February 15, 2018
VIA ONLINE PORTAL

Laurie Day
Chief, Initial Request Staff
Office of Information Policy
U.S. Department of Justice
1425 New York Avenue NW, Suite 11050
Washington, DC 20530-0001
Via FOIAOnline
Re: Freedom of Information Act Request

Dear Ms. Day:
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the implementing
regulations of the Department of Justice (DOJ), 28 C.F.R. Part 16, American Oversight makes the
following request for records.
On October 26, 2017 President Trump directed the Department of Health and Human Services
(HHS) to declare the opioid crisis a public health emergency.1 That same day, Acting HHS
Secretary Eric D. Hargan declared a nationwide public health emergency as a result of the opioid
crisis under section 319 of the Public Health Service Act. Acting Secretary Hargan renewed the
emergency declaration for an additional 90 days on January 19th, 2018. 2
Despite the Trump administration’s public health emergency declaration, public reports suggest
that little action has been taken under the authority of the declaration to address the opioid crisis.3
Prominently, little action seems to have been taken to ease barriers to substance abuse treatment
by telemedicine, despite the President’s emphasis on the administration’s plans to create
Julie Hirschfield Davis, Trump Declares Opioid Crisis a ‘Health Emergency’ but Requests No
Funds, N.Y. TIMES, Oct. 26, 2017, https://www.nytimes.com/2017/10/26/us/politics/trump-opioid1

crisis.html.
2
U.S. DEP’T OF HEALTH AND HUMAN SERVICES, DETERMINATION THAT A PUBLIC HEALTH
EMERGENCY EXISTS, Oct. 26, 2017, https://www.phe.gov/emergency/news/healthactions/
phe/Pages/opioids.aspx; U.S. DEP’T OF HEALTH AND HUMAN SERVICES, RENEWAL OF
DETERMINATION THAT A PUBLIC HEALTH EMERGENCY EXISTS, Jan. 19, 2018,
https://www.phe.gov/emergency/news/healthactions/phe/Pages/opioid-24Jan2018.aspx.
3
Brianna Ehley, Trump Declared an Opioids Emergency. Then Nothing Changed., POLITICO,
Jan. 11, 2018, https://www.politico.com/story/2018/01/11/opioids-epidemic-trump-addictionemergency-order-335848.
1030 15th Street NW, Suite B255, Washington, DC 20005   AmericanOversight.org

 “expanded access to telemedicine services.”4 Expansion of telemedicine access to substance abuse
treatment requires DOJ’s cooperation and concurrence.5 This apparent inaction comes as the
Centers for Disease Control and Prevention has reported record increases in deaths involving
opioids.6
American Oversight seeks to determine whether the administration has taken appropriate action
under its public health emergency declaration to address the opioid crisis.
Requested Records

American Oversight requests that DOJ produce the following within twenty business days:
Records sufficient to identify all actions the Attorney General has taken to allow for
expanded access to remote prescribing of medicines for substance abuse treatment by
telemedicine under the authority granted by the Trump administration’s October 26, 2017
declaration of a public health emergency resulting from the opioid crisis.
Please provide all responsive records from October 26, 2017, to the date the search is
conducted.
In addition to the records requested above, American Oversight also requests records describing
the processing of this request, including records sufficient to identify search terms used and
locations and custodians searched and any tracking sheets used to track the processing of this
request. If DOJ uses FOIA questionnaires or certifications completed by individual custodians or
components to determine whether they possess responsive materials or to describe how they
conducted searches, we also request any such records prepared in connection with the processing
of this request.
American Oversight seeks all responsive records regardless of format, medium, or physical
characteristics. In conducting your search, please understand the terms “record,” “document,” and
“information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or
audio material of any kind. We seek records of any kind, including electronic records, audiotapes,
videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail
messages and transcripts, notes, or minutes of any meetings, telephone conversations or
THE WHITE HOUSE, PRESIDENT DONALD J. TRUMP IS TAKING ACTION ON DRUG ADDICTION
AND THE OPIOID CRISIS, Oct. 26, 2017, https://www.whitehouse.gov/briefingsstatements/president-donald-j-trump-taking-action-drug-addiction-opioid-crisis/.
5
21 U.S.C. § 54(D); U.S. DEP’T OF HEALTH AND HUMAN SERVICES, PUBLIC HEALTH
EMERGENCY DECLARATION, Aug. 18, 2017,
https://www.phe.gov/Preparedness/legal/Pages/phedeclaration.aspx; David Pittman, Trump’s Call
to Bolster Virtual Opioid Treatments Lacks Muscle, Critics Say, POLITICO, Oct. 26, 2017,
https://www.politico.com/story/2017/10/26/trump-opioid-telemedicine-measure-critics-244222.
6
CENTERS FOR DISEASE CONTROL AND PREVENTION, Drug Overdose Deaths in the United States
Continue to Increase in 2016, Aug. 30, 2017,
https://www.cdc.gov/drugoverdose/epidemic/index.html.
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 discussions. Our request includes any attachments to these records. No category of material should
be omitted from search, collection, and production.
Please search all records regarding agency business. You may not exclude searches of files or
emails in the personal custody of your officials, such as personal email accounts. Records of
official business conducted using unofficial systems or stored outside of official files is subject to
the Federal Records Act and FOIA.7 It is not adequate to rely on policies and procedures that
require officials to move such information to official systems within a certain period of time;
American Oversight has a right to records contained in those files even if material has not yet been
moved to official systems or if officials have, through negligence or willfulness, failed to meet their
obligations.8
In addition, please note that in conducting a “reasonable search” as required by law, you must
employ the most up-to-date technologies and tools available, in addition to searches by individual
custodians likely to have responsive information. Recent technology may have rendered DOJ’s
prior FOIA practices unreasonable. In light of the government-wide requirements to manage
information electronically by the end of 2016, it is no longer reasonable to rely exclusively on
custodian-driven searches.9 Furthermore, agencies that have adopted the National Archives and
Records Agency (NARA) Capstone program, or similar policies, now maintain emails in a form
that is reasonably likely to be more complete than individual custodians’ files. For example, a
custodian may have deleted a responsive email from his or her email program, but DOJ’s
archiving tools would capture that email under Capstone. Accordingly, American Oversight insists
that DOJ use the most up-to-date technologies to search for responsive information and take steps
to ensure that the most complete repositories of information are searched. American Oversight is
available to work with you to craft appropriate search terms. However, custodian searches are still
required; agencies may not have direct access to files stored in .PST files, outside of network
drives, in paper format, or in personal email accounts.

See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149—50 (D.C. Cir.
2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955—56 (D.C. Cir. 2016).
See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8 (D.D.C.
7

8

Dec. 12, 2016) (“The Government argues that because the agency had a policy requiring [the
official] to forward all of his emails from his [personal] account to his business email, the
[personal] account only contains duplicate agency records at best. Therefore, the Government
claims that any hypothetical deletion of the [personal account] emails would still leave a copy of
those records intact in [the official’s] work email. However, policies are rarely followed to
perfection by anyone. At this stage of the case, the Court cannot assume that each and every work
related email in the [personal] account was duplicated in [the official’s] work email account.”
(citations omitted)).
9
Presidential Memorandum—Managing Government Records, 76 Fed. Reg. 75,423 (Nov. 28,
2011), https://obamawhitehouse.archives.gov/the-press-office/2011/11/28/presidentialmemorandum-managing-government-records; Office of Mgmt. & Budget, Exec. Office of the
President, Memorandum for the Heads of Executive Departments & Independent Agencies,
“Managing Government Records Directive,” M-12-18 (Aug. 24, 2012),
https://www.archives.gov/files/records-mgmt/m-12-18.pdf.
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DOJ-18-0103

 Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure,
withholding information “only if . . . disclosure would harm an interest protected by an exemption”
or “disclosure is prohibited by law.”10 If it is your position that any portion of the requested records
is exempt from disclosure, American Oversight requests that you provide an index of those
documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415
U.S. 977 (1974). As you are aware, a Vaughn index must describe each document claimed as
exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is
actually exempt under FOIA.”11 Moreover, the Vaughn index “must describe each document or
portion thereof withheld, and for each withholding it must discuss the consequences of disclosing
the sought-after information.”12 Further, “the withholding agency must supply ‘a relatively detailed
justification, specifically identifying the reasons why a particular exemption is relevant and
correlating those claims with the particular part of a withheld document to which they apply.’”13
In the event some portions of the requested records are properly exempt from disclosure, please
disclose any reasonably segregable non-exempt portions of the requested records. If it is your
position that a document contains non-exempt segments, but that those non-exempt segments are
so dispersed throughout the document as to make segregation impossible, please state what
portion of the document is non-exempt, and how the material is dispersed throughout the
document.14 Claims of nonsegregability must be made with the same degree of detail as required
for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically
that it is not reasonable to segregate portions of the record for release.
You should institute a preservation hold on information responsive to this request. American
Oversight intends to pursue all legal avenues to enforce its right of access under FOIA, including
litigation if necessary. Accordingly, DOJ is on notice that litigation is reasonably foreseeable.

To ensure that this request is properly construed, that searches are conducted in an adequate but
efficient manner, and that extraneous costs are not incurred, American Oversight welcomes an
opportunity to discuss its request with you before you undertake your search or incur search or
duplication costs. By working together at the outset, American Oversight and DOJ can decrease
the likelihood of costly and time-consuming litigation in the future.
Where possible, please provide responsive material in electronic format by email or in PDF or
TIF format on a USB drive. Please send any responsive material being sent by mail to American
Oversight, 1030 15th Street, NW, Suite B255, Washington, DC 20005. If it will accelerate release
of responsive records to American Oversight, please also provide responsive material on a rolling
basis.

FOIA Improvement Act of 2016 § 2 (Pub. L. No. 114–185).
Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).
12
King v. U.S. Dep’t of Justice, 830 F.2d 210, 223—24 (D.C. Cir. 1987) (emphasis in original).
13
Id. at 224 (citing Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251
(D.C. Cir. 1977)).
14
Mead Data Central, 566 F.2d at 261.
10
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DOJ-18-0103

 Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 28 C.F.R. § 16.10(k), American Oversight
requests a waiver of fees associated with processing this request for records. The subject of this
request concerns the operations of the federal government, and the disclosures will likely
contribute to a better understanding of relevant government procedures by the general public in a
significant way.15 Moreover, the request is primarily and fundamentally for non-commercial
purposes.16
American Oversight requests a waiver of fees because “disclosure of the requested information is
in the public interest because it is likely to contribute significantly to public understanding of the
operations or activities of the government.”17 The disclosure of the information sought under this
request will document and reveal the activities of the federal government, including whether and
how DOJ has taken action to allow powers under Section 319 of the Public Health Service Act to
be used to address a declared public health emergency.18 The American people deserve to know
whether DOJ is acting to effectively address a severe public health crisis. As described in more
detail below, American Oversight’s website and social media accounts demonstrate its “ability and
intention to effectively convey information to the public.”19
This request is primarily and fundamentally for non-commercial purposes.20 As a 501(c)(3)
nonprofit, American Oversight does not have a commercial purpose and the release of the
information requested is not in American Oversight’s financial interest. American Oversight’s
mission is to promote transparency in government, to educate the public about government
activities, and to ensure the accountability of government officials. American Oversight uses the
information gathered, and its analysis of it, to educate the public through reports, press releases, or
other media. American Oversight also makes materials it gathers available on its public website and
promotes their availability on social media platforms, such as Facebook and Twitter.21 American
Oversight has demonstrated its commitment to the public disclosure of documents and creation of
editorial content. For example, after receiving records regarding an ethics waiver received by a
senior DOJ attorney,22 American Oversight promptly posted the records to its website and
15

28 C.F.R. § 16.10(k)(2).

16

Id.

28 C.F.R. § 16.10(k)(2)(i), (ii)(A)–(B).
U.S. DEP’T OF HEALTH AND HUMAN SERVICES, DETERMINATION THAT A PUBLIC HEALTH
EMERGENCY EXISTS, Oct. 26, 2017,
https://www.phe.gov/emergency/news/healthactions/phe/Pages/opioids.aspx.
19
Id.
20
28 C.F.R. § 16.10(k(2))(iii)(A)–(B).
21
American Oversight currently has approximately 11,800 page likes on Facebook and 39,200
followers on Twitter. American Oversight, FACEBOOK, https://www.facebook.com/weareoversight/
(last visited Feb. 12, 2018); American Oversight (@weareoversight), TWITTER,
https://twitter.com/weareoversight (last visited Feb. 12, 2018).
22
DOJ Civil Division Response Noel Francisco Compliance, AMERICAN OVERSIGHT,
https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance.
17
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 published an analysis of what the records reflected about DOJ’s process for ethics waivers.23 As
another example, American Oversight has a project called “Audit the Wall,” where the
organization is gathering and analyzing information and commenting on public releases of
information related to the administration’s proposed construction of a barrier along the U.S.Mexico border.24
Accordingly, American Oversight qualifies for a fee waiver.
Conclusion

We share a common mission to promote transparency in government. American Oversight looks
forward to working with DOJ on this request. If you do not understand any part of this request,
have any questions, or foresee any problems in fully releasing the requested records, please contact
Dan McGrath at foia@americanoversight.org or 202-897-4213. Also, if American Oversight’s
request for a fee waiver is not granted in full, please contact us immediately upon making such a
determination.
Sincerely,

Austin R. Evers
Executive Director
American Oversight

23

Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN

OVERSIGHT, https://www.americanoversight.org/francisco-the-travel-ban-what-we-learned-from-thedoj-documents.
24
Audit the Wall, AMERICAN OVERSIGHT, www.auditthewall.org.
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