Case 4:18-cv-03756 Document 1 Filed 06/25/18 Page 1 of 10 D. Victoria Baranetsky (SBN 311892) THE CENTER FOR INVESTIGATIVE REPORTING 1400 65th St, Suite 200 Emeryville, CA 94608 Telephone: (510) 809-3160 Fax: (510) 849?6141 vbaranetsky@revealnews.org Attorney for Plaintiffs UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION THE CENTER FOR INVESTIGATIVE Case No. REPORTING and PATRICK MICHELS, COMPLAINT FOR INJUNCTIVE Plaintiffs, 3 RELIEF V- UNITED STATES DEPARTMENT OF i HEALTH AND HUMAN SERVICES, Defendant. INTRODUCTION 1. This is an action under the Freedom of Information Act 5 U.S.C. 552, for injunctive and other appropriate relief. The Center for Investigative Reporting and Patrick Michels (collectively ?Plaintiffs?) seek expedited processing and release of agency records requested from Defendant the United States Department of Health and Human Services pertaining to records from the Office of Refugee Resettlement under the Administration for Children and Families - 2. In 2017 and 2018, Plaintiffs submitted Freedom of Information Act requests (the ?Requests?) to ORR seeking disclosure of federal records discussing procedures and contracts related to housing for unaccompanied minors which has been publicly acknowledged. -1- COMPLAINT FOR RELIEF Case 4:18-cv-03756 Document 1 Filed 06/25/18 Page 2 of 10 3. To date, Defendant has failed to issue a response, comply with statutory deadlines and has improperly withheld records responsive to the Request. 4. delay and improper withholding is of particular public concern because the records pertain to a fast-changing matter of great public interest: the federal government?s provision of housing and care for children for whom it has assumed responsibility. 5. Plaintiffs now ask the Court for an injunction requiring HHS to release the withheld records. JURISDICTION AND VENUE 6. The Court has subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. 552(a)(4)(B) and This Court also has jurisdiction over this action pursuant to 28 U.S.C. 1331 and 1436, and 5 U.S.C. 701406. 7. Venue is proper in this district under 5 U.S.C. 552(a)(4)(B) and 28 U.S.C. 1391(e) and 1402. Plaintiff CIR has its principal place of business in this district. Plaintiff Patrick Michels is domiciled in this district. 8. Assignment to the Oakland Division is proper pursuant to Local Rule 3-2(c) and because a substantial portion of the events giving rise to this action occurred in Alameda County, where Plaintiff principal place of business is located and most actions in this case occurred. PARTIES 9. Plaintiff CIR is the nation?s ?rst nonpro?t investigative journalism organization and made the FOIA requests at issue in this case. CIR publishes Reveal an online news site at revealnews.org and Reveal a weekly public radio Show with approximately 2 million listeners a month. CIR has received multiple awards for its reporting. CIR is a nonprofit established under the laws of the State of California, with its primary of?ce in Emeryville, California. 10. Plaintiff Patrick Michels is a staff reporter for Revert! and an employee of CIR. 11. Defendant HHS is a department of the executive branch of the U.S. government and an ?agency? within the meaning of 5 U.S.C. 552(f)(1). ORR and ACF are components of HHS. HHS has its headquarters in Washington, DC. and of?ces all over the country, including in Oakland -2- COMPLAINT FOR INJUNCTIVE RELIEF Case 4:18-cv-03756 Document 1 Filed 06/25/18 Page 3 of 10 and San Francisco, California. FACTUAL BACKGROUND HHS and ORR Responsibilities for Unaccompanied Minor Children 12. By law, HHS must provide custody and care of unaccompanied minor children de?ned as children who do not have lawful immigration status in the United States, have not attained 18 years of age and have nolegal guardian in the United States to provide care and custody. See 6 U.S.C. 279(g)(2). 13. In 2002 under the Homeland Security Act ?Congress transferred the care and custody of these children to HHS. . .to move towards a child welfare-based-model of care for children and away from the adult detention model.? ACF, Fact Sheet (Jan. 2016), acf.hhs. 4 1 6.pdf 14. Six years later, Congress ?expanded and redefined statutory responsibilities? by passing the Trafficking Victims Protection Reauthorization Act which directed ?that each child must ?be placed in the least restrictive setting that is in the best interest of the child.? Id. (citing 8 U.S.C. 1232(b)(2)). 15. Responsible for providing ?people in need with critical resources to assist them in becoming integrated members of American society?, OR is the federal of?ce Within HHS that houses and cares for many unaccompanied children detained by the United States. ORR, About Unaccompanied Alien Children ?5 Services (June 15, 2018), 16. Undocumented minors apprehended by DHS of?cials for crossing the US. border illegally are immediately transferred to the custody of ORR and temporarily housed in contracted facilities, until the agency can place the minor with a family member or Sponsor in the United States. 163.; see also ORR, Chiidren Entering the United States Unaccompanied: Section 2 (Jan. 30, 2015), 17. According to website, the particular circumstances of these children make them especially vulnerable. The ?age of these individuals, their separation from parents and relatives, and the hazardous journey they take make unaccompanied alien children especially vulnerable to human trafficking, exploitation and abuse.? ORR, About Unaccompanied Alien -3- COMPLAINT FOR INIUNCTWE RELIEF 00?4ng Case 4:18-cv-03756 Document 1 Filed 06/25/18 Page 4 of 10 Children ?5 Services, 51.11pm. 18. For this reason, it is especially important ?[t]hese care provider facilities are state licensed and must meet ORR requirements to ensure a high level of quality of care. . . [as t] hey provide a continuum of care for children, including foster care, group homes, shelter, staff secure, secure, and residential treatment centers.? Id. (emphasis added). 19. requirements for the care provider facilities are in part set out in various cooperative agreements, grant agreements, and contracts. See id. (stating ?[t]he care providers operate under cooperative agreements and contracts, and provide children with classroom education, health care, socialization/recreation, vocational training, mental health services, family reunification, access to legal services, and case management?) Increase of Unaccompanied Minor Children In Custody 20. In 2017, pursuant to the Trump Administration?s new policies, ICE began arresting and detaining an increasing number of unaccompanied minor children for being suspected of alleged gang membership and referring them to ORR where they are detained in ?some of the most restrictive detention facilities available for juveniles.? Anjali Tsui, In Crackdown on M843, 0 New Detention Poiicy Raises Alarms, FRONTLINE, Feb. 18, 2018, 21. Based on interviews and documents published by the agency, it appears the network of ORR shelters is quickly expanding to handle this in?ux of unaccompanied minors. See, e. g, ORR, UNDER FAR SUBPART 6.3 JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION, availabie at order to meet the increase in referrals of unaccompanied alien children (UAC) with violent criminal background and gang af?liation, Office Of Refugee Resettlement (ORR) needs to procure secure bed capacity needs. . .to accommodate this in?ux that has caused the current facilities to experience over capacity issues?) 22. For instance, ORR announced a contract award of a grant for $1,768,571 ?for the immediate need for additional capacity of shelter services to accommodate the increasing number of UC referred by the Department of Homeland Security (DHS) into ORR care.? ORR, Announcement of the Award of One Single Source Expansion Supplement Grant Within the Of?ce of Refugee Resettlement?s Unaccompanied Children?s Program, 82 Fed. Reg. 14,903 (Mar. 23, 2017), -4- COMPLAINT FOR RELIEF .psCase 4:18-cv-03756 Document 1 Filed 06/25/18 Page 5 of 10 (stating the ?increase in the UC population necessitates the need for expansion?); see also ORR, Announcement of the Award of 48 Single-Source Low?Cost Extension supplement Grants Within the Of?ce of Refugee Resettlement?s Unaccompanied Alien Children?s (UAC) Program, 82 Fed. Reg. 26,806 (June. 9, 2017), (announcing ?the award of 48 single source low-cost extension supplement grants for a total of $110,480,457 under the Unaccompanied Alien Children?s (UAC) Program?). 23. Grant announcements posted publicly on the ACF Funding Opportunity Announcements website also con?rm these circumstances. See, e. ACF Home Study and Post Release Services for Unaccompanied Children Funding Opportunity, No. ZU-1139 (May 26, 2016), ACF, Residential (Long Term Foster Care) Services for Unaccompanied Children Funding Opportunity, No. 1135 (June 30, 2016), ACF, Residential (Secure) Services for Unaccompanied Alien Children Funding Opportunity, No. (May 31, 2016), 24. ORR has also published an explanation of one contract expanding ORR housing in Virginia. ORR, UNDER FAR 6.3, sinira (stating ?In order to meet the increase in referrals of unaccompanied alien children with Violent criminal background and gang af?liation, Office of Refugee Resettlement (ORR) needs to procure secure bed capacity. 25. News organizations have long been covering the expansion of this program. For instance in 2014, Mother Jones published a map of these shelters made from information collected through a 2014 FOIA request. Ian Gordon, This is Where The Government Houses the Tens of Thousands of Kinds Who Get Caught Crossing the Border, MOTHER JONES, Jun. 3, 2014, More recently, The Washington Post covered the in?ux and capacity for these shelters. Colby Itkowitz, The Health 202: The Small HHS Agency Detaining Migrant Kids Meant or the Task, THE WASHINGTON POST, June 20, 2018, 26. CIR consistently reported on this and related issues of public importance. Aura Bogado, Patrick Michels, Vanessa swales and Edgar Walters, Migrant Children Sent to Shelters With Histories of Abuse Allegations, REVEAL, June 20, 2018, Reveal and -5- COMPLAINT FOR INJUNCTIVE RELIEF Case 4:18-cv-03756 Document 1 Filed 06/25/18 Page 6 of 10 PRX, Reveal Answers Your Questions About Immigration, REVEAL, June 9, 2018, Patrick Michels, ederol Agency Refers Girls to Counselors Picked By Arm'- Abortion Group, REVEAL, Nov. 21, 2017, 27. The public need for disclosure of documents discussing these contracts is compelling as the disclosure of these contracts would reveal how public funds are being allocated and would reveal what requirements contractors are held to and if they are complying with federal mandates in caring for UACs while under government supervision. The Requests 28. On November 10, 2017 Mr. Michels submitted a FOIA request to OR, HHS seeking copies of currently active contracts for housing unaccompanied minors. A true and correct copy of that letter is attached as Exhibit A. 29. More speci?cally, it requested: a. The Memorandum of Agreement signed by DHS and HHS regarding unaccompanied children, signed on February 22, 2016. b. Copies of currently active contracts between OR and grantees for Residential (Secure) Services for Unaccompanied Alien Children; Residential (Staff Secure) Services for Unaccompanied Alien Children; Residential (Shelter) Services for Unaccompanied Children; Residential (Long Term Foster Care) Services for Unaccompanied Children; Residential (Therapeutic) Services for Unaccompanied Alien Children. 0. Copies of religious exemption requests from recipients of the above-mentioned grants, and records indicating whether those requests were approved or denied, dated from May 31, 2016, to November 10, 2017. (1. Records indicating the number of unaccompanied minors referred to OR by date range (weekly, or quarterly), and the name of the referring agency, from January 1, 2016, to November 10, 2017. e. Records sufficient to show the average time in OR custody for unaccompanied COMPLAINT FOR RELIEF Case 4:18-cv-03756 Document 1 Filed 06/25/18 Page 7 of 10 minors from January 1, 2016, to November 10, 2017. f. Copies of training materials delivered received by ORR from the Department of Homeland Security concerning methods of identifying members of the gang MS-13. g. Reports, memos or presentations resulting from review of unaccompanied minors in its secure and staff secure facilities on June 9, 2017, concerning potential gang involvement. See Ex. A. 30. Plaintiffs sought a waiver of search and review fees on the grounds that the CIR quali?es as a ?representative of the news media? and that the records are not sought for commercial use. 5 552(a)(4)(A)(ii) and 31. Plaintiffs sought expedited processing on the grounds that there is a ?compelling need? for these records because the information requested is urgently needed by an organization primarily engaged in disseminating information in order to inform the public about actual or alleged federal government activity. 5 U.S.C. 32. Plaintiff Mr. Michels certi?ed that all statements were true to the best of his knowledge. 33. On February 7, 2018, Mr. Michels sent an email FOIA office and requested an update on the status of his request. A true and correct copy of that letter is attached as Exhibit B. 34. On February 8, 2018, ACF sent an acknowledgement letter and assigned the case number 18-F-0050. A true and correct copy of that letter is attached as Exhibit C. 35. Mr. Michels did not receive any further response from the agency. 36. On March 29, 2018, Mr. Michels sent a new request, referencing the original request and additionally requesting more copies of contracts related to OR homes. A true and correct copy of that letter is attached as Exhibit D. 37. More specifically, it requested: a. Copies of currently active contracts between ORR and grantees for Home Study and Post Release Services for Unaccompanied Children. b. Copies of religious exemption requests from recipients of the above-mentioned -7- COMPLAINT FOR RELIEF Case 4:18-cv-03756 Document 1 Filed 06/25/18 Page 8 of 10 grants, and records indicating whether those requests were approved or denied, dated from November 10, 2017, to the date at which this request is processed. c. Records indicating the number of unaccompanied minors referred to OR by date range (weekly, or quarterly), and the name of the referring agency, from November 10, 2017, to the date at which this request is processed. (1. Records suf?cient to show the average time in ORR custody for unaccompanied minors from November 10, 2017, to the date at which this request is processed. See EX. D. 38. Plaintiffs sought a waiver of search and review fees on the grounds that the CIR qualifies as a ?representative of the news media? and that the records are not sought for commercial use. 5 U.S.C. 552(a)(4)(A)(ii) and 39. Plaintiffs sought expedited processing on the grounds that there is a ?compelling need? for these records because the information requested is urgently needed by an organization primarily engaged in disseminating information in order to inform the public about actual or alleged federal government activity. 5 U.S.C. 40. Plaintiff Mr. Michels certi?ed that all statements were true to the best of his knowledge. 41. In April 2018, a CIA officer contacted Mr. Michels to discuss the second request over the phone. A true and correct copy of that correspondence is attached as Exhibit E. On the call, when Mr. Michels asked for an update on the contracts portion of the request, the FOIA Officer told him he could call aisupervisor at the FOIA office. Mr. Michels called and left a message, but never heard back. 42. To date, Plaintiffs have not received any further response from the agency. 43. More than 20 working days have passed since Plaintiffs submitted both Requests. 44. HHS has failed to comply with FOIA, 5 U.S.C. requiring that an agency make a determination within the 20 business days. 45. Plaintiffs now seeks injunctive relief. -3- COMPLAINT FOR INJUNCTIVH RELIEF Case 4:18-cv-03756 Document 1 Filed 06/25/18 Page 9 of 10 CAUSE OF ACTION Violation of Freedom of Information Act 46. Plaintiffs repeat and reallege paragraphs 1?28. 47. HHS issubject to FOIA and must therefore release in response to a FOIA request any disclosable records in its possession and provide a lawful reason for withholding any materials as to which it is claiming an exemption. 48. HHS has no lawful basis for declining to release the records requested by Plaintiffs under 01A. 49. HHS has failed to expedite processing. 50. HHS has failed to act on Plaintiffs? request within the 20 business days required by OIA. See 5 U.S.C. Accordingly, Plaintiffs are deemed to have exhausted their administrative remedies under FOIA. 51. Plaintiffs are entitled to declaratory and injunctive relief compelling the release and disclosure of the requested records. REQUESTED RELIEF WHEREFORE, Plaintiffs pray that this Court: 1. Declare that Defendant HHS violated FOIA by failing to provide requested records in response to Plaintiffs? FOIA requests and failing to notify Plaintiffs of any determination; 2. Declare that the documents sought by their FOIA request, as described in the foregoing paragraphs, are public under 5 U.S.C. 552 and must be disclosed; 3. Order Defendant HHS to provide the requested documents to Plaintiffs within 20 business days of the Court?s order; 4. Award Plaintiffs the costs of this proceeding, including reasonable attorneys? fees, as expressly permitted by and 5. Grant Plaintiffs such other and further relief as this Court may deem just and proper. -9- COMPLAINT FOR RELIEF Case 4:18-cv-03756 Document 1 Filed 06/25/18 Page 10 of 10 DATED: June 25, 2018 Respectfully submitted, By: D. Viclto?aeafanemq THE (BENT ER FOR INVESTIGATIVE REPORTING 1400 6Sth St, Suite 200 Emeryville, CA 94608 Telephone: (510) 809-3160 Email: Attorney for Plaintiffs -10- COMPLAINT FOR INJUNCTIVE RELIEF