Case 1:19-cv-02214 Document 1 Filed 07/25/19 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
AMERICAN OVERSIGHT,
)
1030 15th Street NW, B255
)
Washington, DC 20005,
)
)
Plaintiff,
)
)
v.
)
Case No.: 19-cv-2214
)
U.S. DEPARTMENT OF HEALTH
)
AND HUMAN SERVICES,
)
200 Independence Avenue SW
)
Washington, DC 20201
)
)
and
)
)
CENTERS FOR DISEASE CONTROL
)
AND PREVENTION,
)
1600 Clifton Road
)
Atlanta, GA 30329
)
)
Defendants. )
__________________________________________)
COMPLAINT
1.

Plaintiff American Oversight brings this action against the U.S. Department of

Health and Human Services and the Centers for Disease Control and Prevention under the
Freedom of Information Act, 5 U.S.C. § 552 (FOIA), and the Declaratory Judgement 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 Defendants have failed to comply with the applicable time-limit

provisions of the FOIA, American Oversight 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
Defendants from continuing to withhold agency records and ordering 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 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.
7.

Defendant the Centers for Disease Control and Prevention (CDC) is a component

of HHS and headquartered in Atlanta, Georgia. CDC has possession, custody, and control of the
records that American Oversight seeks.
STATEMENT OF FACTS
8.

On February 27, 2019, American Oversight submitted a FOIA request to CDC

seeking all calendars or calendar entries for CDC Director Robert Redfield, including any

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calendars maintained on his behalf, from the date he joined the CDC through the date the search
is conducted.
9.

American Oversight requested that the calendars be produced in a format that

includes all invitees, any notes, and all attachments.
10.

American Oversight explained in its request that CDC should not limit its search

to Outlook calendars, but rather, American Oversight requested the production of any
document—paper or electronic, whether on government-issued or personal devices—used to
track or coordinate how Director Redfield allocates his time on agency business.
11.

By letter dated February 28, 2019, CDC acknowledged the request and assigned it

tracking number 19-00493-FOIA. In that letter, CDC informed American Oversight that it
considered the request “overly broad” and asked for “clarification of the subject matter of the
records” sought.
12.

American Oversight responded by email dated March 8, 2019, providing

clarification of its request in an attempt to address CDC’s concerns, and also explaining that its
request was a proper, reasonably described FOIA request, meeting HHS regulations.
13.

On March 13, 2019, CDC replied that despite American Oversight’s clarification,

the “request remain[ed] overly broad,” and requested that American Oversight provide
“additional information such as: a narrow date range; and/or a specific calendar entry subject;
and/or a specific person (by name) who is the object of a calendar item.”
14.

American Oversight responded by email, reiterating its position that the request

met the relevant legal standards for a proper, reasonably described FOIA request, and indicating
that it intended to appeal CDC’s adverse determination.
15.

On March 18, 2019, pursuant to HHS regulations, American Oversight submitted

an administrative appeal to the HHS review official identified in CDC’s correspondence,

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challenging CDC’s adverse determination that the FOIA request was “overly broad.” A true and
correct copy of American Oversight’s appeal, which includes copies of the FOIA request and the
correspondence referenced above, is attached hereto as Exhibit 1 and incorporated herein.
16.

HHS acknowledged receipt of American Oversight’s appeal on March 21, 2019,

assigning it FOIA appeal number 19-0052-AA.
17.

American Oversight has received no further correspondence from HHS or CDC in

connection with its FOIA request or FOIA appeal.
Exhaustion of Administrative Remedies
18.

As of the date of this complaint, Defendants have failed to notify American

Oversight of any determination regarding its administrative appeal.
19.

Through Defendants’ failure to make a determination regarding American

Oversight’s appeal within the time period required by law, American Oversight 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
20.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
21.

American Oversight properly requested records within the possession, custody,

and control of Defendants.
22.

American Oversight’s FOIA request reasonably described the records requested

therein.
23.

Defendants are an agency and a component thereof subject to FOIA and must

therefore make reasonable efforts to search for requested records.

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24.

Defendants have failed to promptly review agency records for the purpose of

locating those records that are responsive to American Oversight’s FOIA request.
25.

Defendants’ failure to conduct an adequate search for responsive records violates

FOIA and agency regulations.
26.

Plaintiff American Oversight is therefore entitled to injunctive and declaratory

relief requiring Defendants 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 Responsive Records
27.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
28.

American Oversight properly requested records within the possession, custody,

and control of Defendants.
29.

American Oversight’s FOIA request reasonably described the records requested

therein.
30.

Defendants are an agency and a component thereof subject to FOIA and must

therefore release in response to a FOIA request any non-exempt records and provide a lawful
reason for withholding any materials.
31.

Defendants are wrongfully withholding non-exempt agency records requested by

American Oversight by failing to produce non-exempt records responsive to its FOIA request.
32.

Defendants are wrongfully withholding non-exempt agency records requested by

American Oversight by failing to segregate exempt information in otherwise non-exempt records
responsive to American Oversight’s FOIA request.

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33.

Defendants’ failure to provide all non-exempt responsive records violates FOIA

and agency regulations.
34.

Plaintiff American Oversight is therefore entitled to declaratory and injunctive

relief requiring Defendants to promptly produce all non-exempt records responsive to its FOIA
request and provide an index justifying the withholding of any responsive records withheld under
claim of exemptions.
REQUESTED RELIEF
WHEREFORE, American Oversight respectfully requests the Court to:
(1) Declare that Plaintiff’s FOIA request identified in this Complaint reasonably described
the records sought as required by the FOIA;
(2) Order Defendants to conduct a search or searches reasonably calculated to uncover all
records responsive to American Oversight’s FOIA request identified in this Complaint;
(3) Order Defendants 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
American Oversight’s FOIA request and indexes justifying the withholding of any
responsive records withheld under claim of exemption;
(4) Enjoin Defendants from continuing to withhold any and all non-exempt records
responsive to American Oversight’s FOIA request;
(5) 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
(6) Grant American Oversight such other relief as the Court deems just and proper.

Dated: July 25, 2019

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

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