Case 1:19-cv-00942 Document 1 Filed 04/03/19 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. )
)
EQUITY FORWARD,
902 Broadway, 6th Floor
New York, NY 10010

Case No. 19-cv-942

COMPLAINT
1.

Plaintiff Equity Forward 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 has failed to comply with the applicable time-limit provisions

of the FOIA, Equity Forward is deemed to have exhausted its administrative remedies pursuant
to 5 U.S.C. § 552(a)(6)(C)(i) and is now entitled to judicial action enjoining the agency from

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continuing to withhold agency records and ordering the production of agency records improperly
withheld.
PARTIES
5.

Plaintiff Equity Forward is a nonpartisan organization committed to the

promotion of transparency and accountability in the area of reproductive health, the education of
the public about government activities related to reproductive health, and ensuring accountability
for malfeasance, fraud, unethical practices, and false information in the area of reproductive
health. Through research and FOIA requests, Equity Forward uses the information gathered, and
its analysis of it, to educate the public about the activities and operations of the federal
government regarding reproductive health through its own public information campaigns and
dissemination of information to other public interest groups.
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, D.C.,
and an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1). The
Administration for Children and Families (ACF) is a component of HHS, and the Office of
Refugee Resettlement (ORR) is an office within ACF. HHS has possession, custody, and control
of the records that Equity Forward seeks.
STATEMENT OF FACTS
7.

On March 16, 2018, Equity Forward submitted a FOIA request to HHS seeking:

“any digital or written correspondence of spreadsheets and/or summaries detailing pregnant
unaccompanied minors sent to, from or carbon copying (‘CC’) [then-ORR Director] Scott Lloyd
between and including March 1, 2017 and the fulfilment of this request.”

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8.

On or about March 19, 2018, the FOI/Privacy Acts Division in HHS’s Office of

the Secretary acknowledged receipt of Equity Forward’s request and assigned it tracking
number: 2018-00743-FOIA-OS.
9.

In acknowledging the request, the FOI/Privacy Acts Division informed Equity

Forward that it had referred the FOIA request to ACF.
10.

Equity Forward has not yet received a tracking number or any other

communication from ACF regarding the FOIA request.
11.

As of the date of this complaint, HHS has failed to (a) notify Equity Forward of

any determination regarding the request, including the scope of any responsive records HHS
intends to produce or withhold and the reasons for any withholdings; or (b) produce the
requested records or demonstrate that the requested records are lawfully exempt from
production.
12.

Through HHS’s failure to respond to Equity Forward’s FOIA request within the

time period required by law, Equity Forward has constructively exhausted its administrative
remedies and seeks immediate judicial review.
COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Search for Responsive Records
13.

Equity Forward repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
14.

Equity Forward properly requested records within the possession, custody, and

control of HHS.
15.

HHS is an agency subject to FOIA and must therefore make reasonable efforts to

search for requested records.

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16.

HHS has failed to promptly review agency records for the purpose of locating

those records which are responsive to Equity Forward’s FOIA request.
17.

HHS’s failure to conduct an adequate search for responsive records violates

18.

Plaintiff Equity Forward is therefore entitled to injunctive and declaratory relief

FOIA.

requiring Defendant to promptly make reasonable efforts to search for records responsive to
Equity Forward’s FOIA request.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
19.

Equity Forward repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
20.

Equity Forward properly requested records within the possession, custody, and

control of HHS.
21.

HHS is an agency subject to FOIA and must therefore release in response to

FOIA requests any non-exempt records and provide a lawful reason for withholding any
materials.
22.

HHS is wrongfully withholding non-exempt agency records requested by Equity

Forward by failing to produce non-exempt records responsive to its FOIA request.
23.

HHS is wrongfully withholding non-exempt agency records requested by Equity

Forward by failing to segregate non-exempt information in otherwise exempt records responsive
to Equity Forward’s FOIA request.
24.

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

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25.

Plaintiff Equity Forward is therefore entitled to declaratory and injunctive relief

requiring Defendant to promptly produce all non-exempt records responsive to its FOIA request
and provide indexes justifying the withholding of any responsive records withheld under claim
of exemption.
REQUESTED RELIEF
WHEREFORE, Equity Forward respectfully requests the Court to:
(1) Order Defendant to conduct a search or searches reasonably calculated to uncover all
records responsive to Equity Forward’s FOIA request;
(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
Equity Forward’s FOIA request 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 Equity Forward’s FOIA request;
(4) Award Equity Forward the costs of this proceeding, including reasonable attorneys’
fees and other litigation costs reasonably incurred in this action, pursuant to 5 U.S.C.
§ 552(a)(4)(E); and
(5) Grant Equity Forward such other relief as the Court deems just and proper.

Dated: April 3, 2019

Respectfully submitted,
/s/ Cerissa Cafasso
Cerissa Cafasso
D.C. Bar No. 1011003
AMERICAN OVERSIGHT
1030 15th Street NW, B255

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Washington, DC 20005
(202) 869-5244
cerissa.cafasso@americanoversight.org
Counsel for Plaintiff Equity Forward

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