Case 1:19-cv-00659 Document 1 Filed 03/08/19 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
THE SUNLIGHT FOUNDATION,
)
1440 G Street NW
)
Washington, DC 20005,
)
)
and
)
)
AMERICAN OVERSIGHT,
)
1030 15th Street NW, B255
)
Washington, DC 20005
)
)
Plaintiffs, )
)
v.
)
)
U.S. DEPARTMENT OF HEALTH AND
)
HUMAN SERVICES,
)
200 Independence Avenue SW
)
Washington, DC 20201
)
)
Defendant. )
)

Case No. 19-cv-659

COMPLAINT
1.

Plaintiffs The Sunlight Foundation and American Oversight bring 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).

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4.

Because Defendant has failed to comply with the applicable time-limit provisions

of the FOIA, Plaintiffs are deemed to have exhausted their administrative remedies pursuant to 5
U.S.C. § 552(a)(6)(C)(i) and are 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 The Sunlight Foundation is a nonpartisan, non-profit section 501(c)(3)

organization dedicated to using the power of information to promote government transparency.
The Sunlight Foundation’s Web Integrity Project (WIP) is primarily concerned with monitoring
changes to federal websites. As part of this work, WIP publishes reports and creates publicfacing resources to educate the public on changes to federal Web resources, and to advocate for
clear and consistent Web management policies on federal government websites. The
organization is incorporated under the laws of the District of Columbia.
6.

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.
7.

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, D.C.,
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 Plaintiffs seek.

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STATEMENT OF FACTS
Hager Sharp FOIA Request
8.

On March 28, 2018, the Sunlight Foundation and American Oversight jointly

submitted a FOIA request to HHS seeking access to the following records:
All communications (including email messages, text messages,
instant messages, letters, memoranda or any other communications)
sent to or from personnel of the firm Hager Sharp, including all
electronic mail messages to or from the hagersharp.com domain,
between January 1, 2017, and the date your search is conducted.
9.

A copy of the Hager Sharp FOIA Request is attached hereto as Exhibit A and

incorporated herein.
10.

HHS assigned the Hager Sharp FOIA Request tracking number 2018-00802-

FOIA-OS.
11.

On April 2, 2018, HHS sought clarification regarding the Hager Sharp FOIA

request. Specifically, HHS stated that the request was too broad as written and requested
additional information regarding the HHS personnel who may have communicated with Hager
Sharp.
12.

A copy of HHS’s clarification letter is attached hereto as Exhibit B and

incorporated herein.
13.

On April 5, 2018, Plaintiffs responded with the requested clarification.

Specifically, Plaintiffs explained that the search should include “all individuals or offices
involved in the management of [the womenshealth.gov] website,” including but not limited to
the Office on Women’s Health, the Office of the Assistant Secretary for Public Affairs, the
Office of the Secretary, the Office of the Assistant Secretary for Health, and the office of the
Assistant Secretary for Administration.

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14.

A copy of Plaintiffs’ April 5, 2018 clarification email is attached hereto as Exhibit

C and incorporated herein.
15.

Plaintiffs have not received any further correspondence from HHS regarding the

Hager Sharp request.
OWH FOIA Request
16.

Also on March 28, 2018, the Sunlight Foundation and American Oversight jointly

submitted a FOIA request to HHS seeking access to the following records:
All communications (including email messages, text messages,
instant messages, letters, memoranda or any other communications)
sent to or from anyone in the Office on Women’s Health regarding
the womenshealth.gov website or any other websites hosting or
containing content relating to the Office on Women’s Health,
between January 1, 2017, and the date your search is conducted.
The search for responsive records should include all locations and
individuals likely to contain responsive records, including but not
limited to Nicole Greene, Beth A. Collins-Sharp, Jennifer Anne
Bishop, and Adrienne Smith, and any other current and former
leadership of the Office on Women’s Health.
We believe that a reasonable search would include at least the
following search terms, but HHS should also use any other
additional search terms or methods that it believes are likely to
produce
responsive
records:
“web,”
“website,”
“womenshealth.gov,” “fact sheet,” “A-Z health topics,” and
“ePublications.”
17.

A copy of the OWH FOIA Request is attached hereto as Exhibit D and

incorporation herein.
18.

HHS assigned the OWH FOIA Request tracking number 2018-00800-FOIA-OS.

19.

On April 2, 2018, HHS notified Plaintiffs that the OWH FOIA Request had been

internally transferred and had been assigned PHS Case No. 18-0153-FOIA.
20.

Plaintiffs have not received any further correspondence from HHS regarding the

OWH FOIA Request.

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OWH Follow-Up FOIA Request
21.

On June 29, 2018, the Sunlight Foundation and American Oversight sent an

additional FOIA request to HHS, seeking access to the following records:
All messages: (1) sent to or from the email address
womenshealth@hhs.gov, or (2) submitted using the contact form on
the Office on Women's Health's website, between January 1, 2017,
and the date the search is conducted, to include any attachments to
such messages.
The search for responsive records should include all past URLs
where the contact form for the Office on Women's Health's website
could be found, including the URL at which it is currently hosted:
https://www.womenshealth.gov/contact-us/email/.
22.

A copy of the OWH Follow-Up FOIA Request is attached hereto as Exhibit E and

incorporated herein.
23.

HHS assigned the OWH Follow-Up FOIA Request tracking number 2018-01202-

FOIA-OS.
24.

Plaintiffs have not received any further correspondence from HHS regarding the

OWH Follow-Up FOIA Request.
Exhaustion of Administrative Remedies
25.

As of the date of this Complaint, HHS has failed to (a) notify Plaintiffs of any

determination regarding Plaintiffs’ FOIA requests, including the full scope of any responsive
records the agency intends to produce or withhold and the reasons for any withholdings; or (b)
produce all of the requested records or demonstrate that the requested records are lawfully
exempt from production.
26.

Through Defendant’s failure to make determinations as to Plaintiffs’ FOIA

requests within the time period required by law, Plaintiffs have constructively exhausted their
administrative remedies and seek immediate judicial review.

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COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Searches for Responsive Records
27.

Plaintiffs repeat the allegations in the foregoing paragraphs and incorporate them

as though fully set forth herein.
28.

Plaintiffs properly requested records within the possession, custody, and control

of Defendant.
29.

Defendant is an agency subject to and within the meaning of FOIA and must

therefore make reasonable efforts to search for requested records.
30.

Defendant has failed to promptly and adequately review agency records for the

purpose of locating those records which are responsive to Plaintiffs’ FOIA requests.
31.

Defendant’s failure to conduct adequate searches for responsive records violates

32.

Plaintiffs are therefore entitled to injunctive and declaratory relief requiring

FOIA.

Defendant to promptly make reasonable efforts to conduct adequate searches for records
responsive to Plaintiffs’ FOIA requests.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
33.

Plaintiffs repeat the allegations in the foregoing paragraphs and incorporate them

as though fully set forth herein.
34.

Plaintiffs properly requested records within the possession, custody, and control

of Defendant.
35.

Defendant is an agency subject to and within the meaning of FOIA and must

therefore release in response to a FOIA request any non-exempt records and provide a lawful
reason for withholding any materials.

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36.

Defendant is wrongfully withholding non-exempt agency records requested by

Plaintiffs by failing to produce records responsive to their FOIA requests.
37.

Defendant is wrongfully withholding non-exempt agency records requested by

Plaintiffs by failing to segregate exempt information in otherwise non-exempt records responsive
to their FOIA requests.
38.

Defendant’s failure to provide all non-exempt responsive records violates FOIA.

39.

Plaintiffs are therefore entitled to declaratory and injunctive relief requiring

Defendant to promptly produce all non-exempt records responsive to their FOIA requests and
provide indexes justifying the withholding of any responsive records withheld under claim of
exemption.
REQUESTED RELIEF
WHEREFORE, Plaintiffs respectfully request the Court to:
(1) Order Defendant to conduct a search or searches reasonably calculated to uncover all
records responsive to Plaintiffs’ FOIA requests identified in this Complaint;
(2) Order Defendant to produce, within twenty days of the Court’s order, or by such other
date as the Court deems appropriate, any and all non-exempt records responsive to
Plaintiffs’ FOIA requests and indexes justifying the withholding of any responsive
records withheld under claim of exemption;
(3) Enjoin Defendant from continuing to withhold any and all non-exempt records
responsive to Plaintiffs’ FOIA requests;
(4) Award Plaintiffs attorneys’ fees and other litigation costs reasonably incurred in this
action, pursuant to 5 U.S.C. § 552(a)(4)(E); and
(5) Grant Plaintiffs such other relief as the Court deems just and proper.

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Dated: March 8, 2019

Respectfully submitted,
/s/ Sara Kaiser Creighton
Sara Kaiser Creighton
D.C. Bar No. 1002367
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-5245
sara.creighton@americanoversight.org
Counsel for Plaintiffs The Sunlight Foundation and
American Oversight

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