Army SRMC MTF Reviews of Mefloquine Prescribing Practices

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

Copies of all reviews, reports, and correspondence received by Southern Regional Medical Command (SRMC) from medical treatment facilities (MTFs) in response to SRMC official tasker, Subject: Review of Mefloquine Prescribing Practices, suspense date Monday, 26 March 2012 (available at: http://big.assets.huffingtonpost.com/ReviewMefloquinePrescribing.pdf).

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Remington Nevin

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on July 12, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-00004.

Thank you for your help.

Commander, SRMC
Attention: Freedom of Information/Privacy Acts Office
4070 Stanley Road, JBSA
Fort Sam Houston, TX 78234-2715

Re: Freedom of Information Act Appeal, Case #14-00004

This is an appeal under the Freedom of Information Act. I hereby appeal the redaction of responsive documents as enclosed in your reply of August 26, 2014, on the basis that the documents requested are not fully and wholly protected from release under FOIA exception (b)(3), as they do not constitute in their entirety medical quality assurance records protected from release under 10 USC § 1102, and are likely to contain “aggregate statistical information” specifically exempt from withholding under the provisions of 10 USC § 1102 (d) (1).

As described in the original FOIA request, the requested information included all “reviews, reports, and correspondence received by Southern Regional Medical Command (SRMC) from medical treatment facilities (MTFs) in response to SRMC official tasker, Subject: Review of Mefloquine Prescribing Practices, suspense date Monday, 26 March 2012 (available at: http://big.assets.huffingtonpost.com/ReviewMefloquinePrescribing.pdf)”.

This official tasker requested that MTFs in SRMC “review 25 individual records or 20% of total records, whichever is greater, and provide information on the following categories: (a) Documentation of screening for contraindications; (b) Documentation of patient education; (c) Documentation of mefloquine prescriptions in medical records; [and] (d) Confirmation that healthcare providers have been informed of mefloquine screening and documentation requirements”. The tasker also requested that MTFs in SRMC “[i]dentify deficiencies” and “[d]evelop measures to correct deficiencies”. The official tasker required that MTFs “provide results of review to SRMC Clinical Operations at srmcclinicaloperations@amedd.army.il” no later than March 26, 2012 at 12:00pm.

In redacting the entirety of responsive documents, your agency appears to have interpreted 10 USC § 1102 as applying to all “reviews, reports, and correspondence” received by SRMC in response to this tasker, rather than to the more limited number of documents that may have been created as official “medical quality assurance record[s]” under the narrow activities of an officially constituted “medical quality assurance program”.

As currently written, 10 USC § 1102 (j) (2) defines a “medical quality assurance record” as “the proceedings, records, minutes, and reports that eminate from quality assurance programs”. As currently written, 10 USC § 1102 (j) (1) defines a “medical quality assurance program” as limited to “any peer review activity”. As currently written, 10 USC § 1102 (j) (4) further defines “peer review” as “any assessment of the quality of medical care carried out by a health care professional”. That the protections of 10 USC § 1102, and hence the limitations on mandatory FOIA release under exemption (b)(3), are intended to apply only to bona fide peer review activities conducted by bona fide health care professionals, is substantiated by USC Public Law 112-81 § 714(a)(1), which took care to substitute the phrase “any peer review activity” for the earlier “any activity carried out”.

In this respect, any component of the “Review of Mefloquine Prescribing Practices, suspense date Monday, 26 March 2012”, that eminated from non-peer sources or from non-health care professionals, or that was conducted outside of a properly constituted medical quality assurance program, would not be exempt by statute from mandatory FOIA release under (b)(3).

While certain documents, including but not limited to cover letters and transmission notifications, are clearly exempt from withholding and are therefore subject to mandatory FOIA release, nonetheless on appeal should certain “reviews, reports, and correspondence received by Southern Regional Medical Command (SRMC) from medical treatment facilities (MTFs)” be deemed to constitute the work of a bona fide medical quality assurance program, the entirety of these records would not necessarily be exempt from mandatory release. For example, in requesting the “review of 25 individual records or 20% of total records, whichever is greater”, the SRMC tasking de facto requested that a statistical convenience sample of existing records be evaluated, and that these records be aggregated statistically in the review provided to SRMC in the formal response submitted to the tasker. As currently written, 10 USC § 1102 (d) (1) states that “[n]othing in this section shall be construed as authorizing or requiring the withholding from any person or entity aggregate statistical information regarding the results of Department of Defense medical quality assurance programs”.

In this respect, any portion of the “reviews, reports, and correspondence received by Southern Regional Medical Command (SRMC) from medical treatment facilities (MTFs)” which address “aggregate statistical information”, including but not limited to percentages or fractions of the
“25 individual records or 20% of total records" from each MTF deemed to be compliance with “(a) [d]ocumentation of screening for contraindications; (b) [d]ocumentation of patient education; (c) [d]ocumentation of mefloquine prescriptions in medical records” would not be exempt from mandatory release under FOIA exemption (b)(3).

In appeal, I would request that the 12 wholly and fully redacted pages that were found responsive to my request be released without redaction of “aggregate statistical information”, and with redaction limited otherwise only to that specific information protected under 10 USC § 1102 which emanated from any bona fide “peer review activity” as carried out by a bona fide “health care professional”.

Thank you in advance for your anticipated cooperation in this matter.

Sincerely,

Remington Nevin

Please find below a Freedom of Information Act appeal. A hard copy will follow in the mail. Thank you.

____

Commander, SRMC
Attention: Freedom of Information/Privacy Acts Office
4070 Stanley Road, JBSA
Fort Sam Houston, TX 78234-2715

Re: Freedom of Information Act Appeal, Case #14-00004

This is an appeal under the Freedom of Information Act. I hereby appeal the redaction of responsive documents as enclosed in your reply of August 26, 2014, on the basis that the documents requested are not fully and wholly protected from release under FOIA exception (b)(3), as they do not constitute in their entirety medical quality assurance records protected from release under 10 USC § 1102, and are likely to contain “aggregate statistical information” specifically exempt from withholding under the provisions of 10 USC § 1102 (d) (1).

As described in the original FOIA request, the requested information included all “reviews, reports, and correspondence received by Southern Regional Medical Command (SRMC) from medical treatment facilities (MTFs) in response to SRMC official tasker, Subject: Review of Mefloquine Prescribing Practices, suspense date Monday, 26 March 2012 (available at: http://big.assets.huffingtonpost.com/ReviewMefloquinePrescribing.pdf)”.

This official tasker requested that MTFs in SRMC “review 25 individual records or 20% of total records, whichever is greater, and provide information on the following categories: (a) Documentation of screening for contraindications; (b) Documentation of patient education; (c) Documentation of mefloquine prescriptions in medical records; [and] (d) Confirmation that healthcare providers have been informed of mefloquine screening and documentation requirements”. The tasker also requested that MTFs in SRMC “[i]dentify deficiencies” and “[d]evelop measures to correct deficiencies”. The official tasker required that MTFs “provide results of review to SRMC Clinical Operations at srmcclinicaloperations@amedd.army.il” no later than March 26, 2012 at 12:00pm.

In redacting the entirety of responsive documents, your agency appears to have interpreted 10 USC § 1102 as applying to all “reviews, reports, and correspondence” received by SRMC in response to this tasker, rather than to the more limited number of documents that may have been created as official “medical quality assurance record[s]” under the narrow activities of an officially constituted “medical quality assurance program”.

As currently written, 10 USC § 1102 (j) (2) defines a “medical quality assurance record” as “the proceedings, records, minutes, and reports that eminate from quality assurance programs”. As currently written, 10 USC § 1102 (j) (1) defines a “medical quality assurance program” as limited to “any peer review activity”. As currently written, 10 USC § 1102 (j) (4) further defines “peer review” as “any assessment of the quality of medical care carried out by a health care professional”. That the protections of 10 USC § 1102, and hence the limitations on mandatory FOIA release under exemption (b)(3), are intended to apply only to bona fide peer review activities conducted by bona fide health care professionals, is substantiated by USC Public Law 112-81 § 714(a)(1), which took care to substitute the phrase “any peer review activity” for the earlier “any activity carried out”.

In this respect, any component of the “Review of Mefloquine Prescribing Practices, suspense date Monday, 26 March 2012”, that eminated from non-peer sources or from non-health care professionals, or that was conducted outside of a properly constituted medical quality assurance program, would not be exempt by statute from mandatory FOIA release under (b)(3).

While certain documents, including but not limited to cover letters and transmission notifications, are clearly exempt from withholding and are therefore subject to mandatory FOIA release, nonetheless on appeal should certain “reviews, reports, and correspondence received by Southern Regional Medical Command (SRMC) from medical treatment facilities (MTFs)” be deemed to constitute the work of a bona fide medical quality assurance program, the entirety of these records would not necessarily be exempt from mandatory release. For example, in requesting the “review of 25 individual records or 20% of total records, whichever is greater”, the SRMC tasking de facto requested that a statistical convenience sample of existing records be evaluated, and that these records be aggregated statistically in the review provided to SRMC in the formal response submitted to the tasker. As currently written, 10 USC § 1102 (d) (1) states that “[n]othing in this section shall be construed as authorizing or requiring the withholding from any person or entity aggregate statistical information regarding the results of Department of Defense medical quality assurance programs”.

In this respect, any portion of the “reviews, reports, and correspondence received by Southern Regional Medical Command (SRMC) from medical treatment facilities (MTFs)” which address “aggregate statistical information”, including but not limited to percentages or fractions of the
“25 individual records or 20% of total records" from each MTF deemed to be compliance with “(a) [d]ocumentation of screening for contraindications; (b) [d]ocumentation of patient education; (c) [d]ocumentation of mefloquine prescriptions in medical records” would not be exempt from mandatory release under FOIA exemption (b)(3).

In appeal, I would request that the 12 wholly and fully redacted pages that were found responsive to my request be released without redaction of “aggregate statistical information”, and with redaction limited otherwise only to that specific information protected under 10 USC § 1102 which emanated from any bona fide “peer review activity” as carried out by a bona fide “health care professional”.

Thank you in advance for your anticipated cooperation in this matter.

Sincerely,

Remington Nevin

To Whom It May Concern:

The attached Freedom of Information Act appeal was submitted via mail and email to the appropriate office at Southern Regional Medical Command on September 12, 2014. Acknowledgment of receipt has not yet been provided. Please advise as to the status of both this appeal's delivery and its processing.

Thank you very much for your help.

Office of the Judge Advocate General
ATTN: DAJA-AL, Ms. Maanvi Patoir
22200 Army Pentagon
Washington, DC 20310-2200

Re: Southern Regional Medical Command FOIA Request #14-00004

To Whom It May Concern:

As may be verified in documents available at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/army-srmc-mtf-reviews-of-mefloquine-prescribing-practices-12513/#files), on or about September 15, 2014, the U.S. Army Southern Regional Medical Command (SRMC) forwarded to your office an appeal under the Freedom of Information Act related to the above-referenced case.

This appeal was originally received by SRMC on September 10, 2014. Confirmation of receipt of this appeal by your office has not yet been received. Please kindly acknowledge receipt of this appeal, and provide an estimate of the time necessary for its consideration and adjudication by your office.

I thank you in advance for your assistance and would appreciate a response to this inquiry by March 4, 2015.

Sincerely,

Dr. Remington Nevin

Office of The General Counsel
104 Army Pentagon, Room 3C546
Washington, DC 20310-0104

Re: Southern Regional Medical Command (SRMC) FOIA Request #14-00004

To Whom It May Concern:

As may be verified in documents available at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/army-srmc-mtf-reviews-of-mefloquine-prescribing-practices-12513/#files), on or about February 23, 2015, the Information Practices Branch, Administrative Law Division, Office of the Judge Advocate General, forwarded to your office an appeal under the Freedom of Information Act related to the above-referenced case.

This appeal was originally received by SRMC on September 10, 2014. Confirmation of receipt of this appeal by your office has not yet been received. Please kindly acknowledge receipt of this appeal, and provide an estimate of the time necessary for its consideration and adjudication by your office.

I thank you in advance for your assistance and would appreciate a response to this inquiry by April 5, 2015.

Sincerely,

Dr. Remington Nevin

Office of The General Counsel
104 Army Pentagon, Room 3C546
Washington, DC 20310-0104

Re: Southern Regional Medical Command (SRMC) FOIA Request #14-00004

To Whom It May Concern:

As may be verified in documents available at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/army-srmc-mtf-reviews-of-mefloquine-prescribing-practices-12513/#files), on or about February 23, 2015, the Information Practices Branch, Administrative Law Division, Office of the Judge Advocate General, forwarded to your office an appeal under the Freedom of Information Act related to the above-referenced case.

This appeal was originally received by SRMC on September 10, 2014. Confirmation of receipt of this appeal by your office has not yet been received. Please kindly acknowledge receipt of this appeal, and provide an estimate of the time necessary for its consideration and adjudication by your office.

I thank you in advance for your assistance and would appreciate a response to this inquiry by May 6, 2015.

Sincerely,

Dr. Remington Nevin

Office of The General Counsel
104 Army Pentagon, Room 3C546
Washington, DC 20310-0104

Re: Southern Regional Medical Command (SRMC) FOIA Request #14-00004

To Whom It May Concern:

As may be verified in documents available at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/army-srmc-mtf-reviews-of-mefloquine-prescribing-practices-12513/#files), on or about February 23, 2015, the Information Practices Branch, Administrative Law Division, Office of the Judge Advocate General, forwarded to your office an appeal under the Freedom of Information Act related to the above-referenced case.

This appeal was originally received by SRMC on September 10, 2014. Confirmation of receipt of this appeal by your office has not yet been received. Please kindly acknowledge receipt of this appeal, and provide an estimate of the time necessary for its consideration and adjudication by your office.

I thank you in advance for your assistance.

Sincerely,

Dr. Remington Nevin

Office of The General Counsel
104 Army Pentagon, Room 3C546
Washington, DC 20310-0104

Re: Southern Regional Medical Command (SRMC) FOIA Request #14-00004

To Whom It May Concern:

As may be verified in documents available at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/army-srmc-mtf-reviews-of-mefloquine-prescribing-practices-12513/#files), on or about February 23, 2015, the Information Practices Branch, Administrative Law Division, Office of the Judge Advocate General, forwarded to your office an appeal under the Freedom of Information Act related to the above-referenced case.

This appeal was originally received by SRMC on September 10, 2014. Confirmation of receipt of this appeal by your office has not yet been received. Please kindly acknowledge receipt of this appeal, and provide an estimate of the time necessary for its consideration and adjudication by your office.

I thank you in advance for your assistance.

Sincerely,

Dr. Remington Nevin

Office of The General Counsel
104 Army Pentagon, Room 3C546
Washington, DC 20310-0104

Re: Southern Regional Medical Command (SRMC) FOIA Request #14-00004

To Whom It May Concern:

As may be verified in documents available at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/army-srmc-mtf-reviews-of-mefloquine-prescribing-practices-12513/#files), on or about February 23, 2015, the Information Practices Branch, Administrative Law Division, Office of the Judge Advocate General, forwarded to your office an appeal under the Freedom of Information Act related to the above-referenced case.

This appeal was acknowledged by your office in a letter dated June 19, 2015. Since that date, no further correspondence has been received.

Please kindly provide an estimate of the time necessary for consideration and adjudication of this appeal by your office.

I thank you in advance for your assistance.

Sincerely,

Dr. Remington Nevin

Office of The General Counsel
104 Army Pentagon, Room 3C546
Washington, DC 20310-0104

Re: Southern Regional Medical Command (SRMC) FOIA Request #14-00004

To Whom It May Concern:

As may be verified in documents available at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/army-srmc-mtf-reviews-of-mefloquine-prescribing-practices-12513/#files), on or about February 23, 2015, the Information Practices Branch, Administrative Law Division, Office of the Judge Advocate General, forwarded to your office an appeal under the Freedom of Information Act related to the above-referenced case.

This appeal was acknowledged by your office in a letter dated June 19, 2015. Since that date, no further correspondence has been received.

Please kindly provide an estimate of the time necessary for consideration and adjudication of this appeal by your office.

I thank you in advance for your assistance.

Sincerely,

Dr. Remington Nevin

Office of The General Counsel
104 Army Pentagon, Room 3C546
Washington, DC 20310-0104

Re: Southern Regional Medical Command (SRMC) FOIA Request #14-00004

To Whom It May Concern:

As may be verified in documents available at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/army-srmc-mtf-reviews-of-mefloquine-prescribing-practices-12513/#files), on or about February 23, 2015, the Information Practices Branch, Administrative Law Division, Office of the Judge Advocate General, forwarded to your office an appeal under the Freedom of Information Act related to the above-referenced case.

This appeal was first acknowledged by your office in a letter dated June 19, 2015, and again in a letter dated March 25, 2016. Since that date, no further correspondence has been received.

Please kindly provide an estimate of the time necessary for consideration and adjudication of this appeal by your office.

I thank you in advance for your assistance.

Sincerely,

Dr. Remington Nevin

Office of The General Counsel
104 Army Pentagon, Room 3C546
Washington, DC 20310-0104

Re: Southern Regional Medical Command (SRMC) FOIA Request #14-00004

To Whom It May Concern:

As may be verified in documents available at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/army-srmc-mtf-reviews-of-mefloquine-prescribing-practices-12513/#files), on or about February 23, 2015, the Information Practices Branch, Administrative Law Division, Office of the Judge Advocate General, forwarded to your office an appeal under the Freedom of Information Act related to the above-referenced case.

This appeal was first acknowledged by your office in a letter dated June 19, 2015 and in a second letter dated March 26, 2016. Since then, no further correspondence has been received from your office in regards to this appeal.

Please kindly provide an estimate of the time necessary for consideration and adjudication of this appeal by your office. For your convenience, I am attaching a copy of my original appeal.

I thank you in advance for your assistance.

Sincerely,

Dr. Remington Nevin

Attachment: Original appeal (below)

------------------------
This is an appeal under the Freedom of Information Act. I hereby appeal the redaction of responsive documents as enclosed in your reply of August 26, 2014, on the basis that the documents requested are not fully and wholly protected from release under FOIA exception (b)(3), as they do not constitute in their entirety medical quality assurance records protected from release under 10 USC § 1102, and are likely to contain “aggregate statistical information” specifically exempt from withholding under the provisions of 10 USC § 1102 (d) (1).

As described in the original FOIA request, the requested information included all “reviews, reports, and correspondence received by Southern Regional Medical Command (SRMC) from medical treatment facilities (MTFs) in response to SRMC official tasker, Subject: Review of Mefloquine Prescribing Practices, suspense date Monday, 26 March 2012 (available at: http://big.assets.huffingtonpost.com/ReviewMefloquinePrescribing.pdf)”.

This official tasker requested that MTFs in SRMC “review 25 individual records or 20% of total records, whichever is greater, and provide information on the following categories: (a) Documentation of screening for contraindications; (b) Documentation of patient education; (c) Documentation of mefloquine prescriptions in medical records; [and] (d) Confirmation that healthcare providers have been informed of mefloquine screening and documentation requirements”. The tasker also requested that MTFs in SRMC “[i]dentify deficiencies” and “[d]evelop measures to correct deficiencies”. The official tasker required that MTFs “provide results of review to SRMC Clinical Operations at srmcclinicaloperations@amedd.army.il” no later than March 26, 2012 at 12:00pm.

In redacting the entirety of responsive documents, your agency appears to have interpreted 10 USC § 1102 as applying to all “reviews, reports, and correspondence” received by SRMC in response to this tasker, rather than to the more limited number of documents that may have been created as official “medical quality assurance record[s]” under the narrow activities of an officially constituted “medical quality assurance program”.

As currently written, 10 USC § 1102 (j) (2) defines a “medical quality assurance record” as “the proceedings, records, minutes, and reports that eminate from quality assurance programs”. As currently written, 10 USC § 1102 (j) (1) defines a “medical quality assurance program” as limited to “any peer review activity”. As currently written, 10 USC § 1102 (j) (4) further defines “peer review” as “any assessment of the quality of medical care carried out by a health care professional”. That the protections of 10 USC § 1102, and hence the limitations on mandatory FOIA release under exemption (b)(3), are intended to apply only to bona fide peer review activities conducted by bona fide health care professionals, is substantiated by USC Public Law 112-81 § 714(a)(1), which took care to substitute the phrase “any peer review activity” for the earlier “any activity carried out”.

In this respect, any component of the “Review of Mefloquine Prescribing Practices, suspense date Monday, 26 March 2012”, that eminated from non-peer sources or from non-health care professionals, or that was conducted outside of a properly constituted medical quality assurance program, would not be exempt by statute from mandatory FOIA release under (b)(3).

While certain documents, including but not limited to cover letters and transmission notifications, are clearly exempt from withholding and are therefore subject to mandatory FOIA release, nonetheless on appeal should certain “reviews, reports, and correspondence received by Southern Regional Medical Command (SRMC) from medical treatment facilities (MTFs)” be deemed to constitute the work of a bona fide medical quality assurance program, the entirety of these records would not necessarily be exempt from mandatory release. For example, in requesting the “review of 25 individual records or 20% of total records, whichever is greater”, the SRMC tasking de facto requested that a statistical convenience sample of existing records be evaluated, and that these records be aggregated statistically in the review provided to SRMC in the formal response submitted to the tasker. As currently written, 10 USC § 1102 (d) (1) states that “[n]othing in this section shall be construed as authorizing or requiring the withholding from any person or entity aggregate statistical information regarding the results of Department of Defense medical quality assurance programs”.

In this respect, any portion of the “reviews, reports, and correspondence received by Southern Regional Medical Command (SRMC) from medical treatment facilities (MTFs)” which address “aggregate statistical information”, including but not limited to percentages or fractions of the
“25 individual records or 20% of total records" from each MTF deemed to be compliance with “(a) [d]ocumentation of screening for contraindications; (b) [d]ocumentation of patient education; (c) [d]ocumentation of mefloquine prescriptions in medical records” would not be exempt from mandatory release under FOIA exemption (b)(3).

In appeal, I would request that the 12 wholly and fully redacted pages that were found responsive to my request be released without redaction of “aggregate statistical information”, and with redaction limited otherwise only to that specific information protected under 10 USC § 1102 which emanated from any bona fide “peer review activity” as carried out by a bona fide “health care professional”.

Office of The General Counsel
104 Army Pentagon, Room 3C546
Washington, DC 20310-0104

Re: Southern Regional Medical Command (SRMC) FOIA Request #14-00004

To Whom It May Concern:

As may be verified in documents available at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/army-srmc-mtf-reviews-of-mefloquine-prescribing-practices-12513/#files), on or about February 23, 2015, the Information Practices Branch, Administrative Law Division, Office of the Judge Advocate General, forwarded to your office an appeal under the Freedom of Information Act related to the above-referenced case.

This appeal was first acknowledged by your office in a letter dated June 19, 2015 and in a second letter dated March 26, 2016. Since then, no further correspondence has been received from your office in regards to this appeal.

Please kindly provide an estimate of the time necessary for consideration and adjudication of this appeal by your office. For your convenience, I am attaching a copy of my original appeal.

I thank you in advance for your assistance.

Sincerely,

Dr. Remington Nevin

Attachment: Original appeal (below)

------------------------
This is an appeal under the Freedom of Information Act. I hereby appeal the redaction of responsive documents as enclosed in your reply of August 26, 2014, on the basis that the documents requested are not fully and wholly protected from release under FOIA exception (b)(3), as they do not constitute in their entirety medical quality assurance records protected from release under 10 USC § 1102, and are likely to contain “aggregate statistical information” specifically exempt from withholding under the provisions of 10 USC § 1102 (d) (1).

As described in the original FOIA request, the requested information included all “reviews, reports, and correspondence received by Southern Regional Medical Command (SRMC) from medical treatment facilities (MTFs) in response to SRMC official tasker, Subject: Review of Mefloquine Prescribing Practices, suspense date Monday, 26 March 2012 (available at: http://big.assets.huffingtonpost.com/ReviewMefloquinePrescribing.pdf)”.

This official tasker requested that MTFs in SRMC “review 25 individual records or 20% of total records, whichever is greater, and provide information on the following categories: (a) Documentation of screening for contraindications; (b) Documentation of patient education; (c) Documentation of mefloquine prescriptions in medical records; [and] (d) Confirmation that healthcare providers have been informed of mefloquine screening and documentation requirements”. The tasker also requested that MTFs in SRMC “[i]dentify deficiencies” and “[d]evelop measures to correct deficiencies”. The official tasker required that MTFs “provide results of review to SRMC Clinical Operations at srmcclinicaloperations@amedd.army.il” no later than March 26, 2012 at 12:00pm.

In redacting the entirety of responsive documents, your agency appears to have interpreted 10 USC § 1102 as applying to all “reviews, reports, and correspondence” received by SRMC in response to this tasker, rather than to the more limited number of documents that may have been created as official “medical quality assurance record[s]” under the narrow activities of an officially constituted “medical quality assurance program”.

As currently written, 10 USC § 1102 (j) (2) defines a “medical quality assurance record” as “the proceedings, records, minutes, and reports that eminate from quality assurance programs”. As currently written, 10 USC § 1102 (j) (1) defines a “medical quality assurance program” as limited to “any peer review activity”. As currently written, 10 USC § 1102 (j) (4) further defines “peer review” as “any assessment of the quality of medical care carried out by a health care professional”. That the protections of 10 USC § 1102, and hence the limitations on mandatory FOIA release under exemption (b)(3), are intended to apply only to bona fide peer review activities conducted by bona fide health care professionals, is substantiated by USC Public Law 112-81 § 714(a)(1), which took care to substitute the phrase “any peer review activity” for the earlier “any activity carried out”.

In this respect, any component of the “Review of Mefloquine Prescribing Practices, suspense date Monday, 26 March 2012”, that eminated from non-peer sources or from non-health care professionals, or that was conducted outside of a properly constituted medical quality assurance program, would not be exempt by statute from mandatory FOIA release under (b)(3).

While certain documents, including but not limited to cover letters and transmission notifications, are clearly exempt from withholding and are therefore subject to mandatory FOIA release, nonetheless on appeal should certain “reviews, reports, and correspondence received by Southern Regional Medical Command (SRMC) from medical treatment facilities (MTFs)” be deemed to constitute the work of a bona fide medical quality assurance program, the entirety of these records would not necessarily be exempt from mandatory release. For example, in requesting the “review of 25 individual records or 20% of total records, whichever is greater”, the SRMC tasking de facto requested that a statistical convenience sample of existing records be evaluated, and that these records be aggregated statistically in the review provided to SRMC in the formal response submitted to the tasker. As currently written, 10 USC § 1102 (d) (1) states that “[n]othing in this section shall be construed as authorizing or requiring the withholding from any person or entity aggregate statistical information regarding the results of Department of Defense medical quality assurance programs”.

In this respect, any portion of the “reviews, reports, and correspondence received by Southern Regional Medical Command (SRMC) from medical treatment facilities (MTFs)” which address “aggregate statistical information”, including but not limited to percentages or fractions of the “25 individual records or 20% of total records" from each MTF deemed to be compliance with “(a) [d]ocumentation of screening for contraindications; (b) [d]ocumentation of patient education; (c) [d]ocumentation of mefloquine prescriptions in medical records” would not be exempt from mandatory release under FOIA exemption (b)(3).

In appeal, I would request that the 12 wholly and fully redacted pages that were found responsive to my request be released without redaction of “aggregate statistical information”, and with redaction limited otherwise only to that specific information protected under 10 USC § 1102 which emanated from any bona fide “peer review activity” as carried out by a bona fide “health care professional”.

Office of The General Counsel
104 Army Pentagon, Room 3C546
Washington, DC 20310-0104

Re: Southern Regional Medical Command (SRMC) FOIA Request #14-00004

To Whom It May Concern:

As may be verified in documents available at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/army-srmc-mtf-reviews-of-mefloquine-prescribing-practices-12513/#files), on or about February 23, 2015, the Information Practices Branch, Administrative Law Division, Office of the Judge Advocate General, forwarded to your office an appeal under the Freedom of Information Act related to the above-referenced case.

This appeal was first acknowledged by your office in a letter dated June 19, 2015, and in a second letter dated March 26, 2016. Since then, no further correspondence has been received from your office in regards to this appeal.

Please kindly provide an estimate of the time necessary for consideration and adjudication of this appeal by your office. For your convenience, I am attaching a copy of my original appeal.

I thank you in advance for your assistance.

Sincerely,

Dr. Remington Nevin

Attachment: Original appeal (below)

------------------------
This is an appeal under the Freedom of Information Act. I hereby appeal the redaction of responsive documents as enclosed in your reply of August 26, 2014, on the basis that the documents requested are not fully and wholly protected from release under FOIA exception (b)(3), as they do not constitute in their entirety medical quality assurance records protected from release under 10 USC § 1102, and are likely to contain “aggregate statistical information” specifically exempt from withholding under the provisions of 10 USC § 1102 (d) (1).

As described in the original FOIA request, the requested information included all “reviews, reports, and correspondence received by Southern Regional Medical Command (SRMC) from medical treatment facilities (MTFs) in response to SRMC official tasker, Subject: Review of Mefloquine Prescribing Practices, suspense date Monday, 26 March 2012 (available at: http://big.assets.huffingtonpost.com/ReviewMefloquinePrescribing.pdf)”.

This official tasker requested that MTFs in SRMC “review 25 individual records or 20% of total records, whichever is greater, and provide information on the following categories: (a) Documentation of screening for contraindications; (b) Documentation of patient education; (c) Documentation of mefloquine prescriptions in medical records; [and] (d) Confirmation that healthcare providers have been informed of mefloquine screening and documentation requirements”. The tasker also requested that MTFs in SRMC “[i]dentify deficiencies” and “[d]evelop measures to correct deficiencies”. The official tasker required that MTFs “provide results of review to SRMC Clinical Operations at srmcclinicaloperations@amedd.army.il” no later than March 26, 2012 at 12:00pm.

In redacting the entirety of responsive documents, your agency appears to have interpreted 10 USC § 1102 as applying to all “reviews, reports, and correspondence” received by SRMC in response to this tasker, rather than to the more limited number of documents that may have been created as official “medical quality assurance record[s]” under the narrow activities of an officially constituted “medical quality assurance program”.

As currently written, 10 USC § 1102 (j) (2) defines a “medical quality assurance record” as “the proceedings, records, minutes, and reports that emanate from quality assurance programs”. As currently written, 10 USC § 1102 (j) (1) defines a “medical quality assurance program” as limited to “any peer review activity”. As currently written, 10 USC § 1102 (j) (4) further defines “peer review” as “any assessment of the quality of medical care carried out by a health care professional”. That the protections of 10 USC § 1102, and hence the limitations on mandatory FOIA release under exemption (b)(3), are intended to apply only to bona fide peer review activities conducted by bona fide health care professionals, is substantiated by USC Public Law 112-81 § 714(a)(1), which took care to substitute the phrase “any peer review activity” for the earlier “any activity carried out”.

In this respect, any component of the “Review of Mefloquine Prescribing Practices, suspense date Monday, 26 March 2012”, that emanated from non-peer sources or from non-health care professionals, or that was conducted outside of a properly constituted medical quality assurance program, would not be exempt by statute from mandatory FOIA release under (b)(3).

While certain documents, including but not limited to cover letters and transmission notifications, are clearly exempt from withholding and are therefore subject to mandatory FOIA release, nonetheless on appeal should certain “reviews, reports, and correspondence received by Southern Regional Medical Command (SRMC) from medical treatment facilities (MTFs)” be deemed to constitute the work of a bona fide medical quality assurance program, the entirety of these records would not necessarily be exempt from mandatory release. For example, in requesting the “review of 25 individual records or 20% of total records, whichever is greater”, the SRMC tasking de facto requested that a statistical convenience sample of existing records be evaluated, and that these records be aggregated statistically in the review provided to SRMC in the formal response submitted to the tasker. As currently written, 10 USC § 1102 (d) (1) states that “[n]othing in this section shall be construed as authorizing or requiring the withholding from any person or entity aggregate statistical information regarding the results of Department of Defense medical quality assurance programs”.

In this respect, any portion of the “reviews, reports, and correspondence received by Southern Regional Medical Command (SRMC) from medical treatment facilities (MTFs)” which address “aggregate statistical information”, including but not limited to percentages or fractions of the “25 individual records or 20% of total records" from each MTF deemed to be compliance with “(a) [d]ocumentation of screening for contraindications; (b) [d]ocumentation of patient education; (c) [d]ocumentation of mefloquine prescriptions in medical records” would not be exempt from mandatory release under FOIA exemption (b)(3).

In appeal, I would request that the 12 wholly and fully redacted pages that were found responsive to my request be released without redaction of “aggregate statistical information”, and with redaction limited otherwise only to that specific information protected under 10 USC § 1102 which emanated from any bona fide “peer review activity” as carried out by a bona fide “health care professional”.

Hello Mr. Moyer,

Thank you for your note. The appropriate mailing address for this particular FOIA request and the associated appeal is:

MuckRock
DEPT MR 12513
411A Highland Avenue
Somerville, MA 02144

Please let us know if you have any other questions. Thank you.

Best wishes,
Beryl, MuckRock