Requests for Analysis Related to Mefloquine

Remington Nevin filed this request with the Defense Health Agency of the United States of America.
Tracking # 2016-008
Est. Completion None
Status
Awaiting Appeal

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:

All internal AFHSC and external DoD and non-DoD requests for analysis related to use of, or health effects related to use of, the drug mefloquine, received or processed by the Armed Forces Health Surveillance Center, from January 1, 2012 to July 1, 2014, as recorded in the "request manager" or a related tracking system, to include the results of any such analysis produced for AFHSC and external DoD and non-DoD customers as a result of such requests.

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: TRICARE Management Activity

An acknowledgement letter, stating the request is being processed.

From: Department of Defense, Office of the Secretary of Defense

The request has been forwarded from one agency to another agency or department for further review or follow up.

From: Gibbens, Curtis

Dear Remington Nevin: This is an interim response to your Freedom of Information Act (FOIA) request dated July 10, 2014 to the Defense Health Agency (DHA), which was referred to our office and received on August 14, 2014.  Your request has been assigned case number 14-F-1272 and we ask that you use that number when referring to your request. With regard to your request for a waiver of any applicable fees, a fee waiver is appropriate when "disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations and activities of the government and is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(iii) In making a determination, six factors are considered as to whether your request satisfies this statutory standard: (1) whether the subject of the requested records concerns the operations or activities of the government; (2) whether the disclosure is likely to contribute to an understanding of government operations or activities; (3) whether disclosure of the requested information will contribute to the understanding of the general public; (4) whether the disclosure is likely to contribute significantly to public understanding of government operations and activities; (5) whether the requester has a commercial interest that would be furthered by the requested disclosure; and, (6) whether any such commercial interest outweighs the public interest in disclosure.
While the requested information does concern the operations and activities of the government and does not appear to be intended for a commercial interest, it is not clear how the responsive documents - should they exist - would significantly contribute to the public understanding of the operations and activities of the government. After carefully reviewing your request I am denying your fee waiver request because the information stated does not support how the documents will significantly contribute to the public's increased understanding of the operations and activities of government.
Please be aware that we reserve the right to grant a fee waiver should a search find documents that meet the criterion of a public interest fee waiver as described in the previous paragraph.
I have determined that you should be placed in the "other" category for fee purposes as you have indicated that you do not seek access to these records for commercial purposes. The "other" fee category affords you two hours of search time and 100 pages of duplication free of charge. As you did not provide any willingness to pay, search will be halted after your two free hours have been expended. If you wish to add a willingness to pay, please contact the action officer assigned to your request at your earliest convenience.
We will be unable to respond to your request within the FOIA’s 20 day statutory time period as there are unusual circumstances which impact on our ability to quickly process your request.  These unusual circumstances are:  (a) the need to search for and collect records from a facility geographically separated from this Office; (b) the potential volume of records responsive to your request; and (c) the need for consultation with one or more other agencies or DoD components having a substantial interest in either the determination or the subject matter of the records.  For these reasons, your request has been placed in our complex processing queue and will be worked in the order the request was received.  Our current administrative workload is 1554 open requests.
If you are not satisfied with this action, you may appeal to the appellate authority, the Director of Administration and Management, Office of the Secretary of Defense, by writing directly to the Defense Freedom of Information Policy Office, Attn: Mr. James Hogan, 1155 Defense Pentagon, Washington, D.C. 20301-1155. Your appeal should be postmarked within 60 calendar days of the date of this letter, should cite the case number 14-F-1272, and should be clearly marked "Freedom of Information Act Appeal."
Thank you, Curtis Gibbens Office of Freedom of Information
Department of Defense
1155 Defense Pentagon
Washington, DC 20301-1155
FAX: (571) 372-0500

From: Remington Nevin

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-1272

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 18, 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 “internal and external AFHSC and external DoD and non-DoD requests for analysis related to use of, or health effects related to use of, the drug mefloquine”. 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 health effects associated with use of mefloquine within the Department of Defense, and 2. these efforts have led to widespread media interest focusing public attention on the health effects of mefloquine within the Department of Defense (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 “requests for analysis” which were “received or processed by the Armed Forces Health Surveillance Center, from January 1, 2012 to July, 2014, as recorded in the ‘request manager’ or a related tracking system”. The 2014 AFHSC Annual Report (available at: http://afhsc.mil/viewDocument?file=AFHSC_AnnualReport_WEB.pdf) provides aggregate statistics on the total number of such requests as currently recorded in the “’request manager’ or a related tracking system”. According to this Annual Report, “[i]n 2013, [AFHSC] staff completed and distributed 360 ad hoc analysis”. Assuming a relatively constant rate of 30 ad hoc requests per month over the period requested, from January 1, 2012 to July, 2014, this would imply that the maximum approximate number of ad hoc reports potentially responsive to this request would be 900 (i.e. 30 x 30 months). However, according to the Annual Report, all of these analyses do not relate to mefloquine, but “consist of requests for health surveillance on many topics such as mental and behavioral health, traumatic brain injuries (TBI), infectious disease, vaccines, and deployment and training-related illnesses and injuries”.

In other words, it is plausible that the vast majority of these approximately 900 “requests for analysis” would not be responsive. Given publicly available information on the total volume of records pertaining to “requests for analysis” which were “received or processed by the [AFHSC]”, it is not plausible that the original query would generate a large “potential volume of records”. 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 a standard keyword or text search on the words “mefloquine” and “Lariam”, the later term describing the brand name of the drug mefloquine.

You also note another “unusual circumstance” is the “need to search for and collect records from a facility geographically separated from this Office”. Per DoDD 6490.02E, February 8, 2012, these records are consolidated at a single location, AFHSC, which has the responsibility to “maintain and operate the Defense Medical Surveillance System”. Based on government contracting publications, it is known that this system supports the automated searching of requests by keyword, and it is known from personal experience of the requestor that such functionality is routinely used by staff during daily operations. Furthermore, as this FOIA request asks only for existing records describing “requests for analysis” and the “results of any such analysis”, which are known by the requestor to be organized within such a system, it is not plausible that: 1. these records would not already be organized and immediately accessible to a keyword search of existing documents maintained by the AFHSC, and that: 2. these would not readily producible within the statutory period through a simple search of existing correspondence. It is reasonably believed based on the personal experience of the requestor that a search of this system using the keywords “mefloquine” and “Lariam” (the drug’s trade name) to identify responsive documents should take less than 15 minutes.

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

Sincerely,

Remington Nevin

From: Department of Defense, Office of the Secretary of Defense

The request has been forwarded from one agency to another agency or department for further review or follow up.

From: Gibbens, Curtis A CIV WHS ESD (US)

Mr. Remington Nevin
MuckRock News
Boston, MA 02205-5819

Sent by electronic mail to: requests@muckrock.com

Dear Mr. Nevin,

The Defense Health Agency (DHA) has informed our office that they misdirected your attached Freedom of Information Act (FOIA) request to our office for processing. As you may have already been informed, DHA has redirected your request to the United States Army for processing. If you have any questions, you can contact the Army through information provided below.

Department of the Army
ATTN: AHRC-PDD-FP
Freedom of Information and Privacy Acts Division
7701 Telegraph Road
Alexandria, VA 22315-3860
usarmy.belvoir.hqda-oaa-ahs.mbx.rmda-foia@mail.mil

This request has been closed in our office.

Sincerely,

Curtis Gibbens
OSD/JS FOIA Office
571-372-0412

From: MuckRock

Hello,

Per the attached communications, this request was forwarded to your office. Confirmation of receipt would be greatly appreciated.

Thank you so much.

From: Department of Defense, Office of the Secretary of Defense

A letter stating that the request appeal has been rejected.

From: MuckRock

To Whom It May Concern:

This Freedom of Information Act request was forwarded to your office by the Department of Defense. Could you please confirm that it was received?

Thank you very much 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 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 #2014-157.

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 July 10, 2014, subject: “Requests for Analysis Related to Mefloquine”

This is an appeal under the Freedom of Information Act. I am writing to appeal the constructive denial of a request originally made to the Defense Health Agency on July 10, 2014 and ultimately forwarded to the Department of the Army on or about September 29, 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/requests-for-analysis-related-to-mefloquine-12511/), a FOIA request for “[a]ll internal AFHSC [Armed Forces Health Surveillance Center] and external DoD and non-DoD requests for analysis related to use of, or health effects related to use of, the drug mefloquine, received or processed by the Armed Forces Health Surveillance Center, from January 1, 2012 to July 1, 2014, as recorded in the "request manager" or a related tracking system, to include the results of any such analysis produced for AFHSC and external DoD and non-DoD customers as a result of such requests.”) was submitted to the Defense Health Agency on July 10, 2014 and was acknowledged by that office in a letter from Ms. Nadine Brown, Office of the Assistant Secretary of Defense for Health Affairs, on July 24, 2014. The request was assigned internal tracking number 14-F-1272 by that office.

A follow-up message from Ms. Nadine Brown dated August 5, 2014 noted that the requested records were “not Defense Health Agency records. The request was then forwarded by that office to the Office of the Secretary of Defense / Joint Staff (OSD/JS) FOIA Requester Service Center on that date.

On appeal of a fee-waiver denial by OSD/JS, and in a letter from Mr. James P. Hogan dated September 29, 2014, that office identified that the request had been misdirected by the Office of the Assistant Secretary of Defense for Health Affairs to OSD/JS, and that in fact the appropriate office to manage the request was the Department of the Army. The request was then forwarded by OSD/JS to the Department of the Army on that date.

Following the forwarding of this request by OSD/JS to the Department of the Army, two additional follow-up messages requesting acknowledgement of receipt were sent, on October 17, 2014, and November 20, 2014. Despite this, no acknowledgement or replies have been forthcoming.

Section 6(a)(1) of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, provides that in the case of misdirected and routed FOIA requests, the twenty-day working day time period to process a request begins not later than 10 days after the request is first received by the appropriate agency component. As your agency has not met the statutory time requirement in responding to my request, additional provisions of section 6 of the OPEN Government Act of 2007 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 18, 2015.

Sincerely,

Dr. Remington Nevin

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 July 10, 2014, subject: “Requests for Analysis Related to Mefloquine”

Please acknowledge receipt of my appeal under the Freedom of Information Act filed December 19, 2015, in which I appealed the constructive denial of a request originally made to the Defense Health Agency on July 10, 2014 and ultimately forwarded to the Department of the Army on or about September 29, 2014 and formally unacknowledged by your office as of the present date.

I thank you in advance for your assistance.

Sincerely,

Dr. Remington Nevin

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 July 10, 2014, subject: “Requests for Analysis Related to Mefloquine”

Please acknowledge receipt of my appeal under the Freedom of Information Act filed December 19, 2015, in which I appealed the constructive denial of a request originally made to the Defense Health Agency on July 10, 2014 and ultimately forwarded to the Department of the Army on or about September 29, 2014 and formally unacknowledged by your office as of the present date.

Excerpts of the original appeal follow:

"This is an appeal under the Freedom of Information Act. I am writing to appeal the constructive denial of a request originally made to the Defense Health Agency on July 10, 2014 and ultimately forwarded to the Department of the Army on or about September 29, 2014 and formally unacknowledged as of this date."

"As may be confirmed at the public website MuckRock (https://www.muckrock.com/foi/united-states-of-america-10/requests-for-analysis-related-to-mefloquine-12511/), a FOIA request for “[a]ll internal AFHSC [Armed Forces Health Surveillance Center] and external DoD and non-DoD requests for analysis related to use of, or health effects related to use of, the drug mefloquine, received or processed by the Armed Forces Health Surveillance Center, from January 1, 2012 to July 1, 2014, as recorded in the "request manager" or a related tracking system, to include the results of any such analysis produced for AFHSC and external DoD and non-DoD customers as a result of such requests.”) was submitted to the Defense Health Agency on July 10, 2014 and was acknowledged by that office in a letter from Ms. Nadine Brown, Office of the Assistant Secretary of Defense for Health Affairs, on July 24, 2014. The request was assigned internal tracking number 14-F-1272 by that office."

"A follow-up message from Ms. Nadine Brown dated August 5, 2014 noted that the requested records were “not Defense Health Agency records. The request was then forwarded by that office to the Office of the Secretary of Defense / Joint Staff (OSD/JS) FOIA Requester Service Center on that date."

"On appeal of a fee-waiver denial by OSD/JS, and in a letter from Mr. James P. Hogan dated September 29, 2014, that office identified that the request had been misdirected by the Office of the Assistant Secretary of Defense for Health Affairs to OSD/JS, and that in fact the appropriate office to manage the request was the Department of the Army. The request was then forwarded by OSD/JS to the Department of the Army on that date."

"Following the forwarding of this request by OSD/JS to the Department of the Army, two additional follow-up messages requesting acknowledgement of receipt were sent, on October 17, 2014, and November 20, 2014. Despite this, no acknowledgement or replies have been forthcoming."

Section 6(a)(1) of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, provides that in the case of misdirected and routed FOIA requests, the twenty-day working day time period to process a request begins not later than 10 days after the request is first received by the appropriate agency component. As your agency has not met the statutory time requirement in responding to my request, additional provisions of section 6 of the OPEN Government Act of 2007 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 April 2, 2015.

Sincerely,

Dr. Remington Nevin

From: Army - United States Department of the Army

The request has been forwarded from one agency to another agency or department for further review or follow up.

From: Remington Nevin

Commander,
U.S. Army Medical Command
ATTN: Freedom of Information/Privacy Acts Office
2748 Worth Road
Fort Sam Houston, Texas 78234-6021
Telephone: (210) 221-4233/4059
Email: usarmy.jbsa.medcom.list.medcom-foia-users@mail.mil

Re: FOIA request dated July 10, 2014, subject: “Requests for Analysis Related to Mefloquine”

As may be confirmed at the public website Muckrock (https://www.muckrock.com/foi/united-states-of-america-10/requests-for-analysis-related-to-mefloquine-12511/), on March 12, 2015, the Department of the Army forwarded to your office a FOIA request originally made July 10, 2014, for "All internal AFHSC and external DoD and non-DoD requests for analysis related to use of, or health effects related to use of, the drug mefloquine, received or processed by the Armed Forces Health Surveillance Center, from January 1, 2012 to July 1, 2014, as recorded in the "request manager" or a related tracking system, to include the results of any such analysis produced for AFHSC and external DoD and non-DoD customers as a result of such requests". Receipt of this request has thus far not been acknowledged by your agency.

Please acknowledge receipt of the forwarded request and provide me with an estimate of your processing time. I would appreciate a response no later than May 6, 2015.

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

Sincerely,

Dr. Remington Nevin

From: Dr. Remington Nevin

Please confirm receipt of the below message:

Commander,
U.S. Army Medical Command
ATTN: Freedom of Information/Privacy Acts Office
2748 Worth Road
Fort Sam Houston, Texas 78234-6021
Telephone: (210) 221-4233/4059
Email: usarmy.jbsa.medcom.list.medcom-foia-users@mail.mil
Re: FOIA request dated July 10, 2014, subject: “Requests for Analysis Related to Mefloquine”
As may be confirmed at the public website Muckrock (https://www.muckrock.com/foi/united-states-of-america-10/requests-for-analysis-related-to-mefloquine-12511/), on March 12, 2015, the Department of the Army forwarded to your office a FOIA request originally made July 10, 2014, for "All internal AFHSC and external DoD and non-DoD requests for analysis related to use of, or health effects related to use of, the drug mefloquine, received or processed by the Armed Forces Health Surveillance Center, from January 1, 2012 to July 1, 2014, as recorded in the "request manager" or a related tracking system, to include the results of any such analysis produced for AFHSC and external DoD and non-DoD customers as a result of such requests". Receipt of this request has thus far not been acknowledged by your agency.
Please acknowledge receipt of the forwarded request and provide me with an estimate of your processing time. I would appreciate a response no later than May 6, 2015.
I thank you in advance for your cooperation in this matter.
Sincerely,

From: Peterson, John Phillip CIV USARMY MEDCOM HQ (US)

This request does not fall under the purview of the U.S. Army Medical Command.

As noted in your tracking "stream" this request asks for “requests for analysis” which were “received or processed by the Armed Forces Health Surveillance Center, from January 1, 2012 to July, 2014, as recorded in the ‘request manager’ or a related tracking system."

This request was referred to the Defense Health Agency on July 10, 2014 and was acknowledged by that office in a letter from Ms. Nadine Brown, Office of the Assistant Secretary of Defense for Health Affairs, on July 24, 2014. The request was assigned internal tracking number 14-F-1272 by that office."

Please coordinate the status of your request accordingly.

Respectfully,

jpp

John P Peterson
Chief, Freedom of Information/
Privacy Act Office
HQ, U.S. Army Medical Command
(W) 210-221-4233

john.p.peterson.civ@mail.mil

From: Remington Nevin

John P Peterson
Chief, Freedom of Information/
Privacy Act Office
HQ, U.S. Army Medical Command
(W) 210-221-4233
john.p.peterson.civ@mail.mil

Dear Mr. Peterson,

Thank you for your message of April 7, 2015, responding to my FOIA request for "All internal AFHSC and external DoD and non-DoD requests for analysis related to use of, or health effects related to use of, the drug mefloquine, received or processed by the Armed Forces Health Surveillance Center, from January 1, 2012 to July 1, 2014, as recorded in the "request manager" or a related tracking system, to include the results of any such analysis produced for AFHSC and external DoD and non-DoD customers as a result of such requests".

In your letter, yu state that my request has been misdirected and you advise me to coordinate my request with the Defense Health Agency. As may be verified in documents available at the public website Muckrock (https://www.muckrock.com/foi/united-states-of-america-10/requests-for-analysis-related-to-mefloquine-12511/), this request was originally directed to DHA on July 10, 2014, and was subsequently redirected from this office to the Office of the Secretary of Defense/Joint Staff on September 3, 2014. In a letter of September 29, 2014, OSD/JS advised that they were not the correct office for this request, and referred the request to the Department of the Army, who assigned the request tracking number FA 15-0532.

In a letter dated March 12, 2015, the Department of the Army informed me that this request was forwarded to your office for processing.

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 delegated Executive Agent responsibilities for the Armed Forces Health Surveillance Center to the office of the Army Surgeon General. These responsibilities include ensuring compliance with the provisions of the FOIA.

Please note that Section 6(a)(1) of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, provides that in the case of misdirected and misrouted FOIA requests, the twenty-day working day time period to process a request begins not later than 10 days after the request is first received by the appropriate agency component. I shall assume that your agency first received my request by email today, on April 7, 2015. Should your agency not meet the statutory time requirement in responding to my request, additional provisions of section 6 of the OPEN Government Act of 2007 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."

Please acknowledge receipt of this request and confirm that your agency is indeed responsible for its processing, and provide me with an estimate of your processing time. I would appreciate a response no later than May 7, 2015.

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

Sincerely,

Dr. Remington Nevin

From: MuckRock

CC: usarmy.jbsa.medcom.list.medcom-foia-users@mail.mil

John P Peterson
Chief, Freedom of Information/
Privacy Act Office
HQ, U.S. Army Medical Command
(W) 210-221-4233
john.p.peterson.civ@mail.mil

Dear Mr. Peterson,

Thank you for your message of April 7, 2015, responding to my FOIA request for "All internal AFHSC and external DoD and non-DoD requests for analysis related to use of, or health effects related to use of, the drug mefloquine, received or processed by the Armed Forces Health Surveillance Center, from January 1, 2012 to July 1, 2014, as recorded in the "request manager" or a related tracking system, to include the results of any such analysis produced for AFHSC and external DoD and non-DoD customers as a result of such requests".

In your letter, you state that my request has been misdirected and you advise me to coordinate my request with the Defense Health Agency. As may be verified in documents available at the public website Muckrock (https://www.muckrock.com/foi/united-states-of-america-10/requests-for-analysis-related-to-mefloquine-12511/), this request was originally directed to DHA on July 10, 2014, and was subsequently redirected from this office to the Office of the Secretary of Defense/Joint Staff on September 3, 2014. In a letter of September 29, 2014, OSD/JS advised that they were not the correct office for this request, and referred the request to the Department of the Army, who assigned the request tracking number FA 15-0532.

In a letter dated March 12, 2015, the Department of the Army informed me that this request was forwarded to your office for processing.

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 delegated Executive Agent responsibilities for the Armed Forces Health Surveillance Center to the office of the Army Surgeon General. These responsibilities include ensuring compliance with the provisions of the FOIA.

Please note that Section 6(a)(1) of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, provides that in the case of misdirected and misrouted FOIA requests, the twenty-day working day time period to process a request begins not later than 10 days after the request is first received by the appropriate agency component. I shall assume that your agency first received my request by email today, on April 7, 2015. Should your agency not meet the statutory time requirement in responding to my request, additional provisions of section 6 of the OPEN Government Act of 2007 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."

Please acknowledge receipt of this request and confirm that your agency is indeed responsible for its processing, and provide me with an estimate of your processing time. I would appreciate a response no later than May 7, 2015.

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

Sincerely,

Dr. Remington Nevin

From: Remington Nevin

CC: usarmy.jbsa.medcom.list.medcom-foia-users@mail.mil

John P Peterson
Chief, Freedom of Information/
Privacy Act Office
HQ, U.S. Army Medical Command
(W) 210-221-4233
john.p.peterson.civ@mail.mil

Dear Mr. Peterson,

Thank you for your message of April 7, 2015, responding to my FOIA request for "All internal AFHSC and external DoD and non-DoD requests for analysis related to use of, or health effects related to use of, the drug mefloquine, received or processed by the Armed Forces Health Surveillance Center, from January 1, 2012 to July 1, 2014, as recorded in the "request manager" or a related tracking system, to include the results of any such analysis produced for AFHSC and external DoD and non-DoD customers as a result of such requests".

In your letter, you state that my request has been misdirected and you advise me to coordinate my request with the Defense Health Agency. As may be verified in documents available at the public website Muckrock (https://www.muckrock.com/foi/united-states-of-america-10/requests-for-analysis-related-to-mefloquine-12511/), this request was originally directed to DHA on July 10, 2014, and was subsequently redirected from this office to the Office of the Secretary of Defense/Joint Staff on September 3, 2014. In a letter of September 29, 2014, OSD/JS advised that they were not the correct office for this request, and referred the request to the Department of the Army, who assigned the request tracking number FA 15-0532.

In a letter dated March 12, 2015, the Department of the Army informed me that this request was forwarded to your office for processing.

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 delegated Executive Agent responsibilities for the Armed Forces Health Surveillance Center to the office of the Army Surgeon General. These responsibilities include ensuring compliance with the provisions of the FOIA.

Please note that Section 6(a)(1) of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, provides that in the case of misdirected and misrouted FOIA requests, the twenty-day working day time period to process a request begins not later than 10 days after the request is first received by the appropriate agency component. I shall assume that your agency first received my request by email today, on April 7, 2015. Should your agency not meet the statutory time requirement in responding to my request, additional provisions of section 6 of the OPEN Government Act of 2007 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."

Please acknowledge receipt of this request and confirm that your agency is indeed responsible for its processing, and provide me with an estimate of your processing time.

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

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 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 #2014-157.

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 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.

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 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 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.

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:

All internal AFHSC and external DoD and non-DoD requests for analysis related to use of, or health effects related to use of, the drug mefloquine, received or processed by the Armed Forces Health Surveillance Center (AFHSC), from January 1, 2012 to July 1, 2014, as recorded in the "request manager" or a related tracking system, to include the results of any such analysis produced for AFHSC and external DoD and non-DoD customers as a result of such requests. This request was first submitted directly to the AFHSC on July 10, 2014, but has yet to be formally acknowledged by that organization. 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.

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 July 10, 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 2016-008 (FOIA)

This is an appeal under the Freedom of Information Act.

I hereby appeal the denial of records responsive to my request for “All internal AFHSC and external DoD and non-DoD requests for analysis related to use of, or health effects related to use of, the drug mefloquine, received or processed by the Armed Forces Health Surveillance Center, from January 1, 2012 to July 1, 2014, as recorded in the 'request manager' or a related tracking system, to include the results of any such analysis produced for AFHSC and external DoD and non-DoD customers as a result of such requests” on the basis that the records being requested are not exempt from disclosure pursuant to FOIA exemption (b)(5) due to their not being internal records that are deliberative in nature and part of the decision-making process, containing opinions and recommendations. Furthermore, the requested records are specifically, particularly, and reasonably described; exist in the control of the agency; and their production would not place an undue administrative burden on the agency due to the volume of documents sought.

1. Background. As can be verified at the public website MuckRock (see https://www.muckrock.com/foi/united-states-of-america-10/requests-for-analysis-related-to-mefloquine-12511/), this request was first submitted to Defence Health Agency (DHA) on July 10, 2014, and was acknowledged in a letter dated July 24, 2014, and assigned the control number 2014-152 (FOIA). The request was re-acknowledged in a subsequent letter dated August 5, 2014, and reassigned the control number 2014-157 (FOIA). This letter also noted that the requested records were “not Defense Health Agency records”, and further noted the request was being forwarded by that office to the Office of the Secretary of Defense / Joint Staff (OSD/JS) FOIA Requester Service Center.

The OSD/JS acknowledged receipt of this request in an email dated August 18, 2014, in which the request was assigned tracking number 14-F-1272. The acknowledgement letter also served as a denial of my original fee waiver request. On appeal of a fee-waiver denial by OSD/JS, in correspondence dated September 29, 2014, that office identified that the request had been misdirected by the Office of the Assistant Secretary of Defense for Health Affairs to OSD/JS, and that in fact the appropriate office to manage the request was the Department of the Army. The request was then forwarded by OSD/JS to the Department of the Army on that date.

Following the forwarding of this request by OSD/JS to the Department of the Army, I sent two additional follow-up messages requesting acknowledgement of receipt on October 17, 2014 and November 20, 2014. Despite this, no acknowledgement or replies from the Department of the Army were forthcoming. In a letter dated December 19, 2014, I appealed to the Army’s Freedom of Information Office on the basis of constructive denial. No acknowledgement or response to this appeal was received for three months, despite inquiries sent to the Army February 3, 2015, and March 5, 2015. In correspondence dated March 12, 2015, the Department of the Army advised they were forwarding my request to the U.S. Army Medical Command (MEDCOM) for action and direct response. On April 7, 2015, the MEDCOM replied in email correspondence that “[t]his request does not fall under the purview of the U.S. Army Medical Command” and referred the request back to the Defense Health Agency.

Although the Department of the Army had previously been declared Executive Agent for the AFHSC, 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 AFHSC 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 by then records clearly maintained by and in the control and custody of the DHA, on August 25, 2015, I forwarded DHA the same request, and in a letter dated October 9, 2015 (https://d3gn0r3afghep.cloudfront.net/foia_files/2015/10/09/2016-008-Nevin-12511_Acknowledgement_Signed.pdf), this request was acknowledged and assigned DHA Control Number #2016-008 (FOIA).

In correspondence dated February 10, 2016 (https://d3gn0r3afghep.cloudfront.net/foia_files/2016/02/11/2016-_008_Final_Response_Letter.pdf), DHA denied this request in full, without release of any responsive documents, stating that “[u]nder Exemption (b)(5): the responsive documents are exempt from disclosure pursuant to FOIA exemption (b)(5) due to being internal records that are deliberative in nature and part of the decision-making process, containing opinions and recommendations”.

2. Requested Records. The AFHSB (previously known as AFHSC) conducts epidemiological analysis for internal and external customers through use of a health surveillance database known as the DMSS that contains health data on members of the Armed Forces. Internal customers for analysis of this database include the editors and authors of the AFHSB’s monthly publication Medical Surveillance Monthly Report (MSMR), who make requests for epidemiological analysis to inform articles and editorials in this publication, as well as members of internal working groups and staff members conducting intramural scientific research. External customers include service clients (e.g. from the Army, Navy, etc.), senior health leaders within DoD, (e.g. from the Office of the Assistant Secretary of Defense for Health Affairs, etc.), members of external working groups, and external personnel conducting extramural scientific research. On the AFHSB website (https://www.afhsc.mil/Home/Sections/EA), these reports are described as, among other purposes, being “designed to help key DoD and Coast Guard decision makers implement and continuously improve valuable, evidence-based force health protection measures. Other analyses products are delivered to the Office of the Assistant Secretary of Defense for Health Affairs to support policy decisions and address congressional and media inquiries”.

As clearly stated on the AFHSB website, these epidemiologic analyses are factual, non-opinion-based, non-recommendation-based, final work products, which are frequently shared outside of AFHSB and outside of DHA for broad distribution, and are not “internal records that are deliberative in nature and part of the decision-making process, containing opinions and recommendations”.

My request was for “[a]ll internal AFHSC and external DoD and non-DoD requests for analysis related to the use of, or health effects related to use of, the drug mefloquine, received or processed by the Armed Forces Health Surveillance Center (AFHSC) from January 1, 2012 to July 1, 2014”. As described subsequently in my request, the AFHSB/AFHSC tracks requests for such analyses in a software application known previously as the DMSS "request manager”, which permits AFHSB to quickly document the customer's affiliation, military branch, or agency, 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 staff across these and other fields by keyword.

For example, when a new request for analysis related to the health effects of mefloquine is received, this feature permits staff to search the database for existing or prior requests related to the health effects of mefloquine that may already exist to satisfy the new request, thus saving unnecessary effort and duplication. This search feature also permits the AFHSB to produce annual and ad-hoc summaries of these requests, such as are included in annual reports, and described on the AFHSB website. Currently, the AFHSB website (https://www.afhsc.mil/Home/Sections/EA) describes the request manager as tracking approximately 500 customized and 800 periodic requests per year.

3. Basis for Appeal. The original request made to DHA is for records of requests for any such analysis as described above, “to include the results of any such analysis produced for AFHSC and external DoD and non-DoD customers as a result of such requests”.

The requested records are not subject to exemption under (b)(5) as they are not deliberative in nature and represent final work products delivered to “internal AFHSC and external DoD and non-DoD” customers. The requested records are also not subject to exemption under (b)(5) as they do not contain “opinions and recommendations”, but instead represent objective, fact-based epidemiological analysis.

The requested records are also specifically, particularly, and reasonably described and exist in the control of the agency within a single database. Agency control of these records is demonstrated by the agency utilizing these records on a daily basis as a core component of their mission, as described on their own website.

The request is “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))]. Furthermore, the request is also very specifically and particularly described, in that the request specifies particular and specific data elements to be produced in response to the request from the existing database record (e.g. the wording of the request for epidemiologic analysis, as recorded in the DMSS “request manager”, as well as the final work product or results of such analysis delivered to the internal or external customer).

Furthermore, the request is also 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))].

Furthermore, as the information being requested exists in database format, readily amenable to electronic search, despite the number of records that would need to be searched (potentially tens of thousands), their identification and production would not place an undue administrative burden on the agency due to the volume of documents sought, as their production could readily be performed by searching records “received or processed” between January 1, 2012 to July 1, 2014, via a simple keyword search (e.g. for “mefloquine”, “mef”, “Lariam”, etc.). Indeed, such records could be identified as quickly and as easily as other similarly targeted searches of the database which are conducted daily as a routine practice in the conduct of the agency's mission.

4. Clarification. To facilitate the agency’s production of these records in response to this appeal, I would be pleased to narrow my request so as to request a copy of the specific request tracking number, the text of the request instructions, and the final work products (i.e. “the results of any such analysis”) delivered to the customer, for analyses “received or processed” between the inclusive dates, responsive to a keyword or text search for the following terms: “mefloquine”, “MQ”, “mef”, or “Lariam”.

As further clarification, for the purposes of this appeal, "internal AFHSC" requests should be interpreted as being any requests for analysis related to mefloquine for delivery to the editorial staff of the MSMR; for delivery to any internal AFHSC/AFHSB working group established to study mefloquine; or to support intramural scientific research on mefloquine.

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 2016-008 (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: 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 2016-008 (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: Defense Health Agency

A letter stating that the request appeal has been rejected.

From: Remington Nevin

Defense Health Agency Office of General Counsel
National Capital Region Medical Directorate
Attn: Mr. Paul T. Cygnarowicz
8955 Wood Road, Building 1, Floor 9
Bethesda, MD 20889-5628

Re: Denial of Defense Health Agency Control Number 2016-008 (FOIA)

Dear Mr. Cygnarowicz,

Thank you for your letter dated July 28, 2016, in which you acknowledge receipt of my appeal dated February 19, 2016, related to the denial of DHA 2016-008.

It is my understanding that my appeal remains under review.

Please advise me at your earliest convenience as to any change in the status of your review and whether any further clarification of the basis for my appeal is needed.

Sincerely,

Dr. Remington Nevin

From: DHA NCR PCL Mailbox FOIA Requests

Good morning Dr. Nevin,

Attached is our response to your FOIA requests regarding Mefloquine Analyses in DMSS Request Manager.
We re-processed the initial ones and then went ahead and joined the more refined 4/22/16 request to this.
We apologize for the delay.
Thanks,

DHA FOIA
DHA Privacy and Civil Liberties Office
7700 Arlington Boulevard, Suite 5101
Falls Church, VA  22042
(703) 275-6013

From: Remington Nevin

To Whom It May Concern:

Please confirm receipt of the appeal copied below.

Thank you.
_______________________________
FREEDOM OF INFORMATION ACT APPEAL
Defense Health Agency Office of General Counsel
National Capital Region Medical Directorate
Attn: Mr. Paul T. Cygnarowicz
8955 Wood Road, Building 1, Floor 9
Bethesda, MD 20889-5628

Re: Partial Denial of Defense Health Agency Control Number 2016-008 (FOIA)

Dear Mr. Cygnarowicz,

This is an appeal under the Freedom of Information Act (FOIA). I appeal the withholding of data and reports responsive to my properly filed FOIA request, as described below.

1. Background to the Appeal

I am in receipt of correspondence from the Defense Health Agency (DHA) dated September 27, 2016 (available at: https://d3gn0r3afghep.cloudfront.net/foia_files/2016/09/28/2016-_008_v2_Final_Response_Letter_Signed.pdf), related to my FOIA request dated July 10, 2014, for “[a] ll internal AFHSC and external DoD and non-DoD requests for analysis related to use of, or health effects related to use of, the drug mefloquine, received or processed by the Armed Forces Health Surveillance Center, from January 1, 2012 to July 1, 2014, as recorded in the "request manager" or a related tracking system, to include the results of any such analysis produced for AFHSC and external DoD and non-DoD customers as a result of such requests”. This request was ultimately assigned DHA FOIA control number 2016-008.

2. Description of Records

The DHA response notes that DHA is “withholding”, “in full” a number of reports, including those identified by the internal AFHSC report identifiers R130223 and R130263. Based on information released to me in DHA FOIA 2016-006, report R130223 is titled “Mefloquine and other anti-malaria medications - TMDS data” and was completed August 26, 2013, and report 130263 is titled “TMDS encounter and pharmacy data - mefloquine analysis PVC” and was completed October 9, 2013. Both reports are therefore responsive to my request. However, according to the DHA response, for these reports “the AFHSC provided non de-identified raw data, which included PII/PHI, to the U.S. Army Pharmacovigilance Center. Due to the sensitive nature of the PHI dataset, we are withholding this data in full under FOIA exemption (b)(6)”.

The DHA response also notes that DHA is “withholding” certain “DMSS reports” “in full”, including that identified by the internal AFHSC report identifier R130345. Based on information released to me in DHA FOIA 2016-006, report R130345 is titled “Mefloquine Analysis” and was completed on June 13, 2014. This report is therefore also responsive to my request. However, according to the DHA response, for this report, the DHA claims it has "determined that the requested records are exempt from release under exemption (b)(5)”, and claims these are “internal records that are deliberative in nature and part of the decision-making process, containing opinions and recommendations”.

3. Basis for Appeal

On the basis of various claimed exemptions, the DHA has refused to provide me with any documents comprising the AFHSC reports R130223, R130263, and R130345, which are clearly responsive to request DHA 2016-008. Although these documents may contain information that is subject to exemption, the entire contents of the documents themselves are unlikely to be fully subject to these exemptions, and large portions of the documents are likely to be reasonably segregable from the portions which DHA claims are exempt. I also challenge the claimed applicability of exception b(5) as described further below.

According to the FOIA, 5 U.S.C. § 552(b):

“Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.”

Additionally, as described more fully in my original request (see https://www.muckrock.com/foi/united-states-of-america-10/requests-for-analysis-related-to-mefloquine-12511/), and in recent appeals, the content of report R130345 is information that was intended to be broadly shared with external customers outside of DHA and AFHSC/AFHSB. As a final work product shared with external non-DHA and non-AFHSC/AFHSB customers, these slides are not subject to exemption under (b)(5) as they do not contain “opinions and recommendations”, but instead contain objective, fact-based epidemiological analysis. The production of such objective, fact-based epidemiological analysis on behalf of external customers is a primary function of AFHSB.

3. Summary

DHA has withheld reasonably segregable information responsive to my request. I hereby request that reasonably segregable information in reports R130223 and R130263 be provided to me, with only those portions subject to FOIA exemption b(6) redacted and indicated as such. Additionally, I hereby request a full, unredacted copy of report R130345, and that this be provided to me as quickly as possible.

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

Sincerely,

Dr. Remington Nevin

From: Remington Nevin

FREEDOM OF INFORMATION ACT APPEAL
Defense Health Agency Office of General Counsel
National Capital Region Medical Directorate
Attn: Mr. Paul T. Cygnarowicz
8955 Wood Road, Building 1, Floor 9
Bethesda, MD 20889-5628

Please confirm receipt of the appeal copied below related to the denial of DHA 2016-008. This appeal was first sent to your office on February 19, 2016, and was acknowledged by your office in a letter dated July 28, 2016. This appeal was sent again to your office on October 17, 2016.

It is my understanding that my appeal remains under review.

Sincerely,

Dr. Remington Nevin
_______________________________

Re: Partial Denial of Defense Health Agency Control Number 2016-008 (FOIA)

Dear Mr. Cygnarowicz,

This is an appeal under the Freedom of Information Act (FOIA). I appeal the withholding of data and reports responsive to my properly filed FOIA request, as described below.

1. Background to the Appeal

I am in receipt of correspondence from the Defense Health Agency (DHA) dated September 27, 2016 (available at: https://d3gn0r3afghep.cloudfront.net/foia_files/2016/09/28/2016-_008_v2_Final_Response_Letter_Signed.pdf), related to my FOIA request dated July 10, 2014, for “[a] ll internal AFHSC and external DoD and non-DoD requests for analysis related to use of, or health effects related to use of, the drug mefloquine, received or processed by the Armed Forces Health Surveillance Center, from January 1, 2012 to July 1, 2014, as recorded in the "request manager" or a related tracking system, to include the results of any such analysis produced for AFHSC and external DoD and non-DoD customers as a result of such requests”. This request was ultimately assigned DHA FOIA control number 2016-008.

2. Description of Records

The DHA response notes that DHA is “withholding”, “in full” a number of reports, including those identified by the internal AFHSC report identifiers R130223 and R130263. Based on information released to me in DHA FOIA 2016-006, report R130223 is titled “Mefloquine and other anti-malaria medications - TMDS data” and was completed August 26, 2013, and report 130263 is titled “TMDS encounter and pharmacy data - mefloquine analysis PVC” and was completed October 9, 2013. Both reports are therefore responsive to my request. However, according to the DHA response, for these reports “the AFHSC provided non de-identified raw data, which included PII/PHI, to the U.S. Army Pharmacovigilance Center. Due to the sensitive nature of the PHI dataset, we are withholding this data in full under FOIA exemption (b)(6)”.

The DHA response also notes that DHA is “withholding” certain “DMSS reports” “in full”, including that identified by the internal AFHSC report identifier R130345. Based on information released to me in DHA FOIA 2016-006, report R130345 is titled “Mefloquine Analysis” and was completed on June 13, 2014. This report is therefore also responsive to my request. However, according to the DHA response, for this report, the DHA claims it has "determined that the requested records are exempt from release under exemption (b)(5)”, and claims these are “internal records that are deliberative in nature and part of the decision-making process, containing opinions and recommendations”.

3. Basis for Appeal

On the basis of various claimed exemptions, the DHA has refused to provide me with any documents comprising the AFHSC reports R130223, R130263, and R130345, which are clearly responsive to request DHA 2016-008. Although these documents may contain information that is subject to exemption, the entire contents of the documents themselves are unlikely to be fully subject to these exemptions, and large portions of the documents are likely to be reasonably segregable from the portions which DHA claims are exempt. I also challenge the claimed applicability of exception b(5) as described further below.

According to the FOIA, 5 U.S.C. § 552(b):

“Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.”

Additionally, as described more fully in my original request (see https://www.muckrock.com/foi/united-states-of-america-10/requests-for-analysis-related-to-mefloquine-12511/), and in recent appeals, the content of report R130345 is information that was intended to be broadly shared with external customers outside of DHA and AFHSC/AFHSB. As a final work product shared with external non-DHA and non-AFHSC/AFHSB customers, these slides are not subject to exemption under (b)(5) as they do not contain “opinions and recommendations”, but instead contain objective, fact-based epidemiological analysis. The production of such objective, fact-based epidemiological analysis on behalf of external customers is a primary function of AFHSB.

3. Summary

DHA has withheld reasonably segregable information responsive to my request. I hereby request that reasonably segregable information in reports R130223 and R130263 be provided to me, with only those portions subject to FOIA exemption b(6) redacted and indicated as such. Additionally, I hereby request a full, unredacted copy of report R130345, and that this be provided to me as quickly as possible.

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

Sincerely,

Dr. Remington Nevin

From: Remington Nevin

FREEDOM OF INFORMATION ACT APPEAL
Defense Health Agency Office of General Counsel
National Capital Region Medical Directorate
Attn: Mr. Paul T. Cygnarowicz
8955 Wood Road, Building 1, Floor 9
Bethesda, MD 20889-5628

Please confirm receipt of the appeal copied below related to the denial of DHA 2016-008. This appeal was first sent to your office on February 19, 2016, and was acknowledged by your office in a letter dated July 28, 2016. This appeal was sent again to your office on October 17, 2016.

It is my understanding that my appeal remains under review.

Sincerely,

Dr. Remington Nevin
_______________________________

Re: Partial Denial of Defense Health Agency Control Number 2016-008 (FOIA)

Dear Mr. Cygnarowicz,

This is an appeal under the Freedom of Information Act (FOIA). I appeal the withholding of data and reports responsive to my properly filed FOIA request, as described below.

1. Background to the Appeal

I am in receipt of correspondence from the Defense Health Agency (DHA) dated September 27, 2016 (available at: https://d3gn0r3afghep.cloudfront.net/foia_files/2016/09/28/2016-_008_v2_Final_Response_Letter_Signed.pdf), related to my FOIA request dated July 10, 2014, for “[a] ll internal AFHSC and external DoD and non-DoD requests for analysis related to use of, or health effects related to use of, the drug mefloquine, received or processed by the Armed Forces Health Surveillance Center, from January 1, 2012 to July 1, 2014, as recorded in the "request manager" or a related tracking system, to include the results of any such analysis produced for AFHSC and external DoD and non-DoD customers as a result of such requests”. This request was ultimately assigned DHA FOIA control number 2016-008.

2. Description of Records

The DHA response notes that DHA is “withholding”, “in full” a number of reports, including those identified by the internal AFHSC report identifiers R130223 and R130263. Based on information released to me in DHA FOIA 2016-006, report R130223 is titled “Mefloquine and other anti-malaria medications - TMDS data” and was completed August 26, 2013, and report 130263 is titled “TMDS encounter and pharmacy data - mefloquine analysis PVC” and was completed October 9, 2013. Both reports are therefore responsive to my request. However, according to the DHA response, for these reports “the AFHSC provided non de-identified raw data, which included PII/PHI, to the U.S. Army Pharmacovigilance Center. Due to the sensitive nature of the PHI dataset, we are withholding this data in full under FOIA exemption (b)(6)”.

The DHA response also notes that DHA is “withholding” certain “DMSS reports” “in full”, including that identified by the internal AFHSC report identifier R130345. Based on information released to me in DHA FOIA 2016-006, report R130345 is titled “Mefloquine Analysis” and was completed on June 13, 2014. This report is therefore also responsive to my request. However, according to the DHA response, for this report, the DHA claims it has "determined that the requested records are exempt from release under exemption (b)(5)”, and claims these are “internal records that are deliberative in nature and part of the decision-making process, containing opinions and recommendations”.

3. Basis for Appeal

On the basis of various claimed exemptions, the DHA has refused to provide me with any documents comprising the AFHSC reports R130223, R130263, and R130345, which are clearly responsive to request DHA 2016-008. Although these documents may contain information that is subject to exemption, the entire contents of the documents themselves are unlikely to be fully subject to these exemptions, and large portions of the documents are likely to be reasonably segregable from the portions which DHA claims are exempt. I also challenge the claimed applicability of exception b(5) as described further below.

According to the FOIA, 5 U.S.C. § 552(b):

“Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.”

Additionally, as described more fully in my original request (see https://www.muckrock.com/foi/united-states-of-america-10/requests-for-analysis-related-to-mefloquine-12511/), and in recent appeals, the content of report R130345 is information that was intended to be broadly shared with external customers outside of DHA and AFHSC/AFHSB. As a final work product shared with external non-DHA and non-AFHSC/AFHSB customers, these slides are not subject to exemption under (b)(5) as they do not contain “opinions and recommendations”, but instead contain objective, fact-based epidemiological analysis. The production of such objective, fact-based epidemiological analysis on behalf of external customers is a primary function of AFHSB.

3. Summary

DHA has withheld reasonably segregable information responsive to my request. I hereby request that reasonably segregable information in reports R130223 and R130263 be provided to me, with only those portions subject to FOIA exemption b(6) redacted and indicated as such. Additionally, I hereby request a full, unredacted copy of report R130345, and that this be provided to me as quickly as possible.

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

Sincerely,

Dr. Remington Nevin

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