Case Detail

FOIA Project Annotation: A federal court in Oregon has adopted the recommendations of the magistrate judge concerning Jerry Menchu's FOIA/Privacy Act request to the Department of Health and Human Services pertaining to the investigation of the harassment complaint that resulted in his being prohibited from the premises of Legacy Health System, but has agreed to consider the agency's new basis for withholding interview notes under the Privacy Act. Menchu was banned from Legacy based on a complaint that he was stalking and harassing another employee. He filed a discrimination complaint with the Office of Civil Rights. OCR interviewed the Legacy employee who made the complaint against Menchu. Menchu ultimately made a FOIA/PA request for the records and the agency disclosed most of them, but withheld the interview notes, claiming they were exempt under subsection (k)(2), the Privacy Act's law enforcement exemption. The agency argued the notes were not accessible to Menchu under the Privacy Act because they were about the other Legacy employee. But the magistrate judge noted that "the Notes were in fact created during an investigation of Menchu and are about him, his conduct and what he is alleged to have done." The magistrate judge found that since Menchu was arguing that he had been denied a federally-protected right the agency was required to disclose the record unless it could show that the complaining Legacy employee had spoken based on assurances of confidentiality. However, the magistrate judge indicated that "a paragraph found on the front page of the [interview notes] advises that while responses to questions may be released under [FOIA], the Agency generally does not release names or personal information about witnesses. This is clearly not 'an express promise that the identity of the source would be held in confidence. Additionally, the court notes that the source's initials are found in the Agency's letter of decision and that Menchu appears already to know the identity of the Legacy employee. . ." Nevertheless, the district court judge stayed the magistrate judge's decision to allow the agency to argue that the notes could be withheld under subsection (d)(5), which protects access to any information compiled in reasonable anticipation of a civil action or proceeding. The judge noted that "courts have construed this exemption to shelter documents prepared in anticipation of quasi-judicial hearings when those hearings are adversarial, include discovery proceedings, and are subject to the rules of evidence."
Issues: FOIA mentioned only tangentially

FOIA Project Annotation: A federal court in Oregon has adopted a magistrate judge's recommendation finding that the Department of Health and Human Services properly withheld notes taken by an investigator for the Office of Civil Rights during the investigation of a complaint filed by Jerry Menchu, a medical interpreter for the Legacy Health System, after he was issued a no-trespass order for allegedly stalking a fellow employee. Menchu filed a civil rights complaint claiming he had been discriminated against on the basis of his ethnicity and sex. His complaint was dismissed, but Menchu requested a copy of the notes taken by the investigator. Although the court had already found the notes were exempt under FOIA, the agency claimed they were also exempt under (d)(5) of the Privacy Act, which exempts records compiled in anticipation of a civil action or proceeding. The magistrate judge noted that if Menchu's complaint had been upheld it would have been heard by the Department Appeals Board. The court observed that "since the purpose and function of the DAB hearing is the same as civil litigation, it qualifies as a 'civil action or proceeding' under the Privacy Act." The court added that "documents prepared during preliminary investigations that may, but need not necessarily, result in administrative hearings or litigation are still compiled for that purpose."
Issues: Exemption 3 - Statutory prohibition of disclosure

Date Filed	Doc #	Docket Text
2012-07-30	1	Application for Leave to Proceed IFP. Filed by Jerry Alexander Menchu. (tll) (Entered: 07/31/2012)
2012-07-30	2	Complaint. Jury Trial Requested: No. Filed by Jerry Alexander Menchu against US Department of Health and Human Services (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet). (tll) (Entered: 07/31/2012)
2012-07-31	3	Notice of Case Assignment: This case is assigned to Magistrate Judge John V. Acosta. (tll) (Entered: 07/31/2012)
2012-07-31	4	Clerk's Notice of Mailing regarding Case Assignment Notice 3 . mailed to plaintiff via the intake office (tll) (Entered: 07/31/2012)
2012-07-31	5	Clerk's Notice of Mailing to Jerry Alexander Menchu regarding Case Assignment Notice 3 . (ljc) (Entered: 07/31/2012)
2012-08-01	6	ORDER - GRANTING Plaintiff's Application/Motion for Leave to Proceed in Forma Pauperis 1 . Signed on 8/1/12 by Magistrate Judge John V. Acosta. (peg) (Entered: 08/01/2012)
2012-08-01	7	Clerk's Notice of Mailing to Jerry Alexander Menchu regarding Order on motion/application for leave to proceed ifp 6 . (peg) (Entered: 08/01/2012)
2012-08-07	8	Summons Issued as to US Department of Health and Human Services. (Summons, USM 285 form(s), and copies of the Complaint and Order to Proceed in forma pauperis forwarded to the U.S. Marshals Service for service.) (dmd) (Entered: 08/07/2012)
2012-08-16	9	Return of Service Executed as to US Department of Health and Human Services served on 8/13/2012, by certified mail. Filed by Jerry Alexander Menchu. (dmd) (Entered: 08/22/2012)
2012-10-02	10	Summons Issued as to US Department of Health and Human Services, (local U.S. Attorney). (Summons, USM 285 form(s), and copies of the Complaint and Order to Proceed in forma pauperis forwarded to the U.S. Marshals Service for service.) (dmd) (Entered: 10/02/2012)
2012-10-17	11	Return of Service Executed as to US Department of Justice, S. Amanda Marshall, U.S. Attorney on 10/17/2012. Filed by Jerry Alexander Menchu. (dmd) (Entered: 10/22/2012)
2012-11-15	12	Answer to 2 Complaint . Filed by US Department of Health and Human Services. (Danielson, Kevin) (Entered: 11/15/2012)
2012-11-19	13	Notice of Case Assignment to Magistrate Judge John V. Acosta and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5 . Discovery is to be completed by 3/19/2013. Joint Alternate Dispute Resolution Report is due by 4/18/2013. Pretrial Order is due by 4/18/2013. Ordered by Magistrate Judge John V. Acosta. (cib) (Entered: 11/19/2012)
2012-11-19	14	Clerk's Notice of Mailing to Jerry Alexander Menchu regarding Discovery order, 13 . (cib) (Entered: 11/19/2012)
2012-11-19	15	SCHEDULING ORDER by Judge Acosta - SETTING an in-person Rule 16 Conference for Wednesday, December 12, 2012, at 10:00AM, in Courtroom 11B, at the Mark Hatfield U.S. Courthouse, 1000 SW Third Ave, Portland, Oregon 97204, before U.S. Magistrate Judge John V. Acosta. (plaintiff ntfd by mail this date) (peg) (Entered: 11/19/2012)
2012-12-12	16	MINUTES of Proceedings: Rule 16 Conference held by Judge Acosta. ORDER: SETTING a Telephone Status Conference for Monday, January 14, 2013, at 9:30AM to discuss status of plaintiff's remaining FOIA requests; Court staff will initiate the call. Jerry Menchu present as pro se plaintiff. Kevin Danielson present as counsel for defendant. Court Reporter: Cheryl Guthrie. Magistrate Judge John V. Acosta presiding. (plaintiff notified by mail this date) (peg) (Entered: 12/12/2012)
2013-01-14	17	MINUTES of Proceedings: Telephone Status Conference held by Judge Acosta regarding status of Plaintiff's FOIA requests. ORDER: (1) Defense counsel to submit remaining three pages in camera for the judge's review; (2) Dispositive motions, if any, are to be filed on or before 1/28/13; (3) Plaintiff's memorandum in opposition to any dispositive motion filed by defendant(s) will be due on or before 2/15/13; (4) Court to mail plaintiff summary judgment advice notice at time of filing of any dispositive motion. Jerry Menchu present as pro se plaintiff. Kevin Danielson present as counsel for defendant(s). Court Reporter: None. Magistrate Judge John V. Acosta presiding. (copy of this order mailed to plaintiff this date) (peg) Modified on 1/14/2013 (peg). Modified on 1/14/2013 (peg). (Entered: 01/14/2013)
2013-01-28	18	Unopposed Motion for Extension of Time . Filed by US Department of Health and Human Services. (Danielson, Kevin) (Entered: 01/28/2013)
2013-01-28	19	ORDER by Judge Acosta - GRANTING defendant's unopposed motion 18 as follows: Defendant has until 2/4/13, to file its dispositive motion. Plaintiff's response to that motion will be due on or before 2/22/13. (copy of this order mailed to plaintff this date) (peg) (Entered: 01/28/2013)
2013-02-04	20	Motion for Summary Judgment . Filed by US Department of Health and Human Services. (Danielson, Kevin) (Entered: 02/04/2013)
2013-02-04	21	Defendant's Memorandum in Support of Motion for Summary Judgment . Filed by US Department of Health and Human Services. (Related document(s): Motion for Summary Judgment 20 .) (Danielson, Kevin) (Entered: 02/04/2013)
2013-02-04	22	Declaration of Linda Yuu Connor . Filed by US Department of Health and Human Services. (Related document(s): Motion for Summary Judgment 20 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Danielson, Kevin) (Entered: 02/04/2013)
2013-02-04	23	Declaration of Robert Eckert . Filed by US Department of Health and Human Services. (Related document(s): Motion for Summary Judgment 20 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Danielson, Kevin) (Entered: 02/04/2013)
2013-02-22	24	Cross-Motion for Summary Judgment. Filed by Jerry Alexander Menchu. (cib) (Entered: 02/27/2013)
2013-02-22	25	Memorandum Of Law in Support Of Its Motion For Summary Judgment and In Opposition To Defendant's Motion For Summary Judgment. Filed by Jerry Alexander Menchu. (Related document(s): Motion for Summary Judgment 24 .) (Attachments: # 1 Exhibit A thru L) (cib) (Entered: 02/27/2013)
2013-02-22	26	Response To Defendant's Proposed Findings of Fact 20 . Filed by Jerry Alexander Menchu. (cib) (Entered: 02/27/2013)
2013-02-27	27	SCHEDULING ORDER by Judge Acosta - Defendant's reply in response to plaintiff's opposition to defendant's motion 20 for summary judgment is to filed on or before 3/18/13. Defendant's motion 20 for summary judgment and plaintiff's cross-motion 24 for summary judgment shall both be taken under advisement by the Court as of 4/8/13. (Copy of this order mailed to plaintiff this date.) (peg) (Entered: 02/27/2013)
2013-03-18	28	Response to Plaintiff's Cross-Motion for Summary Judgment to Motion for Summary Judgment 24 . Filed by US Department of Health and Human Services. (Danielson, Kevin) (Entered: 03/18/2013)
2013-03-18	29	Reply to Motion for Summary Judgment 20 . Filed by US Department of Health and Human Services. (Danielson, Kevin) (Entered: 03/18/2013)
2013-04-11	30	Summary Judgment Advice Notice and Scheduling Order Advice Notice and Scheduling Order regarding Motion for Summary Judgment 20 . Response is due by 5/16/2013. Ordered by Magistrate Judge John V. Acosta. (peg) (Entered: 04/11/2013)
2013-04-11	31	SCHEDULING ORDER by Judge Acosta - Due to clerical error the summary judgment advice notice 30 to plaintiff did not issue at the time of filing of defendant's for Summary Judgment 20 . Accordingly, plaintiff may file any supplemental briefing he deems appropriate up to and including 5/16/13. If plaintiff does file supplemental briefing, defendant may have the standard amount of time, 14 days from service of plaintiff's supplemental briefing, to file any appropriate supplemental briefing in reply. The parties motions for summary judgment 20 , 24 will now be taken under advisement by the court on 6/3/13. (peg) (Entered: 04/11/2013)
2013-04-11	32	Clerk's Notice of Mailing to Jerry Menchu Scheduling Order 31 and Summary Judgment and 12(b) Dismissal Advice Notice 30 . (peg) (Entered: 04/11/2013)
2013-05-17	33	Supplemental Briefing Pursuant to April 11 Order. Filed by Jerry Alexander Menchu. (Attachments: # 1 Exhibit M-R, # 2 Exhibit S-Z-2) (cib) (Entered: 05/20/2013)
2013-05-29	34	Notice re Brief 33 Defendant's Notice of No Response to Plaintiff's Supplemental Brief Filed by US Department of Health and Human Services (Related document(s): Brief 33 .) (Danielson, Kevin) (Entered: 05/29/2013)
2013-07-01	35	FINDINGS and RECOMMENDATION - The Agency's motion 20 for summary judgment should be DENIED. Menchu's cross-motion 24 for summary judgment should be GRANTED and a judgment should be issued ordering the Agency to provide an unredacted copy of the Notes to Menchu. The Findings and Recommendation will be referred to a district judge for review. Objections, if any, are due by 7/16/13. If no objections are filed, review of the Findings and Recommendation will go under advisement on that date. If objections are filed, a response to those objections is due within 14 days of being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement. DATED this 1st day of July, 2013, by United States Magistrate Judge John V. Acosta. (peg) (Entered: 07/01/2013)
2013-07-01	36	ORDER by Judge Acosta - REFERRING Findings & Recommendation 35 to the Honorable Anna J. Brown for review and final determination. (peg) (Entered: 07/01/2013)
2013-07-01	37	Clerk's Notice of Mailing to Jerry Alexander Menchu copies of Findings and Recommnedation 35 and Order of Referral 36 . (peg) (Entered: 07/01/2013)
2013-07-16	38	Objections to Findings & Recommendation: Motion for Summary Judgment 20 , Motion for Summary Judgment 24 35 . Filed by US Department of Health and Human Services. (Danielson, Kevin) (Entered: 07/16/2013)
2013-07-29	39	Response to Objections to Findings & Recommendation. Related document(s): 38 Objections to Findings & Recommendation. Filed by Jerry Alexander Menchu. (cib) (Entered: 07/30/2013)
2013-08-14	40	ORDER: The Court ADOPTS Magistrate Judge Acosta's Findings and Recommendation 35 except as set out in this Order, and, accordingly, REFERS this matter back to Magistrate Judge Acosta for further limited proceedings. Signed on 08/14/2013 by Judge Anna J. Brown. See attached 4 page Order. (bb) (Entered: 08/14/2013)
2013-08-15	41	Clerk's Notice of Mailing to Jerry Menchu copy of Order (#40) on 8/15/2013. (bb) Modified on 8/15/2013 (bb). (Entered: 08/15/2013)
2013-08-29	42	SCHEDULING ORDER by Judge Acosta - According the ruling by Judge Brown (Order 40 filed 8/14/13 on this Court's Findings and Recommendation 35 ), the Court will allow further briefing as to whether the notes are protected under 5 U.S.C.552a(d)(5). Both parties may simultaneously file a brief regarding this issue. The briefing by both parties is due on or before 10/7/13. (peg) (Entered: 08/29/2013)
2013-08-29	43	Clerk's Notice of Mailing to Jerry Menchu copy of scheduling order 42 . (peg) (Entered: 08/29/2013)
2013-10-07	44	Unopposed Motion for Extension of Time . Filed by US Department of Health and Human Services. (Danielson, Kevin) (Entered: 10/07/2013)
2013-10-08	45	ORDER by Judge Acosta - GRANTING defendant's unopposed motion 44 for extension of time for supplemental brief to be due up to and including 7 days after the government shutdown ends. (peg) (Entered: 10/08/2013)
2013-10-08	46	Clerk's Notice of Mailing to Jerry Menchu copy of Order on motion for extension of time 45 . (peg) (Entered: 10/08/2013)
2013-10-22	47	SCHEDULING ORDER by Judge Acosta - The parties supplemental briefs regarding the cross-motions for summary judgment 20 , 24 are due on or before 10/28/13. The motions will be taken under advisement by the court on 10/28/13, as well. (peg) (Entered: 10/22/2013)
2013-10-22	48	Clerk's Notice of Mailing to Jerry Menchu Scheduling Order 47 . Plaintiff also notified by telephone. (peg) (Entered: 10/22/2013)
2013-10-28	49	Brief Defendant's Supplemental Brief . Filed by US Department of Health and Human Services. (Related document(s): Scheduling, 42 .) (Danielson, Kevin) (Entered: 10/28/2013)
2013-10-28	50	Second Declaration of Linda Yuu Connor . Filed by US Department of Health and Human Services. (Related document(s): Brief 49 .) (Danielson, Kevin) (Entered: 10/28/2013)
2013-10-28	51	Suplemental Briefing In Response To Defendants' Objections To Findings and Recommendation To Be Submitted On Or Before October 28,2013 So Ordered. Filed by Jerry Alexander Menchu. (cib) (Entered: 10/29/2013)
2014-02-11	52	FINDINGS and RECOMMENDATION - The Agency's motion 20 for summary judgment, as supplemented by its brief filed 10/28/13, and relying on § 552a(d)(5) of the Privacy Act, should be GRANTED. Menchu's cross-motion 24 for summary judgment, as supplemented by his brief filed 10/28/13, should be DENIED. The Findings and Recommendation will be referred to a district judge. Objections if any, are due by 2/26/14. If no objections are filed, then the Findings and Recommendation will go under advisement on that date. If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement. DATED this 11th day of February, 2014, by United States Magistrate Judge John V. Acosta. (peg) (Entered: 02/12/2014)
2014-02-11	53	ORDER by Judge Acosta - REFERRING Findings & Recommendation 52 to the Honorable Anna J. Brown for review. (peg) (Entered: 02/12/2014)
2014-02-24	54	OBJECTIONS TO FINDINGS and RECOMMENDATION 52 - filed as "Plaintiff Pro Se Memorandum of Law in Support of its Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment". Filed by Jerry Alexander Menchu. (peg) Modified on 2/25/2014 (peg). Modified on 2/25/2014 (peg). Modified on 2/25/2014 (peg). Modified on 2/26/2014 (peg). (Entered: 02/25/2014)
2014-02-24	55	OBJECTIONS to FINDINGS and RECOMMENDATION 52 - filed as "Plaintiff Pro Se Statement of Uncontroverted Facts and Conclusions of Law in Support of its Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment". Filed by Jerry Alexander Menchu. (peg) Modified on 2/25/2014 (peg). Modified on 2/26/2014 (peg). (Entered: 02/25/2014)
2014-02-26	56	Order for Administrative Correction of the Record pursuant to Fed. R. Civ. P. 60(a) regarding the filings by plaintiff of Objections to Findings & Recommendation 55 and Objections to Findings & Recommendation 54 . A Clerical error has been discovered in the case record. The Clerk is directed to make the following administrative corrections to the record: These two documents were captioned with the wrong case number and case caption and are therefore STRICKEN. They will be entered in the appropriate case which is 3:12-cv-2075-ST, Menchu v. Legacy Health Systems. (peg) (Entered: 02/26/2014)
2014-02-26	57	Clerk's Notice of Mailing to Jerry Menchu copy of Administrative Correction of the Record 56 . (peg) (Entered: 02/26/2014)
2014-02-28	58	SCHEDULING ORDER by Judge Acosta - There being no record of plaintiff having been mailed a copy of Findings & Recommendation 52 and Order of Referral 53 , the Court RESET the Objections to the Findings and Recommendation deadline to 3/17/14. (Copies of this order, as well as order of referral 53 and findings and recommendation 52 mailed to plaintiff this date.) (peg) (Entered: 02/28/2014)
2014-03-17	59	Objections to Findings & Recommendation: Motion for Summary Judgment 20 , Motion for Summary Judgment 24 52 . Filed by Jerry Alexander Menchu. (cib) (Entered: 03/18/2014)
2014-03-21	60	Response to Objections to Findings & Recommendation. Related document(s): 59 Objections to Findings & Recommendation. Filed by US Department of Health and Human Services. (Danielson, Kevin) (Entered: 03/21/2014)
2014-03-21	61	ORDER by Judge Anna J. Brown The Court ADOPTS Magistrate Judge Acostas Findings and Recommendation 52 and, therefore, GRANTS Defendants Motion 20 for Summary Judgment and DENIES Plaintiffs Cross-Motion 24 for Summary Judgment. Signed on 03/21/2014 by Judge Anna J. Brown. See attached 4 page Order for full text. (bb) (Entered: 03/24/2014)
2014-03-31	62	Judgment of Dismissal. Signed on 03/31/2014 by Judge Anna J. Brown. (bb) (Entered: 03/31/2014)
2014-03-31	63	Clerk's Notice of Mailing to Jerry Alexander Menchu copy of Judgment of Dismissal (#62) 3/31/2014. (bb) (Entered: 03/31/2014)
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