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American Oversight v. U.S. Department of Health and Human Services

United States District Court, District of Columbia

March 30, 2019




         Plaintiff, American Oversight, submitted a request to the Department of Health and Human Services (“HHS”) and the Office of Management and Budget (“OMB”) under the Freedom of Information Act, 5 U.S.C. § 552, seeking communications from the agencies to Members of Congress and Congressional staff about potential administrative actions related to the implementation of the Affordable Care Act. Compl. [Dkt. # 1] ¶¶ 10-11. Plaintiff sued the agencies arguing, among other things, that the agencies withheld or redacted records without justification, and that it failed to adequately search for responsive records. Id. ¶¶ 44-55.[1] The agencies moved for summary judgment, and plaintiff opposed the motion and filed its own motion for summary judgment.

         Because the Court finds that the agencies improperly redacted and mislabeled responsive information as “non-responsive records, ” and that they improperly invoked Exemption 5 to withhold the agencies' emails with Congress, it will deny defendants' motion for summary judgment and grant plaintiff's cross-motion. Defendants are ordered to produce responsive records consistent with this opinion.


         Plaintiff American Oversight “is a nonpartisan, nonprofit . . . organization committed to the promotion of transparency in government.” Compl. ¶ 6. On May 4, 2017, it sent identical FOIA requests to HHS and OMB seeking the following two categories of records:

1. A copy of any letter or memorandum sent on or about March 23, 2017 to Congressional republicans outlining potential regulatory actions related to the Affordable Care Act. The requested record was referenced in an April 4, 2017 letter from 21 Senators to Secretary Tom Price.
2. Any other communications from [the agencies] to any member of Congress or congressional staff concerning potential administrative actions relating to implementation of the Affordable Care Act.

Ex. A to Compl., HHS FOIA [Dkt. # 1-1]; Ex. B to Compl., OMB FOIA [Dkt. # 1-2] (collectively, “FOIA Requests”). The timeframe of the requests was from March 6, 2017, to the date of the agencies' searches. Id. at 2. Plaintiff explained in its letters that it was interested in this information due to stalled legislative efforts in Congress to “repeal and replace” the Affordable Health Care Act (“ACA”), and subsequent reports that the “Trump administration [planned] to take administrative actions that would affect the operation of the ACA, ” including the repeal of regulations. Id. at 1-2.

         Plaintiff filed this suit on July 20, 2017, and the agencies began making rolling productions in November 2017. Status Report & Proposed Processing Schedule [Dkt. # 6] at 1. By February 2018, both agencies had completed their productions. Joint Status Report [Dkt. # 13] at 1.

         The agencies moved for summary judgment on April 9, 2018, see Defs.' Mot. for Summ. J. [Dkt. # 14]; Mem. of P. & A. in Supp. of Defs.' Mot. [Dkt. # 14-1] (“Defs.' Mem.”), and plaintiff opposed that motion and filed a cross-motion for summary judgment. Pl.'s Cross-Mot. at Summ. J. [Dkt. # 16]. Those motions are fully briefed and ripe for decision. See also Mem. of P. & A. in Opp. to Pl.'s Mot. For Summ. J. & in Reply in Supp. of Defs.' Mot. [Dkt. # 20] (“Defs.' Reply”); Reply in Supp. of Pl.'s Cross-Mot. for Summ. J. [Dkt. # 22] (“Pl.'s Cross-Reply”).


         To prevail in a FOIA action, an agency must first demonstrate that it has made “a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Second, the agency must “show that [the] requested material falls within a FOIA exemption.” Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002). Any “reasonably segregable” information in a responsive record must be released, 5 U.S.C. § 552(b), and “non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.” Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).

         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Most FOIA cases are appropriately resolved on motions for summary judgment. Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

         In a FOIA action, the Court may award summary judgment solely on the information provided in affidavits or declarations that describe “the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973). Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.'” SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991), quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981).


         I. The agencies improperly redacted email chains as ...

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