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Judicial Watch • JW v HHS Electronic Cigarettes Complaint 00831

JW v HHS Electronic Cigarettes Complaint 00831

JW v HHS Electronic Cigarettes Complaint 00831

Page 1: JW v HHS Electronic Cigarettes Complaint 00831

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Number of Pages:4

Date Created:May 5, 2017

Date Uploaded to the Library:May 05, 2017

Tags:0831, Cigarettes, 00831, independence, electronic, requested, requests, Services, HHS, complaint, responsive, defendant, filed, plaintiff, request, document, records, FOIA, Washington


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Case 1:17-cv-00831 Document Filed 05/05/17 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
425 Third Street, SW, Suite 800
Washington, 20024,
Plaintiff,
U.S. DEPARTMENT HEALTH HUMAN SERVICES
200 Independence Avenue,
Washington, 20201,
Defendant.
____________________________________)
Civil Action No.
COMPLAINT
Plaintiff Judicial Watch, Inc. brings this action against Defendant U.S. Department
Health Human Services compel compliance with the Freedom Information Act, U.S.C.
552 FOIA grounds therefor, Plaintiff alleges follows:
JURISDICTION AND VENUE
The Court has jurisdiction over this action pursuant U.S.C. 552(a)(4)(B)
and U.S.C. 1331.
Venue proper this district pursuant U.S.C. 1391(e).
PARTIES
Plaintiff Judicial Watch, Inc. not-for-profit, educational organization
incorporated under the laws the District Columbia and headquartered 425 Third Street
SW, Suite 800, Washington, 20024. Plaintiff seeks promote transparency, accountability,
and integrity government and fidelity the rule law. part its mission, Plaintiff
regularly requests records from federal agencies pursuant FOIA. Plaintiff analyzes the
Case 1:17-cv-00831 Document Filed 05/05/17 Page
responses and disseminates its findings and the requested records the American public
inform them about what their government to.
Defendant U.S. Department Health and Human Services HHS agency the United States Government. Defendant has possession, custody, and control records
which Plaintiff seeks access. Defendant headquartered 200 Independence Avenue, SW,
Washington, 20530.
STATEMENT FACTS March 20, 21, and 2017, Plaintiff submitted identical FOIA request
the Food and Drug Administration FDA the Centers for Disease Control and Prevention CDC and the Office the Surgeon General OSG all component HHS, seeking the
following:
All internal [FDA, CDC, OSG] emails discussing the relative
carcinogenicity inhalation from Electronic Nicotine Delivery Systems
compared inhalation from traditional combustible cigarettes.
The time frame each request was identified April 2016 through the date the
request. March 23, 2017, Plaintiff received all three acknowledgements from the FDA,
CDC, and OSG, assigning the requests FOIA Control Numbers 2017-2662, 17-00430-FOIA, and
17-0149-FOIA, respectively. the date this Complaint, Defendant has failed to: (i) produce the
requested records demonstrate that the requested records are lawfully exempt from
production; (ii) notify Plaintiff the scope any responsive records Defendant intends
produce withhold and the reasons for any withholdings; (iii) inform Plaintiff that may
appeal any adequately specific, adverse determination.
Case 1:17-cv-00831 Document Filed 05/05/17 Page
COUNT
Violation FOIA, U.S.C. 552
Plaintiff realleges paragraphs through fully stated herein.
Plaintiff being irreparably harmed reason Defendant violation FOIA,
and Plaintiff will continue irreparably harmed unless Defendant compelled comply
with FOIA.
10. trigger FOIA administrative exhaustion requirement, Defendant was
required determine whether comply with Plaintiff requests within twenty (20) business
days receipt. Accordingly, Defendants determinations were due about April 19, 2017,
the latest. minimum, Defendant was required to: (i) gather and review the requested
documents; (ii) determine and communicate Plaintiff the scope any responsive records
Defendant intended produce withhold and the reasons for any withholdings; and (iii) inform
Plaintiff that may appeal any adequately specific, adverse determination. See, e.g., Citizens for
Responsibility and Ethics Washington Federal Election Commission, 711 F.3d 180, 188-89
(D.C. Cir. 2013).
11.
Because Defendant failed make substantive, appealable determination
whether comply with Plaintiff request within the time period required FOIA, Plaintiff
deemed have exhausted its administrative remedies. U.S.C. 552(a)(6)(C)(i).
WHEREFORE, Plaintiff respectfully requests that the Court: (1) order Defendant
conduct searches for any and all records responsive Plaintiff FOIA request and demonstrate
that employed search methods reasonably likely lead the discovery records responsive Plaintiff FOIA request; (2) order Defendant produce, date certain, any and all nonexempt records Plaintiff FOIA request and Vaughn index any responsive records
Case 1:17-cv-00831 Document Filed 05/05/17 Page
withheld under claim exemption; (3) enjoin Defendant from continuing withhold any and
all non-exempt records responsive Plaintiff FOIA request; (4) grant Plaintiff award
attorneys fees and other litigation costs reasonably incurred this action pursuant U.S.C.
552(a)(4)(E); and (5) grant Plaintiff such other relief the Court deems just and proper.
Dated: May 2017
Respectfully submitted, Chris Fedeli
Chris Fedeli
D.C. Bar No. 472919
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
cfedeli@judicialwatch.org
(202) 646-5172
Counsel for Plaintiff