Filed: Sep. 30, 2021
Latest Update: Sep. 30, 2021
21-211-cv
The New York Times Co. v. U.S. Department of Health and Human Services
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2021
No. 21-211-cv
THE NEW YORK TIMES COMPANY,
DOW JONES & COMPANY, INC.,
CHRISTOPHER WEAVER,
Plaintiffs-Appellees,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendant-Appellant. ∗
On Appeal from the United States District Court for the Southern
District of New York
ARGUED: SEPTEMBER 23, 2021
DECIDED: SEPTEMBER 30, 2021
∗
The Clerk of Court is directed to amend the caption as set forth above.
Before: CABRANES, POOLER, and BIANCO, Circuit Judges.
Defendant United States Department of Health and Human
Services appeals from the January 22, 2021, judgment of the United
States District Court for the Southern District of New York
(Gorenstein, M.J.) granting summary judgment to Plaintiffs The New
York Times Company, Dow Jones & Company, Inc., and Christopher
Weaver. This appeal presents the question of whether a report
evaluating the Indian Health Service’s management and
administration is a “medical quality assurance record” under 25 U.S.C.
§ 1675, and thus exempt from disclosure under the Freedom of
Information Act, 5 U.S.C. § 552(b)(3). We find that it is not, and,
accordingly, AFFIRM the ruling of the district court.
MATTHEW E. KELLEY (Seth D. Berlin, on the
brief), Ballard Spahr LLP, Washington, DC,
(David E. McCraw, Alexandra Settelmayer,
The New York Times Company, New York,
NY, on the brief) for Plaintiffs-Appellees.
JENNIFER C. SIMON (Benjamin H. Torrance,
on the brief), Assistant United States
Attorneys, for Audrey Strauss, United States
Attorney for the Southern District of New
York, New York, NY, for Defendant-
Appellant.
2
PER CURIAM:
This appeal presents the following question: Is a report
evaluating the Indian Health Service’s management and
administration a “medical quality assurance record” under 25 U.S.C.
§ 1675 that is exempt from disclosure pursuant to the Freedom of
Information Act, 5 U.S.C. § 552(b)(3)? Finding that it is not, we
AFFIRM the judgment of the U.S. District Court for the Southern
District of New York (Gorenstein, M.J.). 1
I. BACKGROUND
Stanley Patrick Weber, a pediatrician, began working for the
Indian Health Service (“IHS") in the mid-1980s. In 1992, he moved to
an IHS hospital in Browning, Montana. Soon thereafter, community
members and IHS staff began to suspect that he was a pedophile.
Their reasons for suspicion included seeing Weber with boys at Pizza
Hut, hearing about an arranged camping trip with future patients, and
1 The Parties consented to proceed before the Magistrate Judge for all
purposes pursuant to 28 U.S.C. § 636(c).
3
learning that he had hosted young people at his home. Weber’s
supervisor confronted him, and the hospital’s CEO alerted IHS
officials.
In 1995, rather than firing Weber, IHS transferred him to a
hospital in Pine Ridge, South Dakota. Suspicions of pedophilia
followed Weber to South Dakota. However, despite at least two
investigations—and excepting a temporary suspension during one of
them—Weber continued to work for IHS in South Dakota for 20 years.
In 2018, Weber was convicted in the United States District Court
for the District of Montana of sexually abusing patients. In 2019, he
was convicted of the same in the United States District Court for the
District of South Dakota. Weber was sentenced to over 18 years in
prison for crimes committed in Montana, and five consecutive life
sentences for crimes committed in South Dakota.
These criminal cases prompted additional investigations,
including by journalists and government entities. In October 2018, IHS
4
issued a solicitation, described as an “IHS Internal Medical Quality
Assurance Review.” 2 This solicitation described IHS’s intent to
“review . . . [IHS’s] policies and procedures regarding the reporting of
allegations of sexual abuse of IHS patients by IHS clinical staff.” 3 In
May 2019, IHS awarded a contract to conduct this review to Integritas
Creative Solutions LLC (“Integritas”).
In January 2020, Integritas delivered its report to IHS. Among
other documents, this report was based on a review of agency policies
and procedures, personnel files, and other agency correspondence.
The report included “recommendations for protecting IHS patients,”
and IHS has since relied on the report “to formulate and revise policies
and standard operating procedures.” 4 We have reviewed the report in
camera, and can confirm that the District Court accurately
2 Joint App’x 1053.
3 Id.
4 Id. at 23.
5
characterized it as (1) recounting Weber’s and various other IHS
employees’ sexual misconduct; (2) analyzing the managerial and
administrative failures that enabled or tolerated this misconduct; and
(3) recommending policy and management changes.
In early 2020, The New York Times Company, Dow Jones &
Company, Inc. (which publishes The Wall Street Journal), and Wall Steet
Journal reporter Christopher Weaver (together, “Plaintiffs”) requested
that IHS disclose the report under the Freedom of Information Act
(“FOIA”). When they received no response, they brought suit; The
New York Times Company on April 16, 2020, and Dow Jones &
Company, Inc. and Christopher Weaver on April 20, 2020. IHS
belatedly denied Plaintiffs’ FOIA requests on May 21, 2020. It stated
that the report was a medical quality assurance record that was exempt
from FOIA pursuant to 25 U.S.C. § 1675. The District Court disagreed,
and ordered IHS to turn over the report. The United States
6
Department of Health and Human Services (the “Department”)
appeals from this ruling.
II. DISCUSSION
This appeal presents the question of whether Integritas’s report
evaluating IHS’s management and administration is a “medical
quality assurance record” exempt from FOIA under Section 805 of the
Indian Health Care Improvement Act, 25 U.S.C. § 1675. We review de
novo a district court’s grant of summary judgment in a FOIA case. 5
“The agency asserting [a FOIA] exemption bears the burden of proof,
and all doubts as to the applicability of the exemption must be
resolved in favor of disclosure.” 6
The relevant parts of 25 U.S.C. § 1675, which define “medical
quality assurance program” and, in turn, “medical quality assurance
5 Am. C.L. Union v. Nat’l Sec. Agency, 925 F.3d 576, 588 (2d Cir. 2019); accord
Wilner v. Nat’l Sec. Agency,
592 F.3d 60, 69 (2d Cir. 2009).
6 Wilner, 592 F.3d at 69.
7
record,” and establish these records’ exemption from FOIA, are as
follows:
(a) Definitions
In this section:
...
(2) Medical quality assurance program
The term “medical quality assurance program” means
any activity carried out before, on, or after March 23, 2010,
by or for any Indian health program or urban Indian
organization to assess the quality of medical care,
including activities conducted by or on behalf of
individuals, Indian health program or urban Indian
organization medical or dental treatment review
committees, or other review bodies responsible for
quality assurance, credentials, infection control, patient
safety, patient care assessment (including treatment
procedures, blood, drugs, and therapeutics), medical
records, health resources management review, and
identification and prevention of medical or dental
incidents and risks.
(3) Medical quality assurance record
The term “medical quality assurance record” means the
proceedings, records, minutes, and reports that--
(A) emanate from quality assurance program activities
described in paragraph (2); and
(B) are produced or compiled by or for an Indian health
program or urban Indian organization as part of a
medical quality assurance program.
8
(b) Confidentiality of records
Medical quality assurance records created by or for any
Indian health program or a health program of an urban
Indian organization as part of a medical quality assurance
program are confidential and privileged. Such records
may not be disclosed to any person or entity, except as
provided in subsection (d).
...
(g) Exemption from Freedom of Information Act
Medical quality assurance records described in
subsection (b) may not be made available to any person
under section 552 of Title 5.
Because § 1675 “refers to particular types of [records] to be withheld,”
“medical quality assurance records” are “specifically exempted from
disclosure by statute” under FOIA’s Exemption 3. 7
We interpret § 1675(a)(2)’s requirement that a “medical quality
assurance record” emanate from an “activity carried out . . . to assess
the quality of medical care” based on “the plain language of the
statute, giving the statutory terms their ordinary or natural meaning.” 8
7 See 5 U.S.C. § 552(b)(3).
8Spadaro v. U.S. Customs & Border Prot., 978 F.3d 34, 46 (2d Cir. 2020) (citation
and internal quotation marks omitted).
9
Accordingly, “assess” is defined as: “to make a judgment about
(something).” 9 And “quality” is defined as: “degree of excellence.” 10
The Parties dispute the proper scope of the statutory phrase “medical
care.” The Department asserts that it is broad and includes avoiding
sexual abuse of patients. Plaintiffs counter that, to the extent it
includes patient safety, it refers only to preventing medical errors. For
purposes of this appeal, we assume without deciding that the
Department’s broader definition is accurate, and that an activity, such
as an investigation, carried out to make a judgment about IHS’s degree
of excellence in avoiding sexual abuse of patients would be exempt
from disclosure under § 1675.
The report does not make such a judgment. While it makes a
judgment about the degree of excellence of IHS administration, it does
9 Assess, Merriam-Webster, https://www.merriam-
webster.com/dictionary/assess (last visited Sept. 27, 2021).
10 Quality, Merriam-Webster, https://www.merriam-
webster.com/dictionary/quality (last visited Sept. 27, 2021).
10
not evaluate the medical care IHS provides. The report focuses on
administrative errors: errors in management, reporting, investigation,
and communication, including by specific administrators. And it
suggests changes to improve IHS’s practices and policies. But the
report’s conclusion that IHS responded poorly to some examples of
inadequate medical care is different from an evaluation of the caliber
of medical care provided at IHS hospitals. The report does not link
IHS’s administrative errors to the incidence of sexual abuse of patients.
Nor does it link these errors to the quality of other aspects of medical
care at IHS hospitals.
The report’s discussion of Weber’s and similar cases does not
change the outcome. First, the report does not evaluate the medical
care provided by Weber, which IHS knew to be grossly inadequate
when it solicited the report. As the Department states, “it is simple
common sense that a doctor who abuses a patient . . . has failed to
11
provide quality medical care.” 11 Second, the report does not make a
judgment about the degree of excellence of the medical care provided
at IHS hospitals. While the report links Weber’s case to similar cases,
it offers no judgment, for example, regarding the extent to which IHS
patients experience sexual abuse. Instead, it notes only that the
management and administrative errors in Weber’s case were also
present in the handling of other cases. Nor does the report make a
judgment about the effect of the identified incidents of sexual abuse
on the caliber of other aspects of medical care at IHS hospitals. In
short, the report discusses sexual abuse at IHS hospitals for the
purpose of evaluating IHS’s management and administration, not its
medical care.
While few courts have addressed this issue, Parker v. United
States is consistent with our reasoning. 12 In Parker, the district court
11 Def.’s Reply Br. 9.
12No. 18-CV-123, 2020 WL 729211 (D. Neb. Feb. 13, 2020) (Nelson, M.J.), aff’d
sub nom. Parker v. Vista Staffing Sols., Inc.,
2020 WL 5593880 (D. Neb. Sept. 18, 2020).
12
held that, while § 1675 protects “records emanating from IHS’[s]
credentialing and privileging process” and evaluations of services and
work provided for an IHS hospital, it does not protect “documents
concerning corrective actions, remedial measures, practice changes,
and procedure/policy changes, taken in response to” indications of
possible poor medical care—specifically “immediate jeopardy
citations.” 13 We take no position on the view expressed in Parker that
§ 1675 exempts from disclosure credentialing and evaluation
documents. However, we agree with its conclusion that documents
evaluating medical care are distinct from documents evaluating the
managerial and administrative response to instances of subpar care.
Here, there is no dispute that the Integritas report is the latter.
That the agency solicitation and the report use the language of
§ 1675 does not change the outcome. If it did, IHS could immunize
any document from disclosure, which is incompatible with the
13 Id. at *9, 11.
13
statutory policies that underlie FOIA. 14 Nor does the involvement of
IHS’s Office of Quality change our conclusion. The statute references
“other review bodies,” and states that “activities conducted by or on
[their] behalf” may be “includ[ed]” in a medical quality assurance
program. 15 However, these review bodies do not get a wholesale pass
from the requirements of FOIA; the documents they produce are
exempt only if they emanate from activities assessing the quality of
medical care. 16 The Department’s argument that “any activity” is
broader than “any peer review activity” 17 is beside the point, as the
statute exempts “any activity” only insofar as that activity “assess[es]
the quality of medical care.” 18 And we have little difficulty rejecting
the Department’s various arguments about the virtues of
14 See Spadaro, 978 F.3d at 45 (noting that FOIA exemptions “must be
narrowly construed” (citation omitted)).
15 See 25 U.S.C. § 1675(a)(2).
16 See id. § 1675(a)(2)–(3), (g).
17 Def.’s Br. 15-17 (citing 10 U.S.C. § 1102(j)).
18 25 U.S.C. § 1675(a)(2).
14
confidentiality, which beg the question of the intended scope of the
exemption. Finally, that the report may contribute to improved
medical care is beside the point. The same is conceivably true for all
activities by IHS and its affiliates, but § 1675 protects from disclosure
only activities that “assess the quality of medical care.” 19
To summarize, we hold that the Integritas report evaluating
IHS’s management and administration is not a “medical quality
assurance record” under 25 U.S.C. § 1675. 20
III. CONCLUSION
We have considered all of the Department’s remaining
arguments and find them to be without merit. Accordingly, we
AFFIRM the January 22, 2021, judgment of the District Court.
19 Id.
20 We need not reach the issue of whether the investigation was carried out
“by or for” an Indian health program. See id.
15
