact the FOIA Liaison Officer at:
Defense Freedom of Information Policy Office ATTN: Ms. Linda S. Thomas
Chief, Freedom of Information Service Center Defense Health Agency
7700 Arlington Boulevard, Suite 5101 Falls Church, VA 22042-5101
Enclosure 1, August 9, 2017 Sample Correspondence
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Phone: 1-703-275-6363"
Thank you,
With my respect,
Robert Hammond
In a message dated 1/10/2017 2:30:07 P.M. Eastern Standard Time, linda.s.thomas[email protected] writes:
Thank you for your inquiry. Appeals questions need to go to our appeals Officer, Paul Cygnarowicz.
We properly report items on our annual FOIA Report. Our data goes to DoD FOIA and is then combined with the data of other
components before being transmitted to DOJ.
You have given us over 1000 pages of material to address impacting to some degree our ability to respond as promptly as we would
like in every case.
Linda S. Thomas, JD, CIPP/G, PMP, CISSP
Chief, DHA Privacy and Civil Liberties Office
Office: 703-275-6363
"Quality and Service Above All"
Please comment on our service at: [email protected]
-----Original Message-----
From: REDCATED
Sent: Monday, January 09, 2017 6:58 PM
To: Thomas, Linda S CIV DHA PCL (US)
Cc: DHA NCR DGC FC List OGC FOIA Appeals Owners; [email protected]; paul.t.[email protected];
[email protected]; jewel.p.christmas.civ@health.mil; Christmas, Jewel P CIV DHA HEALTH IT DIR (US); Brown, Nadine
R CIV DHA PCL (US); DHA NCR PCL Mailbox FOIA Requests
Subject: [Non-DoD Source] DHA FOIA Compliance -Aged DHA Administrative Appeals
Enclosure 1, August 9, 2017 Sample Correspondence
SEMPER FIDELIS – ALWAYS FAITHFUL
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All active links contained in this email were disabled. Please verify the identity of the sender, and confirm the authenticity of all
links contained within the message prior to copying and pasting the address to a Web browser.
Dear Ms. Thomas,
I am seeking that this be addressed as a matter of FOIA compliance, which I see is a responsibility of your office.
I am asking that you please address the questions below in writing - email is
inappropriate. Please note that with the exception of the first appeal (Leung)
the requests and appeals were submitted seeking expedited processing due to eminent loss of due process rights. Please also note that
as to the remaining FOIA requests and appeals for personal records and performance standards, DHA released records of its own
FOIA Officer pursuant to nearly identical requests
Please address all of the following specific questions:
1. Does DHA acknowledge receiving the Appeals on the dates indicated and if not please explain?
2. Is DHA reporting these appeals as open on the DHA Annual FOIA Report submission to the Attorney General of the United
States via reporting chain and if not why not?
3. Has DHA processed other appeals that were received after the appeals below and if so, why?
4. Why has DHA not issued final determinations on these administrative appeals.?
I am seeking confirmation that DHA received the Administrative Appeals on the date indicated and confirmation that DHA is
reporting these administrative appeals as open on DHA's Annual FOIA Report Submissions.
Please note that DHA and you personally have not responded to my past follow up requests. Pls see attached two examples.
Again, please address this as a FOIA compliance matter.
Enclosure 1, August 9, 2017 Sample Correspondence
SEMPER FIDELIS – ALWAYS FAITHFUL
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Thank you,
With my respect,
Robert Hammond
In a message dated 1/9/2017 12:27:35 P.M. Eastern Standard Time, linda.s.thomas[email protected] writes:
I have received your email and will reply after inquiry.
Linda S. Thomas, JD, CIPP/G, PMP, CISSP Chief, DHA Privacy and Civil Liberties Office
Office: 703-275-6363
Mobile: 571-286-9517
"Quality and Service Above All"
Please comment on our service at [email protected]
-----Original Message-----
From: REDACTED
Sent: Saturday, December 31, 2016 9:51 AM
To: Thomas, Linda S CIV DHA PCL (US)
Cc: REDACTED
Subject: [Non-DoD Source] Aged DHA Administrative Appeals
Dear Ms. Thomas,
As the DHA FOIA Liaison, I am seeking action from you in obtaining the status of these aged administrative appeals shown below
and of email follow-ups on these appeals. I have received no acknowledgement or reply to these appeals.
FOIA requires federal agencies to make a final determination on FOIA administrative appeals that it receives within twenty days
(excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal, unless the agency expressly provides
Enclosure 1, August 9, 2017 Sample Correspondence
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31
notice to the requester of "unusual circumstances" meriting additional time for responding to a FO IA request. 5 U.S.C. §
552(a)(6)(A)(ii.)
Please provide your reply by email. In the event that you send any correspondence to me by any other means, please send it by a
traceable means only.
Please promptly acknowledge this email.
Thank you,
With my respect,
Robert Hammond
My Personal
Requester CTRL #
Title/Subject
Appeal Date
WRNMC #13- 29
LEUNG, ANGELA N 2LT 6087 Unavailability
5/16/2015
WRNMC #14-B
Personnel Record Information for Cornell.J.Floyd.[email protected]
11/8/2014
WRNMC #14-C
Personnel Record Information for Judy.J.Bizz[email protected]
11/8/2014
WRNMC #14-D
Personnel Record Information for Barbara.l.Moide[email protected]
11/8/2014
WRNMC #14-E
Personnel Record Information for Judy.A.Logeman.civ@health.mil
11/8/2014
WRNMC #14-F
Personnel Record Information for Joe.E.Davidge.civ@health.mil
11/10/2014
WRNMC #14-G
Personnel Record Information for Brice.A.Goodwi[email protected]
11/10/2014
WRNMC #14-H
Contract Information for Thurman.S.McCa[email protected]
11/7/2014
WRNMC #14-K
Performance Standards of Ms. Judy Bizzell
11/10/2014
WRNMC #14-L
Performance Standards of Mr. Joe. E. Davidge
11/10/2014
Thank you,
With my respect
Robert Hammond
Enclosure 1, August 9, 2017 Sample Correspondence
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May 3, 2017 — Sent via email
Mr. Robert Hammond Re: Case Nos. 201500673 and 201600882 REDACTED NG: CL
Dear Mr. Hammond:
This responds to your November 22, 2016, request for assistance from the Office of Government Information Services (OGIS)
concerning your Freedom of Information Act (FOIA) request to the Department of Defense (DoD) Defense Health Agency (DHA)
and subsequent appeal. Thank you for your patience as we handled your request for assistance.
We understand that you submitted a FOIA request for records concerning Walter Reed National Military Medical Center
(WRNMMC) Healthcare Resolutions Specialist Judy A. Logeman. The agency denied your request (your tracking No. 14-E) in
full under FOIA Exemption 6, 5 U.S.C. § 552(b)(6). You disputed the agency’s action on your request and filed an appeal on
November 8, 2014. You are concerned that you have not received a response to your appeal and that DoD did not include your
pending appeal among its ten oldest appeals in its fiscal year (FY) 2014, 2015 and 2016 Annual FOIA reports to the U.S. Attorney
General.
1
You requested OGIS assistance with this matter.
Congress created OGIS to complement existing FOIA practice and procedure; we strive to work in conjunction with the existing
request and appeal process. Our goal is to allow, whenever practical, the requester to exhaust his or her remedies within the agency,
including the appeal process. OGIS has no investigatory or enforcement power, nor can we compel an agency to release documents.
OGIS serves as the Federal FOIA Ombudsman and our jurisdiction is limited to assisting with the FOIA process.
OGIS provides mediation services to resolve disputes between FOIA requesters and Federal agencies. After opening a case, OGIS
gathers information from the requester and the agency to learn more about the nature of the dispute. This process helps us gather
necessary background information, assess whether the issues are appropriate for mediation, and determine the willingness of the
parties to engage in our services. As part of our information gathering, OGIS staff carefully reviewed your submission of
information. We also discussed this matter with you by phone and contacted the DHA Privacy and Civil Liberties Office (Privacy
Office) to inquire about your appeal and DHA’s reporting of it.
1
Because
DHA received your November 8, 2014 appeal in FY 2015, DoD would not have included the appeal in its FY 2014 Annual FOIA report.
Regarding your appeal, the Privacy Office explained the agency’s appellate authority, Mr. Paul Cygnarowicz, received your appeal via
email on November 8, 2014. Your appeal is currently pending.
Enclosure 2, September 20, 2017 Sample Correspondence
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OGIS inquired as to whether DoD reported your November 8, 2014 appeal as among its 10 oldest in the FY 2015, and 2016 Annual
FOIA reports to the U.S. Attorney General. The Privacy Office confirmed that DHA did not report your appeal to DoD; therefore, the
department did not include it in its annual reports. However, the agency explained that before responding to an appeal, the appellate
authority usually gives DHA and its subcomponents an opportunity to re-process a request. During our discussions with the agency,
we learned that on March 23, 2017, DHA amended its annual reports and updated its outstanding appeal to DoD’s Deputy Chief
Management Officer, which included your November 8, 2014 appeal.
In response to our inquiry about the status of your pending appeals, the Privacy Office explained that DHA will combine your ten
appeals regarding FOIA requests for personal information because the requests/appeals are thematically linked and DHA’s appeal’s
unit received them within days of one another. DHA was unable to provide us with an appeal number; however, we learned that the
unit prioritized its work on your lawsuit.
For that reason, all matters relating to the litigation took precedence over the processing of your appeals. The Privacy Office noted that
your pending records request will undergo careful review to determine whether they relate to the lawsuit. The agency notes that your
counsel represents you, and any matters concerning the lawsuit first require notice and coordination with your counsel.
Finally, as part of OGIS’s role as FOIA Ombudsman, we offer assistance to FOIA requesters and Federal agencies. We suggest in
future FOIA requests to the DHA or any other agency that you limit filing multiple requests for essentially the same information or
submitting duplicate copies of previous requests that you had submitted to WRNMMC. Excessive paperwork slows the process,
making FOIA less efficient for all requesters and the agency itself.
I hope you find this information useful. Thank you for bringing this matter to OGIS. At this time, there is no further action for us to
take and we consider your case closed.
Sincerely,
NIKKI GRAMIAN
Deputy Director
cc: DHA Privacy Office and WRNMMC FOIA Office
Subject: Fwd: PART II. INTENT? - Fwd: Request for Assistance - FOIA Compliance; OGIS 201300673
Date: 8/9/2017 5:46:33 PM Eastern Standard Time From: REDACTED
Enclosure 2, September 20, 2017 Sample Correspondence
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To: OIP.complaincelnquiry@us.doj.gov
Cc: REDACTED
From: REDACTED
To: Linda.Thomas@dha.mil, [email protected], [email protected]l, [email protected],
dha.ncr.dgc-fc.list.ogc-foia-appeals-owners@mail.mil
Sent: 6/11/2017 10:37:35 AM Eastern Standard Time
Subject: PART II. INTENT? - Fwd: Request for Assistance - FOIA Compliance; OGIS 201300673
PART II. INTENT?
From: linda.s.thomas47.civ@mail.mil
To: REDACTED
CC: nadine.r.brown4[email protected], [email protected], [email protected], amy.bennett@nara.gov,
[email protected], rahwa.a.keleta.c[email protected], [email protected], osd.mc- alex.odcmo.mbx.dod-foia-
Sent: 5/19/2015 8:49:28 A.M. Eastern Daylight Time
Subj: RE: Request for Assistance - FOIA Compliance; OGIS 201300673
We are giving you the relief which you seek -- which is to process the FOIA requests for Logeman information first and others in due
course. Thank you for your comments.
Linda S. Thomas, JD, CIPP/G, PMP, CISSP
Chief, DHA Privacy and Civil Liberties Office
Office: 703-681-7500
Mobile: 571-286-9517
"Quality and Service Above All"
Please comment on our service at: [email protected]
Enclosure 2, September 20, 2017 Sample Correspondence
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-----Original Message-----
From: REDACTED
Sent: Monday, May 18, 2015 5:16 PM
To: Thomas, Linda S CIV DHA CMD GRP (US)
Cc: Brown, Nadine R CIV (US); foiarequests@tma.osd.mil; [email protected]; amy.bennett@nara.gov; Cygnarowicz, Paul T CIV
(US); Keleta, Rahwa A CIV DHA CMD GRP (US); Ross, Doritha N CTR DHA ADMIN MD (US); OSD MC-ALEX ODCMO
Mailbox DoD FOIA Policy Office; nikki.gramian@nara.gov; [email protected]; Rhodes, Michael L SES OSD ODAM
(US); [email protected]; lucille.w.deloach[email protected]; Washington, Denise F CIV OSD ODCMO (US);
Subject: Re: Request for Assistance - FOIA Compliance; OGIS 201300673
Dear Ms. Thomas,
Was this appeal below logged into your system? Are you asserting that DHA did not receive it?
There is no indication that DHA did not receive my appeals and I am skeptical of that inference as a reason for why my aged appeals
have not been processed. Please refer to my appeal below, which includes Lieutenant Colonel Cygnarowicz as an addressee on this
and other appeals. Several appeals were submitted on the same day. In addition, I am not aware of any change in your fax number. I
received no notice of rejected emails from my appeal submissions or from any of the emails in the thread below. Please coordinate
with Lieutenant Colonel Cygnarowicz and the members of your staff and provide a listing of the appeals from me that you do have
pending.
I want to ensure that DHA is complying with the FOIA, processing FOIA requests and appeals properly and reporting them properly
in your Annual FOIA Report submissions. It is unfortunate that it is taking this level of involvement by others. As previously
discussed, I am attempting to follow the chain of command and resolve this and matters at your level or lower.
Will DHA be issuing a final determination letter on this and other appeals? Is DHA processing appeals in the order in which they are
received?
Thank you.
With my respect,
Enclosure 2, September 20, 2017 Sample Correspondence
SEMPER FIDELIS – ALWAYS FAITHFUL
36
Robert Hammond
In a message dated 5/18/2015 2:54:50 P.M. Eastern Daylight Time, [email protected] writes:
Thank you for your comments. Would you please send all appeals again? We had a change in our email system, and believe that
some communications were lost in the process. Thank you.
Linda S. Thomas, JD, CIPP/G, PMP, CISSP
Chief, DHA Privacy and Civil Liberties Office
Office: 703-681-7500
Mobile: 571-286-9517
"Quality and Service Above All"
Please comment on our service at [email protected]
-----Original Message-----
From: REDACTED
Sent: Monday, May 18, 2015 2:51 PM
To: Thomas, Linda S CIV DHA CMD GRP (US)
Cc: Brown, Nadine R CIV (US); foiarequests@tma.osd.mil; [email protected]; amy.bennett@nara.gov; Cygnarowicz, Paul T CIV
(US); Keleta, Rahwa A CIV DHA CMD GRP (US); REDACTED; Ross, Doritha N CTR DHA ADMIN MD (US); OSD MC-ALEX
ODCMO Mailbox DoD FOIA Policy Office; nikki[email protected]; [email protected]; Rhodes, Michael L SES OSD
ODAM (US); [email protected]; [email protected]; Washington, Denise F CIV OSD ODCMO (US);
Subject: Re: Request for Assistance - FOIA Compliance; OGIS 201300673
Ms. Thomas,
By the action that you are taking, you will be knowingly submitting a false Annual FOIA Report to leadership, the Attorney General
of the United States and in turn to the United States Congress. You will be understating the number of improper denials for Walter
Reed National Military Medical Center (WRNMMC), the number of appeals sustained as well as the FOIA and appeals processing
times. I call your attention to GAO Report GAO-12-828 of July 2012, subject Freedom of Information Act.
SEMPER FIDELIS – ALWAYS FAITHFUL
37
Enclosure 2, September 20, 2017 Sample Correspondence
There is no question that WRNMMC improperly denied my requests (and others) citing the FOIA Exemption (b)(6).
There is no question that I submitted my appeal properly via the instructions on your web site and that DHA received my appeal.
There is no question that you personally knew of this aged appeal and others. This appeal and other appeals are more than six months
old. The FOIA request and others are now more than 13 months old.
You cannot ignore the WRNMMC improper denial of my FOIA request and pretend that it didn't happen. You must issue a final
determination letter on my appeal - as required by the FOIA - and remand the request back to WRNMMC. You must record my
appeal on the date that it was submitted to DHA and properly report its disposition on your Annual FOIA Report.
My other appeals to DHA are unanswered and aging. I will address my FOIA requests to DHA via the ongoing separate email thread
for that compliance issue.
For OGIS, I am asking that OGIS keep this request open pending receipt of a proper final determination letter and a response to the
question of whether DHA is processing appeals in the order in which they are received. My request to your office was for assistance
in obtaining a final determination from Defense Health Agency (DHA).This is a matter that impacts the integrity of the FOIA
process and the accuracy of reporting. This is a FOIA compliance matter. I greatly appreciate the help that you are providing.
Thank you.
With my respect,
Robert Hammond
In a message dated 5/18/2015 10:16:51 A.M. Eastern Daylight Time, [email protected] writes:
We are responding to your FOIA on Logeman first since that is the one that you mentioned. I take it you are formally requesting a
reopening of the similar other ones; we will take those up in due course.
Since we are going to respond under the FOIA, your appeals on those are moot at this point.
SEMPER FIDELIS – ALWAYS FAITHFUL
38
Enclosure 2, September 20, 2017 Sample Correspondence
You wrote in separate emails that you are dissatisfied with a lack of correction of your medical record relating to other requests or
complaints. Please be advised that this is not the purview of either the FOIA Office or the HIPAA complaint office but is in the hands
of the medical offices.
Thank you.
Linda S. Thomas, JD, CIPP/G, PMP, CISSP
Chief, DHA Privacy and Civil Liberties Office
Office: 703-681-7500
Mobile: 571-286-9517
"Quality and Service Above All"
Please comment on our service at [email protected]
-----Original Message-----
From: REDACTED
Sent: Thursday, May 14, 2015 5:51 PM
To: Thomas, Linda S CIV DHA CMD GRP (US)
Cc: Brown, Nadine R CIV (US); foiarequests@tma.osd.mil; REDACTED; [email protected]; [email protected]
Subject: Re: Request for Assistance - FOIA Compliance; OGIS 201300673
Good evening, Ms. Thomas.
Per an email from Ms. Bennett and a conversation with her this afternoon, it is my understanding that DHA has recorded this appeal in your
tracking system for the DHA Annual FOIA Report submission with an effective date of November 8, 2014 and that I will shortly be
receiving a letter sustaining my appeal and remanding my request back to WRNMMC to release the responsive records. Please confirm
that this is correct.
Similarly, there are several identical appeals for FOIA requests pertaining to personnel records of WRNMMC personnel submitted on
the same day that I would expect DHA will be treating in the same manner. Please also note that there are yet other aged appeals
submitted to DHA that have not been acted upon.
SEMPER FIDELIS – ALWAYS FAITHFUL
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Enclosure 2, September 20, 2017 Sample Correspondence
Can you please confirm whether or not DHA is recording these appeals for FOIA reporting on the day received and acting on appeals
in the order in which they are received.
Thank you.
With my respect,
Robert Hammond
In a message dated 5/9/2015 5:42:31 A.M. Eastern Daylight Time, REDACTED writes:
Dear Ms. Bennett,
I note that the OGIS mission includes responsibility for FOIA compliance. I am concerned that DHA is not only not meeting the
appeal time standard, but that DHA my not be processing appeals in the order in which they are received. Please determine if DHA
has processed any other appeals after mine was received and render a compliance determination.
Thank you.
With my respect,
Robert Hammond
In a message dated 4/29/2015 8:47:38 P.M. Eastern Daylight Time, REDACTED
writes:
Dear OGIS Representative,
I am requesting your assistance in obtaining a final determination from Defense Health Agency (DHA) on the appeal discussed
below. The appeal was submitted to DHA on November 8, 2014 for my FOIA request of April 26, 2014 to their subordinate
command, Walter Reed National Military Medical Center (WRNMMC). My FOIA request to WRNMMC is now more than a year
old and my appeal to DHA is nearly six months old.
SEMPER FIDELIS – ALWAYS FAITHFUL
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Enclosure 2, September 20, 2017 Sample Correspondence
Other commands, including DHA, have released records in response to FOIA requests to them seeking the same information relative
to their commands. To demonstrate that DHA considers such records releasable, I am attaching the records released by DHA for my
FOIA request to them seeking the same personnel records for their FOIA Officer, along with the records that DHA released.
Moreover, the Privacy Act stipulates that these records are releasable. There can be no question that records sought from
WRNMMC are fully releasable.
I am also concerned that DHA may not be responding to FOIA appeals and FOIA requests in the order in which they are received.
There are other appeals pending.
Thank you
.
With my respect,
Robert Hammond
In a message dated 4/24/2015 9:36:10 A.M. Eastern Daylight Time, REDACTED writes:
Good morning, Ms. Thomas.
I am following up once again on the appeal addressed below. This appeal and others are now nearly five months old. My FOIA
request submitted on April 26, 2014 is now a year old.
This is simple request and appeal. DHA promptly released complete, fully responsive records in response to a FOIA request for the
same personnel records for your FOIA Officer, Ms. Brown.
WRNMMC's assertion that these records may be denied under FOIA Exemption (b)(6) is clearly improper.
Thank you in advance.
With my respect,
Robert Hammond
SEMPER FIDELIS – ALWAYS FAITHFUL
41
Enclosure 2, September 20, 2017 Sample Correspondence
From: REDACTED
To: linda[email protected]
CC: nadine.r.brown4.civ@mail.mil, REDACTED
Sent: 4/3/2015 5:43:40 A.M. Eastern Daylight Time
Subj: Request for Assistance - FOIA Compliance
Good morning, Ms. Thomas.
I am writing to request your assistance regarding a matter of FOIA compliance. As you know the prescribed time for responding to
FOIA appeals is twenty working days. The appeal attached and below submitted to DHA on November 8, 2014 for my FOIA request
of April 26, 2014 is quite old.
I am asking that DHA sustain my appeal for this and similar FOIA requests and remand them back to WRNMMC to release the
records. As you may be aware, DHA promptly released records in response to a FOIA request for the same personnel records for
Ms. Brown. WRNMMC's assertion that these records may be denied under FOIA Exemption (b)(6) is clearly improper.
A reply by WRNMMC in advance of your final determination will not render this appeal moot.
In my view, WRNMMC must not continue to improperly assert the FOIA (b)(6) Exemption of privacy for withholding records in
anticipation that an appellate authority will sustain their improper denials.
I am hopeful that this and similar matters may be promptly resolved at the WRNMMC or DHA level. I will greatly appreciate your
help and support in this important matter.
Thank you in advance.
With my respect,
Robert Hammond
From: REDACTED
To: ogcfoiaappeals@tma.osd.mil, paul.t.crygarowi[email protected]
Sent: 3/24/2015 8:25:23 A.M. Eastern Daylight Time
Subj: Fwd: Appeal of My FOIA #14-E - Judy A. Logeman CORRECTED COPY
SEMPER FIDELIS – ALWAYS FAITHFUL
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Enclosure 2, September 20, 2017 Sample Correspondence
Good morning, Lieutenant Colonel Paul T. Cygnarowicz.
I am following up on this appeal, which is now quire old. As you are aware, DoD 5400.7-R, September 1998 states that:
C5.3.3.2. Final determinations on appeals normally shall be made within 20 working days after receipt.
I would also add that multiple DOD entities were able to provide fully responsive replies to identical requests well within the
statutory time for reply. This is not a complex request or a complex appeal.
In addition, there are separate FOIA appeals pending in your office. Thank you in advance.
With my respect, Robert Hammond
From: REDACTED
To: ogcfoiaappeals@tma.osd.mil, paul.t.crygarowi[email protected]
CC: REDACTED
Sent: 11/8/2014 12:12:26 P.M. Eastern Daylight Time
Subj: Re: Appeal of My FOIA #14-E - Judy A. Logeman CORRECTED COPY
... WITH ATTACHMENT
In a message dated 11/8/2014 11:07:30 A.M. Eastern Standard Time, REDACTED writes:
Robert Hammond
REDACTED
November 8, 2014
Office of General Counsel
National Capital Region Medical Directorate Attention: Lieutenant Colonel Paul T. Cygnarowicz Defense Health Agency
8901 Wisconsin Avenue (Building 27)
Bethesda, MD 20889
SEMPER FIDELIS – ALWAYS FAITHFUL
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Enclosure 2, September 20, 2017 Sample Correspondence
Phone: (703) 681-6012, FAX 301-319-8900
E-mail: [email protected] <mailto:OGCFOIM [email protected]>;
Subject: Appeal of My FOIA Request - Personnel Record Information for Judy A.
Logeman [email protected] <mailto:[email protected]>
CORRECTED COPY
My Personal Reference Number: FOIA WRNMC #14-E
WRNNMC Assigned Agency FOIA Case Number 14-34
References:
(a) The Freedom of Information Act (FOIA)
(b) The Privacy Act (c) CFR 164.526
(c) DoD 5700.7-R, September 1998, DoD Freedom of Information Act
(d) (FOIA) Program
(e) DoD 6025.18-R, Jan. 24, 2003, DoD Health Information Privacy Regulation
(f) Joint publication of U.S. Department of Justice, Executive Office of the President and U.S. General Services Administration
of July 2011: "Your Right to Federal Records" (see http://publications.usa.gov/USAPubs.php?PublD=6080
<http://publications.usa.gov/USAPubs.php? PublD=6080>; )
(g) DoD 5400.11-R, May 14, 2007, Department of Defense Privacy Program
(h) Department of Justice Freedom of Information Act Guide, May 2004 at Exemption 6 http://www.justice.gov/oip/foia-guide-
2004-edition-exemption-6<http://www.justice.gov/oip/foia-guide-2004-edition-exemption-6>;
Dear Lieutenant Colonel Cygnarowicz,
This appeal is submitted under the references above for my FOIA request dated April 26, 2014 at Enclosure (1), which asks for
records of personnel information explicitly authorized for release under reference (g), DoD 5400.11-R, May 14, 2007, Department of
Defense Privacy Program. Enclosure (1) also contains my request for expedited processing. The Agency's reply (forwarded by email
at 9/23/2014 3:00:35 P.M. Eastern Daylight Time) is at Enclosure (2). The Agency's interim reply of 11 July 2014 is at Enclosure (3).
The Agency is improperly denying my request in full, inappropriately citing the FOIA Exemption (b)(6) and asserting that release
SEMPER FIDELIS – ALWAYS FAITHFUL
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Enclosure 2, September 20, 2017 Sample Correspondence
would constitute a clearly unwarranted invasion of personal privacy under 5 U.S.C. 552(b)(6). There is no personal privacy interest in
the information sought. This denial is capricious, arbitrary and a misuse of the privacy exemption.
Information Requested via FOIA. For the person identified by the email address above , I am seeking the following information, as
explicitly authorized for release by reference (b):
DoD 5400.11-R, May 14, 2007, Department of Defense Privacy Program
C4.2.2.5.1. DoD Civilian Employees:
C4.2.2.5.1.1.1. Name.
C4.2.2.5.1.1.2. Present position titles. C4.2.2.5.1.1.3. Present grade.
C4.2.2.5.1.1.4. Present annual salary rate. C4.2.2.5.1.1.5. Present duty stations.
C4.2.2.5.1.1.6. Office and duty telephone number. C4.2.2.5.1.1.7. Current Position Description.
Discussion.
[intervening text not shown]
Release of Segregable Portions.
o
I contend that every item sought under my FOIA request is fully releasable without redaction in accordance with reference
(g). Notwithstanding that, the Agency is making the... assertion that (for example) the salary of a federal employee is exempt
under 5 U.S.C. 552(b)(6). The Agency must justify each item being withheld.
o
The FOIA requires that any reasonably segregable portion of a record shall be provided to any person requesting such record
after deletion of the portions which are exempt under this subsection. The amount of information deleted shall be indicated on
the released portion of the record, unless including that indication would harm an interest protected by the exemption in this
subsection under which the deletion is made. If technically feasible, the amount of the information deleted shall be indicated
o
at the place in the record where such deletion is made. Enclosure 1
o
Further, when a requested document contains some information which falls under one of the exemptions, the FOIA requires
that all non-exempt portions of the record must still be released. The Act expressly mandates that any "reasonably segregable
portion" of a record must be disclosed to a requester after the redaction (the deletion of part of a document to prevent
disclosure of material covered by an exemption) of the parts which are exempt. 5 U.S.C. § 552(b). This is a very important
SEMPER FIDELIS – ALWAYS FAITHFUL
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Enclosure 2, September 20, 2017 Sample Correspondence
aspect of FOIA because it prohibits an agency from withholding an entire document merely because one line, one page or one
picture are exempt.
Strong Presumption in Favor of Disclosure.
o
"In the Act generally, and particularly under Exemption (6), there is a strong presumption in favor of disclosure." Local 598 v.
Department of Army Corps of Engineers, 841 F.2d 1459, 1463 (9th. Cir. 1988) (emphasis added). In that case, the Ninth
Circuit reviewed the context of applicable Exemption 6 case law:
The Freedom of Information Act embodies a strong policy of disclosure and places a duty to disclose on federal agencies. As the
district court recognized, 'disclosure, not secrecy, is the dominant objective of the Act.' Department of the Air Force v. Rose, 425
U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976). 'As a final and overriding guideline courts should always keep in mind the
basic policy of the FOIA to encourage the maximum feasible public access to government information '
Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704, 715 (D.C.Cir.1977). As a consequence, the listed exemptions to the
normal disclosure rule are to be construed narrowly. See Rose, 425 U.S. at 361, 96 S.Ct. at 1599. This is particularly true of
Exemption (6). Exemption (6) protects only against disclosure which amounts to a 'clearly unwarranted invasion of personal privacy.'
That strong language 'instructs us to 'tilt the balance [of disclosure interests against privacy interests] in favor of disclosure."'
Id. (emphasis added), citing Washington Post Co. v. Department of Health and Human Servs., 690 F.2d 252, 261 (D.C.Cir.1982)
(quoting Ditlow v. Shultz, 517 F.2d 166, 169 (D.C. Cir.1975)).
Public Interest. The public is entitled to information, such as the grade, salary, etc., of federal employees whose salaries are paid
from tax dollars. This is public information. Though I do not believe that it is necessary to assert a public interest to be balanced with
privacy interest, because the information sought is otherwise fully releasable under the Privacy Act, there is a public interest in
assuring that the Privacy Act is being properly administrated at Walter Reed National Military Medical Center [remaining text
omitted]
Basis for Appeal.
I am appealing that the Agency:
(1) has improperly denied my request under 5 U.S.C. 552(b)(6);
SEMPER FIDELIS – ALWAYS FAITHFUL
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Enclosure 2, September 20, 2017 Sample Correspondence
(2) (notwithstanding the improper denial above) has not provided all reasonably segregable portions of documents, nor properly
justified and accounted for any redactions.
Further, I am appealing that WRNMMC HIPAA/Privacy Act/FOIA/Civil Liberties Office
did not:
(3) provide a tracking number for this request within ten days of receipt of
original request as required by the FOIA and various regulations and policies;
(4) provide a reply within the statutory and regulatory twenty-day time period or provide an interim reply within 20 days as
required by the FOIA and various regulations.
Appellate Authority Action Requested. I am asking that:
(1) each element of the basis of my appeal be addressed separately;
(2) each element of my appeal be sustained [granted];
(3) my FOIA request be remanded back to the Agency for direct reply to me; and,
(4) I be granted new appellate rights following a subsequent reply by the Agency.
Some Additional References.
Reference (e) states that for requests 'that will require more than ten days for the agency to process, the FOIA requires agencies to
assign a tracking number to your request. Each agency must provide a telephone number or website by which a requester can use the
assigned tracking number to obtain information about the status of a pending request."
DoD 5400.11-R, May 14, 2007, paragraph C3.1.1O. states: "Time Limits. "DoD Components normally shall provide access within 20
working days after receipt of the request. If access cannot be given within the 20 working day period, the requester shall be notified
in an interim response."
SEMPER FIDELIS – ALWAYS FAITHFUL
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Enclosure 2, September 20, 2017 Sample Correspondence
DoD 5400.11-R, May 14, 2007, paragraph C1.5.3. states: "Avoidance of Procedural Obstacles. DoD Components shall ensure that
procedural matters do not unnecessarily impede a requester from obtaining DoD records promptly. Components shall provide
assistance to requesters to help them understand and comply with procedures established by this Regulation and any supplemental
regulations published by the DoD Components."
DoD 5400.11-R, May 14, 2007 paragraph C1.5.1. states, "DoD personnel are expected to comply with the FOIA, this Regulation, and
DoD FOIA policy in both letter and spirit. This strict adherence is necessary to provide uniformity in the implementation of the DoD
FOIA Program and to create conditions that will promote public trust."
This appeal is separate and distinct from any other appeals that I may file and may not be combined with any other appeal. I am not
agreeing to combining separate appeals, as this would be improper, potentially distorting FOIA reporting to Congress and impeding
separate judicial review (if that becomes necessary). If you deny all or any part of this appeal, please cite each specific exemption
you think justifies your determination and notify me of further remedies available under the law.
I will greatly appreciate your thoughtful consideration of my request. Please contact me if you have any questions regarding this
request. Thank you in advance.
With my respect,
Robert Hammond
Enclosures: As stated.
In a message dated 4/3/2015 5:43:40 A.M. Eastern Daylight Time, REDACTED writes:
Subject: Fwd: PART III. INTENT?? - Fwd: Request for Assistance-FOIA Compliance; OGIS 201300673
Date: 8/9/2017 5:47:07 PM Eastern Standard Time From: REDACTED
From: REDACTED
To: Linda.Thomas@dha.mil, [email protected], [email protected], [email protected],
dha.ncr.dgc-fc.list.ogc-foia-appeals-owners@mai.lmil1
SEMPER FIDELIS – ALWAYS FAITHFUL
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Enclosure 2, September 20, 2017 Sample Correspondence
Sent: 6/11/2017 10:38:49 AM Eastern Standard Time
Subject: PART Ill. INTENT?? - Fwd: Request for Assistance-FOIA Compliance; OGIS 201300673 PART Ill. INTENT??
From: linda.s.thomas47.civ@mail.mil
To: REDACTED
CC: nadine.r.brown4[email protected], foiarequests@tma.osd.mil, [email protected], [email protected]ov,
[email protected], rahwa.a.keleta.c[email protected], [email protected], osd.mc- alex.odcmo.mbx.dod-foia-
[email protected], [email protected], DOJ.OIP.FOI[email protected], michael.l.rhodes[email protected],
Sent: 5/18/2015 2:54:50 P.M. Eastern Daylight Time
Subj: RE: Request for Assistance - FOIA Compliance; OGIS 201300673
Thank you for your comments. Would you please send all appeals again? We had a change in our email system, and believe that
some communications were lost in the process. Thank you.
Linda S. Thomas, JD, CIPP/G, PMP, CISSP
Chief, DHA Privacy and Civil Liberties Office
Office: 703-681-7500
Mobile: 571-286-9517
"Quality and Service Above All"
Please comment on our service at [email protected]
-----Original Message-----
From: REDACTED
Sent: Monday, May 18, 2015 2:51 PM
To: Thomas, Linda S CIV DHA CMD GRP (US)
Cc: Brown, Nadine R CIV (US); foiarequests@tma.osd.mil; [email protected]; amy.bennett@nara.gov; Cygnarowicz, Paul T CIV
(US); Keleta, Rahwa A CIV DHA CMD GRP (US); REDACTED; Ross, Doritha N CTR DHA ADMIN MD (US); OSD MC-ALEX
SEMPER FIDELIS – ALWAYS FAITHFUL
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Enclosure 2, September 20, 2017 Sample Correspondence
ODCMO Mailbox DoD FOIA Policy Office; nikki[email protected]; [email protected]; Rhodes, Michael L SES OSD
ODAM (US); [email protected]; lucille.[email protected]; Washington, Denise F CIV OSD ODCMO (US);
Subject: Re: Request for Assistance - FOIA Compliance; OGIS 201300673
Ms. Thomas,
By the action that you are taking, you will be knowingly submitting a false Annual FOIA Report to leadership, the Attorney General
of the United States and in turn to the United States Congress. You will be understating the number of improper denials for Walter
Reed National Military Medical Center (WRNMMC), the number of appeals sustained as well as the FOIA and appeals processing
times. I call your attention to GAO Report GAO-12-828 of July 2012, subject Freedom of Information Act.
There is no question that WRNMMC improperly denied my requests (and others) citing the FOIA Exemption (b)(6).
There is no question that I submitted my appeal properly via the instructions on your web site and that DHA received my appeal.
There is no question that you personally knew of this aged appeal and others. This appeal and other appeals are more than six months
old. The FOIA request and others are now more than 13 months old.
You cannot ignore the WRNMMC improper denial of my FOIA request and pretend that it didn't happen. You must issue a final
determination letter on my appeal - as required by the FOIA - and remand the request back to WRNMMC. You must record my
appeal on the date that it was submitted to DHA and properly report its disposition on your Annual FOIA Report.
My other appeals to DHA are unanswered and aging. I will address my FOIA requests to DHA via the ongoing separate email thread
for that compliance issue.
For OGIS, I am asking that OGIS keep this request open pending receipt of a proper final determination letter and a response to the
question of whether DHA is processing appeals in the order in which they are received. My request to your office was for assistance
in obtaining a final determination from Defense Health Agency (DHA).This is a matter that impacts the integrity of the FOIA
process and the accuracy of reporting. This is a FOIA compliance matter. I greatly appreciate the help that you are providing.
Thank you.
SEMPER FIDELIS – ALWAYS FAITHFUL
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Enclosure 2, September 20, 2017 Sample Correspondence
With my respect,
Robert Hammond
In a message dated 5/18/2015 10:16:51 A.M. Eastern Daylight Time, [email protected] writes:
We are responding to your FOIA on Logeman first since that is the one that you mentioned. I take it you are formally requesting a
reopening of the similar other ones; we will take those up in due course. Since we are going to respond under the FOIA, your appeals
on those are moot at this point.
You wrote in separate emails that you are dissatisfied with a lack of correction of your medical record relating to other requests or
complaints. Please be advised that this is not the purview of either the FOIA Office or the HIPAA complaint office but is in the hands
of the medical offices. Thank you.
Linda S. Thomas, JD, CIPP/G, PMP, CISSP
Chief, DHA Privacy and Civil Liberties Office
Office: 703-681-7500
Mobile: 571-286-9517
"Quality and Service Above All"
Please comment on our service at [email protected]
-----Original Message-----
From: REDACTED
Sent: Thursday, May 14, 2015 5:51 PM
To: Thomas, Linda S CIV DHA CMD GRP (US)
Cc: Brown, Nadine R CIV (US); foiareques[email protected]; REDACTED [email protected]; amy.benn[email protected]
Subject: Re: Request for Assistance - FOIA Compliance; OGIS 201300673
Good evening, Ms. Thomas.
SEMPER FIDELIS – ALWAYS FAITHFUL
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Enclosure 2, September 20, 2017 Sample Correspondence
Per an email from Ms. Bennett and a conversation with her this afternoon, it is my understanding that DHA has recorded this
appeal in your tracking system for the DHA Annual FOIA Report submission with an effective date of November 8, 2014 and that I
will shortly be receiving a letter sustaining my appeal and remanding my request back to WRNMMC to release the responsive
records. Please confirm that this is correct.
Similarly, there are several identical appeals for FOIA requests pertaining to personnel records of WRNMMC personnel submitted on
the same day that I would expect DHA will be treating in the same manner. Please also note that there are yet other aged appeals
submitted to DHA that have not been acted upon.
Can you please confirm whether or not DHA is recording these appeals for FOIA reporting on the day received and acting on appeals
in the order in which they are received.
Thank you.
With my respect,
Robert Hammond
In a message dated 5/9/2015 5:42:31 A.M. Eastern Daylight Time, REDACTED writes:
Dear Ms. Bennett,
I note that the OGIS mission includes responsibility for FOIA compliance. I am concerned that DHA is not only not meeting the
appeal time standard, but that DHA my not be processing appeals in the order in which they are received. Please determine if DHA
has processed any other appeals after mine was received and render a compliance determination.
Thank you.
With my respect,
Robert Hammond
In a message dated 4/29/2015 8:47:38 P.M. Eastern Daylight Time, REDACTED writes:
Dear OGIS Representative,
SEMPER FIDELIS – ALWAYS FAITHFUL
52
Enclosure 2, September 20, 2017 Sample Correspondence
I am requesting your assistance in obtaining a final determination from Defense Health Agency (DHA) on the appeal discussed
below. The appeal was submitted to DHA on November 8, 2014 for my FOIA request of April 26, 2014 to their subordinate
command, Walter Reed National Military Medical Center (WRNMMC). My FOIA request to WRNMMC is now more than a year
old and my appeal to DHA is nearly six months old.
Other commands, including DHA, have released records in response to FOIA requests to them seeking the same information relative
to their commands. To demonstrate that DHA considers such records releasable, I am attaching the records released by DHA for my
FOIA request to them seeking the same personnel records for their FOIA Officer, along with the records that DHA released.
Moreover, the Privacy Act stipulates that these records are releasable. There can be no question that records sought from
WRNMMC are fully releasable.
I am also concerned that DHA may not be responding to FOIA appeals and FOIA requests in the order in which they are received.
There are other appeals pending.
Thank you.
With my respect,
Robert Hammond
In a message dated 4/24/2015 9:36:10 A.M. Eastern Daylight Time, REDACTED writes:
Good morning, Ms. Thomas.
I am following up once again on the appeal addressed below. This appeal and others are now nearly five months old. My FOIA
request submitted on April 26, 2014 is now a year old.
This is simple request and appeal. DHA promptly released complete, fully responsive records in response to a FOIA request for the
same personnel records for your FOIA Officer, Ms. Brown. WRNMMC's assertion that these records may be denied under FOIA
Exemption (b)(6) is clearly improper.
Thank you in advance.
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With my respect,
Robert Hammond
From: REDACTED
To: linda.s.thomas47 [email protected]
CC: nadine.r.brown4[email protected], REDACTED
Sent: 4/3/2015 5:43:40 A.M. Eastern Daylight Time
Subj: Request for Assistance - FOIA Compliance
Good morning, Ms. Thomas.
I am writing to request your assistance regarding a matter of FOIA compliance. As you know the prescribed time for responding to
FOIA appeals is twenty working days. The appeal attached and below submitted to DHA on November 8, 2014 for my FOIA request
of April 26, 2014 is quite old.
I am asking that DHA sustain my appeal for this and similar FOIA requests and remand them back to WRNMMC to release the
records. As you may be aware, DHA promptly released records in response to a FOIA request for the same personnel records for Ms.
Brown. WRNMMC's assertion that these records may be denied under FOIA Exemption (b)(6) is clearly improper.
A reply by WRNMMC in advance of your final determination will not render this appeal moot. In my view, WRNMMC must not
continue to improperly assert the FOIA (b)(6) Exemption of privacy for withholding records in anticipation that an appellate
authority will sustain their improper denials.
I am hopeful that this and similar matters may be promptly resolved at the WRNMMC or DHA level. I will greatly appreciate your
help and support in this important matter.
Thank you in advance.
With my respect,
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Robert Hammond
From: REDACTED
To: ogcfoiaappeals@tma.osd.mil, paul.t.crygarowi[email protected]
Sent: 3/24/2015 8:25:23 A.M. Eastern Daylight Time
Subj: Fwd: Appeal of My FOIA #14-E - Judy A. Logeman CORRECTED COPY
Good morning, Lieutenant Colonel Paul T. Cygnarowicz.
I am following up on this appeal. which is now quire old. As you are aware, DoD 5400.7-R, September 1998 states that:
C5.3.3.2. Final determinations on appeals normally shall be made within 20 working
days after receipt.
I would also add that multiple DOD entities were able to provide fully responsive replies to identical requests well within the
statutory time for reply. This is not a complex request or a complex appeal.
In addition, there are separate FOIA appeals pending in your office.
Thank you in advance.
With my respect,
Robert Hammond
From: REDACTED
To: ogcfoiaappeals@tma.osd.mil, paul.t.crygarowi[email protected]
CC: REDACTED
Sent: 11/8/2014 12:12:26 P.M. Eastern Daylight Time
Subj: Re: Appeal of My FOIA #14-E - Judy A. Logeman CORRECTED COPY WIITH ATTACHMENT
In a message dated 11/8/201411:07:30 A.M. Eastern Standard Time, REDACTED writes:
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Enclosure 2, September 20, 2017 Sample Correspondence
Robert Hammond
REDACTED
November 8, 2014
Office of General Counsel
National Capital Region Medical Directorate Attention: Lieutenant Colonel Paul T. Cygnarowicz Defense Health Agency
8901 Wisconsin Avenue (Building 27)
Bethesda, MD 20889
Phone: (703) 681-6012, FAX 301-319-8900
Subject: Appeal of My FOIA Request - Personnel Record Information for Judy A.
Logeman
[email protected] <mailto:Judy.A.[email protected]>
CORRECTED COPY
My Personal Reference Number: FOIA WRNMC #14-E
WRNNMC Assigned Agency FOIA Case Number 14-34
References:
(a) The Freedom of Information Act (FOIA)
(b) The Privacy Act (c) CFR 164.526
(c) DoD 5700.7-R, September 1998, DoD Freedom of Information Act (FOIA) Program
(d) DoD 6025.18-R, Jan. 24, 2003, DoD Health Information Privacy Regulation
(e) Joint publication of U.S. Department of Justice, Executive Office of the President and U.S. General Services Administration
of July 2011: "Your Right to Federal Records" (see http://publications.usa.gov/USAPubs.php?PublD=6080
<http://publications.usa.gov/USAPubs.php? PublD=6080>; )
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(f) DoD 5400.11-R, May 14, 2007, Department of Defense Privacy Program
(g) Department of Justice Freedom of Information Act Guide, May 2004 at Exemption 6 http://www.justice.gov/oip/foia-guide-
2004-edition-exemption-6 Enclosure 1<http://www.justice.gov/oip/foia-guide-2004-edition-exemption-6>;
Dear Lieutenant Colonel Cygnarowicz,
This appeal is submitted under the references above for my FOIA request dated April 26, 2014 at Enclosure (1), which asks for
records of personnel information explicitly authorized for release under reference (g), DoD 5400.11-R, May 14, 2007, Department of
Defense Privacy Program. Enclosure (1) also contains my request for expedited processing. The Agency's reply (forwarded by email
at 9/23/2014 3:00:35 P.M. Eastern Daylight Time) is at Enclosure (2). The Agency's interim reply of 11 July 2014 is at Enclosure (3).
The Agency is improperly denying my request in full, inappropriately citing the FOIA Exemption (b)(6) and asserting that release
would constitute a clearly unwarranted invasion of personal privacy under 5 U.S.C. 552(b)(6). There is no personal privacy interest in
the information sought. This denial is capricious, arbitrary and a misuse of the privacy exemption.
Information Requested via FOIA. For the person identified by the email address above, I am seeking the following information, as
explicitly authorized for release by reference (b):
DoD 5400.11-R, May 14, 2007, Department of Defense Privacy Program
C4.2.2.5.1. DoD Civilian Employees:
C4.2.2.5.1.1.1. Name.
C4.2.2.5.1.1.2. Present position titles. C4.2.2.5.1.1.3. Present grade.
C4.2.2.5.1.1.4. Present annual salary rate. C4.2.2.5.1.1.5. Present duty stations.
C4.2.2.5.1.1.6. Office and duty telephone number. C4.2.2.5.1.1.7. Current Position Description.
Discussion.
[intervening text not shown] Release of Segregable Portions.
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Enclosure 2, September 20, 2017 Sample Correspondence
o
I contend that every item sought under my FOIA request is fully releasable without redaction in accordance with reference
(g). Notwithstanding that, the Agency is making the... assertion that (for example) the salary of a federal employee is exempt
under 5 U.S.C. 552(b)(6). The Agency must justify each item being withheld.
o
The FOIA requires that any reasonably segregable portion of a record shall be provided to any person requesting such record
after deletion of the portions which are exempt under this subsection. The amount of information deleted shall be indicated on
the released portion of the record unless including that indication would harm an interest protected by the exemption in this
subsection under which the deletion is made. If technically feasible, the amount of the information deleted shall be indicated
at the place in the record where such deletion is made.
o
Further, when a requested document contains some information which falls under one of the exemptions, the FOIA requires
that all non-exempt portions of the record must still be released. The Act expressly mandates that any "reasonably segregable
portion" of a record must be disclosed to a requester after the redaction (the deletion of part of a document to prevent
disclosure of material covered by an exemption) of the parts which are exempt. 5 U.S.C. § 552(b). This is a very important
aspect of FOIA because it prohibits an agency from withholding an entire document merely because one line, one page or
one picture are exempt.
Strong Presumption in Favor of Disclosure.
o
"In the Act generally, and particularly under Exemption (6), there is a strong presumption in favor of disclosure." Local 598 v.
Department of Army Corps of Engineers, 841 F.2d 1459, 1463 (9th. Cir. 1988) (emphasis added). In that case, the Ninth
Circuit reviewed the context of applicable Exemption 6 case law:
The Freedom of Information Act embodies a strong policy of disclosure and places a duty to disclose on federal agencies. As the
district court recognized, 'disclosure, not secrecy, is the dominant objective of the Act.' Department of the Air Force v. Rose, 425
U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976). 'As a final and overriding guideline courts should always keep in mind the
basic policy of the FOIA to encourage the maximum feasible public access to government information '
Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704, 715 (D.C.Cir.1977). As a consequence, the listed exemptions to the
normal disclosure rule are to be construed narrowly. See Rose, 425 U.S. at 361, 96 S.Ct. at 1599. This is particularly true of
Exemption (6). Exemption (6) protects only against disclosure which amounts to a 'clearly unwarranted invasion of personal privacy.'
That strong language 'instructs us to 'tilt the balance [of disclosure interests against privacy interests] in favor of disclosure."'
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Enclosure 2, September 20, 2017 Sample Correspondence
Id. (emphasis added), citing Washington Post Co. v. Department of Health and Human Servs., 690 F.2d 252,261 (D.C.Cir.1982)
(quoting Ditlow v. Shultz, 517 F.2d 166, 169 (D.C. Cir.1975)).
Public Interest. The public is entitled to information, such as the grade, salary, etc., of federal employees whose salaries are paid
from tax dollars. This is public information. Though I do not believe that it is necessary to assert a public interest to be balanced with
privacy interest, because the information sought is otherwise fully releasable under the Privacy Act, there is a public interest in
assuring that the Privacy Act is being properly administrated at Walter Reed National Military Medical Center [remaining text
omitted]
Basis for Appeal.
I am appealing that the Agency:
(1) has improperly denied my request under 5 U.S.C. 552(b)(6);
(2) (notwithstanding the improper denial above) has not provided all reasonably segregable portions of documents, nor properly
justified and accounted for any redactions.
Further, I am appealing that WRNMMC HIPAA/Privacy Act/FOIA/Civil Liberties Office
did not:
(3) provide a tracking number for this request within ten days of receipt of my original request as required by the FOIA and
various regulations and policies;
(4) provide a reply within the statutory and regulatory twenty-day time period or provide an interim reply within 20 days as
required by the FOIA and various regulations.
Appellate Authority Action Requested. I am asking that:
(1) each element of the basis of my appeal be addressed separately;
(2) each element of my appeal be sustained [granted];
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Enclosure 2, September 20, 2017 Sample Correspondence
(3) my FOIA request be remanded back to the Agency for direct reply to me; and,
(4) I be granted new appellate rights following a subsequent reply by the Agency.
Some Additional References.
Reference (e) states that for requests 'that will require more than ten days for the agency to process, the FOIA requires agencies to
assign a tracking number to your request. Each agency must provide a telephone number or website by which a requester can use the
assigned tracking number to obtain information about the status of a pending request."
DoD 5400.11-R, May 14, 2007, paragraph C3.1.1O. states: "Time Limits. "DoD Components normally shall provide access within 20
working days after receipt of the request. If access cannot be given within the 20 working day period, the requester shall be notified
in an interim response."
DoD 5400.11-R, May 14, 2007, paragraph C1.5.3. states: "Avoidance of Procedural Obstacles. DoD Components shall ensure that
procedural matters do not unnecessarily impede a requester from obtaining DoD records promptly. Components shall provide
assistance to requesters to help them understand and comply with procedures established by this Regulation and any supplemental
regulations published by the DoD Components."
DoD 5400.11-R, May 14, 2007 paragraph C1.5.1. states, "DoD personnel are expected to comply with the FOIA, this Regulation, and
DoD FOIA policy in both letter and spirit. This strict adherence is necessary to provide uniformity in the implementation of the DoD
FOIA Program and to create conditions that will promote public trust."
This appeal is separate and distinct from any other appeals that I may file and may not be combined with any other appeal. I am not
agreeing to combining separate appeals, as this would be improper, potentially distorting FOIA reporting to Congress and impeding
separate judicial review (if that becomes necessary). If you deny all or any part of this appeal, please cite each specific exemption
you think justifies your determination and notify me of further remedies available under the law.
I will greatly appreciate your thoughtful consideration of my request. Please contact me if you have any questions regarding this
request. Thank you in advance.
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Enclosure 2, September 20, 2017 Sample Correspondence
With my respect,
Robert Hammond
Enclosures: As stated.
la message dated 4/3/2015 5:43:40 A.M. Eastern Daylight Time, REDACTED writes:
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Enclosure 2, September 20, 2017 Sample Correspondence
U.S. Department of Justice
Office of Information Policy
Suite 11050
1425 New York Avenue, NW
Washington, DC 20530-0001
Telephone: (202) 514-3642
Mr. Robert Hammond Re: Compliance Inquiry
REDACTED
VIA: Email
Dear Mr. Hammond:
This responds to your June 28, 2018 e-mail, in which you request a formal reply related to your FOIA Compliance Inquiry.
In your communications with this Office, you have inquired about three distinct topics:
(1) the Annual FOIA Report process in general; (2) administrative FOIA appeals you have pending with the Defense Health Agency
(DHA); and (3) the reporting of administrative appeals by DHA. I will address each of these below.
(1) In your email dated December 27, 2017, you asked this office a series of questions related to the Fiscal Year (FY) 2017
Annual FOIA Report process. The FY 2017 Annual FOIA Report submissions were finalized by our office on March 9, 2018, and the
data for all agencies subject to the FOIA is available on FOIA.gov. You can also find a link to each agency's FY17 Annual FOIA
Report on the "Reports" page of OIP's website. Agency Annual FOIA Reports are considered final once our Office reviews them and
clears the agency to post them online. If discrepancies are discovered after the report is published, each agency has the opportunity to
provide more information in their Chief FOIA Officer Reports or they can also supplement the next fiscal year's report with a
footnote.
(2) Prior to December 2017, you inquired regarding the status of administrative FOIA appeals pending with DHA, a component
of the Department of Defense (DOD). Our office has communicated with both DHA and DOD about your pending appeals. First,
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Enclosure 2, September 20, 2017 Sample Correspondence
DHA informed us that your appeals from FY 2014 and FY 2015 have been adjudicated and a final response was sent to you. DHA
noted that they still have appeals pending from FY 2016, FY 2017, and FY 2018, but that these appeals are in their queue, and they
have assured us that they will be adjudicated as soon as practicable. With regard to the delay in responding to some of your appeals,
DHA explained that when it was first created, it did not have established FOIA policies and procedures for all of its new entities.
DHA has been working to improve these practices and procedures. DHA recently established a new FOIA Appeals Standard
Operating Procedure (SOP) to ensure more efficient and consistent appeals adjudication.
- 2 -
DHA is also actively working on obtaining a new FOIA case management system that will assist in tracking and maintaining better
visibility over their administrative appeal process. These steps are both aimed at improving the efficiency and management of DHA’s
FOIA appeals.
(3) You have also noted some concerns about the reporting of administrative appeals at DHA in DOD’s Annual FOIA Reports.
Our Office began communicating with both DHA and DOD about this issue during the FY 2017 reporting period, and we are
continuing to work with them to ensure accurate reporting for the upcoming FY 2018 Annual FOIA Report. In our discussions, DHA
acknowledged the discrepancies in their Annual FOIA Report data and also explained the steps they are taking to ensure proper
tracking of their FOIA appeals going forward. As noted above, DHA recently established a new FOIA Appeals Standard Operating
Procedure (SOP). DHA is also currently working on obtaining a new FOIA case management system that will assist in tracking its
appeals for the Annual FOIA Report. With regard to any administrative appeals that were not reported, or under reported, in prior
years’ Annual FOIA Reports, DHA has committed to noting this in their upcoming FY 2018 Annual FOIA Report.
I want to thank you for bringing these issues to our attention. I sincerely apologize for the delay in responding to your earlier
inquiries to our office. Please let us know if you have any additional questions or concerns.
Sincerely,
Bobby Talebian
Chief, FOIA Compliance Staff Office of Information Policy
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Enclosure 2, September 20, 2017 Sample Correspondence
From: REDACTED
To: doj.oip.complainceinquiry@usdoj.gov
Sent: 9/20/2017 8:37:47 PM Eastern Standard Time
Subject: FOIA Reporting and Compliance - Walter Reed/DHA Aged Appeal of FOIA WRNMC #13-29 LEUNG, ANGELA N
2LT Unavailability
Dear DOJ:
I am asking for your help.
Please address this from a FOIA Compliance perspective, as compliance is an integral part of your mission.
1. Please confirm that Walter Reed received my FOIA Request 13-21 on July 9, 2013. Indisputable
2. Please confirm that Walter Reed did not report my FOIA Request 13-21 at all. Indisputable.
3. Please determine from Walter Reed the reason for not reporting my FOIA Request,13-21 in their annual FOIA Report
Submissions.
4. Please determine when DHA learned that Walter Reed has not reported my FOIA Request,13-21 in their annual FOIA Report
Submission
5. Please confirm that Walter Reed received my FOIA Request 13-29 on August 18, 2013. Indisputable
6 Please confirm that Walter Reed did not report my FOIA Request 13-29 until FY 2015 and then not report it as of the date
received.
7 Please determine from Walter Reed the reason for not reporting my FOIA Request,13-29 in their FY 2013 and FY 2014
Submissions,.
8 Please determine when DHA learned that Walter Reed has not reported my FOIA Request,13-29 in their annual FOIA Report
Submission
9. Please determine from DHA the date that DHA acknowledges receiving my administrative appeal of my Request 13-29.
10. Please confirm that DHA has not been reporting my open administrative appeal.
11. Please determine why DHA has not been reporting my open, aged administrative appeal.
12. Please determine why DHA is not processing administrative appeals in the order in which they are received.
Please also note that even duplicate requests (if Walter Reed considers these so) must be recorded and reported in annual FOIA
reports. See DOJ, Handbook for Agency Annual Freedom of Information Act Reports, “Disposition of FOIA Requests,” (available at
SEMPER FIDELIS – ALWAYS FAITHFUL
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Enclosure 2, September 20, 2017 Sample Correspondence
http://www.justice.gov/sites/default/files/oip/pages/attachments/2014/11/04/departm
ent_of_justice_handbook_for_agency_annual_freedom_of_information_act_reports.pdf) (“DOJ Handbook”).
It is important for your office to obtain factual responses to these questions as part of your compliance mission.
Please note that I am not seeking these records as part of any current litigation.
Please treat this request for assistance distinctly and apart from others that I may submit. There will be many.
The DOD point of contact for FOIA Compliance is Ms. Cindy Allard, cindy.l.allard.civ
<[email protected]>. She may already have the answers to these questions. Her office has been very helpful in the past.
Thank you,
With my respect,
Robert Hammond
.
-----Original Message-----
From: REDACTED
To: REDACTED; joo.y.chung2.civ <joo.y.chung2[email protected]>; cindy.l.allard.civ <cindy.l.allard[email protected]>;
raquel.c.bono.mil <raquel.c.bono.mil@mail.mil>; mark.a.kobelja <[email protected]>; guy.t.kiyokowa.civ
<guy.t.kiyokowa.[email protected]>
Cc: Brian.K.Martin.civ <Brian.K.Martin.civ@mail.mil>; Judy.a.logeman.civ
<[email protected]>; isaac.j.jarvus.civ <isaac.j.jarvus.civ@health.mil>; rhonda.f.johnson2.civ
<rhonda.f.johnson2[email protected]>; James.l.brady.civ <James.l.br[email protected]>; jeffrey.oats <jeffre[email protected].mil>;
madelyn.m.denson.civ <madelyn.m.denson.civ@mail.mil>; andrew.m.barr.mil <andrew.m.barr.mil@mail.mil>; david.a.lane
joseph.e.davidge.civ <joseph.e.davidge.civ@mail.mil>; judy.j.bizzell.civ <[email protected]>; paul.r.cordts.civ
<paul.r.cordts.civ@mail.mil>; michael.s.heimall <[email protected]l>; voiceofthecustomer
<[email protected]>; paul.t.crygarowicz.mil
SEMPER FIDELIS – ALWAYS FAITHFUL
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Enclosure 2, September 20, 2017 Sample Correspondence
Sent: Wed, Sep 20, 2017 8:00 pm
Subject: Re: Appeal of FOIA WRNMC #13-29 LEUNG, ANGELA N 2LT Unavailability
...typo corrected +
also, please note that most addressees are included simply "for information only." Brian.K.Martin.civ [email protected],
Judy.a.logeman.civ Judy.a[email protected], mary.p.shaw mary.p.shaw@navy.mil, christopher.a.julka
[email protected], isaac.j.jarvus.civ [email protected], rhonda.f.johnson2.civ
[email protected], James.l.brady.civ James.l.br[email protected], jeffrey.oats jeffrey.oa[email protected],
madelyn.m.denson.civ [email protected], andrew.m.barr.mil andrew.m.barr.mil@mail.mil, david.a.lane
[email protected], Jeffrye.b.clark4.mil J[email protected], robert.luciano.mil robert.luciano.mi[email protected],
sean.c.brown4 [email protected], linda.s.thomas47.civ [email protected], joseph.e.davidge.civ
[email protected], judy.j.bizzell.civ [email protected], paul.r.cordts.civ paul.r.c[email protected],
michael.s.heimall [email protected], voiceofthecustomer [email protected], paul.t.crygarowicz.mil@mail.mil,
-----Original Message-----
From: REDACTED
To: joo.y.chung2.civ <[email protected]>; cindy.l.allard.civ <cindy.l.allard.civ@mail.mil>; raquel.c.bono.mil
<[email protected]>; mark.a.kobelja <mark.a.kobelja@mail.mil>; guy.t.kiyokowa.civ <[email protected]l>
Cc: Brian.K.Martin.civ <[email protected]>; Judy.a.logeman.civ
<rhonda.f.johnson2[email protected]>; James.l.brady.civ <James.l.br[email protected]>; jeffrey.oats <j[email protected].mil>;
madelyn.m.denson.civ <madelyn.m.denson.civ@mail.mil>; andrew.m.barr.mil <andrew.m.barr.mil@mail.mil>; david.a.lane
<[email protected]>; sean.c.brown4 <sean.c.brown4@mail.mil>; linda.s.thomas47.civ <[email protected]>;
joseph.e.davidge.civ <joseph.e.davidge.civ@mail.mil>; judy.j.bizzell.civ <[email protected]>; paul.r.cordts.civ
<paul.r.cordts.civ@mail.mil>; michael.s.heimall <[email protected]l>; voiceofthecustomer
<[email protected]>; lailanie.g.porciuncula.civ <lailanie.g.porciuncula.civ@mail.mil>
Sent: Wed, Sep 20, 2017 4:28 pm
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Enclosure 2, September 20, 2017 Sample Correspondence
Subject: Fwd: Appeal of FOIA WRNMC #13-29 LEUNG, ANGELA N 2LT Unavailability
Dear Ms. Chin, Ms. Allard:
Thank you for your ongoing assistance. Please also refer to my related email of 9/9/2017 8:50:01 AM," Potential Privacy Breach."
I want to call your attention to yet additional examples of ostensible FALSE FOIA and Privacy Act reporting by Walter Reed
National Military Medical Center and Defense Health Agency. The integrity of the DoD FOIA and Privacy Act processes and the
accuracy of reporting to the Attorney General of the United States and to Congress are under the purview of Mr. David Tillotson III,
Deputy Chief Management Officer.
This is a DOD matter.
My FOIA Request below was submitted to Walter Reed National Medical Center (Judy Bizzell and Joseph E. Davidge) on August
18, 2013 ( 8/18/2013 5:50:50 A.M.) following a similar, still unanswered, and un- reported Request, “LEUNG, ANGELA N 2LT
Transfer Duty Assignment” of July 9, 2013. There is no question that Walter Reed received my requests on those dates (attached
emails + confirmed fax). Despite follow-ups, Walter Reed did not report either request in FY 2013 or 2014 and has never reported
my July 9, 2013 Request. Then, absent any new Request, Walter Reed assigned an FY 2015 case tracking number, denying my
August 18, 2013 request.
Despite follow-ups to Ms. Linda Thomas and Mr. Paul T Cygnarowicz (https://www.linkedin.com/in/paul- cygnarowicz-3713a1a9),
DHA has still not acted upon or reported in their annual FOIA report submissions, my May 17, 2015 - electronically submitted -
administrative appeal of Walter Reed’s improper initial determination denial. Please see attached.
My August 18, 2013 Request seeks, with respect to provider: Nurse LEUNG, ANGELA N 2LT [now known as ANGELA N.
MAMANGUN]:
“Any and all records relied upon by J. E. Davidge, Privacy Compliance Officer, in determining that Ms. Leung is unavailable to
make my requested medical record correction, including the date that she became unavailable and the reason for her unavailability.
Refer to WRNMMC letter dated AUG 09, 2013 subject: "Denial letter for legal correction of PHI/PII.”
I submitted these requests after Mr. Davidge inaccurately stated that Nurse Leung/Mamangun was not available to act on amendment
request to my medical records. Mr. Davidge repeated this inaccurate claim in an email of 11/13/2013 12:16:46 PM, stating “As stated
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Enclosure 2, September 20, 2017 Sample Correspondence
in the letter 2LT Angela Leung is no longer a staff member at WRNMMC and we are not required under HIPAA, the Privacy Act or
any other law to locate her to amend your medical record.”
Of course, from Ms. Leung’s/Mamangun’s Officer Records Brief, shown in my administrative appeal, Nurse Leung/Mamangun’s
was still assigned to Walter Reed through September 2014 - more than a year later.
What is Walter Reed afraid of? Questionable medical decisions? Inaccurate entries in medical records? Re-writing history?
Additionally, I filed a Privacy Act complaint when Mr. Davidge initially refused to act on my amendment request (first submitted to
Walter Reed’s Director, then to Deputy Commander of Medicine and Walter Reed’s Healthcare Resolutions Special Assistant to the
Director, Judy Ann Logeman. I appealed that complaint to DON JAG. I submitted another complaint regarding Mr. Davidge’s
apparent improper denial, which he confirms receiving (see attached). That Privacy Act complaint remains open... tough one to
dispute. Also, it is the Covered Entity, DOD/Walter Reed, that is responsible for the accuracy of my medical records.
Ostensibly, none of these acknowledged Privacy Act complaints was reported in Walter Reed’s/DON JAG’s Privacy Act Reports to
Congress under Section 803 Of Public Law 110-53.
Ms. Chung and Ms. Allard, with deep respect, please look into this matter of ostensive FALSE reporting. Please ensure that my FOIA
Requests and appeals are properly reported. Please ensure that my open Privacy Act complaint is properly reported. I will greatly
appreciate knowing your findings and action planned or taken. Please advise Mr. David Tillotson III.
Vice Admiral Bono, Mr. Kiyokowa, Captain Kobelja, with deep respect, please direct your staff to properly report and act on my
open PA complaint and FOIA Appeal. Please ensure timely action in accordance with those statutes. I will similarly appreciate
knowing what action DHA/Walter Reed are taking regarding this ostensible: false reporting, potentially inaccurate, disputed medical
records entry, inaccurate statements by Walter Reed’s Privacy Officer. I would not want to believe that DHA/Walter Reed would
condone this behavior, particularly with respect to the accuracy of a patient's medical records and FOIA/PA reporting.
Meanwhile, I will continue to document the file with numerous examples. It is my desire and hope that those responsible for these
acts, and those participating in covering them up - now, at this late date, with knowledge and forethought - should be held
accountable.
With the assistance of some of some of those on this email, perhaps these matters may soon be resolved.
Thank you.
With my deep respect,
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Robert Hammond
From: REDACTED
To: dha.ncr.dgc-fc.list.ogc-foia-appeals-owners@mail.mil, [email protected], [email protected],
paul.t.crygarowicz[email protected]
Cc: FOIARequests@tma.osd.mil, [email protected], doritha.n.ross.ctr@mail.mil, [email protected],
dha.ncr.pcl.mbx.foia-requests@mail.mil, [email protected], Michelle.Johnson.ctr@mail.mil,
Sent: 12/28/2016 8:47:55 PM Eastern Standard Time
Subject: Fwd: Appeal of FOIA WRNMC #13-29 LEUNG, ANGELA N 2LT Unavailability
DHA,
Please advise me how you are reporting this aged appeal on your Annual FOIA reports and advise me of the status of my appeal. I
have received no acknowledgment or reply.
Please provide your reply by email with PDF attachment. In the event that you send any correspondence to me by any other means,
please send it by a traceable means only.
Thank you,
With my respect,
Robert Hammond
From: REDACTED
To: REDACTED, dha.ncr.dgc-fc.list.ogc-[email protected], [email protected]sd.mil,
[email protected], paul.t.crygarowicz[email protected] CC: FOIAReque[email protected], [email protected],
Sent: 9/21/2016 6:11:42 A.M. Eastern Standard Time
Subj: Re: Appeal of FOIA WRNMC #13-29 LEUNG, ANGELA N 2LTxxxx Unavailability
DHA,
Please advise me of the status of my appeal for the attached Walter Reed denial of my request, which are both attached and below. I
have received no acknowledgement or other correspondence related to this appeal.
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Thank you.
With my respect,
Robert Hammond
In a message dated 12/30/2015 5:35:15 P.M. Eastern Daylight Time, REDACTED writes:
DHA,
Please advise me of the status of my appeal below and attached. Thanks.
With my respect, Robert Hammond
From: REDACTED
To: OGCFOIAAppeals@tma.osd.mil, linda.s.thoma[email protected], [email protected] CC:
Sent: 5/16/2015 8:46:33 P.M. Eastern Daylight Time
Subj: Appeal of FOIA WRNMC #13-29 LEUNG, ANGELA N 2LTxxxx Unavailability
Robert Hammond
REDACTED
May 16, 2015
Office of General Counsel
National Capital Region Medical Directorate Attention: Lieutenant Colonel Paul T. Cygnarowicz Defense Health Agency
8901 Wisconsin Avenue (Building 27)
Bethesda, MD 20889
Phone: (703) 681-6012, FAX 301-319-8900
E-mail: [email protected]
Linda S. Thomas, JD, CIPP/G, PMP, CISSP
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Chief, Freedom of Information Service Center, Defense Health Agency, 7700 Arlington Boulevard, Suite 5101
Falls Church, VA 22042- 5101
Office: 703-681-7500
Mobile: 571-286-9517
Subject: Appeal of My FOIA Request of July 29, 2013 – LEUNG, ANGELA N 2LTxxxx Unavailability
My Personal Reference Number: FOIA WRNMC #13-29 WRNNMC Assigned Agency FOIA Case Number #15-20
References:
(a) The Freedom of Information Act (FOIA)
(b) The Privacy Act (c) CFR 164.526
(c) DoD 5700.7-R, September 1998, DoD Freedom of Information Act (FOIA) Program
(d) DoD 6025.18-R, Jan. 24, 2003, DoD Health Information Privacy Regulation
(e) Joint publication of U.S. Department of Justice, Executive Office of the President and U.S. General Services Administration
of July 2011: “Your Right to Federal Records” (see http://publications.usa.gov/USAPubs.php?PubID=6080)
(f) DoD 5400.11-R, May 14, 2007, Department of Defense Privacy Program
(g) Department of Justice Freedom of Information Act Guide, May 2004 at Exemption 6 http://www.justice.gov/oip/foia-guide-
2004-edition-exemption-6
Dear Lieutenant Colonel Cygnarowicz or Appellate Authority and Ms. Thomas,
This appeal is submitted under the references above for my FOIA request dated July 29, 2013
seeking records that Mr. Davidge relied upon in determining that 2LT Leung was unavailable to take action on my request for
correction of my medical record. The Agency is improperly denying my request in full, inappropriately citing the FOIA Exemption
(b)(6) and asserting that release would constitute a clearly unwarranted invasion of personal privacy under 5 U.S.C.552(b)(6).
There is no personal privacy interest in the information sought. The agency is also denying release under FOIA Exemption 5, 5
U.S.C. 552 (b)(5) stating that the documents are "inter-agency or intra-agency documents which would not be available by law to a
party other than an agency in litigation with the agency." FOIA Exemption 5, 5 U.S.C. 552 (b)(5) is the deliberative process
exemption. There is no deliberative process, no pending civil litigation and the documents sought are not inter-agency or intra-agency
documents. Moreover, not all records sought would be covered under either of the two cited exemptions under any circumstance.
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This appeal is being provided to DHA FOIA Office as notice that the DHA FY 2014 Annual FOIA Report is incorrect in that it did
not incorporate this outstanding FOIA request (and others). The DHA FY 2015 Annual FOIA Report will be inaccurate if this FY
2013 FOIA request and appeal is not incorporated into the statistics reported, DHA will be knowingly submitting a false report.
The email at Attachment A contains my most recent follow-up, my original FOIA request and the WRNMMC denial of my FOIA
request. Attachment B contains a prior follow-up including a false assertion by the WRNMMC Privacy Officer that 2LT Leung was
no longer a staff member at WRNMMC. There were many follow-ups. Attachment C contains the Officer Record Brief released by
Army Personnel Command pursuant to a FOIA request that shows that 2LT Leung was still assigned to WRNMMC.
Information Requested via FOIA.
I am seeking the following with respect to provider: LEUNG, ANGELA N 2LTxxxx:
• Records of completed check out sheet for departing the organization, including date
• Records of Common Access Card Turn-in, including date
• Records of badge turn in, including date
• Records of WRNMMC network access termination, including date
• Any and all records relied upon by J. E Davidge, Privacy Compliance Officer in determining that Ms. Leung is unavailable to
make my requested medical record correction, including the date that she became unavailable and the reason for her
unavailability. Refer to WRNMMC letter dated AUG 09, 2013 subject: DENIAL LETTER FOR LEGAL CORRECTION OF
PHI/PII.
Background.
By way of background, I submitted a HIPAA/Privacy Act request to WRNMMC on March 26, 2013 asking that 2LT Leung correct a
medical record entry in my file. After considerable delay, I appealed that WRNMMC did not respond to my HIPAA/Privacy Act
request. Mr. Davidge then denied my HIPAA/Privacy Act request, stating that 2LT Leung was not available to consider my request
for correction of my medical record. Mr. Davidge stated further that 2LT Leung was no longer assigned to WRNMMC. That
statement is not factual.
On July 29, 2013, I submitted this FOIA request seeking records that Mr. Davidge relied upon in determining that 2LT Leung was
unavailable to take action on my request for correction of my medical record.
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The WRNMMC denial of my July 29, 2013 FOIA request is inappropriate. There is no statutory basis for WRNMMC to withhold the
records that I am seeking.
Regarding exemption (b)(6), I clearly stated in my FOIA request and in subsequent correspondence that I am not seeking any
personally identifiable information for 2LT Leung; only the records that Mr. Davidge relied on in determining that she was
(purportedly) unavailable to act on my HIPAA/Privacy Act request. I noted that her name may have changed, as is common. Then, on
September 18, 2014, I submitted a FOIA request to the Army Human Resources Command seeking the current Officer Record Brief
for 2LT Angela N. Leung, whose last known assignment was WRNMMC. Please see the record at Attachment C released via the
FOIA showing that 2LT Leung was still assigned to WRNMMC at that time. The WRNMMC Military Personnel Office would have
had that same information. Other records sought in my FOIA request would have shown that she was still accessing WRNMMC
computer systems and medical records. Mr. Davidge knew or should have known that 2LT Leung was still assigned to WRNMMC.
Regarding exemption (b)(5), there is no litigation, and this exemption would not apply in any case. These are simple records that
Agencies maintain in the course of normal business, such as check out sheets. They do not involve opinions or deliberations and they
are not pre-decisional.
Moreover, regarding the exemption, (b)(5) quote cited in the denial, the DOJ FOIA Guide states, “the President and Attorney General
have issued memoranda to all agencies emphasizing that the FOIA reflects a "profound national commitment to ensuring an open
Government" and directing agencies to "adopt a presumption in favor of disclosure.” Furthermore, WRNMMC’s use of the (b)(5)
exemption is not in line with a recent GAO report stating, “Office of Information Policy guidance stated that exemption 5 … provides
the best opportunity for increasing the release of information.”
Public Interest. There is public interest in ensuring that medical record entries are complete, timely and accurate and that the Privacy
Officer is performing duties in accordance with governing laws, regulations and policies.
Basis for Appeal.
I am appealing that the Agency:
(1) has improperly denied my request in full under 5 U.S.C. 552(b)(6) and 5 U.S.C. 552 (b)(5);
(2) has not accounted for all records sought that would not be covered under either of the above exemptions (to the extent that the
Agency asserts an exemption to release of any single document, the other documents sought must be released or the agency must
assert that a compressive search for remaining records sought (i.e. check out sheet, Common Access Card turn in, etc.) resulted in
no records found);
(3) has not provided all reasonably segregable portions of documents;
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(4) has not provided metadata for documents withheld, which would not be exempt even if the remaining portions of documents truly
were exempt.
(5) Further, I am appealing that WRNMMC and DHA by extension is not complying with the FOIA in that the WRNMMC
HIPAA/Privacy Act/FOIA/Civil Liberties Office did not:
(6) provide a tracking number for this request within ten days of receipt of my original request as required by the FOIA and various
regulations and policies;
(7) provide a reply within the statutory and regulatory twenty-day time period or provide an interim reply within 20 days as required
by the FOIA and various regulations;
(8) process FOIA requests in the order in which they were received; and,
(9) properly report this FOIA request on its FY 2013 and FY 2014 Annual FOIA Report submissions, thereby submitting false
reports.
Appellate Authority Action Requested. I am asking that:
(1) each element of the basis of my appeal be addressed separately;
(2) each element of my appeal be sustained [granted];
(3) my FOIA request be remanded back to the Agency for direct reply to me; and,
(4) I be granted new appellate rights following a subsequent reply by the Agency.
Discussion – FOIA Exemption 5 U.S.C. 552(b)(6).
• No documents qualify as exempt.
o
As demonstrated by the Army Personnel Command release of 2LT Leung’s Officer Record Brief, records may not be
withheld simply because they show 2LT Leung’s current name. That is not exempt. Name exempt under FOIA.
o
In my follow-ups, I consistently stated that I was not seeking Privacy Act protected information. Any portions of a record
containing truly protected Privacy Act information (should any exist) would be redacted, but the record would still be
releasable.
• Release of Segregable Portions.
o
I contend that every item sought under my FOIA request is fully releasable without redaction in accordance with reference
(g). The Agency must justify each item being withheld.
o
The FOIA requires that any reasonably segregable portion of a record shall be provided to any person requesting such record
after deletion of the portions which are exempt under this subsection. The amount of information deleted shall be indicated on
the released portion of the record, unless including that indication would harm an interest protected by the exemption in this
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subsection under which the deletion is made. If technically feasible, the amount of the information deleted shall be indicated
at the place in the record where such deletion is made.
o
Further, when a requested document contains some information which falls under one of the exemptions, the FOIA requires
that all non-exempt portions of the record must still be released. The Act expressly mandates that any "reasonably segregable
portion" of a record must be disclosed to a requester after the redaction (the deletion of part of a document to prevent
disclosure of material covered by an exemption) of the parts which are exempt. 5 U.S.C. § 552(b). This is a very important
aspect of FOIA because it prohibits an agency from withholding an entire document merely because one line, one page or one
picture are exempt.
• Strong Presumption in Favor of Disclosure.
o "In the Act generally, and particularly under Exemption (6), there is a strong presumption in favor of disclosure." Local 598 v.
Department of Army Corps of Engineers, 841 F.2d 1459, 1463 (9th. Cir. 1988) (emphasis added). In that case, the Ninth
Circuit reviewed the context of applicable Exemption 6 case law:
- The Freedom of Information Act embodies a strong policy of disclosure and places a duty to disclose on federal agencies. As
the district court recognized, 'disclosure, not secrecy, is the dominant objective of the Act.' Department of the Air Force v. Rose, 425
U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976). 'As a final and overriding guideline courts should always keep in mind the
basic policy of the FOIA to encourage the maximum feasible public access to government information.
- Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704, 715 (D.C.Cir.1977). As a consequence, the listed exemptions to the
normal disclosure rule are to be construed narrowly. See Rose, 425 U.S. at 361, 96 S.Ct. at 1599. This is particularly true of
Exemption (6). Exemption (6) protects only against disclosure which amounts to a 'clearly unwarranted invasion of personal privacy.'
That strong language 'instructs us to 'tilt the balance [of disclosure interests against privacy interests] in favor of disclosure.'"
- Id. (emphasis added), citing Washington Post Co. v. Department of Health and Human Servs., 690 F.2d 252, 261
(D.C.Cir.1982) (quoting Ditlow v. Shultz, 517 F.2d 166, 169 (D.C. Cir.1975)).
Discussion FOIA Exemption 5, 5 U.S.C. 552 (b)(5).
Regarding exemption (b)(5), there is no litigation, and this exemption would not apply in any case. These are simple records that
Agencies maintain in the course of normal business such as check out sheets. They do not involve opinions or deliberations and they
are not pre-decisional.
Moreover, regarding the exemption, (b)(5) quote cited in the denial, the DOJ FOIA Guide states, “the President and Attorney General
have issued memoranda to all agencies emphasizing that the FOIA reflects a "profound national commitment to ensuring an open
Government" and directing agencies to "adopt a presumption in favor of disclosure.” Furthermore, WRNMMC’s use of the (b)(5)
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exemption is not in line with a recent GAO report stating, “Office of Information Policy guidance stated that exemption 5 … provides
the best opportunity for increasing the release of information.”
Agency’s Burden to Claim Exemption B5 Process Privilege Exemption B5.
United States Department of Justice Freedom of Information Act Guide May 2004
The three primary, most frequently invoked privileges that have been held to be incorporated into Exemption 5 are the deliberative
process privilege (referred to by some courts as "executive privilege"1 4), the attorney work-product privilege, and the attorney-client
privilege.15 First, however, Exemption 5's threshold requirement must be considered. "Inter-Agency or Intra-Agency" Threshold
Requirement. The initial consideration under Exemption 5 is whether a record is of the type intended to be covered by the phrase
"inter-agency or intra-agency memorandums."16 The documents sought would not be inter-agency or intra- agency documents.
"Inter-Agency or Intra-Agency" Threshold Requirement”
The initial consideration under Exemption 5 is whether a record is of the type intended
to be covered by the phrase "inter-agency or intra-agency memorandums."16 Though the "most natural reading" of this language
would seem to encompass only records generated by and
internal to executive branch agencies. See DOJ v. Julian, 486 U.S. 1, 19 n.1 (1988); see also, e.g., Maydak v. DOJ,362 F. Supp. 2d
316, 322 (D.D.C. 2005) (ruling that documents exchanged between federal prisoner and prison staff do not meet threshold standard);
Homick v. DOJ, No. C 98-00557, slip op. at 18 (N.D. Cal. Sept. 16, 2004) (holding that document exchanged between agency
employee and private attorney does not qualify under threshold standard).
• Documents relating to an attorney representing 2LT Leung are not exempt;
• Any document provided to WRNMMC by an attorney representing 2LT Leung would not be exempt; it would be an Agency
document subject or release under FOIA.
• There is no attorney client privilege for any document provided by an attorney representing 2 LT Leung.
• Documents indicating that 2LT Leung retained an attorney would not be exempt.
o The above would apply even if the attorney was a WRNMMC employee.
• For any document that WRNMMC asserts is exempt, the metadata regarding the document would not be exempt.
Process Privilege
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a. Exemption 5 is: the deliberative process privilege, the general purpose of which is to "prevent injury to the quality of agency
decisions." Specifically, three policy purposes consistently have been held to constitute the bases for this privilege: (1) to
encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature
disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from
disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency's action.
b. Traditionally, the courts have established two fundamental requirements, both of which must be met, for the deliberative process
privilege to be invoked. (73)
First, the communication must be predecisional, i.e., "antecedent to the adoption of an agency policy." (74) Second, the
communication must be deliberative, i.e., "a direct part of the deliberative process in that it makes recommendations or expresses
opinions on legal or policy matters." (75) The burden is upon the agency to show that the information in question satisfies both
requirements. (76)
In determining whether a document is predecisional, an agency must establish "what deliberative process is involved, and the role
played by the documents in issue in the course of that process." (77)
In contrast, however, are postdecisional documents. They generally embody statements of policy and final opinions that have the
force of law, (84) that implement an established policy of an agency, (85) or that explain actions that an agency has already taken.
(86)
Second, one must consider the nature of the decisionmaking authority vested in the office or person issuing the document. (98
Finally, even if a document is clearly protected from disclosure by the deliberative process privilege, it may lose this protection if
a final decisionmaker "chooses expressly to adopt or incorporate [it] by reference." (112) … courts have suggested a less stringent
standard of "formal or informal adoption."
c. A second primary limitation on the scope of the deliberative process privilege is that of course it applies only to "deliberative"
documents and it ordinarily is inapplicable to purely factual matters, or to factual portions of otherwise deliberative memoranda.
(117) Not only would factual material "generally be available for discovery," (118) but its release usually would not threaten
consultative agency functions. (119)
d. Documents that are commonly encompassed by the deliberative process privilege include "advisory opinions, recommendations,
and deliberations comprising part of a process by which governmental decisions and policies are formulated," (141) the release of
which would likely "stifle honest and frank communication within the agency." (142)
Footnotes.
65. See ITT World Communications, Inc. v. FCC, 699 F.2d 1219,
1237-38 (D.C. Cir. 1983) (dictum) (suggesting that otherwise exempt predecisional material "may" be ordered released so as to
explain actual agency positions), rev'd on other grounds, 466 U.S. 463 (1984).
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73. See Mapother v. Dep't of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993) ("The deliberative process privilege protects materials
that are both predecisional and deliberative." (citing Petroleum Info. Corp. v. United States Dep't of the Interior, 976 F.2d 1429, 1434
(D.C. Cir. 1992))).
74. Jordan, 591 F.2d at 774.
75. Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975).
76. See Coastal States, 617 F.2d at 866.
77. Id. at 868; see also Providence Journal Co. v. United States Dep't of the Army, 981 F.2d 552, 559 (1st Cir. 1992) (protecting
IG's recommendations even though decisionmakers were not obligated to follow them); Formaldehyde Inst. v. HHS, 889 F.2d 1118,
1123 (D.C. Cir. 1989) (protecting recommendations on suitability of article for publication, though decision on "whether and where"
to publish article had not yet been made); Greenberg, 10 F. Supp. 2d at 17 (stating that "an evaluation of the legal status" of a case
would be protected, but an "instruction from a senior to a junior official as to what legal action should be taken -- a final decision . . .
does not merit Exemption 5 protection"); Horsehead Indus. v. EPA, No. 94-1299, slip op. at 14 (D.D.C. Oct. 1, 1996) ("In
determining whether material is predecisional in nature, courts must look to see what role the material played in the decisionmaking
process
. . . A statement of an opinion by an agency official or preliminary findings reported by a public affairs official do not necessarily
constitute a statement of EPA policy or final opinion that has the force of law."); Knowles v. Thornburgh, No. 90-1294, slip op. at 5-
6 (D.D.C. Mar. 11, 1992) (holding information generated during process preceding President's ultimate decision on application for
clemency was predecisional); cf. Sw. Ctr. for Biological Diversity v. USDA, 170 F. Supp. 2d 931, 940 (D. Ariz. 2000) (rejecting as
"tenuous" defendant's position that releasing information would "result in humans disturbing nesting goshawks," which in turn would
alter agency's deliberative process by affecting results of scientific study), aff'd on other grounds, 314 F.3d 1060 (9th Cir. 2002);
Animal Legal Def. Fund, Inc. v. Dep't of the Air Force, 44 F. Supp. 2d 295, 299 (D.D.C. 1999) (rejecting privilege claim because
agency "utterly failed to specify the role played by each withheld document" in policy-formulation process).
84. See, e.g., Taxation With Representation Fund v. IRS, 646 F.2d 666, 677-78 (D.C. Cir. 1981).
86. See, e.g., Sears, 421 U.S. at 153-54; Judicial Watch, Inc. v. HHS, 27 F. Supp. 2d 240, 245 (D.D.C. 1998) ("deliberative
process privilege does not protect documents that merely state or explain agency decisions"); cf. Horowitz v. Peace Corps, No. 00-
0848, slip op. at 9-10 (D.D.C. Oct. 12, 2001) (ordering parties to submit additional evidence of whether final decision had been made
at time disputed memorandum was written). But cf. Murphy v. TVA, 571 F. Supp. 502, 505 (D.D.C. 1983) (protecting two "interim"
decisions, which agency retains option of changing).
98. See Pfeiffer, 721 F. Supp. at 340 ("What matters is that the person who issues the document has authority to speak finally and
officially for the agency.").
112. Sears, 421 U.S. at 161; see, e.g., Afshar, 702 F.2d at 1140 (finding recommendation expressly adopted in postdecisional
memorandum); Niemeier v. Watergate Special Prosecution Force, 565 F.2d 967, 973 (7th Cir. 1977) (ordering disclosure of an
"underlying memorandum" that was "expressly relied on in a final agency dispositional document"); Shumaker, No. 97-7139, slip op.
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at 14 (ordering disclosure of advisory document written by agency general counsel and "thereafter adopted as the official position of
the agency"); Bhd. of Locomotive Eng'rs v. Surface Transp. Bd., No. 96-1153, 1997 WL 446261, at **4-5 (D.D.C. July 31, 1997)
(finding that staff recommendation was adopted in both written decision and commission vote); Burkins v. United States, 865 F.
Supp. 1480, 1501 (D. Colo. 1994) (holding that final report's statement that findings are same as those of underlying memorandum
constituted adoption of that document); Atkin v. EEOC, No. 91-2508, slip op. at 23-24 (D.N.J. July 14, 1993) (holding
recommendation to close file not protectible where it was contained in agency's actual decision to close file); cf. Tax Analysts, 117
F.3d at 617 (finding that documents "routinely used" and "relied upon by agency personnel," in a particular factual setting, were
"statements of the agency's legal position" and accordingly not protectible).
113. Coastal States, 617 F.2d at 866; see Pentagon Fed. Credit Union v. Nat'l Credit Union Admin., No. 95-1475, slip op. at 5-8
(E.D. Va. June 7, 1996) (finding that board of directors' action "embracing" recommendations in "substantially same language" made
documents postdecisional); Pension Actuaries, 746 F. Supp. at 192 (ordering disclosure simply on the basis that the IRS's budget
assumptions and calculations were "relied upon by the government" in making its final estimate for the President's budget); cf.
Skelton, 678 F.2d at 39 n.5 (declining to express opinion on whether reference must be to specific portion of document for express
incorporation of that portion to occur).
117. See, e.g., EPA v. Mink, 410 U.S. 73, 91 (1973) (refusing to extend deliberative process privilege protection to "factual
material otherwise available on discovery merely [on the basis that] it was placed in a memorandum with matters of law, policy, or
opinion"); Coastal States, 617 F.2d at 867 (citing Mink, 410 U.S. at 93); Bilbrey v. United States Dep't of the Air Force, No. 00-0539,
slip op. at 10-11 (W.D. Mo. Jan. 30, 2001) (holding privilege inapplicable to factual statements underlying predecisional
recommendations), aff'd, No. 01-1789, 2001 WL 1222471, at *1 (8th Cir. Oct. 16, 2001) (unpublished table decision); Sw. Ctr. for
Biological Diversity, 170 F. Supp. 2d at 941 (concluding that release of "raw research data" would not expose agency's deliberative
process, on grounds that such data were not recommendations, not subject to alteration upon further agency review, and not
"selective" in character).
118. 410 U.S. at 87-88 (1973).
119. See Montrose Chem. Corp. v. Train, 491 F.2d 63, 66 (D.C. Cir. 1974); see also Rashid v. HHS, No. 98-0898, slip op. at 11-
12 (D.D.C. Mar. 2, 2000) (declining to extend the privilege to agency requests for outside experts' evaluations on the basis that
although "[t]he requests were predecisional, . . . they were not deliberative in that they did not 'reflect the give-and-take of the
consultative process'" (quoting Coastal States, 617 F.2d at 866)); D.C. Technical Assistance Org. v. HUD, No. 98-0280, slip op. at 4-
5 (D.D.C. July 29, 1999) (ordering release of factual portion of an otherwise deliberative record because it "does not evaluate the
actions taken, but only describes them"); Horsehead, No. 94-1299, slip op. at 16 (D.D.C. Oct. 1, 1996) ("EPA has not demonstrated
how the disclosure of either the testing processes . . . or the data from that testing involves [sic] its deliberative process.").
141. Sears, 421 U.S. at 150; Judicial Watch, Inc. v. Dep't of Justice, 306 F. Supp. 2d 58, 70 (D.D.C. 2004) (protecting "handwritten
notes" on an invitation to the Attorney General, because disclosure "'would reveal what the staff member who wrote the notes
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considered to be important . . . and how the decision to attend the event may have been reached'" (quoting agency declaration));
Dorsett v. Dep't of the Treasury, 307 F. Supp. 2d. 28, 37-38 (D.D.C. 2004) (protecting Secret Service document evaluating threats
presented by plaintiff and others to Secret Service protectees); Warren, 2000 WL 1209383, at *2 (protecting applicant scoresheets on
basis that "[t]he decisions of a hiring panel to emphasize certain types of skills or how many points to award to an applicant for a
particular educational experience or previous employment experience are deliberative decisions in that they set the policy for the
hiring process"); see also Jernigan v. Dep't of the Air Force, 1998 WL 658662, at *2 (9th Cir. Sept. 17, 1998) (protecting "opinions
and recommendations" of agency investigating officer); Nat'l Wildlife, 861 F.2d at 1121 ("Recommendations on how to best deal
with a particular issue are themselves the essence of the deliberative process."); Canning v. Dep't of the Treasury, No. 94-2704, slip
op. at 7 (D.D.C. Mar. 21, 2001) ("Allowing disclosure of the pre-decisional opinions of Secret Service Special Agents on whether
particular organizations pose protective security risks could compromise the agency's ability to complete its protective mission by
stifling honest and frank communication within the agency."); Judicial Watch, 102 F. Supp. 2d at 16 (protecting notes taken by
Attorney General at campaign finance task force meeting, but not shared with any other person, because their release "could reveal
how the [Attorney General] prioritized different facts and considerations in deliberating whether or not to appoint an independent
counsel . . . [and] reveal her interpretation of public policies which she deemed relevant" to decision whether to appoint independent
counsel); Fine v. United States Dep't of Energy, No. 88-1033, slip op. at 9 (D.N.M. June 22, 1991) (finding that notes written in
margins of documents constitute deliberations of documents' recipient); Jowett, 729 F. Supp. at 875 (protecting documents that are
"part of the give-and-take between government entities"); Strang v. Collyer, 710 F. Supp. 9, 12 (D.D.C. 1989) (approving
withholding of meeting notes that reflect the exchange of opinions between agency personnel or divisions of agency), aff'd sub nom.
Strang v. DeSio, 899 F.2d 1268 (D.C. Cir. 1990) (unpublished table decision).
142. Coastal States, 617 F.2d at 866; see also Missouri, 147 F.3d at 711 ("Perhaps a fuller description [of the record] and why it is
exempt might have avoided this litigation, but it was not improper for the [agency] to conclude that open and frank intra-agency
discussion would be 'chilled' by public disclosure."); Schell, 843 F.2d at 942 ("It is the free flow of advice, rather than the value of
any particular piece of information, that Exemption 5 seeks to protect.").
Some Additional References.
• Reference (e) states that for requests ‘that will require more than ten days for the agency to process, the FOIA requires agencies to
assign a tracking number to your request. Each agency must provide a telephone number or website by which a requester can use
the assigned tracking number to obtain information about the status of a pending request.”
• DoD 5400.11-R, May 14, 2007, paragraph C3.1.1O. states: “Time Limits. “DoD Components normally shall provide access
within 20 working days after receipt of the request. If access cannot be given within the 20 working day period, the requester
shall be notified in an interim response.”
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o Note that the Agency did not follow the FOIA requirement to provide me case a tracking number within ten days and did not
then comply with statutory and regulatory requirements to complete the request within twenty days.
• DoD 5400.11-R, May 14, 2007, paragraph C1.5.3. states: “Avoidance of Procedural Obstacles. DoD Components shall ensure
that procedural matters do not unnecessarily impede a requester from obtaining DoD records promptly. Components shall provide
assistance to requesters to help them understand and comply with procedures established by this Regulation and any supplemental
regulations published by the DoD Components.”
o
I contend that this capricious and arbitrary denial is intended to delay/deny release of information by introducing procedural
obstacles.
• DoD 5400.11-R, May 14, 2007 paragraph C1.5.1. states, “DoD personnel are expected to comply with the FOIA, this
Regulation, and DoD FOIA policy in both letter and spirit. This strict adherence is necessary to provide uniformity in the
implementation of the DoD FOIA Program and to create conditions that will promote public trust.”
o
In my view, the WRNMMC HIPAA/Privacy Act/FOIA/Civil Liberties Office has not met that standard.
This appeal is separate and distinct from any other appeals that I may file and may not be combined with any other appeal. I am not
agreeing to combining separate appeals, as this would be improper, potentially distorting FOIA reporting to Congress and impeding
separate judicial review (if that becomes necessary). If you deny all or any part of this appeal, please cite each specific exemption you
think justifies your determination and notify me of further remedies available under the law.
I will greatly appreciate your thoughtful consideration of my request. Please contact me if you have any questions regarding this
request. Thank you in advance.
With my respect,
Robert Hammond
Enclosures: As stated.
Copy to: Nadine Brown, DHA FOIA Officer, [email protected],
Footnotes.
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16. 5 U.S.C. § 552(b)(5) (2006), amended by OPEN Government Act of 2007, Pub. L. No. 110175,
62. See FOIA Update, Vol. VI, No. 1, at 6. 63. 5 U.S.C. § 552a (2000).
65. See, ITT World Communications, Inc. v. FCC, 699 F.2d 1219,
1237-38 (D.C. Cir. 1983) (dictum) (suggesting that otherwise exempt predecisional material "may" be ordered released so as to
explain actual agency positions), rev'd on other grounds, 466 U.S. 463 (1984).
73. See Mapother v. Dep't of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993) ("The deliberative process privilege protects materials
that are both predecisional and deliberative." (citing Petroleum Info. Corp. v. United States Dep't of the Interior, 976 F.2d 1429, 1434
(D.C. Cir. 1992))).
74. Jordan, 591 F.2d at 774.
75. Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975).
76. See Coastal States, 617 F.2d at 866.
77. Id. at 868; see also Providence Journal Co. v. United States Dep't of the Army, 981 F.2d 552, 559 (1st Cir. 1992) (protecting
IG's recommendations even though decisionmakers were not obligated to follow them); Formaldehyde Inst. v. HHS, 889F.2d 1118,
1123 (D.C. Cir. 1989) (protecting recommendations on suitability of article for publication, though decision on "whether and where"
to publish article had not yet been made); Greenberg, 10 F. Supp. 2d at 17 (stating that "an evaluation of the legal status" of a case
would be protected, but an "instruction from a senior to a junior official as to what legal action should be taken -- a final decision . . .
does not merit Exemption 5 protection"); Horsehead Indus. v. EPA, No. 94-1299, slip op. at 14 (D.D.C. Oct. 1, 1996) ("In
determining whether material is predecisional in nature, courts must look to see what role the material played in the decisionmaking
process . . . . A statement of an opinion by an agency official or preliminary findings reported by a public affairs official do not
necessarily constitute a statement of EPA policy or final opinion that has the force of law."); Knowles v. Thornburgh, No. 90-1294,
slip op. at 5-6 (D.D.C. Mar. 11, 1992) (holding information generated during process preceding President's ultimate decision on
application for clemency was predecisional); cf. Sw.Ctr. for Biological Diversity v. USDA, 170 F. Supp. 2d 931, 940 (D. Ariz. 2000)
(rejecting as "tenuous" defendant's position that releasing information would "result in humans disturbing nesting goshawks," which
in turn would alter agency's deliberative process by affecting results of scientific study), aff'd on other grounds, 314 F.3d 1060 (9th
Cir. 2002); Animal Legal Def. Fund, Inc. v. Dep't of the Air Force, 44 F. Supp. 2d 295, 299 (D.D.C. 1999) (rejecting privilege claim
because agency "utterly failed to specify the role played by each withheld document" in policy-formulation process).
84. See, e.g., Taxation With Representation Fund v. IRS, 646 F.2d 666, 677-78 (D.C. Cir. 1981).
86. See, e.g., Sears, 421 U.S. at 153-54; Judicial Watch, Inc. v. HHS, 27 F. Supp. 2d 240, 245 (D.D.C. 1998) ("deliberative
process privilege does not protect documents that merely state or explain agency decisions"); cf. Horowitz v. Peace Corps, No. 00-
0848, slip op. at 9-10 (D.D.C. Oct. 12, 2001) (ordering parties to submit additional evidence
of whether final decision had been made at time disputed memorandum was
written). But cf. Murphy v. TVA, 571 F. Supp. 502, 505 (D.D.C. 1983) (protecting two "interim" decisions, which agency retains
option of changing).
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98. See Pfeiffer, 721 F. Supp. at 340 ("What matters is that the person who issues the document has authority to speak finally and
officially for the agency.").
112. Sears, 421 U.S. at 161; see, e.g., Afshar, 702 F.2d at 1140 (finding recommendation expressly adopted in postdecisional
memorandum); Niemeier v. Watergate Special Prosecution Force, 565 F.2d 967, 973 (7th Cir. 1977) (ordering disclosure of an
"underlying memorandum" that was "expressly relied on in a final agency dispositional document"); Shumaker, No. 97-7139, slip op.
at 14 (ordering disclosure of advisory document written by agency general counsel and "thereafter adopted as the official position of
the agency"); Bhd. of Locomotive Eng'rs v. Surface
Transp. Bd., No. 96-1153, 1997 WL 446261, at **4-5 (D.D.C. July 31, 1997) (finding that staff recommendation was adopted in both
written decision and commission vote); Burkins v. United States, 865 F. Supp. 1480, 1501 (D. Colo. 1994) (holding that final report's
statement that findings are same as those of underlying memorandum
constituted adoption of that document); Atkin v. EEOC, No. 91-2508, slip op. at 23-24 (D.N.J. July 14, 1993) (holding
recommendation to close file not protectible where it was contained in agency's actual decision to close file); cf. Tax Analysts, 117
F.3d at 617 (finding that documents "routinely used" and "relied upon by agency personnel," in a particular factual setting, were
"statements of the agency's legal position" and accordingly not protectible).
113. Coastal States, 617 F.2d at 866; see Pentagon Fed. Credit Union v. Nat'l Credit Union Admin., No. 95-1475, slip op. at 5-8
(E.D. Va. June 7, 1996) (finding that board of directors' action "embracing" recommendations in "substantially same language"
made documents postdecisional); Pension Actuaries, 746 F. Supp. at 192 (ordering disclosure simply on the basis that the IRS's
budget assumptions and calculations were "relied upon by the government" in making its final estimate for the President's budget); cf.
Skelton, 678 F.2d at 39 n.5 (declining to express opinion on whether reference must be to specific portion of document for express
incorporation of that portion to occur).
117. See, e.g., EPA v. Mink, 410 U.S. 73, 91 (1973) (refusing to extend deliberative process privilege protection to "factual
material otherwise available on discovery merely [on the basis that] it was placed in a memorandum with matters of law,
policy, or opinion"); Coastal States, 617 F.2d at 867 (citing Mink, 410 U.S. at 93); Bilbrey v. United States Dep't of the Air Force,
No. 00-0539, slip op. at 10-11 (W.D. Mo. Jan. 30, 2001) (holding privilege inapplicable to factual statements underlying
predecisional recommendations), aff'd, No. 01-1789, 2001 WL 1222471, at *1 (8th Cir. Oct. 16, 2001) (unpublished table decision);
Sw. Ctr. for Biological Diversity, 170 F. Supp. 2d at 941 (concluding that release of "raw research data" would not expose agency's
deliberative process, on grounds that such data were not recommendations, not subject to alteration upon further agency review, and
not "selective" in character).
118. 410 U.S. at 87-88 (1973).
In a message dated 5/16/2015 8:09:52 P.M. Eastern Daylight Time, REDACTED writes:
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Dear Mr. Davidge and Ms. Bizzell,
I simply want my records to be timely, complete, and accurate.
By way of background, I submitted a HIPAA/Privacy Act request to WRNMMC on March 26, 2013 asking that 2LT Leung correct a
medical record entry in my file. After considerable delay, I appealed that WRNMMC did not respond to my HIPAA/Privacy Act
request. Mr. Davidge then denied my HIPAA/Privacy Act request, stating that 2LT Leung was not available to consider my request
for correction of my medical record. Mr. Davidge stated further that 2LT Leung was no longer assigned to WRNMMC. That
statement is not factual.
On July 29, 2013, I submitted this FOIA request seeking records that Mr. Davidge relied upon in determining that 2LT Leung was
unavailable to take action on my request for correction of my medical record.
Your denial of my July 29, 2013 FOIA request is inappropriate. There is no statutory basis for WRNMMC to withhold the records
that I am seeking.
Regarding exemption (b)(6), I clearly stated in my FOIA request and in subsequent correspondence that I am not seeking any
personally identifiable information for 2LT Leung; only the records that Mr. Davidge relied on in determining that she was
(purportedly) unavailable to act on my HIPAA/Privacy Act request. I noted that her name may have changed, as is common. Then, on
September 18, 2014, I submitted a FOIA request to the Army Human Resources Command seeking the current Officer Record Brief
for 2LT Angela N. Leung, whose last known assignment was WRNMMC. Please see the attached record released via the FOIA
showing that she was still assigned to WRNMMC at that time. The WRNMMC Military Personnel Office would have had that same
information. Other records sought in my FOIA request would have shown that she was still accessing WRNMMC computer systems
and medical records. Mr. Davidge did or should have known that 2LT Leung was still assigned to WRNMMC.
Regarding exemption (b)(5), there is no litigation, and this exemption would not apply in any case. These are simple records that
Agencies maintain in the course of normal business. They do not involve opinions or deliberations and they are not pre-decisional. It
appears that Walter Reed may be simply trying to mislead and to rationalize statements that are not factual.
Moreover, regarding the exemption, (b)(5) quote cited in your denial, the DOJ FOIA Guide states, “the President and Attorney
General have issued memoranda to all agencies emphasizing that the FOIA reflects a "profound national commitment to ensuring an
open Government" and directing agencies to "adopt a presumption in favor of disclosure.” Furthermore, your use of the (b)(5)
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exemption is not in line with a recent GAO report stating, “Office of Information Policy guidance stated that exemption 5 … provides
the best opportunity for increasing the release of information.”
Please advise me why Walter Reed did not respond to my FOIA request in 2013. There have been many follow ups to this request. If
WRNMMC did not report this open request properly, in FY 2013 and 2014, those Annual FOIA Report submissions are inaccurate.
If you fail to report my FOIA request properly in FY 2015 with an effective date of July 29, 2013, WRNMMC and your higher
headquarters, Defense Health Agency, will be knowingly submitting false reports.
Thank you.
With my respect,
Robert Hammond
Notice: this correspondence and the attachments may contain information protected under the Privacy Act and Health Insurance
Portability and Accountability Act. I am not authorizing further disclosure.
In a message dated 4/9/2015 4:02:22 P.M. Eastern Daylight Time, [email protected] writes:
Dear Mr. Hammond
This is a final response to your request for information under the Freedom of Information Act (FOIA). The case number for this
request is WRNMMC case #15- 20.
Please refer to this number when inquiring about this matter.
In this case you are "requesting the following with respect to provider: LEUNG, ANGELA N 2LTxxxx
• Records of completed check out sheet for departing the organization, including date Records of Common Access Card Turn-in,
including date
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• Records of badge turn in, including date
• Records of WRNMMC network access termination, including date
• Any and all records relied upon by J. E. Davidge, Privacy Compliance Officer in determining that Ms. Leung is unavailable to
make my requested medical record correction, including the date that she became unavailable and the reason for her
unavailability. Refer to WRNMMC letter dated AUG 09, 2013 subject: DENIAL LETTER FOR LEGAL ORRECTION OF
PHI/PII (LEUNG, ANGELA N 2LTxxxx)."
Your request was reviewed in accordance with the FOIA and Privacy Act (PA). The Freedom of Information Act Exemptions (b)(5)
and (b)(6) were used to determine if the requested information is releasable. FOIA Exemption 5, 5 U.S.C. 552 (b)(5) protects "inter-
agency or intra-agency documents which would not be available by law to a party other than an agency in litigation with the
agency." FOIA Exemption 6, 5 U.S.C.
552(b)(6), allows for the withholding of information in personnel, medical, and similar files where disclosure “would constitute a
clearly unwarranted invasion of personal privacy.”
Therefore, your request for the above information is Denied in Full.
Release of information under FOIA pertains to transparency in government, not a means of finding information about private
individuals.
FOIA's central purpose is "to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 372, 96
S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976). Weighing a balancing test over the rights of an individual's privacy against the public
interest, the Supreme Court held the interest of shedding light on an agency's performance is "not fostered by disclosure of
information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's
own conduct." U.S. Dept. of Justice v. Reporters Committee For Freedom of Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 1481 (March
22, 1989). Moreover, the Court held "[W]hen the request seeks no 'official information' about a Government agency, but merely
records that the Government happens to be storing, the invasion of privacy is 'unwarranted'." 489 U.S. at 780.
If you are dissatisfied with the above determination for any reason, you may file an appeal with the designee of the Secretary of the
Navy. Such an appeal should be addressed to:
Defense Health Agency
National Capitol Region Medical Directorate Office of the General Counsel
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ATTN: Mr. Paul T. Cygnarowicz
8901 Wisconsin Avenue Building 27, 3rd Floor
Bethesda, MD 20889
The appeal must be postmarked within 60 calendar days from the date of this letter, and you should attach this letter/email with a
statement regarding the basis of your appeal. I recommend you annotate both the letter of appeal and envelope with the words
"Freedom of Information Act Appeal."
Fees associated with the processing of your request, by this Command, have been waived. If you have any questions or require
further assistance, you may contact me at
(301) 400-2315 or by email at Judy.J.Bizzell.civ@mail.mil.
Sincerely,
Judy J. Bizzell
Freedom of Information Act Officer
Walter Reed National Military Medical Center 4650 Taylor Road
Bethesda, MD 20889
-----Original Message-----
From: REDACTED [mailto:REDACTED]
Sent: Wednesday, April 08, 2015 5:21 AM
To: Bizzell, Judy J CIV DHA NCR MEDICAL DIR (US); joe.e.davidge[email protected] Cc: FOIAReques[email protected]; Christmas,
Jewel P CIV DHA HEALTH IT DIR (US); Ross, Doritha N CTR DHA ADMIN MD (US); nadien.[email protected]; Thomas,
Linda S CIV DHA CMD GRP (US)
Subject: Re: FOIA WRNMC #13-29 LEUNG, ANGELA N 2LTxxxx Unavailability follow- up 2015...
Good morning,
Ms. Bizzell Thank you.
With my respect,
Robert Hammond
In a message dated 4/7/2015 6:04:18 P.M. Eastern Daylight Time, [email protected] writes:
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Enclosure 2, September 20, 2017 Sample Correspondence
Dear Mr. Hammond
This is an interim response to your request for information under the Freedom of Information Act. Your request has been assigned
case number 15-20. Please refer to this number when inquiring about this matter.
Your request is being reviewed and when/if responsive documents are available we will notify you promptly.
Sincerely,
Judy J. Bizzell
Freedom of Information Act Officer
Walter Reed National Military Medical Center
8901 Wisconsin Ave
Bethesda, MD 20889
-----Original Message-----
From: REDACTED [mailto:REDACTED]
Sent: Sunday, March 29, 2015 5:42 AM
To: joe[email protected]; Bizzell, Judy J CIV DHA NCR MEDICAL DIR (US)
Cc: FOIARequests@tma.osd.mil; Christmas, Jewel P CIV DHA HEALTH IT DIR (US); Christmas, Jewel P CIV DHA HEALTH IT
DIR (US); REDACTED; Ross, Doritha N CTR DHA ADMIN MD (US); nadien.[email protected]il; Thomas, Linda S CIV DHA
CMD GRP (US); Thomas, Linda S CIV DHA CMD GRP (US)
Subject: Fwd: FOIA WRNMC #13-29 LEUNG, ANGELA N 2LTxxxx Unavailability follow-up 2015...
Good morning, Mr. Davidge and Ms. Bizzell.
I am again following up on my still unanswered FY 2013 FOIA request below. Please:
• ensure that this request is entered into the DHA FOIA central tracking database under an FY 2013 case number with an effective
date of August 18, 2013.
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• preserve all records responsive to or potentially responsive to this request that existed at the time of this request until final action
has been taken and the statutory time for judicial review has passed or for the time prescribed by a NARA approved records
schedule, if longer;
• preserve all correspondence, including this letter, emails and other communications regarding this request in the FOIA case file;
• preserve all records of searches that you have conducted and any future searches, including but not limited to searches with
WRNMMC personnel, security, information assurance and computer network offices, etc.;
• recover and retain any records that have been archived;
• provide a final decision letter for this request.
You may wish to consult with the Walter Reed Records Manager (not Medial Records) regarding laws, regulations and policies for
record retention/destruction of official government records, including requirements for emails and other electronic records.
You may also consider seeking guidance from the Department of Navy and DHA for correcting or amending your FY 2013 and FY
2014 Annual FOIA Report submissions via your chains of command. Was this request properly reported on those reports?
Thank you,
With my respect,
Robert Hammond
From: REDACTED
To: joe.[email protected], judy.j.bizzell.civ@mail.mil
Sent: 3/24/2015 7:47:39 A.M. Eastern Daylight Time
Subj: Fwd: FOIA WRNMC #13-29 LEUNG, ANGELA N 2LTxxxx Unavailability follow-up 2015...
Good morning, Mr. Davidge and Ms. Bizzell.
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I am following up on my FOIA request below. I do not recall seeing an acknowledgement of this request or a reply assigning a FOIA
case tracking number.
Thank you.
With my respect,
Robert Hammond
From: REDACTED
To: joe.e.davidge.civ@mail.mil, [email protected]
CC: FOIAReques[email protected], Jewel.P.Christmas[email protected], [email protected], REDACTED,
Sent: 3/16/2015 5:06:50 A.M. Eastern Daylight Time
Subj: FOIA WRNMC #13-29 LEUNG, ANGELA N 2LTxxxx Unavailability follow- up 2015.03.16
Robert Hammond
22180 REDACTED
March 16, 2015
Mr. Joe E. Davidge,
Privacy Compliance Administrator
Walter Reed National Military Medical Center
Building 1, 2nd Floor, Room 2430
8901 Rockville Pike
Bethesda, MD 20889-5600
Ms. Judy Bizzell,
Freedom of Information Act (FOIA) Administrator
Walter Reed National Military Medical Center (WRNMMC)
8901 Rockville Pike
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Bethesda, MD 20889-5600
Subject: Privacy Act Request/FOIA Request - LEUNG, ANGELA N 2LTxxxx Unavailability;
Follow-up of March 15, 2015
Requester Assigned Personal Reference Control Number: FOIA WRNMC #13-29
Enclosure: (1) My Privacy Act Request/FOIA Request dated August 18, 2013; subject: LEUNG, ANGELA N 2LTxxxx
Unavailability
References:
(a) My Privacy Act Request/FOIA Request dated August 18, 2013; subject: LEUNG, ANGELA N 2LTxxxx Unavailability
(b) Walter Reed letter Ser 00QM/00965 of AUG 09 2013, subject Denial Letter for Legal Correction of PHI/PII
(c) Joint publication of U.S. Department of Justice, Executive Office of the President and U.S. General Services Administration of
July 2011, “Your Right to Federal Records”
(d) DoD 5400. 11-R, May 14, 2007
(e) Department of Defense Directive Number 5400.07 of January 2,008
(f) DoD 6025.18-R, Jan. 24, 2003
Dear Mr. Davidge and Ms. Bizzell,
I am following up on my FOIA/Privacy Act request at reference (a), which I have included as Enclosure (1) for your convenience.
You have not provided a response to this request. I view this as a matter of compliance with the FOIA and the Privacy Act.
Please:
• ensure that this request is entered into the DHA FOIA central tracking database under an FY 2013 case number with an effective
date of August 18, 2013.
• preserve all records responsive to or potentially responsive to this request that existed at the time of this request until final action
has been taken and the statutory time for judicial review has passed;
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• retain all correspondence, including this letter, emails and other communications regarding this request in the FOIA case file;
• retain all records of searches that you have conducted, including but not limited to searches with WRNMMC personnel, security,
information assurance and computer network offices, etc.;
• recover and retain any records that have been archived;
• provide a final decision letter for this request.
• Among other things, my request states that: I am requesting the following with respect to provider: LEUNG, ANGELA N
2LTxxxx
• Records of completed check out sheet for departing the organization, including date Records of Common Access Card Turn-in,
including date
• Records of badge turn in, including date
• Records of WRNMMC network access termination, including date
• Any and all records relied upon by J. E. Davidge, Privacy Compliance Officer in determining that Ms. Leung is unavailable to
make my requested medical record correction, including the date that she became unavailable and the reason for her
unavailability. Refer to WRNMMC letter dated AUG 09, 2013 subject: DENIAL LETTER FOR LEGAL ORRECTION OF
PHI/PII (LEUNG, ANGELA N 2LTxxxx)
Please note that I submitted this request under both the Freedom of Information Act, U.S.C. subsection 522 and the Privacy Act, 5
U.S.C. subsection 522a.
Reference (c) states, “If you are in doubt about which law applies or would better suit your needs, you can refer to both in your
request letter. If you request records about yourself and do not specify a statute, the agency will, as a matter of policy, process the
request under both the FOIA and the Privacy Act and withhold requested information from you only if it is exempt under both laws.”
Reference (c) also states that for requests “that will require more than ten days for the agency to process to FOIA requires agencies to
assign a tracking number to your request. Each agency must provide a telephone number or website by which a requester can use the
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assigned tracking number to obtain information about the status of a pending request.” As previously requested on numerous
occasions, please provide me an Agency assigned FOIA case tracking number for this request.
Reference (d) states, “DoD personnel are expected to comply with the FOIA, this Regulation, and DoD FOIA policy in both letter
and spirit. This strict adherence is necessary to provide uniformity in the implementation of the DoD FOIA Program and to create
conditions that will promote public trust.” I have that same expectation of WRNMMC regarding Privacy Act requests. References (e)
and (f) also apply.
As noted in previous correspondence to your office, completing this request promptly will likely yield information regarding 2LT
Angela Leung’s location (and current name, if changed) that will allow her to be contacted now, affording her a fresh opportunity to
correct (or expunge) a potential oversight in her record entry of 0305 December 26, 2013 to close that matter - which is clearly
optimal compared to other alternatives. In addition, this will demonstrate that WRNMMC is committed to ensuring that WRNMMC
records regarding my PHI/PII are accurate, relevant, timely, and complete. It will demonstrate that WRNMMC is endeavoring to
comply with the Privacy Act, the FOIA, applicable regulations and policies; thereby obviating the need for appeal or other actions
that unnecessarily increase effort for everyone. And it will demonstrate that WRNMMC is processing my requests in a fair, uniform
and consistent manner relative to other requests and is respecting my civil liberties.
I believe that I have adequately described the records that I am seeking. If you believe that my request is unclear, if you have any
questions, or if there is anything else that you need from me to complete this request in a timely manner, please contact me in writing.
If you believe that my request is defective and cannot be completed, please deny the request on that basis so that I may appeal or
resubmit a new request.
References (a) through (f) apply.
In your reply, please provide a copy of my original request. This is an integral part of my Privacy Act/FOIA request, which helps to
ensure that you fully address the request.
With my respect,
Robert Hammond
Copy to:
Linda Thomas, Defense Health Agency FOIARequests@tma.osd.mil
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[email protected] <mailto:Jewel.P.Christmas[email protected]> ; Jewel.P.Christmas.c[email protected]
=============================================================
Robert Hammond
REDACTED
August 18, 2013
Freedom of Information Act (FOIA) Administrator,
Ms. Judy Bizzell/Privacy Officer,
Walter Reed National Medical Center (WRNMMC)
8901 Rockville Pike
Bethesda, MD 20889-5600
Subject: Privacy Act Request/FOIA Request – LEUNG, ANGELA N 2LTxxxx Unavailability
Requester Control Number: FOIA WRNMC #13-29 Dear Ms. Bizzell and/or Privacy Officer
I [am submitting this] under submitting this request under both the Freedom of Information Act, U.S.C. subsection 522 and the
Privacy Act, 5 U.S.C subsection 522a. Please provide a response that satisfies the provisions of both Acts and process this request
under the Act that results in the lowest cost. If there are fees for searching or copying the records less than $200 (which I agree to
pay), please advise me before proceeding. If you deny all or any part of this request, please cite each specific exemption you think
justifies your refusal to release the information and notify me of appeal procedures available under the law. Please cite the requester
control number and include a copy of this request in your reply. Returning a copy of this letter is a part of the FOIA request. Do not
reply to more than one requestor control number in a single letter. Please provide your written reply within the prescribed time
frames. Should you fail to provide all records within the prescribed timeframe, please notify me of appeal procedures available under
the law.
I am requesting the following with respect to provider: LEUNG, ANGELA N 2LTxxxx
• Records of completed check out sheet for departing the organization, including date
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• Records of Common Access Card Turn-in, including date
• Records of badge turn in, including date
• Records of WRNMMC network access termination, including date
• Any and all records relied upon by J. E Davidge, Privacy Compliance Officer in determining that Ms. Leung is unavailable to
make my requested medical record correction, including the date that she became unavailable and the reason for her
unavailability. Refer to WRNMMC letter dated AUG 09, 2013 subject: Denial letter for legal correction of PHI/PII.
Please provide your written reply within the prescribed timeframes and return a copy of this request with your reply.
If you have any questions, do not close this request; please contact me by email. I ask that you comply with the FOIA, DoD 5400.7-
R, and DoD FOIA policy in the letter and spirit. Please do not introduce procedural obstacles to unnecessarily impede me from
obtaining the requested records promptly.
I am a private citizen seeking this information. I do not believe that there should be any charge for providing these records.
Thank you in advance.
With my respect,
Robert Hammond
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Enclosure 3, October 23, 2017 Sample Correspondence
From: REDACTED
Sent: 10/23/2017 10:08:49 AM Eastern Standard Time
Subject: Fwd: Fwd: Re: FOIA Non-Compliance by Walter Reed (requests submitted 6...
Matt,
Here are some more. A couple of these were answered under FY 2017 tracking numbers, which is unsatisfactory. Please do your best
to pin Walter Reed down. they may give you an answer that says that they did not receive them, but that is incorrect. I have tons of
examples with supporting records. I would very much like to get truthful answers... which can only be "we got the requests on the
dates indicated and did not report them. Again, I believe Cindy Allard is the best person , at the right level, to address these. She is
aware that I was planning to go to DOJ. I held off for quite some time. I think she and her staff will help. Good people. Couple of bad
apples withing DOD.
1. Please confirm that Walter Reed received my FOIA Requests on the dates indicated (indisputable).
2. Please confirm that Walter Reed did not report my FOIA Requests at all. Indisputable.
3. Please determine from Walter Reed the reason for not reporting my FOIA Requests in their annual FOIA Report Submissions.
4. Please determine when DHA learned that Walter Reed has not reported my FOIA Requests, in their annual FOIA Report
Submissions
5. Please confirm that DHA has not been reporting these requests as of the dates received.
6. Please determine why DHA has not been reporting requests as of the dates received.
From: REDACTED
To: joo.y.chung2.civ@mail.mil
Sent: 9/8/2017 3:04:46 PM Eastern Standard Time
Subject: Fwd: Re: FOIA Non-Compliance by Walter Reed (requests submitted 6...
Dear Ms. Chung and Ms. Allard,
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With respect, I would much rather handle these things within DOD, so long as the desired outcome is timely and efficiently achieved.
The scope of my concern is limited.
As you are aware, some time ago, I asked DHA to notify your office of past inaccurate reporting, to begin reporting and answering all
of my open FOIA requests and appeals for both DHA and Walter Reed as of the dates that they were received and to begin reporting
and answering all of my Privacy Act Complaints. That has not happened. They at least need to be honest with you.
These are not errors of omission. Walter Reed and DHA simply ignore requests, appeals, P/A complaints that they do not intend to
answer and then they do not report them. There are no factual explanations otherwise. Any that are offered will fail. Unless there is
accountability, these practices will not change.
At the DOD level, the reports are not accurate. I know that you are both working to correct this. Thank you. I am also mindful that you
have many priority issues demanding your time.
I will delay sending this incident to DOJ until at least September 24, 2017, pending a reply. Such reply may come from Ms. Thomas.
Such a reply may include tracking numbers and status for all of my open request, appeals, complaints.
Finally, the tone of my email below is inappropriate. frustrated.
Go Navy, beat Tulane.
Have a great weekend.
With my respect,
Robert Hammond
From: REDACTED
To: david[email protected]
Cc: joo.y.chung2[email protected], [email protected], linda.s[email protected], [email protected],
[email protected], [email protected], Jeffrye.b.clark4[email protected], voiceofthecus[email protected],
judy.j.bizzell[email protected]
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Sent: 9/7/2017 7:06:17 AM Eastern Standard Time
Subject: Re: FOIA Non-Compliance by Walter Reed (requests submitted 6...
Dear Mr. Tillotson,
Unfortunately, I have not received any reply from DHA regarding the ostensive non- compliance in FOIA processing and false
reporting discussed below. I have not received any response indicating that DHA has taken any action whatsoever to address this,
including actions to preclude reoccurrence.
I am interested in the factual reasons for the ostensive non-compliance and false reporting. I am interested in what DHA is doing to
begin factually reporting open FOIA requests and appeals as of the dates received (and in a related matter, open Privacy Act
complaints).
I will very soon be referring this matter to the Department of Justice.
There may be many, many, many more emails to follow. The example below is just the tip of a very large iceberg.
With my deep respect,
Robert Hammond
-----Original Message-----
From: REDACTED
To: david.tillotson1.civ <[email protected]>
Cc: linda.s.thomas47.civ linda.s.thomas[email protected]
Sent: Sat, Feb 25, 2017 9:18 am
Subject: Re: FOIA Non-Compliance by Walter Reed (requests submitted 6...
Dear Mr. Tillotson,
I am forwarding the email thread below regarding the integrity of the Walter Reed/Defense Health Agency (DHA) FOIA (and Privacy
Act (PA)) processes for your information or action as you may consider appropriate. This email thread of October 10, 2016 addresses
some (of many) open FOIA requests dating back to FY 2014 that are almost certainly not being reported on Annual FOIA Reports to
the Attorney General. Moreover, earlier and subsequent FOIA requests are likely not being accurately reported and PA matters are
almost certainly not being properly reported to Congress.
Unfortunately, Ms. Linda S. Thomas (571-286-9517) who signs the DHA FOIA reports and is responsible for FOIA and HIPAA/PA
compliance within DHA, has taken no action on this matter since she became aware of it several months ago. Moreover, no corrective
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action has been taken on many other FOIA/PA non-compliance matters dating back several years to the present. My personal
observation is that non-complaint processes and inaccurate reporting may be ongoing at a significant level.
These are not “complex requests.” One might ask why Walter Reed and DHA are fighting so hard to keep secret Walter Reed’s FOIA
report submissions, Walter Reed’s FOIA, PA and mail room procedures and inspections records and Walter Reed’s “Request for
Amendment of Health Information” records.
One might surmise that these may be more management/leadership influence issues and DHA/Walter Reed legal staff advice that may
not be in the best interest of the Department and individual employees rather than exclusively working-level employee intentional
non- compliance issues. Consideration might be given to particular employees if that is the case.
Some have been rearranging deck chairs on the Titanic for many years. Now, there is only one lifeboat left within DoD and there
aren't many seats left. This correspondence is being forwarded to others within DoD for situational awareness and to provide visibility.
It may also be forwarded to others later.
Thank you in advance for your consideration of these matters.
With my deep respect,
Robert Hammond
In a message dated 1/18/2017 8:53:00 A.M. Eastern Standard Time, [email protected] writes:
I will respond in due course. I am unable to give a precise date at this time. You have given us quite a number of actions to process.
Linda S. Thomas, JD, CIPP/G, PMP, CISSP
Chief, DHA Privacy and Civil Liberties Office
Office: 703-275-6363
Mobile: 571-286-9517
"Quality and Service Above All"
Please comment on our service at: [email protected]
-----Original Message-----
From: REDACTED [mailto:REDACTED]
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Enclosure 3, October 23, 2017 Sample Correspondence
Sent: Tuesday, January 17, 2017 5:52 PM
To: Thomas, Linda S CIV DHA PCL (US)
Cc: DHA NCR PCL Mailbox FOIA Requests; Brown, Nadine R CIV DHA PCL (US); Ross, Doritha N CTR (US);
Rahwa.Keleta@mail.mil; Michelle.Johnson.ctr@mail.mil; Michael.Tymkovi[email protected]; REDACTED; Bizzell, Judy J CIV
DHA NCR MEDICAL DIR (US); Davidge, JOSEPH E (Joe) JR CIV DHA WRNMMC (US)
Subject: [Non-DoD Source] FOIA Non-Compliance by Walter Reed (requests submitted 6.2.2014 - 6.2.2014)
Dear Ms. Thomas,
When might I receive your findings and results of action taken on each of the very serious FOIA non-compliance matters identified
below? As previously noted, you are personally responsible for FOIA compliance and the accuracy of FOIA reporting via your
reporting chain to the Attorney General of the United States.
Per DHA web site:
==============
"Freedom of Information Act (FOIA)
The Defense Health Agency (DHA) Freedom of Information Service Center has principal authority to ensure Health Affairs (HA),
DHA, and its components are in full compliance with the FOIA.
Liaison Officer
If you are concerned about service received from the HA/DHA FOIA Service Center, please contact the FOIA Liaison Officer at:
Defense Freedom of Information Policy Office
ATTN: Ms. Linda S. Thomas
Chief, Freedom of Information Service Center Defense Health Agency
7700 Arlington Boulevard, Suite 5101 Falls Church, VA 22042-5101
Phone: 1-703-275-6363"
==============
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Thank you,
With my respect,
Robert Hammond
In a message dated 12/28/2016 6:18:42 A.M. Eastern Standard Time, REDACTED writes:
Dear Ms. Bizzell,
Please address the 15 matters below and provide me the status of each FOIA request.
Dear Ms. Thomas and Ms. Brown,
Please advise me of action taken to address these capacious and arbitrary violations of the FOIA and regulations and policies. Please
address the 15 matters listed below.
Please preserve this correspondence in each FOIA case file until the longer of the statutory time for judicial review has passed or the
NARA approved schedule.
With my respect,
Robert Hammond
In a message dated 12/2/2016 8:44:12 A.M. Eastern Standard Time, REDACTED writes:
with attachment.
In a message dated 12/2/2016 8:42:48 A.M. Eastern Standard Time, REDACTED writes:
Dear Ms. Bizzell,
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You have not addressed the important matters in this correspondence which was sent to you via email, fax and mail. In particular, you
have not addressed the delayed processing and delayed assignment of tracking numbers to my requests at the time - and within the
same fiscal year – that they were submitted. Moreover, you have not acknowledged my request for Walter Reed’s FY 2014 Annual
FOIA Report Submission records. I contend that your FY 2014 report submission is inaccurate and incomplete.
Regarding tracking numbers, FOIA requires that “each agency shall establish a system to assign an individualized tracking number for
each request received that will take longer than ten days to process and provide to each person making a request the tracking number
assigned to the request” 5 U.S.C. § 522(a)(7)(A).
Your actions and failure to act, together with those actions and failures to act of the Walter Reed Department Chief, HIPAA/Privacy
Act/FOIA/Civil Liberties Office, [Redacted] constitute clear violations of the Freedom of Information Act and governing regulations
and policies that go to the heart of the integrity of the FOIA process and the accuracy of FOIA reporting via your reporting chain to
the Attorney General of the United States.
Ms. Thomas,
Your office has responsibility for FOIA compliance within DHA and any errors or omissions in Walter Reed’s FOIA reporting to you
affects the accuracy and integrity of the DHA Annual FOIA report submissions. You have previously been provided numerous
examples of potential violations and inaccurate reporting. These matters are worthy of Senior Leadership attention and are instructive
for your staff members on this email.
I am requesting that you acknowledge this correspondence by return email to all and that you promptly open an investigation to
address the matters in this correspondence. Hard copy will be faxed and mailed to you.
Thank you,
With my respect,
Robert Hammond
From: REDACTED
To: judy.j.bizzell[email protected], joseph.e.davidge.civ@mail.mil, linda.s.thomas[email protected]
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CC: dha.ncr.pcl.mbx.foia-requests@mail.mil, [email protected], doritha[email protected], [email protected],
Sent: 11/3/2016 6:14:03 A.M. Eastern Daylight Time Subj: Re: FOIA's Received
Dear Ms. Bizzell,
Your extraordinarily delayed reply and assignment of fiscal year (FY) 2017 FOIA tracking numbers to these prior FY FOIA requests
in your email below, many of which were submitted to you over two years ago, suggests a lack of integrity in Walter Reed's FOIA
processing as well as a lack of integrity and accuracy of your annual FOIA report submissions via your reporting chain to the Attorney
General of the United States. This is worthy of senior leadership and Defense Health Agency (DHA) Privacy and Civil Liberties
Office oversight attention and action. Your annual FOIA report submissions also impact the accuracy of those within your reporting
chain, which has been the subject of significant correspondence with Walter Reed and DHA dating back to 2013.
Please reply to all parties on this email when addressing the FIFTEEN action items in this email.
For your convenience, I am including as “Attachment A” a 44-page PDF file containing the relevant initial FOIA submissions to you,
which are summarized in the table below. The table omits some intervening FOIA requests so as not to confuse maters; however,
FOIA tacking numbers and Walter Reed responses are due for those as well.
==================
My Personal Requester CTRL #
Title/Subject
Date Submitted
Best Guess of WRNMMC Agency
Assigned # (?)
===================
WRNMC #14-X
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WRNMMC Correspondence containing Six D Forms 2870 6/2/2014
17-01
======================
WRNMC#14-AA
WRNMMC Mail Room Procedures 7/27/2014
17-02
==================
WRNMC#14-AB
WRNMMC FOIA Instructions, SOPs, Desk Guides 9/2/2014
17-04
==================
WRNMC#14-AC
WRNMMC Privacy Act (PA) and Health Insurance Portability Accountability Act (HIPAA) Instructions, SOPs, Desk Guides
9/2/2014
17-05
================== WRNMC#14-AD
WRNMMC FOIA Office Scanner Repair
9/2/2014
??
================== WRNMC#14-AE
Privacy Act (PA)/ Health Insurance Portability and Accountability Act
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(HIPAA) Training Completed by the WRNMMC Department Chief, Privacy Act/FOIA/Civil Liberties Office
9/2/2014
17-03
================== WRNMC#14-AF
WRNMMC Privacy Office Inspections 9/2/2014
17-14
==================
WRNMMC #15-B
FOIA WRNMMC #15-B Form Entitled “Request for Amendment of Health Information 6/20/2015
17-15
================== WRNMMC #15-C
Privacy Act Requests From January 1, 2013 6/20/2015
17-06
================== WRNMC #16-A
Records Associated With Request for Correction of Medical Record Entries of Ms. Michele 0.Afriye, and Ms. Angela N. Leung
(subsequently known as Angela Ngar Jee Mamangun)
11/8/2015
17-07
================== WRNMC #16-B
Records of Inpatient Disclosure for Hammond, Robert for June 28th 2007 to June 29th 2013 11/8/2015
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17-16
================== WRNMC #16-C
Medical Records Correction Request - MHT TURA Y MARIATU H. CIV 3374 11/8/2015
17-08
WRNMC #16-D
Records Associated Medical Records Correction Request 1to 1 Sitter/Catheter 11/8/2015
17-09
================== WRNMC #16-E
Medical Records Correction Request - Laboratory values 1/8/2015
17-10
================== WRNMMC #16-F
FY 2015 Annual FOIA Report Supporting Records 9/19/2016
17-11
================== WRNMMC #16-G
FY 2014 Annual FOIA Report Supporting Records 9/19/2016
??
==================
Please address the following:
1. Please address your assignment of a fiscal year 2017 FOIA tracking number for each of the FOIA requests noted above and in
Attachment A along with your rationale for not assigning a FOIA tracking number in the correct fiscal year when each request was
received.
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2. Please address the non-sequential tracking numbers and gaps in your FY 2017 tracking numbers. You don’t get to pick/alter
the order in which requests are recorded as received in order to sequence them for processing.
3. Please address the omission of my Request #14-AD seeking records of the WRNMMC FOIA Office Scanner Repair, which
was submitted after you alleged that Walter Reed did not have the capability to create PDF files in order to reply to my requests in the
required format.PDF files remove any ambiguity in the what records were/are sent in reply to my FOIA requests, as some of past
assertions of records provided in paper form are not factual.
4. Please address your omission of my Request 15-G seeking your FY 2014 Annual FOIA Report Supporting Records.
5. Please provide for each request the projected date of Walter Reed’s reply providing your determination of each request with
release of responsive records (or the statutory basis for denial thereof), the reason for delay in processing and if you are asserting that
any request is complex.
6. Please indicate if you did not receive each FOIA request on the date indicated above and in Attachment A.
7. Please indicate if you entered each request in your FOIA tracking log at the time that it was submitted/received.
8. Please indicate why no FOIA tracking number was assigned within ten days of the dates noted above and in Attachment A.
9. In recent adjudication of HIPAA matters and FOIA mediation, statements have been attributed to you specifically and/or your
office that you did not receive certain FOIA request submissions. Please indicate if it is your assertion that you did not receive any of
the emails in Attachment A and if so the circumstances supporting your assertion.
10. It now appears that you and the Walter Reed FOIA and legal staffs may be preparing to assert (as a feeble explanation for
inaccurate FOIA reporting and non -compliance with governing laws, regulations and policies) that Walter Reed does not respond to
FOIA requests submitted by email [and accompanying fax] , which has not been your past practice. You have been communicating
with me by email at this email address continuously since 2013, responding to requests, follow-ups and various other matters, and you
have never notified me of such a policy (despite FOIA requests seeking your policies and procedures). Both you and Mr. Davidge
were recently each provided DVDs containing relevant email correspondence, which you acknowledge receiving thereby enabling you
both to access each and every email. Please state for the record whether or not you and/or Walter Reed are asserting that Walter Reed
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does not respond to FOIA requests submitted by email and if that is your assertion when that policy/practice went into effect and who
was notified of the change.
11. In recent adjudication of HIPAA matters and FOIA mediation, statements have been attributed to you specifically and/or your
office that you spoke to me by telephone regarding FOIA requests, which is FACTUALLY INCORECT. In fact, Walter Reed abruptly
withdrew from mediation regarding a 2013 FOIA request (that you acknowledge receiving in FY 2013) when challenged on that
factually incorrect assertion and asked to provide any and contemporaneous records supporting the false statement(s). You have never
spoken to me on the phone and my only telephonic contact with your office was with Mr. [Redacted] in early 2013 when Mr.
[redacted] initiated phone contact to falsely state that two medical professionals were no longer assigned to Walter Reed and that
Walter Reed therefore had no responsible to address medical record amendment requests related to them.
a. Please state for the record if it is your assertion that you have spoken to me by telephone at any time whatsoever and if that
is your assertion please and identify the time, date, call initiator and any and all contemporaneous records supporting your
assertion (such as entries in your FY 2013 FOIA processing log, etc.).
12. Please note that for each request , the records sought are as of the time and date of each request as indicated above and
Attachment A. For example, my FOIA Request #14-AB seeks WRNMMC (Walter Reed) FOIA Instructions, SOPs, Desk Guides that
existed at the time of my request on September 2, 2014 and my FOIA Request #15-B seeks records related to the Form Entitled
“Request for Amendment of Health Information" as of the time of my request on June 20, 2015.
13. Please identify if notification of any of my requests was forwarded to any other party prior to my follow-up emails to you of
September 11, 2016 and if so your purpose in doing so and to whom each such request was forwarded. Please note that any
destruction of records following the date and time indicate in the emails contained in Attachment A would be a violation of governing
laws, regulations and policies.
14. Attachment B contains 59 p[ages of my most recent follow-up emails to you of September 11, 2016 regarding these requests.
Please indicate if you did not receive each of the emails in Attachment B on September 11, 2016 and if it is your assertion that you did
not receive any email, please indicate the circumstances as to why you did not.
15. Please state for the record what dates you assert that you received Attachment A and Attachment B. Your delayed reply
suggests internal manipulation of receipt dates in order to cover up non-compliance with governing laws regulations and policies.
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There is significant public interest in the integrity of the FOIA process and the accuracy of FOIA reporting to the Attorney General of
the United States as well as the subject matter of each request.
Thank you.
With my respect,
Robert Hammond
In a message dated 10/11/2016 6:39:00 P.M. Eastern Daylight Time, [email protected] writes:
Mr. Robert Hammond
REDACTED
SUBJECT: Freedom of Information Act Requests
Dear Mr. Hammond:
The following Freedom of information Act requests have been received in this Office: Your 2016-E; 16-D; 16-A; 16-C; 16-B; 15-C;
15-B; 14-AF; 14-AE; 14-AD; 14-X; 14-AC; 14-AB and 14-AA.
Due to the sheer volume of requests received, along with other requests, they have not been reviewed in full at this time. Each request
is being reviewed and you will receive a tracking number (if applicable) no later than 21 October 2016.
If you have questions please respond to this email or call (301) 400-2315.
Sincerely,
Judy J. Bizzell
Freedom of Information Act Officer
Walter Reed National Military Medical Center 8901 Wisconsin Ave
Bethesda, MD 20889
From: REDACTED
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To: Matt.Gardner <[email protected]>; OIP.complainceInquiry
Sent: Fri, Nov 3, 2017 6:35 am
Subject: Fwd: Appeal of DHA 17-B; Performance Standards Cygnarowicz
Hi Matt,
Please add this to your compliance review. Relates to my email "Part I. Got caught."
The Defense Privacy and Civil Liberties Office (DPCLO) (cindy.l.allard.civ@mail.mil
and [email protected]) are aware of this one as well. Good people.
I am only sending your team select examples.
With my respect,
Robert Hammond
-----Original Message-----
From: REDACTED
To: cindy.l.allard.civ <c[email protected]>
Cc: raquel.c.bono.mil <[email protected]>; guy.t.kiyokowa.civ <[email protected]>; paul.t.cygarowicz.mil
<[email protected]>; voiceofthecustomer <[email protected]>
Sent: Sun, Oct 29, 2017 5:06 pm
Subject: Fwd: Appeal of DHA 17-B; Performance Standards Cygnarowicz
Dear Ms. Allard,
With my respect and continued appreciation to you and your staff, please assist with the administrative appeal below seeking the
performance standards of Paul T. Cygnarowicz, Deputy General Counsel, Defense Health Agency.
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As you can see, this administrative appeal was filed and also sent electronically EIGHT MONTHS AGO: 2/22/2017 5:22:29 AM
Eastern Standard Time.
I am not seeking any personal information, just the rating standards themselves. Note that DHA's FOIA officer released her own
standards without any claim of exemption, as have multiple other agencies for their personnel.
Please determine if DHA reported this aged administrative appeal on DHA's FY annual FOIA Reports submission. Please also
determine the delay in acting on this appeal and if DHA is processing appeals in the order in which they are received..
Please advise Ms. Chung, and thru her Mr. Tillotson. of my ongoing concerns regarding the integrity of the FOIA/PA processes and
the accuracy of reporting to the Attorney General of the United States and Congress.
As the addressees to this email know, DOD’s FOIA and Privacy Act Programs are overseen by the honorable Mr. David Tillotson III
(Deputy Chief Management Officer, Office of the Secretary of Defense) and, his fine compliance staff (Joo Clung (Senior Executive
Service), Cindy Allard, James P. Hogan, et al), and Reports are submitted to the Attorney General and to Congress under his good
name, based on information provided to his staff.
Mr. Tillotson is entitled to know the full extent of any inaccurate/false reporting submitted in his good name and the degree of the lack
of integrity in the FOIA and Privacy Act processes by DOD’s subordinate reporting commands. He is entitled to know the standards
set for those holding appellate authority within DOD. The American Citizens are entitled to know.
I will be following up again soon; also considering other venues.
Vice Admiral Bono, with my deep respect, please review the actions of your staff operating under your delegated authority.
Thank you both
With my deep respect,
Robert Hammond
cc: Multiple
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From: REDACTED
To: dha.ncr.dgc-fc.list.ogc-foia-appeals-owners@mail.mil
Sent: 2/22/2017 5:22:29 AM Eastern Standard Time
Subject: Appeal of DHA 17-B; Performance Standards Cygnarowicz
Robert Hammond
REDACTED
February 18, 2017
Office of General Counsel
National Capital Region Medical Directorate
Defense Health Agency
8901 Wisconsin Avenue (Building 27)
Bethesda, MD 20889
Phone: 1-703-681-6012
Fax: 1-703-681-6231
dha.ncr.dgc-fc.list.ogc-foia-appeals-owners@mail.mil Also sent by certified mail: 7016 2710 0000 7877 0038
Subject: Appeal of My FOIA Request – Performance Standards of Paul T. Cygnarowicz, Deputy General Counsel, Defense
Health Agency
My Personal Reference Number: FOIA DHA 17-B
Assigned Agency FOIA Control Number 2017-041
References:
(a) The Freedom of Information Act (FOIA)
(b) The Privacy Act (c) CFR 164.526
(c) DoD 5700.7-R, September 1998, DoD Freedom of Information Act (FOIA) Program
(d) DoD 6025.18-R, Jan. 24, 2003, DoD Health Information Privacy Regulation
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(e) Joint publication of U.S. Department of Justice, Executive Office of the President and U.S. General Services Administration of
July 2011: “Your Right to Federal Records” (see http://publications.usa.gov/USAPubs.php?PubID=6080)
(f) DoD 5400.11-R, May 14, 2007, Department of Defense Privacy Program
(g) Department of Justice Freedom of Information Act Guide, May 2004 at Exemption 6 http://www.justice.gov/oip/foia-guide-
2004-edition-exemption-6
(h) GAO Report GAO-12-828 of July 2012, subject Freedom of Information Act
Dear Sir:
This appeal is submitted under the references above for my FOIA request dated January 10, 2017 at Enclosure (1) seeking the
Performance Standards of the position occupied by Paul T. Cygnarowicz, Deputy General Counsel, Defense Health Agency. The
Agency’s denial letter is at Enclosure (2). The
Agency is improperly denying my request in full, inappropriately citing the FOIA Exemption (b)(6) and asserting that release would
constitute a clearly unwarranted invasion of personal privacy under 5 U.S.C. 552(b)(6). There is no personal privacy interest in the
information sought. This request does not seek any privacy information about Mr. Cygnarowicz. It only seeks the performance
standards for the position under which Mr. Cygnarowicz is serving and not Mr. Cygnarowicz’s performance rating under those
standards. This denial is capricious, arbitrary and a misuse of the privacy exemption.
Records sought under FOIA.
I am respectfully seeking:
• The performance standards Paul T. Cygnarowicz, Deputy General Counsel, Defense Health Agency for the current and most
recent past rating period.
• A copy of this FOIA Request letter returned with the DHA reply, which is an agency record.
Discussion.
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• The performance standards will show if the Deputy General Counsel, Defense Health Agency is being evaluated against
applicable laws, regulations and policies.
• DHA has released the performance standards of the DHA FOIA Officer pursuant to a similar request (as have other DoD
entities), making the DHA denial capricious, arbitrary and otherwise contrary to governing laws, regulations and policies
(enclosure (3)).
· Pursuant to FOIA:
“Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the
United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the
circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to
the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against
the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration
of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and
shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority
shall take the corrective action that the Special Counsel recommends.” 5 U.S.C. § 552(a)(4)(F)(i).
• Release of Segregable Portions.
o
I contend that every item sought under my FOIA request is fully releasable without redaction in accordance with
reference (g). Notwithstanding that, the Agency is making the ridiculous assertion that the performance standards
Agency’s Chief, DHA Privacy and Civil Liberties Office (a federal employee) is exempt under 5 U.S.C. 552(b)(6). The
Agency must justify each item being withheld.
o
The FOIA requires that any reasonably segregable portion of a record shall be provided to any person requesting such
record after deletion of the portions which are exempt under this subsection. The amount of information deleted shall
be indicated on the released portion of the record, unless including that indication would harm an interest protected by
the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the
information deleted shall be indicated at the place in the record where such deletion is made.
o
Further, when a requested document contains some information which falls under one of the exemptions, the FOIA
requires that all non-exempt portions of the record must still be released. The Act expressly mandates that any
"reasonably segregable portion" of a record must be disclosed to a requester after the redaction (the deletion of part of a
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document to prevent disclosure of material covered by an exemption) of the parts which are exempt. 5 U.S.C. § 552(b).
This is a very important aspect of FOIA because it prohibits an agency from withholding an entire document merely
because one line, one page or one picture are exempt.
• Strong Presumption in Favor of Disclosure.
o "In the Act generally, and particularly under Exemption (6), there is a strong presumption in favor of disclosure." Local
598 v. Department of Army Corps of Engineers, 841 F.2d 1459, 1463 (9th. Cir. 1988) (emphasis added). In that case,
the Ninth Circuit reviewed the context of applicable Exemption 6 case law:
- The Freedom of Information Act embodies a strong policy of disclosure and places a duty to disclose on federal agencies. As
the district court recognized, 'disclosure, not secrecy, is the dominant objective of the Act.' Department of the Air Force v. Rose, 425
U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976). 'As a final and overriding guideline courts should always keep in mind the
basic policy of the FOIA to encourage the maximum feasible public access to government information. ' Nationwide Bldg.
Maintenance, Inc. v. Sampson, 559 F.2d 704, 715 (D.C.Cir.1977). As a consequence, the listed exemptions to the normal disclosure
rule are to be construed narrowly. See Rose, 425 U.S. at 361, 96 S.Ct. at 1599. This is particularly true of Exemption (6). Exemption
(6) protects only against disclosure which amounts to a 'clearly unwarranted invasion of personal privacy.' That strong language
'instructs us to 'tilt the balance [of disclosure interests against privacy interests] in favor of disclosure.'"
- Id. (emphasis added), citing Washington Post Co. v. Department of Health and Human Servs., 690 F.2d 252, 261
(D.C.Cir.1982) (quoting Ditlow v. Shultz, 517 F.2d 166, 169 (D.C. Cir.1975)).
- Public Interest. The public is entitled to this information.
Basis for Appeal.
I am appealing that the Agency:
(1) has improperly denied my request under 5 U.S.C. 552(b)(6);
(2) notwithstanding the improper denial above) has not provided all reasonably segregable portions of documents, nor properly
justified and accounted for any redactions;
(3) did not provide a copy of my Request, which is an agency record;
(4) did not provide records in the requested format of electronic PDF by return email so that there can be no question about what
DHA provided or when.
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(5) Afforded an inconsistent period of time for filing an appeal (90 days vice 60 for other appeals), perhaps hoping that I would
take additional time in filing the appeal;
(6) Is acting in a capricious and arbitrary manner in that DHA – Ms. Brown personally – has already released the performance
standards of the DHA FOIA Officer (Ms. Brown).
Appellate Authority Action Sought.
I am seeking that:
(1) each element of the basis of my appeal be addressed separately;
(2) each element of my appeal be sustained [granted];
(3) my FOIA request be remanded back to the Agency for direct reply to me; and,
(4) I be granted new appellate rights following a subsequent reply by the Agency.
Some Additional References.
• Department of Justice Freedom of Information Act Guide, May 2004 at Exemption 6 http://www.justice.gov/oip/foia-guide-
2004-edition-exemption-6, states:
o
Personal in-formation about FOIA requesters, however, such as home addresses and home telephone numbers, should not
be disclosed. (62) In addition, the identities of first-party requesters under the Privacy Act of 1974 (63) should be protected
because, unlike under the FOIA, an expectation of privacy can fairly be inferred from the personal nature of the records
involved in those requests. (64)
o
Note that the Agency did not follow the FOIA requirement to provide me case a tracking number within ten days and did
not then comply with statutory and regulatory requirements to complete the request within twenty days.
· DoD 5400.11-R, May 14, 2007, paragraph C1.5.3. states: “Avoidance of Procedural Obstacles. DoD Components shall ensure
that procedural matters do not unnecessarily impede a requester from obtaining DoD records promptly. Components shall provide
assistance to requesters to help them understand and comply with procedures established by this Regulation and any supplemental
regulations published by the DoD Components.”
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· DoD 5400.11-R, May 14, 2007 paragraph C1.5.1. states, “DoD personnel are expected to comply with the FOIA, this
Regulation, and DoD FOIA policy in both letter and spirit. This strict adherence is necessary to provide uniformity in the
implementation of the DoD FOIA Program and to create conditions that will promote public trust.”
· Legal Framework of FOIA:
1. The definition of “records” includes:
“[A]ll books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or
characteristics, made or received by an agency of the United States Government under Federal law or in connection with the
transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of
the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the
informational value of data in them.” 44 U.S.C. § 3301 (emphasis supplied).
2. FOIA requires each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in
accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly
available to any person. 5 U.S.C. § 552(a)(3)(A).
3. FOIA requires that “ each agency shall— (A) establish a system to assign an individualized tracking number for each request
received that will take longer than ten days to process and provide to each person making a request the tracking number assigned to
the request.” 5 U.S.C. § 522(a)(7)(A).
4. FOIA requires that, “In making any record available to a person under this paragraph, an agency shall provide the record in
any form or format requested by the person if the record is readily reproducible by the agency in that form or format.” 5 U.S.C. §
552(a)(3)(B).
5. FOIA requires that each agency shall “establish a telephone line or Internet service that provides information about the status
of a request to the person making the request using the assigned tracking number, including the date on which the agency originally
received the request; and an estimated date on which the agency will complete action on the request. 5 U.S.C. § 522(a)(7)(B).
6. determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request
whether to comply with such request and shall immediately notify the person making such request of such determination and the
reasons therefor, and of the right of such person to appeal 5 U.S.C. § 522(a)(6)(A).
7. FOIA also requires federal agencies to make a final determination on FOIA administrative appeals that it receives within
twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal, unless the agency expressly
provides notice to the requester of “unusual circumstances” meriting additional time for responding to a FOIA request. 5 U.S.C. §
552(a)(6)(A)(ii).
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8. FOIA expressly provides that a person shall be deemed to have constructively exhausted their administrative remedies if the
agency fails to comply with the applicable time limitations provided by 5 U.S.C. § 552(a)(6)(A)(I) - (ii). See also 5 U.S.C. §
552(a)(6)(C).
9. FOIA provides that any person who has not been provided the records requested pursuant to FOIA, after exhausting their
administrative remedies, may seek legal redress from the Federal District Court to enjoin the agency from withholding agency records
and to order the production of any agency records improperly withheld from the complainant.
10. Regarding he names of the FOIA requesters, the courts have held hat under the FOIA requesters do not have an expectation of
privacy. Stauss v. IRS, 516 F. Supp. 1218, 1223 (D.D.C. 1981),
11. Under FOIA, the federal agency has the burden of sustaining its actions. 5 U.S.C.§ 552(a)(4)(B).
12. Pursuant to FOIA, a Court may assess attorney fees and litigation costs against the United States if the Plaintiff prevails in an
action thereunder. 5 U.S.C. § 552(a)(4)(E).
Pursuant to FOIA:
“Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the
United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the
circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to
the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against
the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration
of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and
shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority
shall take the corrective action that the Special Counsel recommends.” 5 U.S.C. § 552(a)(4)(F)(i).
13. Department of Justice (DOJ) has issued a handbook addressing FOIA Annual Reports. See DOJ, Handbook for Agency
Annual Freedom of Information Act Reports, “Disposition of FOIA Requests,” (available at
http://www.justice.gov/sites/default/files/oip/pages/attachments/2014/11/04/department_of_justice_
handbook_for_agency_annual_freedom_of_information_act_reports.pdf) (“DOJ Handbook”).
14. Among other things, the DOJ Handbook states, “All requests (perfected and non-perfected), appeals, and consultations that
were pending at any time during the relevant fiscal year [October 1st
through September 30th] will be captured.”
15. The DOJ Handbook also states:
“[E]ach agency is ultimately responsible for the accuracy and completeness of its Annual FOIA Report. It is therefore essential for
agencies to take steps that will ensure that they are adequately tracking all of the information necessary to complete the Annual FOIA
Report sections detailed below. Agencies that utilize a tracking or case management system for this purpose are responsible for
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ensuring that the system they are using can produce an accurate Annual FOIA Report that is in compliance with the law and
Department of Justice guidance.” DOJ Handbook, at 3.
This appeal is separate and distinct from any other appeals that I may file and may not be combined with any other appeal. I am not
agreeing to combining separate appeals, as this would be improper, potentially distorting FOIA reporting to the United States Attorney
General and impeding separate judicial review (if that becomes necessary). If you deny all or any part of this appeal, please cite each
specific exemption you think justifies your determination and notify me of further remedies available under the law.
I will greatly appreciate your thoughtful and timely consideration of my request. Please contact me if you have any questions
regarding this request. Thank you in advance.
With my respect,
Robert Hammond
Enclosures:
(1) Hammond FOIA Request 17-A
(2) DHA Denial Letter
(3) Performance Standards of Nadine Brown Released Pursuant to FOIA
62. See FOIA Update, Vol. VI, No. 1, at 6. 63. 5 U.S.C. § 552a (2000).
64. See FOIA Update, Vol. VI, No. 1, at 6.
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Enclosure 5, Email to Mr. Tillotson III Inaccurate 2017 Chief FOIA Officer Report
As Forwarded
From: REDACTED
To: REDACTED; rahwa.a.keleta.civ
<[email protected]>; doritha.n.ross.ctr <[email protected]>
Cc: cindy.l.allard.civ <cindy.l.allar[email protected]il>; usafepa.papublicaffairs
<usafepa.papublicaffairs@us.af.mil>; paul.r.cordts.civ <[email protected]>; Stacy.a.cummings.civ
Sent: Mon, May 7, 2018 9:05 pm
Subject: Re: Inaccurate FY 2017 DOD CIO Report to DOJ [DHA]
Dear Ms. Keleta and Mr. Cygnarowicz,
I am forwarding this to you as a matter under your cognizance; others for situational awareness.
Ms. Keleta, good luck in your new position as the Acting DHA Chief, Freedom of Information Service Center in place of Ms.
Thomas. There certainly many open issues and challenges wrt DHA FOIA and Privacy Act compliance and reporting. I look forward
to working with you and your staff.
With my respect,
Robert Hammond
From: Bob Hammond [mailto:REDACTED]
Sent: Monday, March 26, 2018 7:16 PM
To: linda[email protected]
Cc: [email protected]; james.hogan@whs.mil; raquel[email protected]; [email protected];
Subject: FW: Inaccurate FY 2017 DOD CIO Report to DOJ [DHA]
Dear Ms. Thomas,
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Enclosure 5, Email to Mr. Tillotson III Inaccurate 2017 Chief FOIA Officer Report
As Forwarded
While DHA corrected its ten oldest appeals to reflect nine of mine at 775 days old (presumably as a result of the ongoing DOJ inquiry
and my email below), DHA’s data is still incorrect.
Will DHA be amending its input to DOD’s FY 2017 Annual FOIA Report? Will DHA be amending its input to the DOD CIO report?
Will DHA/Walter Reed be living up to the high standards which Mr. Tillotson has set for the Department with respect to FOIA and
Privacy Act processes and reporting?
With my respect,
Robert Hammond
From: REDACTED
Enclosure 5, Email to Mr. Tillotson III
Inaccurate 2017 Chief FOIA Officer Report
As Forwarded
To: REDACTED, rahwa.a.keleta.civ <rahwa.a.kele[email protected]>; paul.t.cygnarowicz.civ <paul.t.cygna[email protected]>;
raquel.c.bono.mil <raquel.c.bono.mil@mail.mil>; guy.t.kiyokowa.civ <[email protected]>; michael.tymkovich.ctr
Cc: cindy.l.allard.civ <c[email protected]>; usafepa.papublicaffairs <usafepa.papublicaffairs@us.af.mil>; paul.r.cordts.civ
<paul.r.cordts.civ@mail.mil>; Stacy.a.cummings.civ <[email protected]>
Sent: Mon, May 7, 2018 9:05 pm
Subject: Re: Inaccurate FY 2017 DOD CIO Report to DOJ [DHA]
Dear Ms. Keleta and Mr. Cygnarowicz,
I am forwarding this to you as a matter under your cognizance; others for situational awareness.
Ms. Keleta, good luck in your new position as the Acting DHA Chief, Freedom of Information Service Center in place of Ms. Thomas. There certainly
many open issues and challenges wrt DHA FOIA and Privacy Act compliance and reporting. I look forward to working with you and your staff.
With my respect,
Robert Hammond
SEMPER FIDELIS – ALWAYS FAITHFUL
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As Forwarded
From: Bob Hammond [
Sent: Monday, March 26, 2018 7:16 PM
Subject: FW: Inaccurate FY 2017 DOD CIO Report to DOJ [DHA]
Dear Ms. Thomas,
While DHA corrected its ten oldest appeals to reflect nine of mine at 775 days old (presumably as a result of the ongoing DOJ inquiry
and my email below), DHA’s data is still incorrect.
Will DHA be amending its input to DOD’s FY 2017 Annual FOIA Report?
Will DHA be amending its input to the DOD CIO report?
Will DHA/Walter Reed be living up to the high standards which Mr. Tillotson has set for the Department with respect to FOIA and
Privacy Act processes and reporting?
With my respect,
Robert Hammond
From: Bob Hammond [REDACTED]
Sent: Monday, February 19, 2018 7:20 AM
To: 'david.tillotson1.civ@mail.mil' <david.tillotson1.civ@mail.mil>
Cc: 'joo.y.chung2.civ@mail.mil' <joo.y.chung2.civ@mail.mil>; 'cindy.l.allard.civ@mail.mil' <cindy.l.allard.civ@mail.mil>;
'james.p.hogan4.civ@mail.mil' <james.p.hoga[email protected]>
Subject: Inaccurate FY 2017 DOD CIO Report to DOJ
Dear Mr. Tillotson,
I want to advise you of a significant error in the “Department of Defense Chief Freedom of Information Act Officer Report to the Department of
Justice for 2017.” At page 24, paragraph 5.4, “Status of ten Oldest Requests, Appeals, and Consolations,” it states, “DCAA, DeCA, DFAS, DHA,
DLA, DoDEA, DTIC and OSD/ JS, closed their entire ten oldest.”
That cannot be true with respect to DHA. I believe your staff has been given inaccurate information.
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As Forwarded
Graphic by PoweredTemplate.com
REDACTED. In fact, ten, still unreported FY 2015 appeals and some Walter Reed FY 2015 FOIA requests are currently being reviewed by your
staff together with DOJ. Similarly, Walter Reed still has an open FY 2015 consultation from USPS, which contradicts DHA’s claim to the contrary.
The number of aged, still open requests, appeals and consultations dating back to 2013 is staggering.
REDACTED
I am hoping that DOD will submit an accurate Annual FY 2017 FOIA Report to DOJ and to Congress.
It is my desire to resolve issues at the lowest level, within DOD, that achieves a timely and correct result. Results matter a great deal to me.
With my deep respect,
Robert Hammond
[i]
As a result of my whistleblower activity, DHA's false statements and failure to report numerous aged appeals and requests in their annual reports through DOD
to the Attorney General and Congress is now partially documented. See DOD's FY 2017 Chief Information Officer Report at 26 [24 of 28 numbered] wrt DHA,
"...DHA closed their entire ten oldest [appeals]," and DOD's FY 2016 Annual FOIA Report (oldest appeal 327 days contra DOD’s FY 2017 Annual FOIA
Report at 31 - oldest appeal 726 days, tenth oldest appeal 596 days). See https://open.defense.gov/Transparency/FOIA.aspx. Following further whistleblower
activity, DHA made additional admissions, "DHA failed to report appeals older than previously reported on the ten oldest. “See “Department of Defense Chief
Freedom of Information Act Officer Report to the Department of Justice For 2018” at page 22. https://open.defense.gov/Transparency/FOIA.aspx. Navy’s
U.S. Fleet Forces Command stated recently that certain FOIA records previously withheld that were being released on appeal remand contained data that “was
incomplete, most likely incorrect, and provided to each FOIA coordinator as a tool to update or correct the FOIA online database.” USFFC ltr 5720, Ser N01P
(2018-34-007689),037, dtd August 28, 2018. Mr. Grant E. Lattin, Navy’s Office of the Judge Advocate General has made similar admissions ““the
processing/reporting of FOIA requests/appeals may have been compromised.” I notified Mr. Tillotson and Navy’s Ms. Fletcher by email on 2/17/2018 9:36:00
AM.
[ii]
Example: Hammond email of May 18 2015 advising DHA and the DOD chain of command: (“By the action that you are taking, you will be
knowingly submitting a false Annual FOIA Report to leadership, the Attorney General of the United States and in tum to the United States
Congress”) [See also. Example: Hammond email to Mr. Tillotson (regarding exact same issue w/ 3 more years of follow-ups and known false
reporting), February 19, 2018 7:20 AM, Subject: Inaccurate FY 2017 DOD CIO [Chief FOIA Officer] Report to DOJ: (“That cannot be true with
respect to DHA… being reviewed by your staff together with DOJ… The number of aged, still open requests, appeals and consultations dating
back to 2013 is staggering”). Example: Hammond email to Mr. Tillotson & DHA, Feb 25, 2017 9:18 am, Subject: Re: FOIA Non-Compliance by
Walter Reed (15 examples). Numerous other specific examples.
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As Forwarded
[iii]
Section 8 of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, added to the FOIA the requirement that each agency “make
the raw statistical data used in its reports available electronically to the public upon request.” The FOIA Improvement Act of 2016 amended this provision
to now require agencies to proactively make the raw data from their final, published Annual FOIA Reports available without the need for a request. See 5
U.S.C. § 552(e)(3)(A)-(C) (2014), amended by FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538. See “Posting the Raw
Statistical Data from the Annual FOIA Report” at https://www.justice.gov/oip/oip-
guidance/new_requirements_agency_annual_foia_reports_2016. See also, “Summary of Agency Chief FOIA Officer Reports” at
https://www.justice.gov/OIP/Reports/2018Summary%26Assessment/download#2018.
[iv]
MuckRock.com (who services media originations and others), has also taken an interest in FOIA report records, e.g. Freedom of Information Request: FOIA
logs 2016-2017: Military (Defense Health Agency), FOIA logs 2016-2017: Military (US Navy Judge Advocate General), and various other FOIA Logs from
2010 – 2016.
[v]
DHA’s, Paul T. Cygnarowicz (who is responsible for open appeals,) now states, “Regarding your complaints of incorrect annual FOIA reporting,
the DHA will provide a list of corrections to the DOD chain of command contemporaneous with filing the annual FY 18 FOIA report.” Ms. Joo
Chung states, “DHA… will update the Department accordingly for reporting purposes.” This, says nothing of the mandatory interim quarterly
reports to DOJ, which remain inaccurate.
[vi]
“The Annual FOIA Report is designed to capture an agency's FOIA activities and therefore should not include requests for records handled exclusively under
the Privacy Act of 1974 (PA)… Agencies should still give incoming requests the potential benefit of access under both the PA and the FOIA.” DOJ Handbook
for Agency FOIA Annual Reports, at 6 (Scope).
[vii]
DoD Privacy and Civil Liberties Officer Reports (https://dpcld.defense.gov/Reports)
Pursuant to Section 803 of the Implementing Recommendations of the 9/11 Commission Act of 2007, 42 U.S.C. § 2000ee-1 requires DoD privacy officers
and civil liberties officers to periodically, but not less than semi-annually, submit a report to:
▪
The appropriate committees of Congress, including the Committee on the Judiciary of the Senate, the Committee on the Judiciary of the
House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and
Government Reform of the House of Representatives, the Select Committee on Intelligence of the Senate, and the Permanent Select
Committee on Intelligence of the House of Representatives;
▪
The head of such department, agency, or element; and
▪
The Privacy and Civil Liberties Oversight Board.
[viii]
References:
(a)
The Freedom of Information Act (FOIA)
Improvement Act of 2016 (Public Law No. 114-185),
available at
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As Forwarded
https://www.justice.gov/oip/freedom-information-act-5-usc-552
(b)
Administrative Instruction 106, “Alternative Dispute Resolution (ADR) Program,” January 30, 2014
(c)
DoD 5400.11-R, “Department of Defense Privacy Program,” May 14, 2007
(d)
DoD Directive 5145.01, “General Counsel of the Department of Defense (GC DoD),” December 2, 2013, as amended
(e)
DoD Directive 5145.04, “Defense Legal Services Agency (DLSA),” April 16, 2012
(f)
DoD Directive 5400.11, “DoD Privacy Program,” October 29, 2014
(g)
DoD Manual 8910.01, Volume 1, “DoD Information Collections Manual: Procedures for DoD Internal Information Collections,” June 30,
2014
(h)
Executive Order 12988, “Civil Justice Reform,” February 5, 1996
(i)
Public Law 101-552, “Administrative Dispute Resolution Act,” November 15, 1990
From: perseverance20[email protected] <perseverance2013@aol.com>
Sent: Monday, December 31, 2018 9:50 AM
To: david.tillotson; joo.y.chung
Cc: james.p.hogan; cindy.l.allard; clinton.f.Faison; terry.j.moulton
Subject: Request for Investigation into DOD False Reporting to DOJ & Congress. Whistleblower.
Importance: High
