Judicial Watch, Inc. v. U.S. Department of Health and Human Services ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
v. Civil Action No. 22-3153 (JEB)
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendant.
MEMORANDUM OPINION
In this Freedom of Information Act dispute, Plaintiff Judicial Watch, Inc. seeks a broad
swath of records from Defendant Department of Health and Human Services relating to the
safety of several COVID-19 vaccines. The Department now moves to dismiss, contending that
Plaintiff’s overbroad request fails to reasonably describe the records sought. Although the Court
is sympathetic to HHS’s position that Judicial Watch seeks too much, it cannot say that the
request does not reasonably identify the records at issue. While it will thus deny the Motion, the
Court encourages the parties to work together towards narrowing the request.
I. Background
The Court draws the facts from Plaintiff’s Complaint and for purposes of this Motion
presumes them to be true. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir.
2000).
Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)
(quotation marks and citation omitted). The statute provides that “each agency, upon any request
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for records which (i) reasonably describes such records and (ii) is made in accordance with
published rules . . . shall make the records promptly available to any person.” 5 U.S.C.
§ 552(a)(3)(A). A request “reasonably describes” the sought records if “the agency is able to
determine precisely what records are being requested.” Kowalczyk v. Dep’t of Just., 73 F.3d
386, 388 (D.C. Cir. 1996) (quoting Yeager v. Drug Enf’t Admin., 678 F.2d 315, 326 (D.C. Cir.
1982)).
Judicial Watch’s FOIA request here, submitted via email on June 1, 2022, sought the
following records from the National Institutes of Allergy and Infectious Diseases, a component
of HHS:
1. All safety studies, data, reports, and analyses produced by the Division
of Microbiology and Infectious Diseases (DMID) relating to the safety
of “vaccines” and/or gene therapies to treat and/or prevent SARS-CoV-
2 and/or COVID-19 made by Pfizer, BioNTech, Moderna, Johnson &
Johnson, and Janssen.
2. All emails sent to and from the following DMID officials relating to the
safety of “vaccines” and/or gene therapies to treat and/or prevent
SARSCoV-2 and/or COVID-19 made by Pfizer, BioNTech, Moderna,
Johnson & Johnson, and Janssen:
a. The Director of DMID
b. The head of the Office of Genomics & Advanced Technologies
c. The head of the Office of International Research in Infectious
Diseases
d. The head of the Office of Regulatory Affairs
e. The head of the Office of Clinical Research Affairs
f. The head of the Clinical Trials Management Section
g. The head of the Virology Branch
h. The head of the Respiratory Diseases Branch
i. The head of the Influenza, SARS, and Other Viral Respiratory
Diseases Section.
ECF No. 1 (Compl.), ¶ 5. The request specified that “[t]he time frame for the records sought is
June 1, 2020 to the present.” Id. Also on June 1, 2022, NIAID acknowledged receipt of the
request. Id., ¶ 6.
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Later that month, an HHS FOIA analyst reached out to the Judicial Watch requester to
discuss narrowing the scope of the request. Id., ¶ 7; see also ECF No. 8 (Pl. Opp.), Attach. 1
(Decl. of William Marshall), ¶ 4. The parties discussed limiting the number of officials subject
to the request and the window of time for the request. See Marshall Decl. Those discussions
stalled at the end of June 2022. See Compl., ¶ 7.
Plaintiff then filed this action against HHS on October 17, 2022. Defendant now moves
to dismiss, arguing that Plaintiff’s request fails to “reasonably describe” the sought records
within the meaning of the statute because it is too vague and overbroad. See ECF No. 7 (MTD)
at 4.
II. Legal Standard
Although “FOIA cases typically and appropriately are decided on motions for summary
judgment,” Kearns v. FAA, 312 F. Supp. 3d 97, 104 (D.D.C. 2018), courts analyze challenges to
the sufficiency of FOIA claims under Rule 12(b)(6). See Hidalgo v. FBI, 344 F.3d 1256, 1260
(D.C. Cir. 2003) (vacating grant of summary judgment and remanding FOIA case “with
instructions to the district court to dismiss the complaint under [Rule] 12(b)(6) . . . for failure to
exhaust administrative remedies”); see also Acosta v. FBI, 946 F. Supp. 2d 47, 49–50 (D.D.C.
2013) (proceeding this way); Jean-Pierre v. BOP, 880 F. Supp. 2d 95, 100 n.4 (D.D.C. 2012)
(stating similarly); Jones v. Dep’t of Just., 576 F. Supp. 2d 64, 66 (D.D.C. 2008) (same).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a complaint for failure to
state a claim upon which relief may be granted. In evaluating such a motion to dismiss, courts
must “treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of
all inferences that can be derived from the facts alleged.’” Sparrow, 216 F.3d at 1113 (quoting
Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). Although “detailed factual
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allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007), “a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 570) — that is, the facts alleged in the complaint “must
be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. A
court need not accept as true, then, “a legal conclusion couched as a factual allegation,” Trudeau
v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S.
265, 286 (1986)), nor “inferences . . . unsupported by the facts set out in the complaint.” Id.(quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).
III. Analysis
The Government’s Motion to Dismiss levels one central charge: that Plaintiff’s FOIA
request fails to “reasonably describe” the records sought within the meaning of 5 U.S.C.
§ 552(a)(3)(A). See MTD at 4. This error, the Government argues, means that Plaintiff has not
submitted a valid request that can obtain relief, see MTD at 4–6; relatedly, without a valid
request, it has not properly exhausted administrative remedies within HHS. Id. at 7.
Under FOIA, an agency is obliged to make “promptly available” records that are
“reasonably describe[d]” in a written request and are not exempt from disclosure. See 5 U.S.C.
§ 552(a)(3)(A), 552(b). The central question in assessing whether records are reasonably
described is whether “the agency is able to determine precisely what records are being
requested.” Yeager, 678 F.2d at 326 (citation, internal quotations, and alteration omitted). That
evaluation boils down to whether a “description of a requested document would be sufficient [to]
enable[ ] a professional employee of the agency who was familiar with the subject area of the
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request to locate the record with a reasonable amount of effort.” Truitt v. Dep’t of State, 897
F.2d 540, 545 n. 36 (D.C. Cir. 1990) (internal citation and quotation marks omitted).
Here, it appears that Judicial Watch has described the relevant records with sufficient
specificity. Plaintiff has identified particular types of documents that it seeks on a defined
subject matter, and it has listed a specific set of ten or so individuals from whom it seeks
communications on the topic. See Compl., ¶ 5. Judicial Watch has also identified a two-year
timeframe for responsive records. Id. The Court cannot say that such a request, while
undeniably broad, does not allow the agency to determine which records are being requested.
Indeed, an HHS FOIA analyst has apparently been able to conduct an initial, albeit unwieldy,
search for responsive records. See Marshall Decl. at 4–8 (Email Thread).
The request here accordingly differs from the one at issue in Freedom Watch v.
Department of State, 925 F. Supp. 2d 55 (D.D.C. 2013), the principal case on which Defendant
relies. There, Freedom Watch had sought 63 categories of records, including categories such as:
“[A]ny and all communications to or from . . . the White House in general regarding China”;
“all” records that “discuss Iran in the context of American politics and/or elections”; and “[a]ny
and all communications between the office of Secretary of State Hillary Clinton and the office of
Secretary of the Treasury Timothy Geithner,” “the office of Secretary of State Hillary Clinton
and the White House,” and “the office of Secretary of Treasury Timothy Geithner and the White
House.” Id. at 57, 61–62. The key infirmities there, the court wrote, were the vague references
to general subject matters (such as “American politics”), the lack of subject-matter limitations
(on the State/Treasury/White House communications), and the lack of a definite timeframe (on
all). Id. at 61–62. Those concerns are not present here. This request is broad but ultimately
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capable of being reduced to defined search terms — as it seems an HHS FOIA analyst has
already attempted. See Email Thread.
This does not necessarily end the inquiry, however. A closer question, albeit one not
pressed by the agency, concerns whether producing records responsive to Plaintiff’s criteria
would be unduly burdensome. The D.C. Circuit has explained that “a request that requires ‘an
unreasonably burdensome search’” does not reasonably describe the records sought, and
therefore the “agency need not honor” it. Am. Fed’n of Gov’t Emps., Local 2782 v. Dep’t of
Com., 907 F.2d 203, 209 (D.C. Cir. 1990) (quoting Goland v. CIA, 607 F.2d 339, 353 (D.C. Cir.
1978)); see also Schrecker v. U.S. Dep’t of Just., 349 F.3d 657, 664 (D.C. Cir. 2003) (“[T]here
are limits to the lengths to which an agency must go in responding to a FOIA request.”). An
agency refusing to act on a document request given the burden production might entail must
provide a “sufficient explanation as to why such a search would be unreasonably burdensome.”
Nation Mag., Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 892 (D.C. Cir. 1995).
Defendant’s Motion to Dismiss focuses on the purported vagueness of Plaintiff’s request
and less so on the burden that such request would impose. See MTD at 5 (Motion’s sole
reference to burden on agency); ECF No. 9 (Reply) at 2 (referring to difficulty of search).
Defendant accordingly has not yet sufficiently explained why conducting the challenged search
would be unduly burdensome. Any such explanation, moreover, would need to rely on a more
developed record and thus would be more appropriate at summary judgment. Compare, e.g.,
Ayuda, Inc. v. Fed. Trade Comm’n, 70 F. Supp. 3d 247, 275 (D.D.C. 2014) (request unduly
burdensome where redacting requested documents “would take more than 8,000 hours”); and
Long v. Immigr. & Customs Enf’t, 149 F. Supp. 3d 39, 56 (D.D.C. 2015) (same where response
would require poring over “five terabytes” of data); with Kwoka v. Internal Revenue Serv., No.
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17-1157, 2018 WL 4681000, at *5 (D.D.C. Sept. 28, 2018) (request not unduly burdensome
where document review “would require almost 2,200 hours of work”).
Common sense nonetheless should guide the parties’ next steps here. Plaintiff’s request
is extraordinarily broad, and the production of responsive documents, even were it found not
unduly burdensome at summary judgment, would require unusually protracted agency review.
The Court cannot guarantee a production schedule that would be amenable to Plaintiff, and the
onus would be on Judicial Watch for insisting on such a comprehensive request. The Court thus
believes that it would behoove Plaintiff to narrow its request and encourages the parties to work
in good faith towards such narrowing, cognizant that both sides will benefit from more
streamlined — and thereby quicker — production.
IV. Conclusion
For the foregoing reasons, the Court will deny Defendant’s Motion to Dismiss. A
separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 19, 2023
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