                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 NANCY J. SWICK,

         Plaintiff,
                v.                                            Civil Action No. 18-1658 (JDB)
 UNITED STATES DEPARTMENT OF THE
 ARMY,

         Defendant.


                                MEMORANDUM OPINION

       Plaintiff Nancy Swick brought this action pro se under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, against defendant U.S. Department of the Army seeking records related

to her employment at Fort Belvoir Community Hospital (“FBCH”). Now before the Court are the

Army’s motion for summary judgment and Swick’s cross-motion for summary judgment. At issue

is whether the Army’s search for Swick’s records was adequate. For the reasons explained below,

the current record is neither sufficiently clear nor sufficiently detailed to warrant summary

judgment for either side. As a result, both motions will be denied without prejudice. The Court

will require the Army to provide further information as to the thoroughness and substance of its

search before submitting any further dispositive motions.

                                          Background

       From 2011 to 2013, Nancy Swick served as an OB/GYN nurse practitioner at FBCH in

Fort Belvoir, Virginia. See Ex. to Compl. [ECF No. 1-1] at 3, 24. Swick submitted a FOIA request

to the Directorate of Human Resources, Administrative Services Division at FBCH in March 2017

seeking a copy of the report from a psychiatric evaluation she was apparently ordered to undergo



                                               1
as part of her previous employment. Id. On March 20, 2017, the Administrative Services Division

referred Swick’s request to FBCH. Id. at 5.

       Swick submitted a second FOIA request directly to FBCH on June 1, 2017, in which she

requested “any and all documents with [her] name, social security number, [and] date of birth”

that were stored either in her personnel file or “that are being maintained/filed separately due to

privacy laws and regulations.” Id. at 14–15, 20–21; see also Am. Compl. [ECF No. 12] ¶ 5

(“[P]laintiff asked for all documents in her employee personnel file on June 1, 2017, by written

FOIA request.”). In her request, she also mentioned her prior FOIA request for her psychological

examination report and noted that she had “received no [written] response or acknowledgement,”

but when she called, she had been told “that [her] request was known of, yet no action had been

taken to satisfy the request.” Ex. to Compl. at 14. FBCH eventually denied Swick’s FOIA requests

on July 25, 2017, citing FOIA Exemption (b)(6), which protects “personnel and medical files and

similar files the disclosure of which would constitute a clearly unwarranted invasion of personal

privacy,” 5 U.S.C. § 552(b)(6). See Ex. to Compl. at 22.

       Swick subsequently sent a letter to FBCH challenging the invocation of Exemption (b)(6)

“to withhold from a requestor information pertaining only to himself/herself.” Id. at 29–30. On

September 11, 2017, FBCH responded, informing Swick that “[t]he denial of [her] request citing

to the authority of § 552(b)(6) was incorrect.” Id. at 27, 33. FBCH nevertheless highlighted that

there was a “more convenient process” for Swick to acquire her psychological evaluation: the

Health Insurance Portability and Accountability Act (“HIPAA”).            Id.   FBCH noted that

“[r]equesting a copy of [her] protected health information through the FOIA process is unnecessary

and will cause delays as both the records custodian and FOIA office must both review the requested

protected health information.” Id.



                                                2
       On September 22, 2017, Swick submitted an administrative appeal of FBCH’s decision to

the Office of General Counsel, Defense Health Agency. See id. at 39, 57. She did not receive a

response to this appeal, and on July 5, 2018, filed this lawsuit. See Am. Compl. ¶ 13. Then, on

October 2, 2018, FBCH sent yet another letter to Swick, again informing her that the proper avenue

to request her psychological evaluation records was via a HIPAA request. See Oct. 2, 2018 Letter

from FBCH (“Oct. 2 Letter”) [ECF No. 20-2] at 1. The letter explained that “[p]rotected health

information, and any disclosures, is governed by HIPAA” and requires a “written record request,

signed by [Swick] (the patient),” which is “necessary for maintaining a record of each disclosure,

as required by law.” Id. The letter also stated that “FBCH does not possess [Swick’s] personnel

records/documents” and that she should instead request these records from the Office of Personnel

Management (“OPM”). Id. at 2. According to FBCH, four separate searches were conducted for

the requested records—one of records held by the Department of the Army Civilian Human

Resources Agency (“CHRA”), see Decl. of Aubrey Jones (“Jones Decl.”) [ECF No. 20-3] ¶¶ 5–6,

and three of FBCH’s own records on May 9, June 10, and August 20, 2019, see Decl. of Debbie

Davis (“Davis Decl.”) [ECF No. 20-6] ¶¶ 7–8.

       As far as the Court can tell, no records have been released to Swick to date. Both parties

have now filed motions for summary judgment, see Def.’s Mot. for Summ. J. (“Def.’s Mot.”) [ECF

No. 20]; Pl.’s Cross-Mot. for Summ. J. (“Pl.’s Cross-Mot.”) [ECF No. 22], and the matter is ripe

for consideration.

                                        Legal Standard

       FOIA “sets forth a policy of broad disclosure of Government documents in order ‘to ensure

an informed citizenry, vital to the functioning of a democratic society.’” FBI v. Abramson, 456

U.S. 615, 621 (1982) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)).



                                                3
The Act requires the release of properly requested federal agency records, unless the requested

materials fall within one of the nine statutory exemptions. See Milner v. Dep’t of the Navy, 562

U.S. 562, 565 (2011).

       “FOIA cases typically and appropriately are decided on motions for summary judgment.”

Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). Summary judgment

is appropriate when the pleadings and evidence demonstrate that “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

       “It is the agency’s burden to prove that it has complied with its obligations under FOIA.”

Democracy Forward Found. v. Ctrs. for Medicare & Medicaid Servs., Civil No. 18-635 (JDB),

2019 WL 6344935, at *1 (D.D.C. Nov. 27, 2019). To determine whether an agency has met this

burden, courts may rely on agency affidavits or declarations that demonstrate the adequacy of the

search for responsive records and the applicability of any claimed exemptions. See Morley v. CIA,

508 F.3d 1108, 1116 (D.C. Cir. 2007). An agency’s affidavits and declarations must be “relatively

detailed and non-conclusory,” but are given “a presumption of good faith.” SafeCard Servs. v.

SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quotation omitted).

       A responding agency “must show beyond material doubt [] that it has conducted a search

reasonably calculated to uncover all relevant documents.” Morley, 508 F.3d at 1114 (quoting

Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). “The question is not ‘whether there

might exist any other documents possibly responsive to the request, but rather whether the search

for those documents was adequate.’” Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting

Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). “The court applies a reasonableness

test to determine the adequacy of a search methodology, consistent with congressional intent tilting

the scale in favor of disclosure.” Morley, 508 F.3d at 1114 (internal quotations and citations



                                                 4
omitted). This “reasonableness” inquiry is necessarily “dependent upon the circumstances of the

case.” Davis v. DOJ, 460 F.3d 92, 103 (D.C. Cir. 2006) (quotation omitted).

                                              Analysis

           Swick raises several potential issues with the Army’s response to her FOIA requests, but

these arguments can be boiled down to two main challenges. First, she rejects the Army’s assertion

that the proper way to obtain her psychological evaluation report is to file a request and

accompanying waiver under HIPAA; second, she questions the adequacy of the Army’s search for

both her psychological evaluation and her personnel files. See Pl.’s Cross-Mot. at 25–30; Pl.’s

Casebrief in Supp. of Pl.’s Opp’n to Def.’s Cross-Mot. for Summ. J. & Reply in Supp. of Pl.’s

Mot. for Summ. J. (“Pl.’s Opp’n”) [ECF No. 27] at 4–6. The Court will examine each argument

in turn.

           1. Whether HIPAA Precludes Swick’s FOIA Request

           Turning first to the question of whether HIPAA bars the Army from disclosing Swick’s

psychological evaluation, the Court concludes that it does not. To begin, the Army itself never

explicitly states and explains why FOIA cannot provide an adequate basis for requesting the

records. Rather, the Army suggests that there may be a tension between the two statutes that bars

following the normal FOIA process. See, e.g., Oct. 2 Letter at 1 (“Protected health information,

and any disclosures, is governed by HIPAA. Your request for a copy . . . must be submitted in

writing and include personally identifying information . . . .”); Davis Decl. ¶ 6 (“[T]he letter

informed Ms. Swick that she would have to make a request under HIPAA . . . for her medical

records . . . .” (emphasis added)).

           But while HIPAA may provide a streamlined approach, Swick was not wrong to rely on

FOIA to acquire her medical records. A person requesting someone else’s medical records needs



                                                  5
to complete certain HIPAA forms, but the same rules do not apply for individuals requesting their

own records. See 45 C.F.R. § 5.22(h) (“If you are requesting the medical records of an individual

other than yourself from a government program that pays or provides for health care . . . , you

should submit a [HIPAA] compliant release authorization form signed by the subject of records or

the individual’s legally authorized representative.” (emphasis added)). Moreover, in her FOIA

requests, Swick provided all of the relevant information listed by FBCH in its October 2 letter,

including her signature, see Exhibits to Compl. at 3–4, thereby enabling FBCH to comply with its

stated recordkeeping responsibilities, cf. Oct. 2 Letter at 1.

       Thus, regardless of any efficiency that may be associated with requesting the psychological

evaluation under HIPAA rather than FOIA, the Army has not explained why it cannot provide

Swick’s records based upon the FOIA requests submitted. Moreover, the Court is aware of no

prohibition on such a disclosure to Swick of her own medical records through FOIA.

       2. Adequacy of Search for the Psychological Evaluation Report

       Notwithstanding its suggestion that HIPAA should govern the release of Swick’s

psychological evaluation, the Army also argues that it has conducted an adequate search for

Swick’s psychological evaluation report. See Def.’s Mot. at 9–10. To support this claim, the

Army submitted an affidavit from its FOIA officer, Debbie Davis. See Davis. Decl. ¶ 1. Davis

states that “a search was conducted of Ms. Swick’s medical records, FBCH Occupational Health

records, and queries to the FBCH Occupational Health Clinic on May 9, 2019, and again on June

10, 2019,” and that a search was also undertaken “of Ms. Swick’s medical records and

queries . . . to the FBCH Behavioral Health Department (Outpatient Clinic) Clinic Leadership” on

August 20, 2019. Davis. Decl. ¶¶ 7–8. Although none of these searches produced any responsive

records, the Army argues that the “adequacy of [its] search is not determined by the results of the



                                                  6
search or by the quantity of information ultimately released,” but “by the appropriateness of the

methods used to carry out the search.” Def.’s Mot. at 5 (quoting Iturralde v. Comptroller of the

Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)). According to the Army, the use of the methods

described by Davis was an “appropriate” response to Swick’s requests, and the agency is therefore

entitled to summary judgment.

         Swick, in turn, raises a number of challenges in response, ranging from questioning the

categorization of her psychological evaluation as a “medical record” given that she was never a

patient at NBCH, see Pl.’s Cross-Mot. at 26; Pl.’s Opp’n at 5–6, to a general challenge to the

adequacy of FBCH’s searches, see Pl.’s Cross-Mot. at 26–27; Pl.’s Opp’n at 5–9.

         Without addressing each of these arguments, the Court concludes that Swick has raised

valid concerns about the adequacy of FBCH’s search for her psychological evaluation.1 Based on

the declarations in the record, it is unclear whether FBCH possesses her psychological evaluation

and is withholding it because of HIPAA’s privacy restrictions, or instead simply does not possess

her psychological evaluation and could not produce it even if she did submit a request and waiver

under HIPAA. See Pl.’s Cross-Mot. at 27, 34. Moreover, there is serious inconsistency in the

Army’s arguments as to whether FBCH or another Army agency has actually searched Swick’s

medical records, and whether the psychological evaluation would even be categorized as a medical

record in FBCH’s system, given that Swick was an employee of FBCH rather than a patient there.

         While inconsistencies stemming from “typographical errors and minor ambiguities” are

tolerable in FOIA responses, SafeCard Servs., 926 F.2d at 1202, inconsistencies concerning



          1
            Swick’s argument that the Army is limited to its initial proffered reason that her psychological evaluation
was withheld under FOIA Exemption (b)(6), see Pl.’s Cross-Mot. at 6, 9 n.4, is unavailing. Agencies are permitted
to correct and amplify their reasoning during the often iterative process of responding to a FOIA request, and the
Army’s additional follow-up letter represents just such an extension of the administrative process. See Mead Data
Ctr., Inc. v. Dep’t of Air Force, 566 F.2d 242, 259 (D.C. Cir. 1977) (taking into account additional reasons, not
included in an initial decision to deny disclosure).

                                                          7
material questions, like whether a search has even taken place, provide grounds for denying

summary judgment, see DBW Partners, LLC v. USPS, Civil Action No. 18-3127 (RC), 2019 WL

5549623 at *10 (D.D.C. October 28, 2019) (denying summary judgment where “inconsistencies”

in the content of redactions were “noticeable” and suggested “a less-than-precise review”); Nat’l

Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 147–48 (D.D.C. 2013) (concluding that, where there

were inconsistencies in the content of the redacted material, the “positions cannot simultaneously

be accurate” and therefore there was “failure to abide by the terms of the FOIA” (quoting Payne

Enters. Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988)).

       The inconsistencies in the present case are material. The Court cannot determine the

adequacy of the search when it is unclear which records have been searched and whether certain

sets of records (like Swick’s health records) have been searched at all. Specifically, the Army

states both that FBCH searched Swick’s medical records and that it refrained from doing so due

to HIPAA. Compare Davis Decl. ¶¶ 7–8, 11 (describing three searches “of Ms. Swick’s medical

records . . . result[ing] in no responsive documents being discovered” and leading FBCH to

conclude “that they do not possess any records responsive to Ms. Swick’s request”), with id. ¶ 10

(“If Ms. Swick submitted a completed [HIPAA form] . . . to request a copy of her psychiatric

examination report, she would have received the requested records.”); Def.’s Mot. at 10 (noting

that “FBCH properly did not search Ms. Swick’s medical records for the psychiatric examination

report”). This discrepancy raises a material question as to the adequacy of the search for Swick’s

psychological evaluation, as well as FBCH’s reason for not producing the requested document.

Cf. Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 185 F. Supp. 3d 26, 27 (D.D.C. 2016)

(stating that the “inconsistencies have created a real question in the court’s mind . . . sufficient to




                                                  8
warrant limited discovery”). Based on Davis’s declaration, as well as the Army’s briefing, it is

unclear whether the Army is in possession of her psychological evaluation record.

       The Army has also failed to respond adequately to Swick’s suggestion that her

psychological evaluation may not have been labeled a “medical record” in the first place because

she was not a patient of FBCH, but rather an employee, see Pl.’s Cross-Mot. at 26–27. The Army

argues that, if Swick was never a patient at FBCH, “it is unclear how the agency’s search could be

inadequate if her records never existed at FBCH.” See Def.’s Mem. in Supp. of Def.’s Opp’n to

Pl.’s Cross-Mot. for Summ. J. & Reply in Supp. of Def.’s Mot. for Summ. J. (“Def.’s Opp’n”)

[ECF No. 23] at 8. But Swick’s point is not that she never received a psychological evaluation or

that a record of that evaluation does not exist. Rather, she is arguing that, because the evaluation

was conducted as part of her employment, it may be categorized not as a “medical record” but as

part of a personnel file, or the like. See Pl.’s Cross-Mot. at 26–27. Notwithstanding Davis’s

statement that she searched “the only locations the records Ms. Swick requested would be if they

were in the possession of FBCH,” Davis Decl. ¶ 11, the question how FBCH would have

categorized Swick’s psychological evaluation merits further clarification.

       In sum, the Court will require the Army to clarify (1) whether FBCH has found Swick’s

psychological evaluation and is withholding it due to a FOIA exemption and/or HIPAA; (2) if

FBCH has not yet found Swick’s psychological evaluation, whether it has searched Swick’s

medical records; and (3) whether FBCH may have labeled or stored Swick’s psychological

evaluation as something other than a medical record (for instance, as a personnel record) and, if

so, whether FBCH has searched those other types of files as well.

       3. Adequacy of the Search for the Personnel File




                                                 9
       The Army next contends that its search for Swick’s personnel file was adequate under the

standard required by FOIA law, arguing that the Davis declaration was “submitted in good faith.”

See Def.’s Mot. at 11 (citing Weisberg, 705 F.2d at 1351). According to the Davis declaration,

the Army concluded that FBCH did not possess Swick’s personnel records after “a search was

conducted of Swick’s medical records, FBCH Occupational Health records, and queries to the

FBCH Occupational Health Clinic on May 9, 2019, and again on June 10, 2019,” as well as a

search of “the FBCH Behavioral Health Department (Outpatient Clinic) Clinic Leadership” on

August 20, 2019. See Davis. Decl. ¶¶ 7–8. FBCH also forwarded Swick’s request to the Army’s

Civilian Human Resources Agency (“CHRA”) to determine if the records were there. See Def.’s

Mot. for at 11–12. Aubrey Jones, CHRA’s FOIA officer, conducted a physical and electronic

search that uncovered none of Swick’s records, and concluded that Swick’s Official Personnel File

was located at the National Personnel Records Center (“NPRC”). See id. at 12–13.

       The Army notes that such a transfer to the NPRC is a standard operating practice for federal

agencies, and it cites the Office of Personnel Management (“OPM”) Operating Manual, which

explains that former employees should direct their FOIA requests for personnel files to NPRC.

See id. at 13; see also Reference Ex. to Def.’s Mot. (“OPM Manual”) [ECF No. 20-7] at 81. Based

on these searches, as well as the OPM guidelines, the Army argues that FBCH no longer has access

to Swick’s personnel file and is therefore not responsible under FOIA for producing those records.

See Def.’s Opp’n at 4; see also Def.’s Mot. at 13 (stating that “[n]ormally, the agency sends

[personnel records to the NPRC] within 120 days after the employee separates” and that the

originating agency “must disable its access to the electronic version of the personnel folder”).

       For the most part, the Court agrees that the Army’s search has been adequate. The Army

has submitted two separate affidavits detailing which records were searched, by whom, and



                                                10
through what process. See Davis Decl. ¶ 7 (stating that “a search was conducted of Ms. Swick’s

medical records, FBCH Occupational Health records, and queries to the FBCH Occupational

Health Clinic . . . by the Clinic Nurse in Charge for records responsive to Ms. Swick’s request”);

Jones Decl. ¶¶ 4–6 (stating that he identified and “personally conducted a physical and electronic

search” of those areas that might contain Swick’s personnel records—specifically, “(1) physical

file cabinets; (2) physical records holding areas; and (3) CHRA’s computer network”). These

statements are sufficiently detailed to satisfy the Army’s burden to demonstrate an adequate

search. Indeed, Swick herself does not appear to contest the sufficiency of the physical search, but

she questions the methodology and thoroughness of the electronic search. See Pl.’s Cross-Mot. at

28–30.

         Here, the Court agrees with Swick. “In compliance with the reasonableness standard, [an

agency’s] affidavits ‘must . . . set forth the search terms and the type of search performed, and aver

that all files likely to contain responsive materials (if such records exist) were searched.’” See

Bigwood v. Dep’t of Def., 132 F. Supp. 3d 124, 135 (D.D.C. 2015) (some alterations omitted)

(quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)). Neither

declaration clearly explains the search terms that were used to search the electronic records of

FBCH or CHRA. Davis’s declaration fails to make clear which areas that were searched were

physical and which were electronic databases, and her conclusory statement that “FBCH personnel

no longer have access to Ms. Swick’s electronic Official Personnel Folder” fails to explain how

she came to that conclusion, including which databases or search terms she used in her search. See

Davis Decl. ¶ 9. As for CHRA, Jones’s declaration also fails to set forth his search terms. He

does describe “searching the files and records alphabetically for the name ‘Swick,’” Jones Decl.

¶ 6, but that reference comes in the context of a paragraph describing his physical search for



                                                 11
Swick’s files. He also mentions that “Ms. Swick was found in the Civilian Personnel On-Line

(CPOL) [database],” which was how Jones concluded that Swick had been separated from her job

and that her personnel files had been transferred to the NPRC. Id. But, once again, Jones does not

explain if this CPOL database is the only relevant part of “CHRA’s computer network” for

purposes of finding Swick’s records. Id. ¶¶ 5–6. The Court will thus require the Army to clarify

through sworn affidavit or declaration, or through relevant documentation, the exact nature of the

electronic search by FBCH and CHRA for Swick’s personnel files, including a specific description

of which databases were searched and which search terms were used.2 Cf. Reporters Comm. for

Freedom of Press v. FBI, 877 F.3d 399, 402 (D.C. Cir. 2017) (“To prevail on summary judgment,

an ‘agency must show that it made a good faith effort . . . ,’ which it can do by submitting ‘[a]

reasonably detailed affidavit, setting forth the search terms and the type of search performed . . . .’”

(quoting Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)).

        Moreover, even assuming that the physical and electronic searches by FBCH and CHRA

were adequate and demonstrate that the records are solely accessible through NPRC, that

conclusion still does not end the inquiry. Judges in this District generally do not require agencies

to produce records under FOIA when they are not the custodian of those records. See Thornton-

Bey v. Exec. Office for U.S. Att’ys, 844 F. Supp. 2d 159, 161 (D.D.C. 2012) (stating that “as [the

attorney] was no longer employed by the Department of Justice, plaintiff would have to seek his

records through the [NPRC] . . . .”); cf. Bloomgarden v. DOJ, 10 F. Supp. 3d 146, 153 (D.D.C.

2014) (stating that defendant had “no legal obligation” to obtain records located at the NPRC).

But there is a caveat to this general rule: a responding agency must establish definitively that the



        2
          The Army’s response to Swick’s request for her psychological evaluation raised concerns beyond the search
terms used. The Court will also require the Army to provide a specific description of which exact databases were
searched and which search terms were used in looking for her psychological evaluation as well.

                                                        12
responsive records are located at the NPRC. See Parker v. Exec. Office for U.S. Att’ys, 852 F.

Supp. 2d 1, 9 (D.D.C. 2012) (“[T]he Court cannot conclude that responding to the FOIA request

in this case fell within [the National Archives and Records Administration’s] purview instead of

the DOJ’s because no one has been able to inform plaintiff or the Court where the records are

actually located.”). And the agency must demonstrate that it has transferred not only physical

control, but also legal custody of the records. See Fleming v. Medicare Freedom of Info. Grp.,

Civil Action No. 1:15-cv-01135 (EGS/GMH), 2019 WL 6330719 at *1 (D.D.C. Oct. 24, 2019)

(denying summary judgment because “EOUSA still had legal custody of [the responsive records]

although they had been physically transferred to the [NPRC]”); see also Conway v. U.S. Agency

for Int’l Dev., 99 F. Supp. 3d 171, 179–80 (D.D.C. 2015) (“The determinative question,

therefore, . . . is whether those documents have been legally transferred to the National Archives’

permanent custody or whether the records remain in the legal custody of USAID.”).

        The Army has not sufficiently established that it has ceased to have legal custody over

Swick’s personnel files. As noted above, the present record is sufficiently clear to establish the

physical location of Swick’s personnel records at NPRC. See Jones Decl. at ¶ 6. But the record

is less clear when it comes to whether FBCH transferred legal control over the records—in other

words, whether it still has legal custody over the records and can request them from NPRC.

Cf. 36 CFR § 1235.22 (“Legal custody of records passes from the agency to [National Archives

and Records Administration] when the appropriate [National Archives] official signs [a form]

acknowledging receipt of records.”).3 Defendant’s briefing suggests that legal custody may have

already been transferred to the NPRC along with physical custody, but the Jones declaration does



        3
             See    National    Personnel    Records    Center,    National    Archives    (Jan.  8,   2020),
https://www.archives.gov/personnel-records-center (“The National Personnel Records Center (NPRC) is one of the
National Archives and Records Administration’s (NARA) largest operations.”).

                                                     13
not establish this transfer with sufficient clarity. This distinction is material to the outcome of the

case, and here prevents the Court from granting summary judgment for the Army.

       The Army asserts that “[w]hen an employee departs the agency, the agency ships the

physical personnel records to the [NPRC] and disables its access to the former employee’s

electronic Official Personnel Folder.” See Def.’s Mot. at 13; see also Davis Dec. ¶ 6 (stating that

“when an employee leaves the respective agency, the Human Resource Specialists must disable

[their] access to the electronic version of the personnel folder to ensure compliance with the

Privacy Act”); OPM Manual at 7-8 (“Normally, the agency sends the Folder within 120 days after

the employee separates.”). While these statements may be true and the policies well established,

they do not address whether the Army in this case has actually transferred legal custody and

disabled all access to Swick’s personnel folder. See 36 CFR § 1235.22; see also Fleming, 2019

WL 6330719 at *1.

       Until legal custody has been transferred to the NPRC, “records remain in the legal custody

of the agencies that created them,” and “[r]equests for access . . . should be made directly to the

originating agency.” 36 CFR § 1250.8(c). The thoughtful practice of other judges in this District

counsels the Court to deny summary judgment at this stage and to require the Army to “address

the possibility that, although [it] did not have physical custody of the records, it might have legal

custody of them.” Fleming, 2019 WL 6330719 at *3. Therefore, the Court will require the Army

to clarify through sworn affidavit or declaration, or through relevant documentation, whether it

still has access to and legal custody over Swick’s personnel file, physical transfer notwithstanding.

If the Army does still have legal custody, it should request the responsive records from the NPRC

and provide them to Swick as requested.

                                             Conclusion



                                                  14
       For the foregoing reasons, the Court will deny without prejudice the Army’s motion for

summary judgment and will deny without prejudice Swick’s cross-motion for summary judgment.

Moreover, the Court will require the Army to provide additional, more specific information as to

(1) whether FBCH has found Swick’s psychological evaluation and is withholding it due to a FOIA

exemption and/or HIPAA; (2) if FBCH has not yet found Swick’s psychological evaluation,

whether it has searched Swick’s medical records; (3) whether FBCH may have labeled or stored

Swick’s psychological evaluation as something other than a medical record (for instance, as a

personnel record) and, if so, whether FBCH has searched those other types of files as well; (4) the

specific electronic databases searched and the search terms used to locate Swick’s psychological

evaluation and personnel file; and (5) whether FBCH or the Army retains legal custody of Swick’s

personnel file, notwithstanding its physical transfer to NPRC.

                                                                               /s/
                                                                        JOHN D. BATES
                                                                   United States District Judge
 Dated: July 2, 2020




                                                15
