Military Spouse and Child Specimens Stored in DoD Serum Repository

Remington Nevin filed this request with the Defense Health Agency of the United States of America.
Tracking # 2016-007
Status
Completed

Communications

From: Remington Nevin

To Whom It May Concern:

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

Any reports since January 1, 2007, including any work product archived in the Defense Medical Surveillance System (DMSS) request manager, and including any official reports or correspondence released to internal DoD or external non-DoD customers, listing the number of serum specimens obtained from the spouses and child beneficiaries of military personnel, stored in the DoD Serum Repository (DoDSR) at the time of the analysis, report, or correspondence, to include any work product, report, or correspondence released to RAND in support of their research published as "Harnessing Full Value from the DoD Serum Repository and the Defense Medical Surveillance System" (2010) . According to DoDD 6490.02E (effective October 3, 2013), the Secretary of the Army is the Executive Agent for the Armed Forces Health Surveillance Center (AFHSC), which maintains and operates both the DoDSR and the DMSS.

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

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Oct. 20, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

From: Remington Nevin

Robert Dickerson
Chief, Freedom of Information Act Office
Attn: AAHS-RDF
7701 Telegraph Road, Suite 150
Alexandria, VA 22315-3905

Re: Appeal of constructive denial of FOIA request dated October 20, 2014, subject: “Military Spouse and Child Specimens Stored in DoD Serum Repository”

This is an appeal under the Freedom of Information Act. I am writing to appeal the constructive denial of a request properly made to the Department of the Army on October 20, 2014 and formally unacknowledged as of this date.

The Freedom of Information Act provides an agency no more than thirty days to respond to a request. When an agency fails to respond within that statutory timeline, it has constructively denied the request. (See Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 65 (D.C. Cir. 1990) (“Congress adopted the time limit provision in the FOIA in order to ‘contribute to the fuller and faster release of information, which is the basic objective of the Act.’” (quoting H.R. Rep. No. 93-876, 93d Cong., 2d Sess., reprinted (1974) U.S. Code Cong. & Ad. News 6267 at 6271))).

As may be confirmed at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/military-spouse-and-child-specimens-stored-in-dod-serum-repository-13876/), a FOIA request for “[a]ny reports since January 1, 2007, including any work product archived in the Defense Medical Surveillance System (DMSS) request manager, and including any official reports or correspondence released to internal DoD or external non-DoD customers, listing the number of serum specimens obtained from the spouses and child beneficiaries of military personnel, stored in the DoD Serum Repository (DoDSR) at the time of the analysis, report, or correspondence, to include any work product, report, or correspondence released to RAND in support of their research published as "Harnessing Full Value from the DoD Serum Repository and the Defense Medical Surveillance System" (2010)”) was submitted to the appropriate U.S. Army FOIA representative on October 20, 2014:

A follow-up message requesting acknowledgement was sent November 20, 2014, but despite this, no acknowledgement or replies have been forthcoming.

As your agency has not met the statutory time requirement in responding to my request, the provisions of section 6 of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, shall apply, including the provision that "[a]n agency shall not assess search fees (or in the case of a requester described under clause (ii)(II) [of 5 USC § 552 (a)(4)(A) as described above], duplication fees) . . . if the agency fails to comply with any time limit… if no unusual or exceptional circumstances… apply to the processing of the request."

Thank you in advance for your anticipated cooperation with this matter. I look forward to receiving a response to my original request no later than January 15, 2015.

Sincerely,

Remington Nevin

From: Walukonis, Joseph E CIV (US)

Classification: UNCLASSIFIED
Caveats: NONE

Dear Mr. Nevin,

This e-mail and attached PDF responds to your FOIA request
concerning records archived in the Defense Medical
Surveillance System, including reports that list the number
of serum specimens obtained from the spouses or children of
military personnel.

I have forwarded your request to the U.S. Army Medical
Command for action and direct response to you.

Their contact information is in the attached PDF,"FOIA
Letter 15-0262.pdf."

Thank you for your participation in the Army's Freedom of Information Act
Program.

V/R

Joseph E. Walukonis

FOIA Analyst

U.S. Army Records Management and Declassification Agency

Freedom of Information and Privacy Division

703-428-6504

Classification: UNCLASSIFIED
Caveats: NONE

From: Walukonis, Joseph E CIV (US)

Classification: UNCLASSIFIED
Caveats: NONE

Dear Mr. Nevin,

I mistakenly forwarded your request to MEDCOM.

The correct organization is the Defense Health
Agency. Their contact info is:

DHA Freedom of Information Service Center
7700 Arlington Boulevard, Suite 5101
Falls Church, Virginia 22042-5101
Phone: (703) 681-7500
Fax: (703) 681-5138
E-mail: FOIARequests@tma.osd.mil

v/r

Joe Walukonis

From: Remington Nevin

Robert Dickerson
Chief, Freedom of Information Act Office
Attn: AAHS-RDF
7701 Telegraph Road, Suite 150
Alexandria, VA 22315-3905

Re: Appeal of constructive denial of FOIA request dated October 20, 2014, subject: “Military Spouse and Child Specimens Stored in DoD Serum Repository”

This is an appeal under the Freedom of Information Act. I am writing to appeal the constructive denial of a request properly made to the Department of the Army on October 20, 2014.

The Freedom of Information Act provides an agency no more than thirty days to respond to a request. When an agency fails to respond within that statutory timeline, it has constructively denied the request. (See Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 65 (D.C. Cir. 1990) (“Congress adopted the time limit provision in the FOIA in order to ‘contribute to the fuller and faster release of information, which is the basic objective of the Act.’” (quoting H.R. Rep. No. 93-876, 93d Cong., 2d Sess., reprinted (1974) U.S. Code Cong. & Ad. News 6267 at 6271))).

As may be confirmed at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/military-spouse-and-child-specimens-stored-in-dod-serum-repository-13876/), a FOIA request for “[a]ny reports since January 1, 2007, including any work product archived in the Defense Medical Surveillance System (DMSS) request manager, and including any official reports or correspondence released to internal DoD or external non-DoD customers, listing the number of serum specimens obtained from the spouses and child beneficiaries of military personnel, stored in the DoD Serum Repository (DoDSR) at the time of the analysis, report, or correspondence, to include any work product, report, or correspondence released to RAND in support of their research published as "Harnessing Full Value from the DoD Serum Repository and the Defense Medical Surveillance System" (2010)”) was submitted to the appropriate U.S. Army FOIA representative on October 20, 2014:

A follow-up message requesting acknowledgement was sent November 20, 2014, but despite this, no acknowledgement or replies were immediately forthcoming. On December 19, 2014, acknowledgement was received in a letter and email from Mr. Joseph Walukonis, assigning the request internal tracking number 15-0262, and noting that the request had been forwarded to the U.S. Army Medical command “for action and direct response”. In a follow-up email sent three days later on December 22, 2014, Mr. Walukonis erroneously noted that he “mistakenly forwarded your request to MEDCOM”. It should be noted in this regard that your agency is in fact the correct agency for FOIA requests concerning the DMSS and DoDSR, as DoD Directive (DODD) 6490.02E (1)(d) “[d]esignates the Secretary of the Army as the DoD Executive Agent (EA) for the AFHSC” and that Enclosure 2 of DoDD 690.02E (10)(k) specifies that the director of the AFHSC shall “[m]aintain and operate the Defense Medical Surveillance System [DMSS], [and] the DoDSR”.

As your agency has not met the statutory time requirement in responding to my request, the provisions of section 6 of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, shall apply, including the provision that "[a]n agency shall not assess search fees (or in the case of a requester described under clause (ii)(II) [of 5 USC § 552 (a)(4)(A) as described above], duplication fees) . . . if the agency fails to comply with any time limit… if no unusual or exceptional circumstances… apply to the processing of the request."

Thank you in advance for your anticipated cooperation with this matter. I look forward to receiving a response to my original request no later than January 15, 2015.

Sincerely,

Remington Nevin

From: MuckRock

To Whom It May Concern:

The FOIA request copied below is being forwarded to your office for processing. Confirmation of receipt and an estimated date of completion would be greatly appreciated.

Thank you very much for your help.

__________________________________

To Whom It May Concern:

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

Any reports since January 1, 2007, including any work product archived in the Defense Medical Surveillance System (DMSS) request manager, and including any official reports or correspondence released to internal DoD or external non-DoD customers, listing the number of serum specimens obtained from the spouses and child beneficiaries of military personnel, stored in the DoD Serum Repository (DoDSR) at the time of the analysis, report, or correspondence, to include any work product, report, or correspondence released to RAND in support of their research published as "Harnessing Full Value from the DoD Serum Repository and the Defense Medical Surveillance System" (2010) . According to DoDD 6490.02E (effective October 3, 2013), the Secretary of the Army is the Executive Agent for the Armed Forces Health Surveillance Center (AFHSC), which maintains and operates both the DoDSR and the DMSS.

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

From: Ross, Doritha, CTR, DHA

Mr. Nevin,

These documents are not records maintained by the Defense Health Agency (DHA).

The Secretary of the Army is the Executive Agent for the Armed Forces Health Surveillance Center (AFHSC), which maintains and operates both the DoDSR and the DMSS.

Please visit their website to submit a FOIA directly to their office. The website is listed below.

http://www.army.mil/leaders/sa/
Thanks

Doritha N. Ross, Senior FOIA Analyst
DHA Privacy & Civil Liberties Office
703-921-1639
Doritha.Ross.ctr@dha.mil

From: MuckRock

To Whom It May Concern:

The following FOIA request is being redirected to your office for processing. Confirmation of receipt and an estimated date of completion would be greatly appreciated.

Thank you very much.

From: Wormley, Annette CTR (US)

Classification: UNCLASSIFIED
Caveats: NONE

Mr. Nevin,

This email is in response to your Freedom of Information Act (FOIA) request
in which you request any reports since January 1, 2007, including any work
product archived in the Defense Medical Surveillance System (DMSS) request
manager, and including any official reports or correspondence released to
internal DoD or external non-DoD customers, listing the number of serum
specimens obtained from the spouses and child beneficiaries of military
personnel, stored in the DoD Serum Repository (DoDSR) at the time of the
analysis, report, or correspondence, to include any work product, report, or
correspondence released to RAND in support of their research published as
"Harnessing Full Value from the DoD Serum Repository and the Defense Medical
Surveillance System" (2010).

Please see attached letter responsive to your request.

Should you have any questions regarding the information provided please feel
free to contact Mr. Jose Burgos, FOIA Program Manager, at 703-428-6206 or
myself at the information provided below.

Annette Wormley
Contractor, AITHERAS, LLC
U.S. Army Freedom of Information Act Office
Records Management and Declassification Agency
Office of the Administrative Assistant to the Secretary of the Army
7701 Telegraph Road, #150 Casey Bldg.
Alexandria, VA 22315
(703) 428-6497
Annette.wormley.ctr@mail.mil

Classification: UNCLASSIFIED
Caveats: NONE

From: Remington Nevin

Annette Wormley
Contractor, AITHERAS, LLC
U.S. Army Freedom of Information Act Office
Records Management and Declassification Agency
Office of the Administrative Assistant to the Secretary of the Army
7701 Telegraph Road, #150 Casey Bldg.
Alexandria, VA 22315
(703) 428-6497
Annette.wormley.ctr@mail.mil

I am responding to your email of January 29, 2015, containing a letter dated January 28, 2015, signed by Mr. Jose Burgos, FOIA Program Manager, in which your office administratively closed a properly submitted FOIA request without documentation of proper forwarding as required by statute. This correspondence continues a pattern of constructive denial for which I have previously submitted appeals dated December 16, 2014 and December 31, 2014 directly to the Department of the Army. While these appeals remain outstanding I would like to provide your office with information to assist you in properly processing my request in anticipation of a favorable appeal.

As may be confirmed at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/military-spouse-and-child-specimens-stored-in-dod-serum-repository-13876/), on October 20, 2014, I submitted a FOIA request to the Department of the Army for “[a]ny reports since January 1, 2007, including any work product archived in the Defense Medical Surveillance System (DMSS) request manager, and including any official reports or correspondence released to internal DoD or external non-DoD customers, listing the number of serum specimens obtained from the spouses and child beneficiaries of military personnel, stored in the DoD Serum Repository (DoDSR) at the time of the analysis, report, or correspondence, to include any work product, report, or correspondence released to RAND in support of their research published as "Harnessing Full Value from the DoD Serum Repository and the Defense Medical Surveillance System" (2010)”).

A follow-up message requesting acknowledgement was sent November 20, 2014, but despite this, no acknowledgement or replies were immediately forthcoming.

On December 19, 2014, an acknowledgement of receipt was received in a letter and email from Mr. Joseph Walukonis, assigning the request internal tracking number 15-0262, and noting that the request had been forwarded to the U.S. Army Medical command “for action and direct response”.

In a follow-up email sent three days later on December 22, 2014, Mr. Walukonis erroneously noted that he “mistakenly forwarded” the request to MEDCOM, and had directed the request instead to the Defense Health Agency. However, in a letter dated January 4, 2015, Ms. Doritha Ross, senior FOIA Analyst at the Defense Health Agency, confirmed that the requested documents “are not records maintained by the Defense Health Agency”. As noted in her letter, the Department of the Army is in fact the correct agency for FOIA requests concerning the DMSS and DoDSR, as DoD Directive (DODD) 6490.02E (1)(d) “[d]esignates the Secretary of the Army as the DoD Executive Agent (EA) for the AFHSC” and that Enclosure 2 of DoDD 690.02E (10)(k) specifies that the director of the AFHSC shall “[m]aintain and operate the Defense Medical Surveillance System [DMSS], [and] the DoDSR”.

In the letter of January 28, 2015 in which Mr. Burgos notes that your office has “administratively closed” the request, he notes that the Armed Forces Health Surveillance Center is in receipt of the request. However, unlike earlier letters in which your office explicitly stated my request has been forwarded to another office, this new letter does not provide specific confirmation that your office has properly forwarded the request to Armed Forces Health Surveillance Center, as required by statute.

I will note that, as of the present date, the website of the Armed Forces Health Surveillance Center (http://www.afhsc.mil) does not list a FOIA point of contact on their website, nor have they have responded to registered letters requesting confirmation of their FOIA point of contact at the address that your office has specified. Additionally, the AFHSC website lists a different official mailing address than you have specified, which suggests that the FOIA point of contact information which your office has specified may be erroneous.

Please provide confirmation that your office has in fact forwarded my request originally dated October 20, 2014 to the appropriate agency for action, and please provide confirmation of its receipt by that agency. In this regard, I will remind your office that the OPEN Government Act requires government agencies properly route misdirected FOIA requests within their agency within ten working days.

I thank you in advance for your anticipated cooperation in this matter and will look forward to your response and confirmation no later than February 28, 2015.

Sincerely,

Dr. Remington Nevin

From: Burgosperez, Jose L CIV USARMY HQDA OAA (US)

Classification: UNCLASSIFIED
Caveats: NONE

Dr. Nevin,

We have coordinated this referral with Ms. Judith L. Evans at the Armed Forces Health Surveillance Center. Ms. Evans is currently processing you FOIA request. I have CC'ed her on this email.

You may contact her if you have any additional questions regarding this request.

Respectfully,

Jose L. Burgos
Office of the Administrative Assistant to the Secretary
7701 Telegraph Road
Alexandria, VA 22315-3905
(703) 428-6206

From: Remington Nevin

Ms. Judith L. Evans
Armed Forces Health Surveillance Center
11800 Tech Road, Suite 220
Silver Spring, MD 20904
Tel: 301-319-3240
Email: usarmy.ncr.medcom-afhs.mbx.media@mail.mil

Dear Ms. Evans,

Please acknowledge receipt of my request under the Freedom of Information Act forwarded to your office on January 29, 2015 from the U.S. Army Freedom of Information Act Office. The request is for the following records:

“Any reports since January 1, 2007, including any work product archived in the Defense Medical Surveillance System (DMSS) request manager, and including any official reports or correspondence released to internal DoD or external non-DoD customers, listing the number of serum specimens obtained from the spouses and child beneficiaries of military personnel, stored in the DoD Serum Repository (DoDSR) at the time of the analysis, report, or correspondence, to include any work product, report, or correspondence released to RAND in support of their research published as "Harnessing Full Value from the DoD Serum Repository and the Defense Medical Surveillance System" (2010)”

Although the Department of the Army is the Executive Agent for the AFHSC, as may be confirmed at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/military-spouse-and-child-specimens-stored-in-dod-serum-repository-13876/), the Department of the Army has referred this request to your office directly for search and review in accordance with the provisions of the FOIA statute.

I thank you in advance for your prompt attention to my request, and would appreciate receiving your response no later than March 2, 2015.

Sincerely,

Dr. Remington Nevin

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Oct. 20, 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 #15-0262.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Oct. 20, 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 #15-0262.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Oct. 20, 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 #15-0262.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Oct. 20, 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 #15-0262.

Thank you for your help.

From: MuckRock

CDR USAMEDCOM
ATTN: John P. Peterson,
Chief, Freedom of Information/Privacy Act Office
FOIA/PA Office
2748 Worth Road, Suite 21
JBSA Fort Sam Houston, TX 78234
Email: usarmy.jbsa.medcom.list.medcom-foia-users@mail.mil

Re: Appeal of constructive denial of FOIA request dated July 5, 2014, subject: “Military Spouse and Child Specimens Stored in DoD Serum Repository”

This is an appeal under the Freedom of Information Act. I am writing to appeal the constructive denial of a request properly made to the U.S. Army MEDCOM and formally unacknowledged as of this date, over six months after its initial receipt by your office.

As may be confirmed at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/military-spouse-and-child-specimens-stored-in-dod-serum-repository-13876), a FOIA request for “[a]ny reports since January 1, 2007, including any work product archived in the Defense Medical Surveillance System (DMSS) request manager, and including any official reports or correspondence released to internal DoD or external non-DoD customers, listing the number of serum specimens obtained from the spouses and child beneficiaries of military personnel, stored in the DoD Serum Repository (DoDSR) at the time of the analysis, report, or correspondence, to include any work product, report, or correspondence released to RAND in support of their research published as ‘Harnessing Full Value from the DoD Serum Repository and the Defense Medical Surveillance System’ (2010)" was submitted to the U.S. Army FOIA Office on October 20, 2014.

In a letter dated December 17, 2014, Mr. Joseph Walukonis, Program Analyst at the U.S. Army FOIA Office, noted that this request had been assigned tracking number 15-0262, and that the request was being formally forwarded to the U.S. Army MEDCOM for action and direct response as of this date.

Although in a subsequent message, Mr. Walukonis expressed a belief that this request had been erroneously forwarded to MEDCOM and that the Defense Health Agency (DHA) was the correct office for this request, in a subsequent email dated January 4, 2015, Ms. Doritha Ross, Senior FOIA Analyst at DHA confirmed that “[t]he Secretary of the Army is the Executive Agent for the Armed Forces Health Surveillance Center (AFHSC), which maintains and operates both the DoDSR and the DMSS”, and in a subsequent letter, dated January 28, 2015, Mr. Jose Burgos of the U.S. Army FOIA and Privacy Act Office confirmed that the documents requested “fall under the purview of the Armed Forces Health Surveillance Center”, confirming that the AFHSC was in receipt of my request. In a subsequent email dated January 29, 2015, Mr. Burgos noted that his office had “coordinated this referral with Ms. Judith L. Evans at the Armed Forces Health Surveillance Center” and that “Ms. Evans is currently processing [your] FOIA request”.

Since this time, I have received no acknowledgement either from U.S. Army MEDCOM, nor the AFHSC, of receipt of this request, nor any documents responsive to the request, despite multiple follow-up messages sent to the following address on February 3, 2015; March 5, 2015; April 6, 2015; May 6, 2015; and most recently June 5, 2015:

Ms. Judith L. Evans
Armed Forces Health Surveillance Center
11800 Tech Road, Suite 220
Silver Spring, MD 20904
Tel: 301-319-3240
Email: usarmy.ncr.medcom-afhs.mbx.media@mail.mil

According to a Department of the Army document dated November 14, 2014 (available at http://www.oaa.army.mil/FetchFile.ashx?DocID=475), the Secretary of the Army has delegated Executive Agent responsibilities for the Armed Forces Health Surveillance Center (AFHSC) to the office of the Army Surgeon General. These responsibilities include legal obligations under the FOIA.

The Freedom of Information Act provides an agency no more than thirty days to respond to a request. When an agency fails to respond within that statutory timeline, it has constructively denied the request. Additionally, as your agency has not met the statutory time requirement in responding to my request, the provisions of section 6 of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, shall apply, including the provision that "[a]n agency shall not assess search fees”, [and in this instance, duplication fees], “…if the agency fails to comply with any time limit… if no unusual or exceptional circumstances… apply to the processing of the request”.

In this regard, I note that your office has not informed me of any unusual or exceptional circumstances that would explain the delay in replying to my original request received by your office in the message forwarded by the U.S. Army FOIA Office as of December 17, 2014, over six months ago.

In conclusion, I hereby appeal the constructive denial of my request and kindly demand that your agency immediately provide me with documents responsive to my request, as required by statute.

I thank you in advance for your anticipated cooperation with this matter. I look forward to receiving a response to my original request as soon as possible.

Sincerely,

Dr. Remington Nevin

From: Remington Nevin

CC: john.p.peterson.civ@mail.mil

CDR USAMEDCOM
ATTN: John P. Peterson,
Chief, Freedom of Information/Privacy Act Office
FOIA/PA Office
2748 Worth Road, Suite 21
JBSA Fort Sam Houston, TX 78234
Email: usarmy.jbsa.medcom.list.medcom-foia-users@mail.mil

Re: Appeal of constructive denial of FOIA request dated July 5, 2014, subject: “Military Spouse and Child Specimens Stored in DoD Serum Repository”

This is an appeal under the Freedom of Information Act. I am writing to appeal the constructive denial of a request properly made to the U.S. Army MEDCOM and formally unacknowledged as of this date, over six months after its initial receipt by your office.

As may be confirmed at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/military-spouse-and-child-specimens-stored-in-dod-serum-repository-13876), a FOIA request for “[a]ny reports since January 1, 2007, including any work product archived in the Defense Medical Surveillance System (DMSS) request manager, and including any official reports or correspondence released to internal DoD or external non-DoD customers, listing the number of serum specimens obtained from the spouses and child beneficiaries of military personnel, stored in the DoD Serum Repository (DoDSR) at the time of the analysis, report, or correspondence, to include any work product, report, or correspondence released to RAND in support of their research published as ‘Harnessing Full Value from the DoD Serum Repository and the Defense Medical Surveillance System’ (2010)" was submitted to the U.S. Army FOIA Office on October 20, 2014.

In a letter dated December 17, 2014, Mr. Joseph Walukonis, Program Analyst at the U.S. Army FOIA Office, noted that this request had been assigned tracking number 15-0262, and that the request was being formally forwarded to the U.S. Army MEDCOM for action and direct response as of this date.

Although in a subsequent message, Mr. Walukonis expressed a belief that this request had been erroneously forwarded to MEDCOM and that the Defense Health Agency (DHA) was the correct office for this request, in a subsequent email dated January 4, 2015, Ms. Doritha Ross, Senior FOIA Analyst at DHA confirmed that “[t]he Secretary of the Army is the Executive Agent for the Armed Forces Health Surveillance Center (AFHSC), which maintains and operates both the DoDSR and the DMSS”, and in a subsequent letter, dated January 28, 2015, Mr. Jose Burgos of the U.S. Army FOIA and Privacy Act Office confirmed that the documents requested “fall under the purview of the Armed Forces Health Surveillance Center”, confirming that the AFHSC was in receipt of my request. In a subsequent email dated January 29, 2015, Mr. Burgos noted that his office had “coordinated this referral with Ms. Judith L. Evans at the Armed Forces Health Surveillance Center” and that “Ms. Evans is currently processing [your] FOIA request”.

Since this time, I have received no acknowledgement either from U.S. Army MEDCOM, nor the AFHSC, of receipt of this request, nor any documents responsive to the request, despite multiple follow-up messages sent to the following address on February 3, 2015; March 5, 2015; April 6, 2015; May 6, 2015; and most recently June 5, 2015:

Ms. Judith L. Evans
Armed Forces Health Surveillance Center
11800 Tech Road, Suite 220
Silver Spring, MD 20904
Tel: 301-319-3240
Email: usarmy.ncr.medcom-afhs.mbx.media@mail.mil

According to a Department of the Army document dated November 14, 2014 (available at http://www.oaa.army.mil/FetchFile.ashx?DocID=475), the Secretary of the Army has delegated Executive Agent responsibilities for the Armed Forces Health Surveillance Center (AFHSC) to the office of the Army Surgeon General. These responsibilities include legal obligations under the FOIA.

The Freedom of Information Act provides an agency no more than thirty days to respond to a request. When an agency fails to respond within that statutory timeline, it has constructively denied the request. Additionally, as your agency has not met the statutory time requirement in responding to my request, the provisions of section 6 of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, shall apply, including the provision that "[a]n agency shall not assess search fees”, [and in this instance, duplication fees], “…if the agency fails to comply with any time limit… if no unusual or exceptional circumstances… apply to the processing of the request”.

In this regard, I note that your office has not informed me of any unusual or exceptional circumstances that would explain the delay in replying to my original request received by your office in the message forwarded by the U.S. Army FOIA Office as of December 17, 2014, over six months ago.

In conclusion, I hereby appeal the constructive denial of my request and kindly demand that your agency immediately provide me with documents responsive to my request, as required by statute.

I thank you in advance for your anticipated cooperation with this matter. I look forward to receiving a response to my original request as soon as possible.

Sincerely,

Dr. Remington Nevin

From: Remington Nevin

CC: judith.l.evans8.ctr@mail.mil
Ms. Judith L. Evans
Armed Forces Health Surveillance Center
11800 Tech Road, Suite 220
Silver Spring, MD 20904
Tel: 301-319-3240
Email: usarmy.ncr.medcom-afhs.mbx.media@mail.mil

July 8, 2015

Dear Ms. Evans,

It was good speaking with you today about this FOIA request. As I understand, you have received this request, and that AFHSC, reporting to DHA, is the correct agency for this request. I shall look forward to a formal acknowledgement of receipt within the week by email.

Sincerely,

Dr. Remington Nevin

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Oct. 20, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

From: Remington Nevin

CC: dha.ncr.pcl.mbx.foia-requests@mail.mil

Defense Health Agency Freedom of Information Service Center
7700 Arlington Boulevard, Suite 5101
Falls Church, Virginia 22042-5101
Phone: (703) 681-7500
Fax: (703) 681-5138

To Whom It May Concern:

This is a request under the Freedom of Information Act.

I hereby request the following records: Any reports since January 1, 2007, including any work product archived in the Defense Medical Surveillance System (DMSS) request manager, and including any official reports or correspondence released to internal DoD or external non-DoD customers, listing the number of serum specimens obtained from the spouses and child beneficiaries of military personnel, stored in the DoD Serum Repository (DoDSR) at the time of the analysis, report, or correspondence, to include any work product, report, or correspondence released to RAND in support of their research published as "Harnessing Full Value from the DoD Serum Repository and the Defense Medical Surveillance System" (2010) .

According to DoDD 6490.02E (effective October 3, 2013), the Secretary of the Army is the Executive Agent for the Armed Forces Health Surveillance Center (AFHSC), which maintains and operates both the DoDSR and the DMSS. As such, this request was first submitted directly to the Army on October 20, 2014, but was ultimately referred to the Defense Health Agency (DHA) by the Army to DHA on December 22, 2014. In an email dated January 4, 2015, DHA stated “these documents are not records maintained by the Defense Health Agency” and referred the request back to the Army, whereafter it was subsequent referred to MEDCOM and then directly to AFHSC, where it has remained formally unacknowledged. However, as described in a public news release (http://www.defense.gov/News/News-Releases/News-Release-View/Article/614118/three-organizations-set-to-join-the-defense-health-agency), on August 23, 2015, the Armed Forces Health Surveillance Center changed its name to the Armed Forces Health Surveillance Branch, and now operates under the Defense Health Agency’s Public Health Division within the Healthcare Operations Directorate. The requested documents should now thus be records maintained by the DHA.

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

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Oct. 20, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thanks for your help, and let me know if further clarification is needed.

From: DHA NCR PCL Mailbox FOIA Requests

Dr. Nevin,

Attached is the FOIA Acknowledgement Letter for your review.

v/r,
Angela McDowell
Senior Analyst, Axiom Contract Support
DHA Privacy and Civil Liberties Office
Main: 703-681-7500

From: DHA NCR PCL Mailbox FOIA Requests

Dr. Nevin,

We have received your follow-up inquiry and researched the status. The estimated completion date for your request is February 15, 2016. Please be advised that this date is merely an estimate and your request may be processed sooner or later than indicated. Additionally, the complexity of backlogged cases in our queue, which were received prior to your request, may affect timely processing of your request.

Please be assured that we are working as quickly as possible to research and deliver the responsive records (if any), that you have requested.

v/r,
Angela McDowell
Senior Analyst, Axiom Contract Support
DHA Privacy and Civil Liberties Office
Main: 703-275-6363

From: DHA NCR PCL Mailbox FOIA Requests

Good Morning,

Please see the attached document regarding your FOIA request.

Thank you,
Jessie Ludin
Junior Analyst, Axiom Contract Support
Defense Health Headquarters
DHA Privacy and Civil Liberties Office
7700 Arlington Boulevard, Suite 5101
Falls Church, VA 22042
Main: 703-275-6363

From: Remington Nevin

Defense Health Agency Office of General Counsel
National Capital Region Medical Directorate
Attn: Mr. Paul T. Cygnarowicz
8901 Wisconsin Avenue (Building 27)
Bethesda, MD 20889

Dear Office of the General Counsel,

Re: Denial of Defense Health Agency Control Number 2016-007 (FOIA)

This is an appeal under the Freedom of Information Act.

I hereby appeal the denial of records responsive to my request for “Any reports since January 1, 2007, including any work product archived in the Defense Medical Surveillance System (DMSS) request manager, and including any official reports or correspondence released to internal DoD or external non-DoD customers, listing the number of serum specimens obtained from the spouses and child beneficiaries of military personnel, stored in the DoD Serum Repository (DoDSR) at the time of the analysis, report, or correspondence, to include any work product, report, or correspondence released to RAND in support of their research published as ‘Harnessing Full Value from the DoD Serum Repository and the Defense Medical Surveillance System’ (2010)” on the basis that the records being requested are specifically, particularly, and reasonably described; exist in the control of the agency; and that their production would not place an undue administrative burden on the agency due to the volume of documents sought.

1. Background. As described in a public news release (http://www.defense.gov/News/News-Releases/News-Release-View/Article/614118/three-organizations-set-to-join-the-defense-health-agency), on August 23, 2015, the Armed Forces Health Surveillance Center (AFHSC), which operates the DoD Serum Repository (DoDSR), changed its name to the Armed Forces Health Surveillance Branch (AFHSB), and began operating under the Defense Health Agency’s (DHA) Public Health Division within the Healthcare Operations Directorate.

As the requested documents were after that time records maintained by and in the control and custody of the DHA, and as can be verified at the public website MuckRock (see https://www.muckrock.com/foi/united-states-of-america-10/military-spouse-and-child-specimens-stored-in-dod-serum-repository-13876/), on August 25, 2015, I sent the above request to DHA. This request was subsequently acknowledged (https://d3gn0r3afghep.cloudfront.net/foia_files/2015/10/09/2016-007-Nevin-13876_Acknowledgement_Signed.pdf) in a letter from DHA dated October 8, 2015. In the letter, DHA assigned this request internal tracking number 2016-007 (FOIA).

In a subsequent letter dated February 11, 2016 (https://d3gn0r3afghep.cloudfront.net/foia_files/2016/02/11/FOIA-2016-007_Final_Response_letter_signed.pdf), the DHA denied this request in full, stating that “[a]fter a thorough search and review with the program office, it was determined that your request lacks the specificity required. In addition, completing the request would place an administrative burden due to the volume of documents sought. A record has not been described with sufficient particularity to enable the AFHSC to locate it by conducting a reasonable search".

2. Requested Records. The AFHSB (previously known as AFHSC) maintains the DoDSR. As described on the AFHSB/AFHSC website (https://www.afhsc.mil/Home/DoDSR), “The DoDSR currently houses more than 56 million specimens in large walk-in freezers, and continues to grow by approximately 2.3 million specimens per year”. As described on this website, the mission of the DoDSR is “to receive and store remaining serum specimens from HIV testing programs within the Department of Defense, and to receive and store serum specimens related to operational deployments worldwide”.

In the 2010 RAND report referenced in the request (http://www.rand.org/pubs/monographs/MG875) — written with the full cooperation of the AFHSC — it was noted (in Figure 4.2, page 34), that 9% of the specimens in the DoDSR were from dependants.

As the DMSS, which serves as the “sole link” to specimens in the DoDSR, would necessarily be the only source of such data on the DoDSR specimens, such a figure could have only come from an analysis of the DoDSR inventory produced by AFHSC and provided to RAND. The request submitted to DHA asks specifically for this analysis as “any work product, report, or correspondence released to RAND in support of their research”.

In addition to this analysis being responsive to the request, publicly available information suggests the existence of additional responsive documents. Specifically, an article published in 2013 in Scientific American (http://www.scientificamerican.com/article/blood-serum/), citing a staff member named Dr. Rubertone at the DoDSR, makes clear reference to additional information (the “DoDSR count”) in the possession of AFHSB/AFHSC that would be responsive to the request:

“A RAND Corp. report on the facility, published in 2010 (after an earlier draft was revealed via Wikileaks), pointed out that nearly 900,000 samples in the repository were not from active duty or reservist personnel—they were from so-called ‘dependent beneficiaries’ in service members' families. Those numbers have since grown, to a ‘couple million’ samples, according to the DoDSR count. The biological material from military family members often ends up in the repository after beneficiaries receive pregnancy care or visit a sexually transmitted infection clinic. The data accompanying those samples are more sparse and so the serum specimens are not as useful for studies, although they are still kept in the repository. Another 4 percent of the samples come from civilians who applied for military service but did not join”.

As revealed by this quote, in addition to the initial count or analysis produced by AFHSC/AFSHC and provided to RAND in support of their 2010 report (which was the source of the “nearly 900,000” figure), a subsequent count or analysis had also been produced by AFHSB/AFHSC (which was the source of the subsequent “couple million” figure).

As information from both of these reports were referenced in a media interview by a AFHSB/AFHSC staff member, these should be readily recollection and be readily retrievable by current staff at AFHSB/AFHSC. Of note in this regard, the source of this quote, Dr. Rubertone, remains listed on staff at AFHSB/AFHSC (proving “Editorial Oversight” of the AFHSC/AFHSC publication “Medical Surveillance Monthly Report”, see: https://www.afhsc.mil/documents/pubs/msmrs/2016/v23_n01.pdf).

In addition to these two documents, additional responsive documents may be found through an appropriate search by AFHSB/AFHSC staff of an internal logging tool previously known as the DMSS “request manager”. The AFHSB/AFHSC tracks requests for analyses in this, or a related, software application, which permits AFHSB/AFHSC to quickly document the customer, the date the request was made, and to assign a brief descriptive title to the request, and to write more detailed information regarding the nature of the analysis requested. This information is stored in a database format, one request per row, such that it is easily searchable by AFHSB/AFHSC staff across these and other fields. For example, when new requests for analysis are received, this feature permits staff to search the database for existing or prior requests that may already exist to satisfy the new request, thus saving unnecessary effort and duplication.

3. Basis for Appeal. The original request made to DHA is for records that are specifically, particularly, and reasonably described and that exist in the control of the agency within a single database. Agency control of these records is demonstrated by the agency providing these records to an external customer (RAND) and citing figures from these records in media interviews.

The request is also very “reasonably described”, in that staff members at the agency are able “determine precisely what records are being requested” in response to my request [see Kowalczyk v. Dep’t. of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996) (quoting Yeager v. Drug Enforcement Admin., 678 F.2d 315, 326 (D.C. Cir. 1982))].

The request is also very specifically and particularly described, in that the request is specified with sufficient specificity and particularity to permit “a professional employee of the agency who [is] familiar with the subject area of the request to locate the record with a reasonable amount of effort” [see Truitt v. Dep’t of State, 897 F.2d 540, 545 n. 36 (D.C. Cir. 1990) (quoting H.R. Rep. No. 93-876, 93d Cong., 2d Sess. at 6 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6271))].

As the information being requested exists either in email (subject to keyword search), or in database format in the DMSS “request manager” (also subject to keyword search), readily amenable to electronic production, despite the number of records that would be responsive to this request, their production would not place an undue administrative burden on the agency due to the volume of documents sought.

4. Clarification. To facilitate the agency’s production of these records, I would be pleased to narrow my request so as to eliminate any request for records identifiable solely on the basis of a search of archived email or other correspondence, and limit the scope of the request for those specific “work product[s]”, or “report[s]” previously cited by agency staff, as well as those records that may be found through an appropriate keyword search of requests for analysis in the DMSS “request manager". Although the staff of the AFHSB/AFHSC are capable of identifying the most appropriate search strategy, I may recommend that a simple search for reports released to “RAND”, or a simple keyword search for requests whose title or instructions include various boolean combinations of the words “RAND”, “child”, “beneficiary”, and “specimens” may permit the ready identification of responsive records.

I thank you in advance for your anticipated cooperation in this matter.

Sincerely,

Dr. Remington Nevin

From: Remington Nevin

Defense Health Agency Office of General Counsel
National Capital Region Medical Directorate
Attn: Mr. Paul T. Cygnarowicz
8901 Wisconsin Avenue (Building 27)
Bethesda, MD 20889

Dear Office of the General Counsel,

Re: Denial of Defense Health Agency Control Number 2016-007 (FOIA)

Please acknowledge receipt of my appeal of the denial referenced above, which I sent to your office February 19, 2016. The denial I received from DHA was dated February 11, 2016.

Sincerely,

Dr. Remington Nevin

From: Saenz, Rodolfo P CTR (US)

Good morning Mr. Nevin,

Please see attached response to your request regarding serum specimens.
Thanks,

Paul Saenz
Senior Analyst, Axiom
Defense Health Headquarters
DHA Privacy and Civil Liberties Office
7700 Arlington Boulevard, Suite 5101
Falls Church, VA  22042
(703) 275-6013

From: Remington Nevin

Ms. Nadine Brown
Defense Health Agency
Freedom of Information Service Center
DHA Privacy and Civil Liberties Office
7700 Arlington Boulevard, Suite 5101
Falls Church, VA 22042

Dear Ms. Brown,

In reference to your correspondence dated May 2, 2016, concerning DHA FOIA 2016-007, please consider my request to be limited to the final report(s) and request instructions corresponding to Army Medical Surveillance Activity (AMSA)/Armed Forces Health Surveillance Center (AFHSC)/Armed Forces Health Surveillance Branch (AFHSB) Request ID R080021, "RAND Request for Serum statistics".

Thank you very much for your assistance.

Sincerely,

Dr. Remington Nevin

From: DHA NCR PCL Mailbox FOIA Requests

Good afternoon,

Please see the attached documents regarding your FOIA request. Please let me know if you have any questions or concerns.

v/r
Jessie Ludin
Junior Analyst, Axiom Contract Support
Defense Health Headquarters
DHA Privacy and Civil Liberties Office
7700 Arlington Boulevard, Suite 5101
Falls Church, VA 22042
Main: 703-275-6363

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