Case 1:18-cv-00146 Document 1 Filed 01/23/18 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) Plaintiff, ) ) v. ) ) U.S. DEPARTMENT OF ) HEALTH AND HUMAN SERVICES, ) 200 Independence Avenue SW ) Washington, DC 20201 ) ) Defendant. ) ) AMERICAN OVERSIGHT, 1030 15th Street NW, B255 Washington, DC 20005 Case No. 18-cv-146 COMPLAINT 1. Plaintiff American Oversight brings this action against the U.S. Department of Health and Human Services under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, seeking declaratory and injunctive relief to compel compliance with the requirements of FOIA. JURISDICTION AND VENUE 2. This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. §§ 1331, 2201, and 2202. 3. Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391(e). 4. Because Defendant the U.S. Department of Health and Human Services has failed to comply with the applicable time-limit provisions of FOIA, American Oversight is deemed to have constructively exhausted its administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C)(i) 1 Case 1:18-cv-00146 Document 1 Filed 01/23/18 Page 2 of 6 and is now entitled to judicial action enjoining the agency from continuing to withhold agency records and ordering the production of agency records improperly withheld. PARTIES 5. Plaintiff American Oversight is a nonpartisan, non-profit section 501(c)(3) organization committed to the promotion of transparency in government, the education of the public about government activities, and ensuring the accountability of government officials. Through research and FOIA requests, American Oversight uses the information it gathers, and its analysis of it, to educate the public about the activities and operations of the federal government through reports, published analyses, press releases, and other media. The organization is incorporated under the laws of the District of Columbia. 6. Defendant the U.S. Department of Health and Human Services (HHS) is a department of the executive branch of the U.S. government headquartered in Washington, DC, and an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1). HHS has possession, custody, and control of the records that American Oversight seeks. STATEMENT OF FACTS 7. On June 28, 2017, American Oversight submitted a FOIA request to HHS seeking the following records: All agreements, certifications, oaths, commitments, or other pledges required to be signed by political appointees or career staff prior to or in connection with their employment at HHS. Such pledges would include nondisclosure agreements and promises to support explicit or traditional Republican policy positions, such as the 2016 Republican Party Platform, the repeal of the Affordable Care Act (“ACA” or “Obamacare”), religious liberty, defense of the Second Amendment, opposition to abortion, and/or support of other “prolife” positions. “Signing” of the forms would include handsigned documents or electronic commitments. The records sought by this request would include unsigned or blank versions of any such documents, in addition to any final, signed versions. This request 2 Case 1:18-cv-00146 Document 1 Filed 01/23/18 Page 3 of 6 excludes Standard Forms required by the Office of Personnel Management and the Ethics Pledge required by Executive Order 13770. The FOIA request specified that the search for responsive records should include (but not be limited to) at least the following individuals and locations: the Immediate Office of the Secretary, Tim Clark (White House Liaison), and the Deputy White House Liaison. The request further specified that American Oversight sought all responsive records from January 20, 2017, to the date the search was conducted. A copy of the FOIA request is attached hereto as Exhibit A and incorporated herein. 8. On July 13, 2017, HHS sent American Oversight a letter acknowledging receipt of the above FOIA request. The letter indicated that HHS had assigned the request tracking number 2017-00900-FOIA-OS. 9. HHS has not made a determination as to American Oversight’s FOIA request, notwithstanding the obligation of the agency under FOIA to respond within twenty working days. 10. Through HHS’s failure to make a determination as to American Oversight’s FOIA request within the time period required by law, American Oversight has constructively exhausted its administrative remedies as to that issue and seeks immediate judicial review. COUNT I Violation of FOIA, 5 U.S.C. § 552 Failure to Conduct Adequate Search for Responsive Records 11. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 12. American Oversight properly requested records within the possession, custody, and control of HHS. 3 Case 1:18-cv-00146 Document 1 Filed 01/23/18 Page 4 of 6 13. HHS is an agency subject to FOIA and must therefore make reasonable efforts to search for requested records. 14. HHS has failed to promptly review agency records for the purpose of locating those records that are responsive to American Oversight’s FOIA request. 15. HHS’s failure to conduct an adequate search for responsive records violates 16. Plaintiff American Oversight is therefore entitled to declaratory and injunctive FOIA. relief requiring HHS to promptly make reasonable efforts to search for records responsive to American Oversight’s FOIA request. COUNT II Violation of FOIA, 5 U.S.C. § 552 Wrongful Withholding of Non-Exempt Records 17. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 18. American Oversight properly requested records within the possession, custody, and control of HHS. 19. HHS is an agency subject to FOIA and must therefore release in response to a FOIA request any disclosable records and provide a lawful reason for withholding any materials. 20. HHS is wrongfully withholding agency records requested by American Oversight by failing to produce records responsive to its FOIA request. 21. HHS’s failure to provide all responsive records violates FOIA. 22. Plaintiff American Oversight is therefore entitled to declaratory and injunctive relief requiring HHS to promptly produce all non-exempt records responsive to its FOIA request 4 Case 1:18-cv-00146 Document 1 Filed 01/23/18 Page 5 of 6 and provide an index justifying the withholding of any responsive records withheld under claim of exemption. REQUESTED RELIEF WHEREFORE, American Oversight respectfully requests the Court to: (1) Order HHS to conduct a search reasonably calculated to uncover all records responsive to American Oversight’s FOIA request; (2) Order HHS to produce, by such date as the Court deems appropriate, any and all nonexempt records responsive to American Oversight’s FOIA request and an index justifying the withholding of any responsive records withheld under claim of exemption; (3) Enjoin HHS from continuing to withhold any and all non-exempt records responsive to American Oversight’s FOIA request; (4) Award American Oversight attorneys’ fees and other litigation costs reasonably incurred in this action, pursuant to 5 U.S.C. § 552(a)(4)(E); and (5) Grant American Oversight such other relief as the Court deems just and proper. Dated: January 23, 2018 Respectfully submitted, /s/ Sara Kaiser Creighton Sara Kaiser Creighton D.C. Bar No. 1002367 /s/ Austin R. Evers Austin R. Evers D.C. Bar No. 1006999 /s/ John E. Bies John E. Bies D.C. Bar No. 483730 5 Case 1:18-cv-00146 Document 1 Filed 01/23/18 Page 6 of 6 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 869-5245 sara.creighton@americanoversight.org austin.evers@americanoversight.org john.bies@americanoversight.org Counsel for Plaintiff 6