Complaint — APT v. HHS

Record facts

U.S. District Court for the Northern District of Georgia (Atlanta Division) · No. 1:21-cv-02834-ELR · Doc. 1 · 2021-07-15 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
 
_________________________________________ 
 
 
 
) 
AMERICANS FOR PUBLIC TRUST, 
) 
107 South West Street, Ste. 442  
 
) 
Alexandria, VA 22314  
 
 
) 
 
 
 
   
 
 
 
) 
Plaintiff, 
) 
  
) 
 
v. 
 
 
 
 
 
 
)      Civil Case No. ______________ 
) 
 
UNITED STATES DEPARTMENT OF  
) 
   COMPLAINT FOR 
HEALTH AND HUMAN SERVICES,  
) 
DECLARATORY AND         
200 Independence Ave, SW  
 
 
) 
INJUNCTIVE RELIEF 
Washington, D.C. 20201;  
 
 
) 
 
 
 
 
 
 
 
) 
and   
 
 
 
 
 
) 
 
 
 
 
 
 
 
) 
CENTERS FOR DISEASE CONTROL 
) 
AND PREVENTION  
 
 
 
) 
1600 Clifton Road, N.E.   
 
 
) 
Atlanta, GA 30329; 
 
 
 
) 
 
 
 
 
 
 
 
) 
 
 Defendants. 
) 
____________________________________) 
 
 
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 
 
NOW COMES Plaintiff, Americans for Public Trust (“Plaintiff”), and states 
as follows: 
NATURE OF THE CASE 
1. 
Plaintiff brings this action under the Freedom of Information Act 
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(“FOIA”), 5 U.S.C. § 552, as amended, challenging the failure of the United States 
Department of Health and Human Services and the United States Centers for Disease 
Control and Prevention (“Defendants”) to completely fulfill Plaintiff’s February 4, 
2021 FOIA request for records and to make an immediate determination regarding 
Plaintiff’s administrative appeal challenging redactions from the records that have 
been produced to this point.   
2. 
Plaintiff seeks disclosure of records in the possession of the U.S. 
Department of Health and Human Services (“HHS”)1 containing “[e]mails, 
communications, correspondence, and/or talking points describing CDC guidance 
for the reopening of schools” between January 15, 2021, to the present in certain 
CDC officials’ email accounts identified in Plaintiff’s February 4, 2021 FOIA 
request letter. See Ex. 1 at 1. Additionally, Plaintiff seeks a determination from 
Defendants in response to its administrative appeal challenging numerous redactions 
and fully withheld records throughout the 497 pages of CDC records produced thus 
far, see Exhibits 4 and 5.  
 
1 Because responsive records from Defendant Centers for Disease Control and 
Prevention were produced to Plaintiff on April 21, 2021, Plaintiff now seeks the 
remaining records from Defendant HHS that HHS recently acknowledged it received 
from CDC on April 21 but had not yet processed, see Ex. 9, while also challenging 
Defendants’ failure to make a timely determination on Plaintiff’s administrative 
appeal of the CDC’s numerous improper redactions in its 497 pages of produced 
records, see Ex. 5.  
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3. 
Plaintiff seeks declaratory relief that Defendants are in violation of 
FOIA by (1) failing to timely communicate a determination of whether HHS will 
comply with Plaintiff’s request for records, (2) failing to respond to Plaintiff’s 
administrative appeal, and (3) improperly redacting non-exempt information in the 
initial production of CDC records. Plaintiff also seeks injunctive relief ordering 
Defendants to immediately and completely comply with Plaintiff’s FOIA request 
and administrative appeal. Further, Plaintiff seeks fees and costs pursuant to 5 U.S.C. 
§ 552(a)(4)(E).    
JURISDICTION AND VENUE 
4. 
This Court has both subject matter jurisdiction and personal jurisdiction 
over the parties and claims pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 
1331. Venue lies with this district under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 
1391(e)(1).  
5. 
Plaintiff is a nonprofit corporation incorporated in Virginia, organized 
under section 501(c)(3) of the Internal Revenue Code, with its principal place of 
business in Alexandria, Virginia.   
6. 
HHS is headquartered in Washington, D.C., and its principal office is 
located at 200 Independence Ave, SW.  
7. 
The Centers for Disease Control and Prevention (“CDC”) is 
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headquartered in Atlanta, Georgia, and its principal office is located at 1600 
Clifton Road, N.E. 
PARTIES 
8. 
Plaintiff Americans for Public Trust is a Section 501(c)(3) non-profit, 
nonpartisan organization committed to exercising vigilant oversight and restoring 
trust in government by exposing corruption and holding politicians and political 
groups accountable for corrupt and unethical behavior. To further this mission, it 
uses in-depth investigations and legal action, including filing FOIA requests like that 
at issue here, to help promote open and transparent government and ensure that those 
who disregard the rule of law are held accountable. It also seeks to raise public 
awareness of this work through reporting and disseminating information about the 
powerful being held accountable for their misconduct to help rebuild public trust. 
9. 
Defendant HHS is a federal agency within the meaning of FOIA, 5 
U.S.C. § 552(f)(1), and has possession, custody, and control of records to which 
Plaintiff seeks access pursuant to FOIA. Additionally, HHS’s Deputy Agency Chief 
FOIA Officer of the Office of the Assistant Secretary for Public Affairs has 
responsibility for processing administrative appeals of FOIA requests submitted to 
the CDC. See Ex. 3 at 2. 
10. 
Defendant CDC is an agency within, and under the jurisdiction of, 
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HHS, and is a federal agency within the meaning of FOIA, 5 U.S.C. § 552(f)(1). The 
CDC is tasked with protecting the United States from health, safety, and security 
threats in accordance with science and with providing health information to the 
American people to protect them against such threats. The CDC has possession, 
custody, and control of non-exempt records that Plaintiff is challenging as 
improperly withheld and/or redacted pursuant to cited FOIA exemptions. 
STATEMENT OF FACTS AND LAW 
11. 
On March 13, 2020, in response to the spread of the global coronavirus 
disease, the President of the United States declared a national emergency; in 
response, many states throughout the country announced that their public schools 
would close indefinitely. See Teo Armus, Katie Mettler, & Brittany Shammas, 14 
States and Several Major Cities Close K-12 schools, Wash. Post (Mar. 13, 2020), 
https://www.washingtonpost.com/world/2020/03/13/coronavirus-latest-news/ (last 
visited July 9, 2021). During the COVID-19 pandemic, the CDC has provided 
numerous different iterations of guidance and operational considerations for the safe 
operation of schools in response to the pandemic, with particular emphasis on the 
use of masks, hand hygiene, and physical distancing. For instance, in a January 29, 
2021 agency publication, the CDC recommended that every student who is able 
should wear a mask at school and maintain a physical distance of two meters (6.5 
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feet) from other students. Ctrs. for Disease Control and Prevention, Operational 
Considerations for Schools (Jan. 29, 2021), https://www.cdc.gov/coronavirus/2019-
ncov/global-covid-19/schools.html#anchor_1595698082991 (last visited July 9, 
2021).  
12. 
On February 12, 2021, the CDC released its highly anticipated updated 
guidance (“CDC Guidance”) directing schools how to proceed with reopening, 
which included extensive descriptions of prevention strategies and mitigation 
measures that were described as necessary to help provide “additional layers of 
COVID-19 prevention” for students and staff at schools. See Ctrs. for Disease 
Control and Prevention, Operational Strategy for K-12 Schools through Phased 
Mitigation 
(Feb. 
12, 
2021), 
https://web.archive.org/web/20210212190653/https:/www.cdc.gov/coronavirus/20
19-ncov/downloads/community/schools-childcare/K-12-Operational-Strategy-
2021-2-
12.pdf?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2
019-ncov%2Fcommunity%2Fschools-childcare%2Foperation-strategy.html 
(last 
visited July 9, 2021). As NPR reported, “[f]or politicians, parents and school leaders 
looking for a clear green light to reopen schools, [the CDC Guidance] is not it.” Cory 
Turner, Anya Kamenetz, & Tamara Keith, CDC Offers Clearest Guidance Yet for 
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Reopening 
Schools, 
NPR 
(Feb. 
12, 
2021), 
https://www.npr.org/2021/02/12/967033554/cdc-offers-clearest-guidance-yet-for-
reopening-schools (last visited July 9, 2021). The necessity and scientific basis for 
the CDC’s stringent recommendations for schools, along with the practical effect of 
significantly slowing the process of reopening, were highly controversial at the time 
and remain a matter of significant public controversy and media scrutiny.  See, e.g., 
Joseph G. Allen & Helen Jenkins, The CDC’s Latest Demands Will Keep Millions 
of Kids Out of School Unnecessarily, Wash. Post (Opinion) (Feb. 12, 2021), 
https://www.washingtonpost.com/opinions/2021/02/12/cdc-report-schools-
problems/ (last visited July 9, 2021).   
13. 
Plaintiff is a non-profit organization interested in openness and 
transparency in government, with an emphasis on educating the public through 
reporting and restoring public trust in government by exposing corruption and 
holding politicians and government agencies accountable for corrupt and unethical 
behavior. To that end, Plaintiff seeks to review and publicize any records in 
Defendants’ possession showing undue political influence of outside groups over the 
CDC’s decision-making process shaping its school reopening guidance, particularly 
from teachers unions like the American Federation of Teachers (“AFT”). See Jon 
Levine, Powerful Teachers Union Influenced CDC on School Reopenings, Emails 
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Show, N.Y. Post (May 1, 2021), https://nypost.com/2021/05/01/teachers-union-
collaborated-with-cdc-on-school-reopening-emails/ (last visited July 9, 2021). 
Plaintiff seeks to understand the degree and extent of AFT’s exerted pressure and 
the influence it exercised in shaping the policy of the CDC and its officials, HHS, 
and the White House regarding school reopening.  
14. 
This is a matter of ongoing, urgent, and imminent public concern 
because the new school year is quickly approaching for millions of American 
students, and the CDC Guidance continues to dominate debates in states and local 
school boards across the country regarding the process of reopening, see, e.g., 
Analise Knudson, 2021-2022 Academic Year: How Will All NYC Students Return If 
Social Distancing Remains in Place? Staten Island Advance (Jun. 22, 2021), 
https://www.silive.com/education/2021/06/2021-2022-academic-year-how-will-
all-nyc-students-return-if-social-distancing-remains-in-place.html (last viewed July 
9, 2021), particularly given the recent rise of the “Delta variant,” a highly infectious 
form of the coronavirus that is sweeping the United States, see Roni Caryn Rabin, 
Apoorva Mandavilli, & Shawn Hubler, Masks Again? Delta Variant’s Spread 
Prompts Reconsideration of Precautions, N.Y. Times (June 29, 2021), 
https://www.nytimes.com/2021/06/29/health/coronavirus-delta-variant-masks.html 
(last viewed July 9, 2021). Accordingly, Plaintiff aims to fulfill its mission of 
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reporting on improprieties surrounding the CDC Guidance it believes it is likely to 
uncover from both the improperly redacted documents from the CDC and from the 
still-unreleased records in custody of HHS.      
15. 
The FOIA, 5 U.S.C. § 552, requires federal agencies to release 
requested public records unless a statutory exemption applies. 
16. 
An agency has twenty business days to respond to a request, which must 
include a notification to the requesting party of the agency’s determination of 
whether to fulfill the request and of the requester’s right to appeal the agency’s 
determination to the head of the agency. 5 U.S.C. § 552(a)(6)(A)(i).  
17. 
An agency may delay its response only in “unusual circumstances” by 
providing written notice to the requesting party of the unusual circumstances and 
identifying a date when “a determination is expected to be dispatched.” Id. 
§ 552(a)(6)(B)(i). “No such notice shall specify a date that would result in an 
extension for more than ten working days . . . .” Id.  
18. 
For administrative appeals of agency decisions, including challenges to 
redactions based on alleged FOIA exemptions to disclosure, an agency must make a 
determination within twenty business days after receiving the appeal, and notify the 
person making the request of the provisions for judicial review of that determination. 
Id. § 552(a)(6)(A)(ii). In “unusual circumstances,” this appeal time limit can also be 
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extended for up to ten working days by providing written notice to the requester. Id. 
§ 552(a)(6)(B)(i). 
19. 
Plaintiff sent a FOIA request on February 4, 20212 to Defendants (“the 
Request”) requesting  
Emails, communications, correspondence, and/or talking points describing 
CDC guidance for the reopening of schools, during the above stated time 
period, in the following CDC staff email accounts: Rochelle Walensky 
(Director), Anne Schuchat (Principal Deputy Director), Christopher Jones 
(Associate Director for Communication), Robin Ikeda (Associate Director for 
Policy and Strategy), Mitchell Wolfe (Chief Medical Officer), Sherri Berger 
(Chief of Staff), [and] Jeff Reczek (Director, Washington Office). 
 
A true and correct copy of the Request is included as Exhibit 1 (“Plaintiff’s February 
4 FOIA Request”) and is incorporated hereto for all purposes.  
20. 
On February 5, 2021, Defendants acknowledged receipt of the Request 
and stated that the search for responsive records would be initiated. Ex. 2 
(“Defendants’ February 5 Acknowledgment Letter”). Defendants assigned it request 
number 21-00613-FOIA, and stated that it would require more than the twenty-
working day limit to respond because of “unusual circumstances.” See id.   
21. 
On April 21, 2021, Plaintiff received a response from the CDC’s FOIA 
Officer, Roger Andoh. See Ex. 3 (“CDC April 21 FOIA Determination”). The CDC 
 
2 Although the Request was mistakenly dated as February 4, 2020, see Ex. 1, the 
CDC understood that Plaintiff intended to date it February 4, 2021, see Ex. 2 
(“Defendants’ February 5 Acknowledgment Letter”). 
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determined that it had located 497 pages of responsive records. Id. at 1. Of those, 
only 63 pages were released in full; 189 of the pages were partially redacted (with 
many pages significantly redacted), and 148 of the pages were fully withheld. See 
id.; see also Ex. 4 (“CDC April 21 Records Production”). The CDC informed 
Plaintiff that the information was withheld under FOIA Exemption 5 (the 
“deliberative process privilege”) and Exemption 6 (personnel files information and 
personal privacy exemption), see Ex. 3; beyond indicating which of these 
exemptions is applicable and a conclusory statement in the determination letter that 
“[t]he materials that have been withheld under the deliberative process privilege of 
Exemption 5 are both predecisional and deliberative, and do not contain or represent 
formal or informal agency policies or decisions,” id., the CDC provided no 
additional explanation for why these voluminous redactions are necessary or 
justified under FOIA, nor did it describe the substance of the materials underneath 
the redactions, including for the 148 entirely withheld pages. See Ex. 4.  
22. 
In the April 21 determination letter, the CDC also informed Plaintiff 
that the remaining 97 pages of responsive records were “referred to the Department 
of Health and Human Services for their direct response to [Plaintiff],” without 
additional explanation. See Ex. 3 at 1. 
23. 
The CDC also informed Plaintiff of its right to administratively appeal 
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its determination on or before July 20, 2021, by writing to the Deputy Agency Chief 
FOIA Officer in the Office of the Assistant Secretary for Public Affairs at HHS. Id. 
at 2.  
24. 
On May 14, 2021, Plaintiff submitted a FOIA appeal to HHS 
challenging the CDC’s redactions as improper. Ex. 5 (“Plaintiff’s May 14 
Administrative Appeal”) and Ex. 6 (“Plaintiff’s May 14 FOIA Appeal Email”) 
(email attachments are included with this Complaint as Exhibits 1, 3, 4, and 5). 
Plaintiff specifically challenged the redactions made under FOIA Exemption 5, 
arguing that this exemption does not protect many of the materials the CDC redacted 
from disclosure, and asserting that it almost certainly does not support withholding 
148 of the responsive pages in full. Ex. 5 at 1-2. Plaintiff requested expedited 
consideration of the appeal because of its time-sensitive nature, and asked that the 
20-day time limit imposed by 5 U.S.C. § 552(a)(6)(A)(ii) and 45 C.F.R. § 5.63(a) be 
strictly adhered to. See id.  
25. 
On May 17, 2021, Plaintiff received a confirmation email and letter 
from HHS indicating that the Administrative Appeal was received on May 14, 2021, 
and that it had been assigned Tracking No. 2021-00177-A-PHS. Ex. 7 (“HHS May 
17 Administrative Appeal Acknowledgment Ltr.”) and Ex. 8 (“HHS May 17 Appeal 
Acknowledgment Email”). HHS indicated that the appeal falls under “unusual 
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circumstances,” meaning that it would require additional time to process the appeal 
beyond the statutory 20-business-day requirement. See Ex. 7.  
26. 
To date, Plaintiff has received no determination from HHS regarding 
Plaintiff’s May 14 Administrative Appeal, even though more than thirty business 
days have passed since HHS received the Administrative Appeal.3 
27. 
On June 11, 2021, Plaintiff received a letter from the Office of the 
Secretary of HHS (“OS”) acknowledging receipt of the CDC’s referral of Plaintiff’s 
February 4 FOIA Request, and assigned it Case Number 2021-00969-FOIA-OS. Ex. 
9 (“HHS OS Acknowledgment Letter”) and Ex. 10 (“HHS OS Acknowledgment 
Email”). OS acknowledged that it received the CDC’s referral of the Request on 
April 21, 2021. Ex. 9 at 1; see also Ex. 3. OS also indicated that because of “unusual 
circumstances,” the referred request to HHS would not be able to be processed 
within twenty business days, see Ex. 9 at 2.  To date, HHS has not communicated its 
determination as to whether it will comply with Plaintiff’s Request as it relates to 
the referred records.4 
28. 
Since receiving HHS’s June 11 acknowledgment email, Plaintiff has 
 
3 As of the date of filing this Complaint, 41 business days have passed since HHS 
acknowledged receipt of the Administrative Appeal.  
4 As of the date of filing this Complaint, 58 business days have passed since OS 
received Defendant CDC’s referral of the records.   
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received no further communications from Defendants regarding the Request.  
29. 
Defendant HHS has failed to comply with the statutory deadline to 
respond within twenty business days of the agency’s April 21 receipt of the Request, 
as required by FOIA under 5 U.S.C. § 552(a)(6)(A). And though written notice of 
“unusual circumstances” was provided in the June 11 correspondence, under which 
the statute permits a ten-business-day extension, see id. § 552(a)(6)(B), that deadline 
has long since expired because more than thirty business days have passed since 
HHS received the referral on April 21. None of these referred records have been 
produced, and HHS has communicated no determination regarding whether any of 
the identified responsive records related to the Request will be produced, or even 
whether there are additional responsive records beyond the 97 pages referenced by 
the CDC in its response letter. 
30. 
Defendants have also failed to comply with FOIA’s statutory deadline 
to respond within twenty business days of the agency’s receipt of the May 14 
Administrative Appeal, as required by 5 U.S.C.  § 552(a)(6)(A)(ii). And though 
written notice of “unusual circumstances” was provided in the May 17 Appeal 
Acknowledgment Letter, the ten-business day extension allowed by FOIA (i.e., no 
more than thirty business days in total) has also expired. See id. § 552(a)(6)(B)(i). 
Furthermore, Defendants have also failed to respond to Plaintiff’s request in the 
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Administrative Appeal for “expedited consideration of this appeal,” see Ex. 5. This 
failure to respond to a request for expedited consideration of the Administrative 
Appeal within the statutory time frame is also “subject to judicial review,” see 5 
U.S.C. § 552(a)(6)(E)(ii)-(iii), particularly given Plaintiff’s urgency to inform the 
public about the CDC’s activities before the rapidly approaching new school year 
begins with reopening policies shaped largely by the CDC’s COVID-19 protocols.5 
This failure provides an independent basis for review separate from the agency’s 
 
5 See Wash. Post v. Dep’t of Homeland Sec., 459 F. Supp. 2d 61, 65 (D.D.C. 2006) 
(noting that 5 U.S.C. § 552(a)(6)(E) mandates expedited processing if “the request 
is made ‘by a person primarily engaged in disseminating information,’ and has an 
‘urgency to inform the public concerning actual or alleged Federal Government 
activity’”) (vacated as moot by subsequent consent motion, Wash. Post v. Dep’t of 
Homeland Sec., No. 06-5337, 2007 U.S. App. LEXIS 6682, at *1 (D.C. Cir. Feb. 27, 
2007)); id. at 76 (granting the plaintiff’s motion for a preliminary injunction to 
“complete the processing of the plaintiff’s [] FOIA requests and produce or identify 
all responsive records within 10 days of the date” of the opinion); Aguilera v. FBI, 
941 F. Supp. 144, 152-53 (D.D.C. 1996) (granting a preliminary injunction and 
mandating expedited release of documents).  
In time-sensitive cases like this one, “courts have equitable powers to order agencies 
to act within a particular time frame . . . .” Landmark Legal Found. v. EPA, 910 F. 
Supp. 2d 270, 275 (D.D.C. 2012). FOIA also grants courts jurisdictional authority 
to impose “concrete deadlines” on any agency that “delay[s]” the processing of an 
expedited FOIA request beyond what is arguably “as soon as practicable.” See Elec. 
Privacy Info. Ctr. v. Dep’t of Justice, 416 F. Supp. 2d 30, 38 (D.D.C. 2006) (granting 
a preliminary injunction and ordering expedited processing and disclosure of 
documents concerning the Bush Administration’s policy of conducting surveillance 
of domestic communications); see also id. at 39 (opining that if an agency fails to 
meet the “twenty-day deadline applicable to standard FOIA requests” it 
“presumptively also fails to” meet the expedited standard). 
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failure to timely comply with FOIA’s twenty-day administrative appeal response 
deadline.  
31. 
Because Defendants have not complied with FOIA’s explicit statutory 
obligations and timelines, Plaintiff has constructively exhausted all administrative 
remedies and may proceed directly to this Court for relief. See Citizens for Resp. & 
Ethics in Wash. v. Fed. Election Comm’n, 711 F.3d 180, 186 (D.C. Cir. 2013) (a 
requestor exhausts its remedies unless, within the relevant time period, the agency 
“inform[s] the requester of the scope of the documents that the agency will produce, 
as well as the scope of the documents that the agency plans to withhold under any 
FOIA exemptions”); id. at 189-90 (“[I]f the agency does not adhere to FOIA’s 
explicit timelines, the ‘penalty’ is that the agency cannot rely on the administrative 
exhaustion requirement to keep cases from getting into court.”).6  
32. 
Plaintiff has a statutory right of access to the records it seeks, and to a 
determination regarding its administrative appeal challenging the voluminous 
 
6 See also 5 U.S.C. § 552(a)(6)(C)(i) (“Any person making a request to any agency 
for records . . . shall be deemed to have exhausted his administrative remedies with 
respect to such request if the agency fails to comply with the applicable time limit 
provisions of this paragraph.”); Nurse v. Sec’y of the Air Force, 231 F. Supp. 2d 323, 
328 (D.D.C. 2002) (“The FOIA is considered a unique statute because it recognizes 
a constructive exhaustion doctrine for purposes of judicial review upon the 
expiration of certain relevant FOIA deadlines.”). 
 
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redactions as improper. There is no legal basis for Defendants to withhold those 
documents or to decline to respond to Plaintiff’s administrative appeal within the 
statutory timeframes. 
33. 
To date, Plaintiff has not received any documents from HHS OS in 
response to the Request, nor has it received the statutorily required determination 
from Defendants in response to the Administrative Appeal. 
COUNT I 
Violation of FOIA, 5 U.S.C. § 552; Failure to Make Determination and 
Produce Records 
 
34. 
Plaintiff re-alleges and incorporates by reference all preceding 
paragraphs.  
35. 
Plaintiff properly requested records in its February 4, 2021 Request and 
responsive records are within Defendant HHS’s custody and control. Defendant 
HHS acknowledged that it received Defendant CDC’s referral of the Request on 
April 21, 2021. See Ex. 9. 
36. 
To date, Defendant HHS has failed to 1) make and communicate a 
determination within the applicable FOIA statutory deadlines whether to comply 
with Plaintiff’s request with respect to the records in its custody and 2) produce 
records pursuant to the Request, or cite or explain a basis for a statutory exemption.  
37. 
Defendant HHS, by failing to produce and improperly withholding the 
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requested agency records, has violated FOIA’s plain requirements. See 5 U.S.C. 
§§ 552(a)(3)(A), (a)(4)(B), (a)(6)(E)(ii)-(iii). 
38. 
Plaintiff has exhausted all applicable administrative remedies with 
respect to Defendant HHS’s failure to respond to the Request. 5 U.S.C. § 
552(a)(6)(C)(i). 
39. 
Accordingly, Plaintiff is entitled to injunctive and declaratory relief 
with respect to the disclosure and release of responsive records in Defendant HHS’s 
custody pursuant to the Request.  
COUNT II 
Violation of FOIA, 5 U.S.C. § 552; Failure to Respond to Administrative 
Appeal Challenging Improper Redactions and to Respond to Plaintiff’s 
Request for Expedited Processing of Administrative Appeal 
 
40. 
Plaintiff re-alleges and incorporates by reference all preceding 
paragraphs.  
41. 
Plaintiff properly submitted its Administrative Appeal on May 14, 
2021, challenging the CDC’s redactions and withholding of records as improper, 
particularly under FOIA Exemption 5 because it does not protect many of the 
materials the CDC redacted or withheld from disclosure. See Ex. 5. 
42. 
Plaintiff also requested expedited consideration of the Administrative 
Appeal because of its time-sensitive nature, and asked that the 20-day time limit 
under 45 C.F.R. § 5.63(a) be strictly adhered to. Id. at 2. 
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43. 
To date, Defendants have failed to make and communicate a 
determination regarding Plaintiff’s Administrative Appeal within the applicable 
FOIA statutory deadlines. Defendants have also failed to respond to Plaintiff’s 
request for expedited processing “within 10 days after the date of the request,” 5 
U.S.C. § 552(a)(6)(E)(ii)(I) or “in a timely manner[,]” id. § 552(a)(6)(E)(iii). 
44. 
By failing to (1) timely make and communicate a determination with 
respect to Plaintiff’s Administrative Appeal, (2) demonstrate that redacted or 
withheld responsive records are exempt from production, (3) produce the improperly 
withheld agency records and redacted portions challenged in the Administrative 
Appeal, and (4) timely respond to and grant Plaintiff’s request for expedited 
processing of the Administrative Appeal, Defendants have violated FOIA’s plain 
language. See 5 U.S.C. §§ 552(a)(3)(A), (a)(4)(B), (a)(6)(A)(ii), (a)(6)(E)(ii)-(iii). 
45. 
Accordingly, Plaintiff is entitled to injunctive and declaratory relief 
with respect to Defendants’ determination of the Administrative Appeal, and to 
production of all non-exempt records and portions of records challenged in the 
Administrative Appeal as improperly redacted or withheld.  
PRAYER FOR RELIEF 
Wherefore, Plaintiff, Americans for Public Trust, prays for the following relief: 
1. 
Declare that Defendant HHS’s failure to (1) timely respond with a 
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determination whether to comply with Plaintiff’s Request regarding the records in 
its custody and (2) disclose the records responsive to Plaintiff’s Request within the 
statutory time frame violates FOIA, 5 U.S.C. §§ 552(a)(6)(A)(i), (a)(3)(A); 
2. 
Order Defendant HHS to immediately make and communicate a 
determination to Plaintiff in response to Plaintiff’s Request, see 5 U.S.C. 
§ 552(a)(6)(A)(i); 
3. 
Order Defendant HHS to expeditiously conduct an adequate search for 
all records responsive to Plaintiff’s Request in accordance with 5 U.S.C. 
§ 552(a)(3)(C) at no cost to Plaintiff; 
4. 
Preliminarily and permanently enjoin Defendant HHS from failing to 
promptly complete the processing and response to Plaintiff’s Request, with an Order 
to identify and produce all responsive records not demonstrated by HHS to be 
properly exempt from disclosure within 10 days of the date of the Court’s Order, or 
before August 31, whichever is earlier; 
5. 
Declare that Defendants’ failure to make and communicate a 
determination regarding Plaintiff’s Administrative Appeal within the applicable 
statutory deadlines violates FOIA, 5 U.S.C. §§ 552(a)(6)(A)(ii), (a)(6)(B)(i); 
6. 
Order Defendants to immediately make and communicate a 
determination to Plaintiff in response to Plaintiff’s Administrative Appeal, and to 
Case 1:21-cv-02834-ELR   Document 1   Filed 07/15/21   Page 20 of 24

21 
demonstrate that any withheld or redacted responsive records are exempt from 
production;  
7. 
Declare that Defendants’ failure to respond to Plaintiff’s request for 
expedited processing of the Administrative Appeal within the statutory time frame 
violates 5 U.S.C. § 552 (a)(6)(E)(ii)(I); 
8. 
Preliminarily and permanently enjoin Defendants from continuing to 
improperly withhold all non-exempt records responsive to the Request from 
Plaintiff, including any improperly redacted records and segments of records 
challenged in the Administrative Appeal; 
9. 
Maintain jurisdiction over this action to ensure that Defendants 
properly and lawfully respond to the Request and every order of this Court to ensure 
that no non-exempt responsive records or portions thereof are withheld; 
10. 
Award Plaintiff its litigation costs and reasonable attorney’s fees 
pursuant to 5 U.S.C. § 552(a)(4)(E); and 
11. 
Grant any and all other relief that the Court may deem just and proper.  
Dated: July 15, 2021. 
 
 
 
 
 
 
Respectfully submitted, 
 
 /s/ Bryan Tyson  
Bryan P. Tyson  
Georgia Bar No. 515411 
Case 1:21-cv-02834-ELR   Document 1   Filed 07/15/21   Page 21 of 24

22 
btyson@taylorenglish.com 
Loree Anne Paradise 
Georgia Bar No. 382202 
lparadise@taylorenglish.com 
TAYLOR ENGLISH DUMA LLP 
1600 Parkwood Circle, Suite 200 
Atlanta, Georgia 30339 
Phone: 770.434.6868 
Fax: 770.434.7376 
 
 
Jason Torchinsky*   
jtorchinsky@holtzmanvogel.com  
Kenneth C. Daines* 
kdaines@holtzmanvogel.com 
HOLTZMAN VOGEL BARAN 
TORCHINSKY & JOSEFIAK PLLC  
15405 John Marshall Highway  
Haymarket, VA 20169  
Phone: (540) 341-8808  
Fax: (540) 341-8809 
Counsel for Plaintiff 
*Motions for Pro Hac Vice Admission  
 Forthcoming 
 
 
Case 1:21-cv-02834-ELR   Document 1   Filed 07/15/21   Page 22 of 24

23 
CERTIFICATE OF SERVICE 
 
I do hereby certify that, on this 15th day of July 2021, the foregoing Complaint 
was filed electronically with the Clerk of Court using the CM/ECF system. The 
following parties were served by USPS Certified, Return Receipt Mail on July 15th. 
United States Department of Health and Human Services 
200 Independence Ave, SW 
 
 
 
 
Washington, DC 20201;   
 
 
 
 
 
 
 
 
 
 
 
and   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
United States Centers for Disease Control and Prevention  
1600 Clifton Road, N.E.  
 
 
 
Atlanta, GA 30329 
 
And, pursuant to Federal Rule of Civil Procedure 4(i), a copy of the summons was 
sent and served via Certified Mail, Return Receipt on July 15th to the following: 
 
Attorney General Merrick Garland 
c/o Assistant U.S. Attorney of Administration 
Justice Management Division 
950 Pennsylvania Ave. NW, Room 1111 
Washington, D.C. 20530 
 
Kurt R. Erskine 
Acting United States Attorney for the Northern District of Georgia 
Civil Process Clerk 
75 Ted Turner Dr. SW 
Suite 600 
Atlanta, GA 30303-3309 
 
/s/ Bryan Tyson  
Bryan P. Tyson  
Georgia Bar No. 515411 
btyson@taylorenglish.com 
Case 1:21-cv-02834-ELR   Document 1   Filed 07/15/21   Page 23 of 24

24 
Loree Anne Paradise 
Georgia Bar No. 382202 
lparadise@taylorenglish.com 
TAYLOR ENGLISH DUMA LLP 
1600 Parkwood Circle, Suite 200 
Atlanta, Georgia 30339 
Phone: 770.434.6868 
Fax: 770.434.7376 
 
Jason Torchinsky*   
jtorchinsky@holtzmanvogel.com  
Kenneth C. Daines* 
kdaines@holtzmanvogel.com 
HOLTZMAN VOGEL BARAN TORCHINSKY & JOSEFIAK PLLC  
15405 John Marshall Highway  
Haymarket, VA 20169  
Phone: (540) 341-8808  
Counsel for Plaintiff 
*Motions for Pro Hac Vice Admission Forthcoming 
 
Case 1:21-cv-02834-ELR   Document 1   Filed 07/15/21   Page 24 of 24

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