Case 1:20-cv-01064 Document 1 Filed 04/23/20 Page 1 of 9

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
)
)
and
)
)
U.S. FOOD AND DRUG ADMINISTRATION, )
10903 New Hampshire Avenue
)
White Oak, MD 20903
)
)
Defendants. )
)
AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

Case No. 20-1064

COMPLAINT
1.

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

Health and Human Services and the U.S. Food and Drug Administration 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.

1

 Case 1:20-cv-01064 Document 1 Filed 04/23/20 Page 2 of 9

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 Defendants have failed to comply with the applicable time-limit

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

Plaintiff American Oversight is a nonpartisan, nonprofit 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 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 records that American Oversight seeks.
7.

Defendant the U.S. Food and Drug Administration (FDA) is a component of

HHS—an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1)—and is
headquartered in White Oak, Maryland. FDA has possession, custody, and control of records that
American Oversight seeks.

2

 Case 1:20-cv-01064 Document 1 Filed 04/23/20 Page 3 of 9

STATEMENT OF FACTS
Testing Sent Key Terms Request
8.

On March 18, 2020, American Oversight submitted a FOIA request to HHS and

FDA seeking all email communications (including email messages, complete email chains, email
attachments, and calendar invitations) sent by specified HHS and FDA officials containing any
of thirty-four key terms related to coronavirus testing from January 20, 2020, through
March 17, 2020. A copy of this “Testing Sent Key Terms Request” is attached hereto as Exhibit
A and incorporated herein.
9.

The specified HHS officials are as follows:
a. Assistant Secretary for Health Brett Giroir
b. Anyone serving as Chief of Staff to Assistant Secretary for Health Giroir,
including, but not limited to, Carla Haddad
c. Principal Deputy Assistant Secretary for Health Sylvia Trent-Adams
d. Deputy Assistant Secretary for Health Paul Reed
e. Assistant Secretary for Preparedness & Response Robert Kaldec
f. Principal Deputy Assistant Secretary for Preparedness & Response Kevin
Yeskey
g. Deputy Assistant Secretary for Preparedness & Response & BARDA
Director Rick Bright

10.

The specified FDA officials are as follows:
a. Jeffrey Shuren, Director of the Center for Devices and Radiological
Health
b. William Maisel, Director of the Office of Product Evaluation and Quality

3

 Case 1:20-cv-01064 Document 1 Filed 04/23/20 Page 4 of 9

c. Timothy Stenzel, Office of Health Technology 7 (In Vitro Diagnostics and
Radiological Health)
d. Denise Hinton, Chief Scientist
e. Uwe Scherf, Director, Division of Microbiology Devices, Office of In
Vitro Diagnostics and Radiological Health, Center for Devices and
Radiological Health
11.

The thirty-four key terms are: “EUA”; “Emergency Use”; “Test”; “Testing”; “the

WHO”; “W.H.O.”; “World Health Organization”; “Kit”; “LDT”; “CLIA”; “RNA”; “Extraction”;
“Quest”; “LabCorp”; “Roche”; “Qiogen”; “Thermo Fisher”; “Thermofisher”; “Hologic”;
“Panther Fusion”; “Wadsworth”; “RT-PCR”; “Oscar”; “CureVac”; “University of Washington”;
“Seattle Flu study”; “Greninger”; “POTUS”; “Reagent”; “564”; “564(b)”; “mainland China”;
“close contact”; and “issue guidance.”
12.

American Oversight further explained that it
limited its request to sent messages to reduce the volume of
potentially responsive records. American Oversight still requests
complete email chains. So, for example, if a government official
sent a response to an incoming message containing one of the key
terms above, the email chain containing the initially received
message and the response is responsive to this request.

13.

American Oversight sought expedited processing of the Testing Sent Key Terms

Request, citing, among other things, the urgent need to inform the public about federal decisionmaking regarding the rollout of testing for the coronavirus, in combination with the fact that
American Oversight is primarily engaged in disseminating the information it receives from
public records requests to the public.
14.

In a letter dated March 18, 2020, HHS acknowledged receipt of the Testing Sent

Key Terms Request and assigned it tracking number 2020-00719-FOIA-OS.

4

 Case 1:20-cv-01064 Document 1 Filed 04/23/20 Page 5 of 9

15.

In an email dated March 25, 2020, FDA acknowledged receipt of the Testing Sent

Key Terms Request and assigned it tracking number 2020-2531.
16.

In a letter dated March 27, 2020, FDA granted American Oversight’s request for

expedited processing.
17.

As of the date of this Complaint, American Oversight has not received any further

communication from HHS or FDA regarding its Testing Sent Key Terms Request.
Exhaustion of Administrative Remedies
18.

As of the date of this Complaint, Defendants HHS and FDA have failed to (a)

notify American Oversight of any determinations regarding American Oversight’s FOIA request,
including the full scope of any responsive records Defendants intend 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.
19.

Through Defendants’ failure to make determinations as to American Oversight’s

FOIA requests within the time period required by law, American Oversight has constructively
exhausted its administrative remedies and seeks immediate judicial review.
20.

In addition, as of the date of this Complaint, Defendant HHS has failed to respond

to American Oversight’s request for expedited processing.
21.

Through Defendant HHS’s failure to respond to American Oversight’s request for

expedited processing within the time period required by law, American Oversight has exhausted
its administrative remedies as to that issue and seeks immediate judicial review.

5

 Case 1:20-cv-01064 Document 1 Filed 04/23/20 Page 6 of 9

COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Searches for Responsive Records
22.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
23.

American Oversight properly requested records within the possession, custody,

and control of Defendants.
24.

Defendants are an agency—and a component thereof—subject to and within the

meaning of FOIA and must therefore make reasonable efforts to search for requested records.
25.

Defendants have failed to promptly and adequately review agency records for the

purpose of locating those records that are responsive to American Oversight’s FOIA request.
26.

Defendants’ failures to conduct adequate searches for responsive records violate

27.

Plaintiff American Oversight is therefore entitled to injunctive and declaratory

FOIA.

relief requiring Defendants to promptly make reasonable efforts to conduct adequate searches 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
28.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
29.

American Oversight properly requested records within the possession, custody,

and control of Defendants.

6

 Case 1:20-cv-01064 Document 1 Filed 04/23/20 Page 7 of 9

30.

Defendants are an agency—and a component thereof—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.
31.

Defendants are wrongfully withholding non-exempt agency records requested by

American Oversight by failing to produce records responsive to American Oversight’s 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.
33.

Defendants’ failures to provide all non-exempt responsive records violate FOIA.

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 indexes justifying the withholding of any responsive records withheld under
claim of exemption.
COUNT III
Violation of FOIA, 5 U.S.C. § 552
Failure to Grant Expedited Processing as to HHS
35.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
36.

American Oversight properly requested records within the possession, custody,

and control of HHS on an expedited basis.
37.

HHS is an agency subject to FOIA, and it must process FOIA requests on an

expedited basis pursuant to the requirements of FOIA.

7

 Case 1:20-cv-01064 Document 1 Filed 04/23/20 Page 8 of 9

38.

The records sought relate to an activity of the federal government about which

there is an urgent need to inform the public.
39.

Specifically, the records sought relate to a subject of heightened public and media

interest implicating questions concerning the government’s response to an urgent public health
emergency that has already resulted in the deaths of more than ten thousand American residents.
40.

American Oversight is primarily engaged in disseminating information to the

41.

Therefore, the Testing Sent Key Terms Request justified expediting processing

public.

under FOIA.
42.

HHS failed to ensure that a determination of whether to provide expedited

processing was made and that notice of that determination was provided to American Oversight
within ten days after the date of the Testing Sent Key Terms Request.
43.

HHS’s failure to grant expedited processing of the Testing Sent Key Terms

Request violated FOIA.
44.

Plaintiff American Oversight is therefore entitled to declaratory and injunctive

relief requiring HHS to grant expedited processing of the Testing Sent Key Terms Request.
REQUESTED RELIEF
WHEREFORE, American Oversight respectfully requests the Court to:
(1) Order Defendant HHS to expedite the processing of American Oversight’s FOIA
request identified in this Complaint;
(2) Order Defendants HHS and FDA to conduct a search or searches reasonably
calculated to uncover all records responsive to American Oversight’s FOIA request
identified in this Complaint;

8

 Case 1:20-cv-01064 Document 1 Filed 04/23/20 Page 9 of 9

(3) Order Defendants HHS and FDA 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 HHS and FDA from continuing to withhold any and all nonexempt 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: April 23, 2020

Respectfully submitted,
/s/ Christine H. Monahan
Christine H. Monahan
D.C. Bar No. 1035590
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-5244
christine.monahan@americanoversight.org
Counsel for Plaintiff

9

 Case 1:20-cv-01064 Document 1-1 Filed 04/23/20 Page 1 of 11

EXHIBIT A

Case 1:20-cv-01064 Document 1-1 Filed 04/23/20 Page 2 of 11

March 18, 2020
VIA EMAIL and Online Portal
Sarah Kotler
Freedom of Information Officer
Food and Drug Administration
5630 Fishers Lane, Room 1035
Rockville, MD 20857
Via Online Portal
Michael Marquis
Freedom of Information Officer
Department of Health and Human Services
Hubert H. Humphrey Building, Room 729H
200 Independence Avenue SW
Washington, DC 20201
FOIARequest@hhs.gov
Freedom of Information Officer
U.S. Centers for Disease Control and Prevention
1600 Clifton Road NE
Building 57, Room MS D-54
Atlanta, GA 30333
FOIARequests@cdc.gov
Re: Expedited Freedom of Information Act Request
Dear FOIA Officer:
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the
implementing regulations of your agency, 45 C.F.R. Part 5, American Oversight makes the
following request for records.
The outbreak of the novel coronavirus, SARS-CoV-2, and the disease it causes, COVID-19,
has been declared a public health emergency at both the national and international levels.1
Since late 2019, the virus has spread to dozens of countries, sickened tens of thousands of

Coronavirus Disease 2019 (COVID-19) Situation Summary, CENTERS FOR DISEASE CONTROL
AND PREVENTION (Updated Mar. 15, 2020), https://www.cdc.gov/coronavirus/2019ncov/summary.html.
1

1030 15th Street NW, Suite B255, Washington, DC 20005   AmericanOversight.org

 Case 1:20-cv-01064 Document 1-1 Filed 04/23/20 Page 3 of 11

people, and resulted in thousands of deaths.2 This is a rapidly evolving situation that is
demanding coordinated attention and action across the federal government. Yet the Trump
administration has so far failed to ensure timely availability of testing kits for healthcare
providers,3 prevented health experts from speaking about the growing crisis,4 and removed
information on the spread of the virus from public health resources. 5
American Oversight seeks records with the potential to shed light on how the
administration is handling this public health emergency.
Requested Records
American Oversight requests that your agency process this request on an expedited basis
and produce the following records as soon as practicable, and at least within twenty
business days:
All email communications (including email messages, complete email chains,
email attachments, calendar invitations) sent by the government officials specified
below containing any of the following key terms:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.

EUA
“Emergency Use”
Test
Testing
“the WHO”
W.H.O.
“World Health Organization”
Kit
LDT
CLIA
RNA
Extraction

Coronavirus Live Updates: W.H.O. Says Covid-19 Has Higher Fatality Rate Than the Flu,
N.Y. TIMES, Mar. 4, 2020, https://www.nytimes.com/2020/03/04/world/coronavirusnews.html?action=click&pgtype=Article&state=default&module=stylncoronavirus&variant=show&region=TOP_BANNER&context=storyline_menu.
3 Alice Park, Responding to Coronavirus Testing Problems, U.S. Government Expands Number of
Labs That Can Run Tests, TIME, (Mar. 2, 2020, updated 1:50 PM EST),
https://time.com/5793605/coronavirus-testing-united-states/.
4 Michael Shear & Maggie Haberman, Pence Will Control All Coronavirus Messaging from Health
Officials, N.Y. TIMES, Feb. 27, 2020,
https://www.nytimes.com/2020/02/27/us/politics/us-coronavirus-pence.html.
5 Brianna Ehley, Trump’s Team Shifts Tone from Preventing Coronavirus to Containing It,
POLITICO (Mar. 2, 2020, 7:52 PM), https://www.politico.com/news/2020/03/02/trumpcoronavirus-pence-119051.
2

-2-

HHS-20-0580

 Case 1:20-cv-01064 Document 1-1 Filed 04/23/20 Page 4 of 11

13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.

Quest
LabCorp
Roche
Qiogen
“Thermo Fisher”
Thermofisher
Hologic
“Panther Fusion”
Wadsworth
RT-PCR
Oscar
CureVac
“University of Washington”
“Seattle Flu study”
Greninger
POTUS
Reagent
564
564(b)
“mainland China”
“close contact”
“issue guidance”

HHS Officials:
1. Assistant Secretary for Health Brett Giroir
2. Anyone serving as Chief of Staff to Assistant Secretary for Health Giroir,
including, but not limited to, Carla Haddad
3. Principal Deputy Assistant Secretary for Health Sylvia Trent-Adams
4. Deputy Assistant Secretary for Health Paul Reed
5. Assistant Secretary for Preparedness & Response Robert Kaldec
6. Principal Deputy Assistant Secretary for Preparedness & Response Kevin
Yeskey
7. Deputy Assistant Secretary for Preparedness & Response & BARDA Director
Rick Bright
FDA Officials:
1. Jeffrey Shuren, Director of the Center for Devices and Radiological Health
2. William Maisel, Director of the Office of Product Evaluation and Quality
3. Timothy Stenzel, Office of Health Technology 7 (In Vitro Diagnostics and
Radiological Health)
4. Denise Hinton, Chief Scientist
5. Uwe Scherf, Director, Division of Microbiology Devices, Office of In Vitro
Diagnostics and Radiological Health, Center for Devices and Radiological
Health

-3-

HHS-20-0580

 Case 1:20-cv-01064 Document 1-1 Filed 04/23/20 Page 5 of 11

CDC Officials:
1. Robert Redfield, Director
2. Anne Schuchat, Principal Deputy Director
3. Stephen Lindstrom, Team Lead, Respiratory Virus Diagnostics Team, Centers
for Disease Control and Prevention
4. Daniel Jernigan, Influenza Division at Centers for Disease Control and
Prevention
5. Toby Merlin, Director, Division of Preparedness and Emerging Infections
(DPEI)
6. Mark Frank, Deputy Director, Division of Emergency Operations at Centers for
Disease Control and Prevention
Please provide all responsive records from January 20, 2020, through March 17,
2020.
American Oversight has limited its request to sent messages to reduce the volume
of potentially responsive records. American Oversight still requests complete email
chains. So, for example, if a government official sent a response to an incoming
message containing one of the key terms above, the email chain containing the
initially received message and the response is responsive to this request.
Fee Waiver Request
In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and your agency’s regulations, 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. Moreover, the request is primarily
and fundamentally for non-commercial purposes.
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 operations or activities of the government.”6 The public has a
significant interest in the federal government’s response to the coronavirus. Records with
the potential to shed light on this matter would contribute significantly to public
understanding of operations of the federal government, including whether and to what
extent public health officials and other scientific experts are able to share information
freely to the public in the midst of a public health emergency and ensure testing kits are
available for use nationwide. American Oversight is committed to transparency and makes
the responses agencies provide to FOIA requests publicly available, and the public’s
understanding of the government’s activities would be enhanced through American
Oversight’s analysis and publication of these records.

6

5 U.S.C. § 552(a)(4)(A)(iii).

-4-

HHS-20-0580

 Case 1:20-cv-01064 Document 1-1 Filed 04/23/20 Page 6 of 11

This request is primarily and fundamentally for non-commercial purposes.7 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.8
American Oversight has also demonstrated its commitment to the public disclosure of
documents and creation of editorial content through numerous substantive analyses
posted to its website.9 Examples reflecting this commitment to the public disclosure of
documents and the creation of editorial content include the posting of records related to
an ethics waiver received by a senior Department of Justice attorney and an analysis of
what those records demonstrated regarding the Department’s process for issuing such
waivers;10 posting records received as part of American Oversight’s “Audit the Wall”
project to gather and analyze information related to the administration’s proposed
construction of a barrier along the U.S.-Mexico border, and analyses of what those records
reveal;11 posting records regarding potential self-dealing at the Department of Housing &
Urban Development and related analysis;12 posting records and analysis relating to the

See 5 U.S.C. § 552(a)(4)(A)(iii).
American Oversight currently has approximately 15,500 page likes on Facebook and
102,100 followers on Twitter. American Oversight, FACEBOOK,
https://www.facebook.com/weareoversight/ (last visited Mar. 3, 2020); American
Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited
Mar. 3, 2020).
9 News, AMERICAN OVERSIGHT, https://www.americanoversight.org/blog.
10 DOJ Records Relating to Solicitor General Noel Francisco’s Recusal, AMERICAN OVERSIGHT,
https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance; Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN
OVERSIGHT, https://www.americanoversight.org/francisco-the-travel-ban-what-welearned-from-the-doj-documents.
11 See generally Audit the Wall, AMERICAN OVERSIGHT,
https://www.americanoversight.org/investigation/audit-the-wall; see, e.g., Border Wall
Investigation Report: No Plans, No Funding, No Timeline, No Wall, AMERICAN OVERSIGHT,
https://www.americanoversight.org/border-wall-investigation-report-no-plans-nofunding-no-timeline-no-wall.
12 Documents Reveal Ben Carson Jr.’s Attempts to Use His Influence at HUD to Help His Business,
AMERICAN OVERSIGHT, https://www.americanoversight.org/documents-reveal-ben-carsonjr-s-attempts-to-use-his-influence-at-hud-to-help-his-business.
7
8

-5-

HHS-20-0580

 Case 1:20-cv-01064 Document 1-1 Filed 04/23/20 Page 7 of 11

federal government’s efforts to sell nuclear technology to Saudi Arabia;13 and posting
records and analysis regarding the Department of Justice’s decision in response to
demands from Congress to direct a U.S. Attorney to undertake a wide-ranging review and
make recommendations regarding criminal investigations relating to the President’s
political opponents and allegations of misconduct by the Department of Justice itself and
the Federal Bureau of Investigation.14
Accordingly, American Oversight qualifies for a fee waiver.
Application for Expedited Processing
Pursuant to 5 U.S.C. § 552(a)(6)(E)(1) and 45 C.F.R. § 5.27(b), American Oversight
requests that your agency expedite the processing of this request.
I certify to be true and correct to the best of my knowledge and belief that the information
requested is urgently needed in order to inform the public concerning actual or alleged
government activity, and American Oversight is primarily engaged in disseminating the
information it received from public records requests to the public.
Recent reporting demonstrates that there is clearly an urgent need to inform the public
regarding the matters that are the subject of American Oversight’s FOIA request. First,
American Oversight has requested records with the potential to shed light on the steps the
administration has undertaken to manage a public health emergency at both national and
international levels. Because the virus has spread rapidly and has already killed dozens of
people in the United States,15 there is plainly an urgent need to inform the public about
administration actions regarding decisions about the virus in the United States, as cases
have now appeared nationwide and the reach of the virus grows wider on a daily basis.
The exceptionally widespread news reporting on coronavirus demonstrates that the public
urgently needs information about the federal government’s efforts and policies concerning
the subject matter of this request.16 Second, factual developments in the last few weeks
have demonstrated a series of government failures to appropriately handle decisions
regarding the virus, including failures in the rollout of coronavirus tests and overly
Investigating the Trump Administration’s Efforts to Sell Nuclear Technology to Saudi Arabia,
AMERICAN OVERSIGHT, https://www.americanoversight.org/investigating-the-trumpadministrations-efforts-to-sell-nuclear-technology-to-saudi-arabia.
14 Sessions’ Letter Shows DOJ Acted on Trump’s Authoritarian Demand to Investigate Clinton,
AMERICAN OVERSIGHT, https://www.americanoversight.org/sessions-letter.
15 Coronavirus Disease 2019 (COVID-19) Situation Summary, supra note 1.
16 Id.; Adam Taylor et al., Live Updates: Italy to Close Schools as Coronavirus Death Toll Passes
100, L.A. County Declares Health Emergency as Cases Mount, WASH. POST (Mar 4., 2020, 2:38
PM EST), https://www.washingtonpost.com/world/2020/03/04/coronavirus-liveupdates/; Holly Yan & Kristina Sgueglia, New York Now Has 6 Coronavirus Cases and City
Officials Are Scrambling to Find Who Else Might Have It, CNN HEALTH (Mar. 4, 2020 12:06 PM
EST), https://www.cnn.com/2020/03/04/health/new-york-coronavirus-cases/index.html.
13

-6-

HHS-20-0580

 Case 1:20-cv-01064 Document 1-1 Filed 04/23/20 Page 8 of 11

restrictive testing protocols,17 as well as an effort by government officials to minimize
press coverage and reduce public information18 about the testing of coronavirus cases.
There is also widespread public concern that public health officials are being prevented
from speaking about the coronavirus more broadly19—information that is critical for
educating the public on steps to contain the future spread of the virus and mitigate the
outbreaks that have already occurred.
Moreover, I certify to be true and correct to the best of my knowledge and belief that there
is an urgent need to inform the public about decision regarding coronavirus. American
Oversight’s request seeks information that can shed light on how and why decisions have
been made—including whether and to what extent initial testing kits were contaminated,
the rationale behind not using tests developed by the World Health Organization, the
speed and approach for disseminating testing kits to healthcare providers, the criteria for
giving a test to a patient, how information is disseminated about any ongoing tests and
presumptive positive cases in the United States, what planning is being done to prepare
for further spread to vulnerable populations, what decisions have been made regarding
emergency planning and work with external organizations, and what role critical health
agencies are playing in decision-making about a public health emergency. The public
urgently needs the information to understand the extent of the growing health crisis and
make decisions that promote public health and mitigate the spread of the disease.
I further certify that American Oversight is primarily engaged in disseminating
information to the public. 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. Similar to other organizations that have been found
to satisfy the criteria necessary to qualify for expedition,20 American Oversight “‘gathers
information of potential interest to a segment of the public, uses its editorial skills to turn
the raw material into a distinct work, and distributes that work to an audience.’”21
American Oversight uses the information gathered, and its analysis of it, to educate the
public through reports, press releases, and 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.22 As discussed previously, American

Park, supra note 3.
Ehley, supra note 5.
19 Shear & Haberman, supra note 4.
20 See ACLU v. U.S. Dep’t of Justice, 321 F. Supp. 2d 24, 30–31 (D.D.C. 2004); EPIC v. Dep’t of
Defense, 241 F. Supp. 2d 5, 15 (D.D.C. 2003).
21 ACLU, 321 F. Supp. 2d at 29 n.5 (quoting EPIC, 241 F. Supp. 2d at 11).
22 American Oversight currently has approximately 15,500 page likes on Facebook and
102,100 followers on Twitter. American Oversight, FACEBOOK,
https://www.facebook.com/weareoversight/ (last visited Mar. 3, 2020); American
Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited
Mar. 3, 2020).
17
18

-7-

HHS-20-0580

 Case 1:20-cv-01064 Document 1-1 Filed 04/23/20 Page 9 of 11

Oversight has demonstrated its commitment to the public disclosure of documents and
creation of editorial content. 23
Accordingly, American Oversight’s request satisfies the criteria for expedition.
Guidance Regarding the Search & Processing of Requested Records
In connection with its request for records, American Oversight provides the following
guidance regarding the scope of the records sought and the search and processing of
records:
§

Please search all locations and systems likely to have responsive records, regardless
of format, medium, or physical characteristics.

§

Our request for records includes any attachments to those records or other
materials enclosed with those records when they were previously transmitted. To
the extent that an email is responsive to our request, our request includes all prior
messages sent or received in that email chain, as well as any attachments to the
email.

§

Please search all relevant records or systems containing records regarding agency
business. Do not exclude records regarding agency business contained in files,
email accounts, or devices in the personal custody of your officials, such as
personal email accounts or text messages. Records of official business conducted
using unofficial systems or stored outside of official files are subject to the Federal

See generally News, AMERICAN OVERSIGHT, https://www.americanoversight.org/blog; see,
e.g., DOJ Civil Division Response Noel Francisco Compliance, AMERICAN OVERSIGHT,
https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance; Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN
OVERSIGHT, https://www.americanoversight.org/francisco-the-travel-ban-what-welearned-from-the-doj-documents; Audit the Wall, AMERICAN OVERSIGHT,
https://www.americanoversight.org/investigation/audit-the-wall; Border Wall Investigation
Report: No Plans, No Funding, No Timeline, No Wall, AMERICAN OVERSIGHT,
https://www.americanoversight.org/border-wall-investigation-report-no-plans-nofunding-no-timeline-no-wall; Documents Reveal Ben Carson Jr.’s Attempts to Use His Influence at
HUD to Help His Business, AMERICAN OVERSIGHT,
https://www.americanoversight.org/documents-reveal-ben-carson-jr-s-attempts-to-usehis-influence-at-hud-to-help-his-business; Investigating the Trump Administration’s Efforts to
Sell Nuclear Technology to Saudi Arabia, AMERICAN OVERSIGHT,
https://www.americanoversight.org/investigating-the-trump-administrations-efforts-tosell-nuclear-technology-to-saudi-arabia; Sessions’ Letter Shows DOJ Acted On Trump’s
Authoritarian Demand to Investigate Clinton, AMERICAN OVERSIGHT,
https://www.americanoversight.org/sessions-letter.
23

-8-

HHS-20-0580

 Case 1:20-cv-01064 Document 1-1 Filed 04/23/20 Page 10 of 11

Records Act and FOIA.24 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, by
intent or through negligence, failed to meet their obligations.25
§

Please use all tools available to your agency to conduct a complete and efficient
search for potentially responsive records. Agencies are subject to government-wide
requirements to manage agency information electronically,26 and many agencies
have adopted the National Archives and Records Administration (NARA)
Capstone program, or similar policies. These systems provide options for searching
emails and other electronic records in a manner that is reasonably likely to be
more complete than just searching individual custodian files. For example, a
custodian may have deleted a responsive email from his or her email program, but
your agency’s archiving tools may capture that email under Capstone. At the same
time, custodian searches are still necessary; agencies may not have direct access to
files stored in .PST files, outside of network drives, in paper format, or in personal
email accounts.

§

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 a request is denied in whole, please state specifically why it is
not reasonable to segregate portions of the record for release.

§

Please take appropriate steps to ensure that records responsive to this request are
not deleted by the agency before the completion of processing for this request. If
records potentially responsive to this request are likely to be located on systems
where they are subject to potential deletion, including on a scheduled basis, please
take steps to prevent that deletion, including, as appropriate, by instituting a
litigation hold on those records.

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).
25 See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8
(D.D.C. Dec. 12, 2016).
26 Presidential Memorandum—Managing Government Records, 76 Fed. Reg. 75,423
(Nov. 28, 2011), https://obamawhitehouse.archives.gov/the-pressoffice/2011/11/28/presidential-memorandum-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.
24

-9-

HHS-20-0580

 Case 1:20-cv-01064 Document 1-1 Filed 04/23/20 Page 11 of 11

Conclusion
If you have any questions regarding how to construe this request for records or believe
that further discussions regarding search and processing would facilitate a more efficient
production of records of interest to American Oversight, please do not hesitate to contact
American Oversight to discuss this request. 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 your agency
can decrease the likelihood of costly and time-consuming litigation in the future.
Where possible, please provide responsive material in an electronic format by email.
Alternatively, please provide responsive material in native format or in PDF 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.
We share a common mission to promote transparency in government. American Oversight
looks forward to working with your agency on this request. If you do not understand any
part of this request, please contact Daniel 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

- 10 -

HHS-20-0580