Swick v. Dep’t of the Army, No. 18-1658, 2020 WL 3606615 (D.D.C. July 2, 2020) (Bates, J.)

Swick v. Dep’t of the Army, No. 18-1658, 2020 WL 3606615 (D.D.C. July 2, 2020) (Bates, J.)

Re:  Request for records concerning plaintiff

Disposition:  Denying defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Procedural Requirements:  Regarding "the question of whether HIPAA bars the Army from disclosing [plaintiff's] psychological evaluation, the Court concludes that it does not."  The court finds that "while HIPAA may provide a streamlined approach, [plaintiff] was not wrong to rely on FOIA to acquire her medical records."  The court explains that "[a] person requesting someone else's medical records needs to complete certain HIPAA forms, but the same rules do not apply for individuals requesting their own records."  "Moreover, in her FOIA requests, [plaintiff] provided all of the relevant information listed by [Fort Belvoir Community Hospital ("FBCH")] in its October 2 letter, including her signature, . . . thereby enabling FBCH to comply with its stated recordkeeping responsibilities."
   
• Litigation Considerations, Adequacy of Search:  Regarding defendant's search for psychological records, the court relates that "[n]otwithstanding its suggestion that HIPAA should govern the release of [plaintiff's] psychological evaluation, the Army also argues that it has conducted an adequate search for [plaintiff's] psychological evaluation report."  "[T]he Court concludes that [plaintiff] has raised valid concerns about the adequacy of FBCH's search for her psychological evaluation."  The court explains that "[b]ased on the declarations in the record, it is unclear whether FBCH possesses her psychological evaluation and is withholding it because of HIPAA's privacy restrictions, or instead simply does not possess her psychological evaluation and could not produce it even if she did submit a request and waiver under HIPAA."  "Moreover, there is serious inconsistency in the Army's arguments as to whether FBCH or another Army agency has actually searched [plaintiff's] medical records, and whether the psychological evaluation would even be categorized as a medical record in FBCH's system, given that [plaintiff] was an employee of FBCH rather than a patient there."  The court holds that "[t]he inconsistencies in the present case are material."  "The Court cannot determine the adequacy of the search when it is unclear which records have been searched and whether certain sets of records (like [plaintiff's] health records) have been searched at all."
  
  Regarding defendant's search for a personnel file, "[f]or the most part, the Court agrees that the Army's search has been adequate."  "The Army has submitted two separate affidavits detailing which records were searched, by whom, and through what process."  However, "[t]he Court will thus require the Army to clarify through sworn affidavit or declaration, or through relevant documentation, the exact nature of the electronic search by FBCH and [Civilian Human Resources Agency ("CHRA")] for [plaintiff's] personnel files, including a specific description of which databases were searched and which search terms were used."  Additionally, the court finds that "[t]he Army has not sufficiently established that it has ceased to have legal custody over [plaintiff's] personnel files."  "As noted above, the present record is sufficiently clear to establish the physical location of [plaintiff's] personnel records at [National Personnel Records Center ("NPRC")]."  "But the record is less clear when it comes to whether FBCH transferred legal control over the records – in other words, whether it still has legal custody over the records and can request them from NPRC."  "Defendant's briefing suggests that legal custody may have already been transferred to the NPRC along with physical custody, but [defendant's] declaration does not establish this transfer with sufficient clarity."  "This distinction is material to the outcome of the case, and here prevents the Court from granting summary judgment for the Army."