[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Documents Withheld Under Deliberative Privilege – No Privilege Log Needed? (May 23, 2024), I discussed the holding of Blue Mountains Biodiversity Project v. Jeffries, 99 F.4th 438 (9th Cir. 2024). The Ninth Circuit held that, with one undefined, possible exception of “bad faith or improper [administrative agency] behavior,” an administrative agency withholding documents under the deliberative privilege need not provide a privilege log to a party seeking judicial review of the agency’s decision. Essentially, the court held that administrative review is “on the agency record” and the deliberatively privileged documents were not part of that record. Therefore, they need not be disclosed on a privilege log.
In Sana Healthcare Carrollton, LLC v. Dept. of Health and Human Services, 2024 WL 2723873 (E.D. Tex. May 28, 2024), the court ordered an agency to produce a privilege log of documents outside the administrative record that were directly or indirectly considered or alternatively provide a sworn statement that there were none.
The Court will require the Government to either produce a privilege log for materials it withheld from the administrative record on the basis of privilege or to provide a sworn statement that it did not withhold any materials from the administrative record on the basis of privilege.
Sana Healthcare Carrollton, LLC v. Dept. of Health and Human Services, 2024 WL 2723873 (E.D. Tex. May 28, 2024) (emphasis added).
To borrow from the Hon. Paul W. Grimm on a different issue, one “may look for guidance to the many reported decisions on this issue….” As Judge Grimm wrote, “[h]owever, when [one] does so, [they] will quickly discover that, as at ’Alice’s Restaurant,’ one can find what one wants.” Sullivan v. Glock, Inc., 175 F.R.D. 497, 505 (D. Md. 1997), citing the 1967 song, Arlo Guthrie, “Alice’s Restaurant” (Reprise Records, 1967) (“You can get anything you want at Alice’s Restaurant.”).
In Sana Healthcare Carrollton, LLC v. Dept. of Health and Human Services, 2024 WL 2723873 (E.D. Tex. May 28, 2024), plaintiff, a hospital, alleged that DHS failed to properly reimburse it. It sued under the Administrative Procedure Act. The Government produced a certified administrative record “consisting of “the information that was considered in connection with the [Government’s] determination … that [the Hospital] did not submit a patient roster on March 17, 2022”…. However, the Government did not produce a privilege log in connection with the administrative record….” Id. at *4 (emphasis added).
The hospital moved to compel, in pertinent part, production of a privilege log. In the court’s words “the Hospital requests the Court to order the Health Resources and Services Administration and the United States Department of Health and Human Services to provide privilege log accounting for all documents withheld form the administrative record on account of privilege requests….”
Thus, the issue presented in Sana Healthcare was “extra-record discovery” or discovery “beyond the administrative record.”” Id. at *5. Blue Mountains would seem to preclude it. Sana Healthcare did not reach that result: “The Court will require the Government to either produce a privilege log for materials it withheld from the administrative record on the basis of privilege or to provide a sworn statement that it did not withhold any materials from the administrative record on the basis of privilege.” [emphasis added].
The Sana Healthcare court wrote that: “An administrative record is not complete if an agency does not provide a privilege log describing all materials that the agency directly or indirectly considered but withheld on the basis of privilege.” It wrote that an agency cannot pretend that the protected material was not considered, stating:
- “If the Government has directly or indirectly considered materials but withheld these materials from the administrative record on the basis of privilege, then the Government must provide a privilege log describing said materials.”
- “However, if the Government has not withheld any materials that it directly or indirectly considered from the administrative record on the basis of privilege, then the Court will require the Government to provide a sworn statement explaining that no materials have been withheld from the administrative record on the basis of privilege.”
Id. at *10. The court ordered “that Defendants Department of Health and Human Services and Health Resources and Services Administration shall provide a privilege log detailing all materials, if any, that they directly or indirectly considered but withheld from the administrative record on the basis of privilege within fourteen (14) days following the issuance of this Order. However, if Department of Health and Human Services and Health Resources and Services Administration did not withhold any such materials from the administrative record on the basis of privilege, then they shall instead provide to Sana Healthcare Carrollton, LLC a sworn statement that they did not withhold any materials from the administrative record on the basis of privilege within fourteen (14) days following the issuance of this Order.”
