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Complaint: CREW v. DHS (Secret Service) : Re: WH Visitor Logs - Health Care Execs: 7/22/09 - Complaint To Secret Service
Complaint: CREW v. DHS (Secret Service) : Re: WH Visitor Logs - Health Care Execs: 7/22/09 - Complaint To Secret Service
Plaintiff,
Defendant.
1. This is an action under the Freedom ofInformation Act ("FOlA"), 5 U.S.C. § 552, as
amended, challenging the failure of the United States Secret Service, a component of the U.S.
Department of Homeland Security ("DHS"), to respond to the expedited request of plaintiff for
disclosure of records concerning any visits leading heath care industry executives made to the
White House or the residence of the vice president from January 21, 2009, to the present.
2. This case seeks declaratory relief that DHS is in violation of the FOIA, 5 U.S.C. §
552(a)(6)(E)(I), for failing to respond to plaintiffs expedited request for records and injunctive
relief ordering defendant DHS to process immediately the requested records in their entirety.
3. This Court has both subject matter jurisdiction over this action and personal
jurisdiction over DHS pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(C)(I). This Court also
has jurisdiction over this action pursuant to 28 U.S.c. § 1331. Venue lies in this district under 5
U.S.C. § 552(a)(4)(B).
PARTIES
nonprofit, non-partisan corporation, organized under section 501 (c)(3) of the Internal Revenue
Code. CREW is committed to protecting the right of citizens to be informed about the activities
of government officials and to ensuring the integrity of government officials. CREW seeks to
empower citizens to have an influential voice in government decisions and in the governmental
decision-making process through the dissemination of information about public officials and
their actions. To advance its mission, CREW uses a combination of research, litigation and
advocacy. As part of its research, CREW uses government records made available to it under the
FOIA.
government to take ethics issues seriously. CREW monitors closely the laws and rules
basis, because that failure hampers CREW's ability to satisfy the compelling public need for full,
accurate and current information about the influence that leading heath care industry executives
have had, or attempted to have, on the president and his administration in formulating the
administration's health care policy. Absent this critical information, CREW cannot advance its
mission of educating the public to ensure that the public continues to have a vital voice in
government.
7. Defendant DHS is an agency within the meaning of 5 U.S.C. § 552(f) and 5 U.S.C. §
702. DHS is the federal agency with possession and control of the requested records, which are
agency records, and is responsible for fulfilling plaintiffs FOIA request. CREW v. Dep't of
STATUTORY FRAMEWORK
8. The FOIA, 5 U.S.C. § 552, requires agencies of the federal government to release
requested records to the public unless one or more specific statutory exemptions apply.
days, notifying that requester of at least the agency's determination whether or not to fulfill the
request and of the requester's right to appeal the agency's determination to the agency head. 5
U.S.C. § 552(a)(6)(A)(I).
10. In "unusual circumstances" an agency may delay its response to a FOIA request or
appeal, but must provide notice and "the date on which a determination is expected to be
11. The FOIA also requires agencies to promulgate regulations that provide for expedited
processing of FOIA requests where the requester has demonstrated a "compelling need" as well
as "other cases determined by the agency." 5 U.S.C. § 552(a)(6)(E)(I). The FOIA defines
information" where there is an "urgency to inform the public concerning actual or alleged Federal
12. Agencies are required to make a determination on a request for expedition within 10
calendar days "after the date of the request," 5 U.S.C. § 552(a)(6)(E)(ii)(I), and to give
552(a)(6)(E)(ii)(II).
13. Agency decisions to deny or affirm denial of a request for expedition are subject to
judicial review "based on the record before the agency at the time of the determination." 5
U.S.c. § 552(a)(6)(E)(iii).
judicial review of an agency's denial of a request for expedited processing. See,~, Am. Civil
Liberties Union v. Dep't of Justice, 321 F.Supp.2d 24, 28-29 (D.D.C. 2004).
15. DHS has promulgated regulations providing for expedited processing of FOIA
requests in two instances: (1) where the lack of expedited treatment "could reasonably be
expected to pose an imminent threat to the life or physical safety of an individual"; and (2) where
there is "[a]n urgency to inform the public about an actual or alleged federal government
5.5(d)( 1)(I)-(ii).
16. For those requesters seeking expedition pursuant to 6 C.F.R. § 5.5(d)(ii), DHS
regulations require that they "establish a particular urgency to inform the public about the
government activity involved in the request, beyond the public's right to know about government
activity generally." 6 C.F.R. § 5.5(d)(3). In addition, a requester that is not a full-time member
of the media must establish that "their main professional activity or occupation is information
17. Under DHS regulations, all requesters seeking expedition must certify that the basis
for their request is true and correct to the best of their knowledge and belief and explain in detail
18. DHS regulations require DHS to grant or deny a request for expedited processing
within 10 calendar days of receipt. 6 C.F.R. § 5.5(4). If expedition is granted, the request is
19. This Court has jurisdiction, upon receipt of a complaint, "to enjoin the agency from
withholding agency records and to order the production of any agency records improperly
Factual Background
20. On June 22, 2009, plaintiff sent a FOIA request by facsimile and first-class mail to
the Secret Service seeking records, regardless of format and including electronic records and
information, related to visits that certain enumerated health care industry executives may have
made to the White House or the residence of the Vice President from January 21,2009, to the
Plans;
Group, Inc.;
Plan;
System;
For purposes of the request, plaintiff defined the term "White House" to include, but not be
limited to, "any office within the Executive Office of the President, the residence of the
president, the Old and New Executive Office Buildings, and any other office or space on the
21. In its June 22, 2009 FOIA request, CREW sought a waiver of fees associated with
processing its request given that the request concerns the operations of the federal goverrunent,
the disclosures will likely contribute to a better understanding of relevant government procedures
by CREW and the general public in a significant way, and the request is primarily and
fundamentally for non-commercial purposes. Specifically, the requested records are likely to
contribute to the public's understanding of the influence health care industry executives within
the United States have had, or attempted to have, on the President and his administration in
22. In addition, CREW sought expedited processing of its FOIA request for the express
purpose of disseminating any responsive documents to the public and in view of the particular
urgency to inform the public about the possible influences to which the administration may have
been subject in formulating its health care policy in light of closed-door talks President Obama
reportedly has been having with industry executives, the potential economic impact of not
reaching a consensus on a health care proposal, and the virtual gridlock in Congress over this
critical issue. As required by 6 C.F.R. § 5.5(d)(3), CREW certified that the basis for its request
for expedition is true and correct to the best of its counsel's knowledge and belief.
23. By letter dated July 7, 2009, DHS advised CREW of the government's position that
the vast majority, if not all, of the records CREW seeks are not agency records but instead are
governed by the Presidential Records Act, 44 U.S.C. § 2201, et seq. Further, DHS noted it had
been advised by the Department of Justice that disclosing the requested records could reveal
information protected by the presidential communications privilege. DHS noted the White
House and Office of the Vice President are currently reviewing their policy on making
24. DHS's letter of July 7, 2009, did not afford CREW any administrative appeal rights.
26. Defendant DHS has wrongfully withheld the requested records from plaintiff.
CLAIM ONE
(Failure to Produce Records)
28. Plaintiff properly requested agency records within the custody and control of DHS.
30. Plaintiff has exhausted the applicable administrative remedies with respect to
31. Plaintiff is entitled to injunctive and declaratory relief with respect to the expedited
(1) Issue a declaration that plaintiff is entitled to expedited processing of its FOIA request
(2) Issue a declaration that plaintiff is entitled to a complete waiver of processing fees
associated with its FOIA request submitted to defendant DHS on June 22, 2009;
(3) Order defendant DHS to process immediately the requested records in their entirety;
(4) Order defendant DHS upon completion of such expedited processing to disclose the
(6) Retain jurisdiction of this action to ensure that the processing of plaintiff s FOIA
(7) Award plaintiff reasonable attorney fees and litigation costs in this action, pursuant to
(8) Grant such other and further relief as the Court may deem just and proper.
Respectfully submitted,
l!LL~1~/
ANNE L. WEISMANN
D.C. Bar No. 298190
MELANIE SLOAN
D.C. Bar No. 434584
Citizens for Responsibility and Ethics
in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
(202) 408-5565