Complaint — U.S. Right to Know v. National Institutes of Health, No. 20-cv-3196

Record facts

U.S. District Court for the District of Columbia · No. 1:20-cv-03196-CKK · Doc. 1 · 2020-11-05 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF COLUMBIA 
___________________________________________ 
 
)  
U.S. RIGHT TO KNOW 
) 
4096 Piedmont Ave. #963 
) 
Oakland, CA 94611-5221                              
) 
                           
 
 
 
 
  ) 
 
 
Plaintiff, 
 
 
 
  )
 
   
 
 
 
 
 
  ) 
v. 
)      Case No. 20-cv-3196 
 
) 
NATIONAL INSTITUTES OF HEALTH 
) 
9000 Rockville Pike   
 
 
 
  ) 
Bethesda, Maryland 20892 
 
 
              ) 
  
 
 
 
 
  ) 
 Defendant.  
 
 
              ) 
__________________________________________  ) 
 
COMPLAINT 
 
I. INTRODUCTION 
 
1. Plaintiff U.S. Right to Know brings this action seeking declaratory and injunctive 
relief to redress violations of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et. 
seq., by Defendant National Institutes of Health (hereinafter “NIH”) in failing to provide 
Plaintiff with all non-exempt records responsive to its July 10, 2020 FOIA request, seeking 
records which "reflect communications" concerning specific key words including but not 
limited to "Wuhan Institute of Virology.” Plaintiff sought and still seeks these records from 
NIH, a Federal agency, for the period January 21, 2017 until NIH searches for the records. 
Plaintiff attaches, and incorporates the request as Exhibit A (pages 3-5) to this Complaint. 
 
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II. JURISDICTION 
2. This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) 
(FOIA citizen suit provision) and 28 U.S.C. § 1331 (federal question). 
III. VENUE 
 
3. Venue in this Court is proper pursuant to 5 U.S.C. § 552(a)(4)(B). 
IV. PARTIES 
 
4. Plaintiff U.S. Right to Know is a nonprofit, public interest organization based in 
the state of California that works to advance public health and transparency by investigating 
matters that are often hidden from public scrutiny. The organization shares its findings via 
media outlets, public health and medical journals, and through its own published reports. 
5. Defendant NIH is a federal agency of the United States, and as such, is an agency 
subject to the FOIA, pursuant to 5 U.S.C. § 552(f). 
V. LEGAL FRAMEWORK OF FOIA 
 
6. requires, inter alia, that all federal agencies must promptly provide copies of all 
non-exempt agency records to those persons who make a request for records that reasonably 
describes the nature of the records sought, and which conform with agency regulations and 
procedures in requesting such records. 5 U.S.C. § 552(a)(3)(A). 
7. FOIA requires federal agencies to make a final determination on all FOIA 
requests that it receives within twenty days (excepting Saturdays, Sundays, and legal public 
holidays) after the receipt of such request, unless the agency expressly provides notice to the 
requester of “unusual circumstances” meriting additional time for responding to a FOIA 
request. 5 U.S.C. § 552(a)(6)(A)(I). 
 
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8. FOIA also requires federal agencies to make a final determination on FOIA 
administrative appeals that it receives within twenty days (excepting Saturdays, Sundays, and 
legal public holidays) after the receipt of such appeal, unless the agency expressly provides 
notice to the requester of “unusual circumstances” meriting additional time for responding to 
a FOIA request. 5 U.S.C. § 552(a)(6)(A)(ii). 
9. FOIA expressly provides that a person shall be deemed to have constructively 
exhausted their administrative remedies if the agency fails to comply with the applicable time 
limitations provided by 5 U.S.C. § 552(a)(6)(A)(I) - (ii). See 5 U.S.C. § 552(a)(6)C). 
10. FOIA provides that any person who has not been provided the records requested 
pursuant to FOIA, after exhausting their administrative remedies, may seek legal redress 
from the Federal District Court to enjoin the agency from withholding agency records and to 
order the production of any agency records improperly withheld from the complainant. 
11. Under FOIA, the federal agency has the burden to sustain its actions. 5 U.S.C. § 
552(a)(4)(B). 
12. Pursuant to FOIA, this Court may assess attorneys' fees and litigation costs 
against the United States if the Plaintiff prevails in this action. 5 U.S.C. § 552(a)(4)(E). 
VI. FACTUAL ALLEGATIONS 
 
13. On July 10, 2020, Plaintiff sent a FOIA request to the National Institutes of 
Health (NIH) seeking records about communications between Federal employees which 
mention certain key words, including but not limited to "Wuhan Institute of Virology." It is 
attached to this complaint as Exhibit A (pages 3-5). 
14. NIH assigned FOIA Case No. 54696 to Plaintiff's request. Exhibit A (pages 10-
13). 
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15. On August 21, 2020, NIH sent Plaintiff a letter, informing it that the letter was a 
"final response," that NIH has "determined to withhold those records," that FOIA's 
"Exemption 7(A) permits the withholding of investigatory records compiled for law 
enforcement purposes when disclosure could reasonably be expected to interfere with 
enforcement proceedings," and that Plaintiff had 90 days to administratively appeal the "final 
response." The NIH letter is attached, and made part of this complaint, as Exhibit A (pages 
10-13). 
16. NIH assigned PHS Appeal Case No. 2020-00322-A-PHS to the administrative 
appeal. Exhibit A (pages 17-19). 
17. On September 14, 2020, Plaintiff submitted an administrative appeal to the NIH, 
pointing out the numerous errors made in processing Plaintiff’s request. The Plaintiff's 
administrative appeal is attached, and made part of this complaint, as Exhibit A (pages 15-
16). 
18. On October 1, 2020, Plaintiff submitted a supplemental administrative appeal. 
This supplemental administrative appeal included the July 10, 2020 request (Exhibit A, pages 
3-5), the August 21, 2020 NIH "final response" (Exhibit A, pages 10-13), Plaintiff's 
September 14, 2020 administrative appeal (Exhibit A, pages 15-16) and an email constituting 
the supplemental administrative appeal (Exhibit A, page 21). Exhibit A is attached to and 
made part of this complaint. 
19. As of the date of the filing of this action, Plaintiff U.S. Right to Know has still not 
received any agency administrative decision or any of the records which it has requested in 
its July 10, 2020 request. 
 
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20. Plaintiff has been required to expend costs and to obtain the services of a law 
firm, consisting of attorneys, law clerks, and legal assistants, to prosecute this judicial 
review. 
VII. CLAIMS FOR RELIEF 
 
21. Plaintiff realleges, as fully set forth herein, paragraphs 1-20 as previously set forth 
herein. 
22. Defendant NIH has violated FOIA by failing to provide Plaintiff with all non- 
exempt responsive records for its July 10, 2020 FOIA request. 
23. By failing to provide Plaintiff with all non-exempt responsive record to its July 
10, 2010 FOIA request as described in paragraph 1 above, Defendant NIH has denied 
Plaintiff its right to these records and the information contained there as provided by the 
Freedom of Information Act. 
24. Defendant NIH has violated FOIA by failing to perform an adequate search 
reasonably calculated to locate all responsive records to Plaintiff’s July 10, 2020 FOIA 
request. 
25. By failing to perform an adequate search reasonably calculated to locate all 
responsive records to Plaintiff’s July 10, 2020 FOIA request, the NIH has denied Plaintiff’s 
right to this information, provided by law, and pursuant to the Freedom of Information Act. 
26. Unless enjoined by this Court, Defendant NIH will continue to violate Plaintiff’s 
legal rights to be provided with copies of the records which it has requested in its FOIA 
request described in paragraph 1 above. 
27. Plaintiff is directly and adversely affected and aggrieved by Defendant NIH’s 
failure to provide responsive records to its July 10, 2020 FOIA request described above. 
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28. Plaintiff is entitled to reasonable costs of litigation, including attorney fees 
pursuant to FOIA 5 U.S.C. § 552(a)(4)(E). 
REQUEST FOR RELIEF 
 
WHEREFORE, Plaintiff respectfully requests that this Court enter Judgment for U.S. Right to 
Know, providing the following relief: 
1. 
Declare Defendant NIH has violated FOIA by failing to provide Plaintiff U.S. Right to 
Know with all non-exempt records responsive to its July 10, 2020 FOIA request; 
2. 
Declare Defendant NIH has violated FOIA by failing to complete an adequate search for 
records responsive to Plaintiff U.S. Right to Know's July 10, 2020 request;  
3. 
Direct by injunction that Defendant NIH perform an adequate search for records 
responsive to Plaintiff Right to Know's July 10, 2020 FOIA request; 
4. 
Grant Plaintiff Right to Know's costs of litigation, including reasonable attorneys' fees, as 
provided by FOIA, 5 U.S.C. § 552(a)(4)(E); and, 
5. 
Provide such other relief as the Court deems just and proper. 
DATED: This 5th day of November, 2020. 
Respectfully Submitted,  
 
 
 
 
/s/ C. Peter Sorenson                
C. Peter Sorenson, DC Bar #438089 
Sorenson Law Office 
PO Box 10836 
Eugene, OR 97440 
(541) 606-9173 
petesorenson@gmail.com 
 
Attorney for Plaintiff 
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