Notification for Healthcare Providers of Mefloquine Box Warning

To Whom It May Concern:

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

All copies of notification messages and other correspondence received by the Office of the Assistant Secretary of Defense (Health Affairs) from the military services and Joint Task Force, National Capital Region-Medical, in response to the OASD(HA) memorandum dated August 12, 2013, subject: Notification for Healthcare Providers of Mefloquine Box Warning, describing efforts made by the services and JTF to ensure that all prescribing healthcare providers and pharmacists are made aware of the FDA box warning on mefloquine as current DoD guidance regarding use of the drug, as described in the referenced memorandum.

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 10, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

Defense Freedom of Information Policy Office
Attn: Mr. James Hogan
1155 Defense Pentagon
Washington, D.C. 20301-1155

Re: Freedom of Information Act Appeal, Case #14-F-1274

This is an appeal under the Freedom of Information Act. I hereby appeal the denial of my fee waiver request as described in your letter of August 15, 2014 on the basis that it can be demonstrated that disclosure of the requested information would substantially benefit the public interest.

As described in the original FOIA request, the requested information pertains to “efforts made by the services and JTF to ensure that all prescribing healthcare providers and pharmacists are made aware of the FDA box warning on mefloquine as current DoD guidance regarding use of the drug”. In substantiation of the claim that release of the requested information would benefit the public interest, it can be demonstrated that: 1. The requestor has utilized similar information to inform both Senate testimony and invited commentary to the Food and Drug Administration on the use of mefloquine within the Department of Defense, and 2. These efforts have led to widespread media attention focusing attention on patterns of widespread misprescribing of mefloquine within the Department of Defense, and the associated health risks of such misprescribing (see, e.g. popular media stories at http://www.cbsnews.com/news/elite-army-units-to-stop-taking-anti-malarial-drug/ and http://www.cbsnews.com/news/some-us-troops-haunted-by-anti-malaria-drugs-side-effects/ where the requestor is directly quoted).

These facts reasonably substantiate that release of the requested information to the requestor would constitute an act “significantly contributing to the public’s increased understanding of the operations and activities of government”.

In accordance with 5 USC § 552 (a)(4)(A)(ii)(II), fees or FOIA requests “shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media. As such, should your agency deny my request, this requestor is nonetheless entitled to a waiver of any search fees, and the costs of your agency’s compliance with my request must be limited to the actual costs of duplication.

Although your agency has claimed the existence of 3 “unusual circumstances” justifying the extraordinary delay in responding to this request, 5 U.S.C. § 552(a)(6)(B) permits your agency only an additional 10 days to respond to my request even in the presence of such “unusual circumstances”. Additionally, on the basis of the information requested, it is questionable whether 2 of the 3 “unusual circumstances” identified by your office may reasonably apply to this particular request.

You note one “unusual circumstance” is the “potential volume of records responsive to your request. This request asks only for “copies of notification messages and other correspondence received by the Office of the Assistant Secretary of Defense (Health Affairs) from the military services and Joint Task Force, National Capital Region-Medical, in response to the OASD(HA) memorandum dated August 12, 2013, subject: Notification for Healthcare Providers of Mefloquine Box Warning”. This memorandum was addressed to only four offices: 1. The Assistant Secretary of the Army (Manpower and Reserve Affairs), 2. The Assistant Secretary of the Navy (Manpower and Reserve Affairs), 3. The Assistant Secretary of the Air Force (Manpower and Reserve Affairs), and 4. The Commander, Joint Task Force, National Capital Region-Medical. It is not plausible that these four addressees, or their designees, generated a large “potential volume of records” in responding formally to the August 12, 2013 request for information. In this regard, please consider this appeal as clarification to interpret the original FOIA request as limiting the “potential volume of records responsive” to this request to the four formal replies received, together with any notification messages or correspondence attached thereto.

You also note another “unusual circumstance” is the “need to search for and collect records from a facility geographically separated from this Office”. As this FOIA request asks only for those documents specifically requested by the Assistant Secretary of Defense (Health Affairs) in response to the August 12, 2013 memorandum, it is not plausible that these documents both: 1. would not already be organized and immediately accessible to a search of existing documents maintained by the Assistant Secretary of Defense (Health Affairs) , and 2: would not readily producible within the statutory period through a simple search of existing correspondence.

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

Sincerely,

Remington Nevin

Will Kramer
Department of Defense
Freedom of Information Policy Division
1155 Defense Pentagon
Washington, D.C. 20301-1155

Re: Freedom of Information Act, Case #14-F-1274

Dear Mr. Kramer,

I am in receipt of a letter dated October 1, 2014 from the Department of Defense Office of the Deputy Chief Management Officer, denying my request for a fee waiver for the above referenced request. This letter is to clarify that, as described below, as my request is very likely to be able to be completed within 2 hours of free search time, and within 100 pages of duplication provided at no charge by your office, I request your office proceed with my original request within these free allowances.

In my original request of July 10, 2014, I requested: “All copies of notification messages and other correspondence received by the Office of the Assistant Secretary of Defense (Health Affairs) from the military services and Joint Task Force, National Capital Region-Medical, in response to the OASD(HA) memorandum dated August 12, 2013, subject: Notification for Healthcare Providers of Mefloquine Box Warning, describing efforts made by the services and JTF to ensure that all prescribing healthcare providers and pharmacists are made aware of the FDA box warning on mefloquine as current DoD guidance regarding use of the drug, as described in the referenced memorandum”.

This memorandum was addressed to only four offices: 1. The Assistant Secretary of the Army (Manpower and Reserve Affairs), 2. The Assistant Secretary of the Navy (Manpower and Reserve Affairs), 3. The Assistant Secretary of the Air Force (Manpower and Reserve Affairs), and 4. The Commander, Joint Task Force, National Capital Region-Medical. In your initial reply of August 15, 2014, your office stated that you may be unable to respond to my request within the FOIA’s 20 day statutory period owing to a large “potential volume of records” responsive to my request.

As clarified in my appeal of August 27, 2014, it is not plausible that these four addressees, or their designees, generated a large “potential volume of records” in responding formally to the August 12, 2013 request for information. In this regard, in my appeal of August 27, 2014, I directed that you consider my appeal as clarification to interpret the original FOIA request as limiting the “potential volume of records responsive” to this request to the four formal replies received, together with any notification messages or correspondence attached thereto.

In my fee waiver denial of October 1, 2014, I was informed I would be entitled to two free hours of search time, and 100 pages of duplication at no charge. As it is not plausible that the four formal replies, as described above, would not: 1. already be organized and immediately accessible to a search of existing documents maintained by the Assistant Secretary of Defense (Health Affairs) within such a two hour search period, and 2: be readily able to be duplicated in 100 pages or less through a simple search of existing correspondence, I hereby direct you to proceed with processing my request within the free allowances you describe.

In the very unlikely event that you are unable to locate these four formal replies within the time limit described above, or such a search identifies greater than 100 pages of responsive documents, at that time, please provide me with an estimate of any additional fees necessary to fully process my request.

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

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 10, 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-F-1274.

Thank you for your help.