By Joyce Hanson
(October 1, 2021, 6:29 PM EDT) -- The Second Circuit in a precedential opinion has upheld bids by The New York Times and The Wall Street Journal to force the federal government to turn over a report detailing the sexual abuse committed by a former Indian Health Service pediatrician against Native American children.
The U.S. Department of Health and Human Services was wrong to claim the report on Stanley Patrick Weber was exempt from the Freedom of Information Act due to its supposed status as a "medical quality assurance record," a circuit panel found Thursday in a judgment that affirmed a Southern District of New York ruling.
U.S. Magistrate Judge Gabriel W. Gorenstein's Jan. 13 ruling said private consultant Integritas Creative Solutions LLC's report commissioned by HHS was not protected from two FOIA suits leveled by the newspapers and a reporter under a "quality of medical care" exemption. Rather, the judge said, the report was "entirely and exclusively about criminal conduct unrelated to medical care" and could not be seen as a confidential assessment of the quality of care provided to IHS patients.
The appellate court said it reviewed the Integritas report and confirms that the lower court accurately characterized the report as recounting Weber's and other IHS employees' sexual misconduct, while also analyzing managerial and administrative failures that enabled the misconduct, and recommending policy and management changes.
But the Integritas report evaluating IHS' management and administration is not a "medical quality assurance record" under the Indian Health Care Improvement Act, the Second Circuit said.
"First, the report does not evaluate the medical care provided by Weber, which IHS knew to be grossly inadequate when it solicited the report," the appellate court found. "Second, the report does not make a judgment about the degree of excellence of the medical care provided at IHS hospitals."
A New York Times spokesperson told Law360 on Friday that the decision is an important victory for transparency.
"The public should know what went wrong at Indian Health Service and why this doctor was not stopped from harming children," the spokesperson wrote in an email. "The release of the report will begin to answer those questions."
HHS didn't respond immediately to a request for comment.
On Feb. 24, however, the agency argued as it sought to reverse the January ruling that it shouldn't have to release to the Times and WSJ the report detailing more than two decades of sexual abuse committed by Weber.
In its brief before the Second Circuit, HHS said that an exception to the Freedom of Information Act blocks the release of certain "medical quality assurance" reports to encourage "candid reviews" of care provided by the IHS. And Judge Gorenstein erred in finding that the Weber report is exclusively about criminal conduct and, therefore, doesn't qualify for the medical exception, the agency claimed.
"Sexual abuse by medical providers is and must be recognized as a gross violation of patient safety and a serious failure in the provision of medical care, and it is properly investigated as part of a medical quality assurance review," HHS said.
The New York Times filed the FOIA suit against HHS in April 2020 as it sought access to the Integritas report. The Indian Health Service awarded the contract to Integritas in May 2019, and the consultant completed the work in January 2020.
The report details sexual abuse committed by Weber on two reservations from the early 1990s to 2011, pinpoints systemic issues within the government and identifies officials responsible for missing warning signs, according to court filings.
The New York Times suit was consolidated in June with a similar complaint from Wall Street Journal reporter Christopher Weaver and the newspaper's publisher, Dow Jones & Co.
Seth Berlin of Ballard Spahr LLP, a lawyer for Dow Jones and Weaver, told Law360 in an email Friday that the IHS for more than a year has tried to hide the report detailing its administrators' misconduct from the millions of tribal members who rely on the agency for health care and from the public at large.
"All of the federal judges who have reviewed this secret report agree that IHS was wrong to conceal it," Berlin wrote. "Our clients look forward to reviewing the report so that IHS and its administrators are held accountable for allowing this sexual predator to prey on the communities it was supposed to serve."
The IHS first hired Weber in 1986 for a position at an IHS hospital in Montana, and he later moved on to another IHS hospital in South Dakota. Weber left the agency in 2016 and was convicted in September 2018 of sexually abusing two boys on the Blackfeet Indian Reservation in Montana. He then faced charges in South Dakota of sexually assaulting four boys on the Oglala Sioux Tribe's Pine Ridge Indian Reservation. He was convicted there following a September 2019 trial and has since been sentenced to five terms of life imprisonment.
Circuit Judges José A. Cabranes, Rosemary S. Pooler and Joseph F. Bianco sat on the appellate panel.
The New York Times is represented by David E. McCraw and Alexandra Settelmayer of the New York Times Co.
Dow Jones and Christopher Weaver are represented by Seth D. Berlin and Matthew E. Kelley of Ballard Spahr LLP.
HHS is represented by Benjamin H. Torrance and Jennifer C. Simon of the U.S. Attorney's Office for the Southern District of New York.
The case is The New York Times Co. et al. v. the U.S. Department of Health and Human Services, case number 21-211, in the U.S. Court of Appeals for the Second Circuit.
--Additional reporting by Grace Dixon and Emma Whitford. Editing by Jay Jackson Jr.