Case 1:21-cv-01241 Document 1 Filed 05/06/21 Page 1 of 18
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Case No.
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`PEOPLE FOR THE ETHICAL )
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`TREATMENT OF ANIMALS, INC.,
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`501 Front Street
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`Norfolk, VA 23510
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` Plaintiff,
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`vs.
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`UNITED STATES DEPARTMENT OF
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`HEALTH AND HUMAN SERVICES,
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`200 Independence Avenue, S.W.
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`Washington, D.C. 20201,
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`NATIONAL INSTITUTES OF HEALTH,
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`9000 Rockville Pike
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`Bethesda, MD 20892, and
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`NATIONAL INSTITUTE OF MENTAL
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`HEALTH,
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`6001 Executive Boulevard
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`Bethesda, MD 20892,
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` Defendants.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`FOR VIOLATION OF THE FREEDOM OF INFORMATION ACT
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`1
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`Case 1:21-cv-01241 Document 1 Filed 05/06/21 Page 2 of 18
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`1.
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`In this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
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`Plaintiff People for the Ethical Treatment of Animals (“PETA”) seeks information regarding the
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`treatment of nonhuman primates and other animals in experiments funded or overseen by
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`Defendants United States Department of Health and Human Services (“HHS”), National Institutes
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`of Health (“NIH”), and National Institute of Mental Health (“NIMH”) (collectively “Defendants”).
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`As detailed below, Plaintiff has sought this information through seven FOIA requests submitted
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`between January 28, 2020, and October 1, 2020 (collectively “the Requests”). However, Plaintiff’s
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`Requests have been languishing without any final response from Defendants for between 5 and 14
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`months—far longer than the twenty working day deadline that Congress established in FOIA. By
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`failing to produce to Plaintiff all non-exempt information responsive to Plaintiff’s FOIA requests,
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`Defendants have improperly withheld this information in violation of FOIA.
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`2.
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`The information that Defendants have improperly withheld is critical to Plaintiff’s
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`ongoing efforts to educate the public about how Defendants are implementing their statutory
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`responsibilities and spending taxpayer money on animal experimentation, and especially on
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`experiments on nonhuman primates. Defendants have spent tens of millions of dollars of taxpayer
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`money over the past several years subjecting primates to certain painful, frightening, and
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`unnecessary experiments and surgical procedures which have not resulted in any new treatments
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`or cures for human mental illness.
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`3.
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`All of PETA’s Requests were submitted to NIMH with the intent of understanding
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`and educating the public about the agency’s activities by obtaining information about the nature,
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`methods, justifications, and results of the animal experiments that the agency has funded, and
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`which are the focus of the Requests, which the public has a right to know pursuant to the FOIA.
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`2
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`Case 1:21-cv-01241 Document 1 Filed 05/06/21 Page 3 of 18
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`4.
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`Defendants constructively denied the Requests by failing to make determinations
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`and provide responsive records for the Requests within the timeframes the FOIA mandates.
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`5.
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`PETA has constructively exhausted all administrative remedies and informal
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`avenues to obtain the requested records, and is therefore entitled to judicial review of this matter,
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`as Defendants have failed to provide responsive information or issue a final response to the
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`Requests within the deadlines established by the FOIA.
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`JURISDICTION AND VENUE
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`6.
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`This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) and
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`28 U.S.C. § 1331.
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`7.
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`Venue is properly vested in this Court pursuant to 5 U.S.C. § 552(a)(4)(B) and 28
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`U.S.C. § 1391(e).
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`PARTIES
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`8.
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`PETA is a Virginia non-stock corporation and an animal protection charity
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`dedicated to protecting animals―including those used in experiments―from neglect, abuse, and
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`all forms of cruelty. PETA undertakes these efforts through investigations, research, animal
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`rescues, legislation, and public education. PETA submitted the Requests at issue. PETA has an
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`office at 1536 16th St NW, Washington, DC 20036.
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`9.
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`Defendant HHS is a federal agency subject to the FOIA, and, upon information and
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`belief, has possession, custody or control of information responsive to some or all of the Requests.
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`10.
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`Defendant NIH is a component of HHS, is a federal agency subject to the FOIA,
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`and, upon information and belief, has possession, custody or control of information responsive to
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`some or all of the Requests.
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`11.
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`Defendant NIMH is a component of NIH, is a federal agency subject to the FOIA,
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`and has possession, custody or control of information responsive to some or all of the Requests.
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`3
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`Case 1:21-cv-01241 Document 1 Filed 05/06/21 Page 4 of 18
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` STATUTORY FRAMEWORK
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`12.
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`“The basic purpose of FOIA is to ensure an informed citizenry, vital to the
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`functioning of a democratic society, needed to check against corruption and to hold the governors
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`accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)
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`(citations omitted). The FOIA was enacted to “permit access to official information long shielded
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`unnecessarily from public view” by creating a “right to secure such information from possibly
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`unwilling official hands.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted).
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`“[D]isclosure, not secrecy, is the dominant objective of the Act.” John Doe, 493 U.S. at 152
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`(citation omitted).
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`13.
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`The FOIA requires agencies of the federal government to conduct a reasonable
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`search for requested records and to release them to a requester, unless one of nine specific statutory
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`exemptions applies to the requested information. 5 U.S.C. § 552(a)(3), (b).
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`14.
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`The FOIA requires federal agencies to release all non-exempt segregable
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`information that is requested. Id. § 552(b).
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`15.
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`Upon receiving a FOIA request, an agency generally has twenty working days to
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`respond, id. § 552(a)(6)(A)(i).
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`16.
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`In “unusual circumstances,” an agency may extend the FOIA’s standard deadline
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`by an additional ten working days and, in these circumstances, must specify “the date on which a
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`determination is expected to be dispatched.” 5 U.S.C. § 552(a)(6)(B)(i).
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`17.
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`A requester has exhausted administrative remedies “if the agency fails to comply”
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`with FOIA’s statutory deadlines. Id. § 552(a)(6)(C)(i). In that event, the FOIA authorizes the
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`requester to invoke the jurisdiction of a federal court to obtain the requested information. Id.
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`§ 552(a)(4)(B).
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`4
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`Case 1:21-cv-01241 Document 1 Filed 05/06/21 Page 5 of 18
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`FACTS GIVING RISE TO PLAINTIFF’S CLAIMS FOR RELIEF
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`18.
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`As part of its mission to protect animals from inhumane treatment, PETA regularly
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`engages in efforts to educate the public regarding the treatment of animals in scientific and medical
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`experiments, particularly experiments funded through U.S. taxpayer dollars. Because Defendants
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`NIH and NIMH engage in and/or fund experiments that treat animals inhumanely, PETA regularly
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`submits FOIA requests to obtain information about how these federal agencies use public resources
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`in ways that affect animals.
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`19.
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`Over the past thirty years, Defendants NIH and NIMH have funded numerous
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`experiments, and authorized or approved federal employees to conduct experiments, that cause
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`irreparable damage and significant pain and distress to non-human primates. These experiments
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`involve highly invasive brain surgeries that systematically destroy portions of primates’ brains to
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`determine what impacts these brain surgeries have on primates’ behavior and cognition. Such
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`experiments often involve the removal of a portion of a primate’s skull to expose the brain, and
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`the injection of toxins to cause permanent brain damage or the physical removal of brain tissue. In
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`some such experiments, primates with damaged brains are then exposed to stimuli designed to
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`provoke fear or another strong emotional reaction, such as exposure to fake snakes or other
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`facsimiles of animals that primates instinctively fear.
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`20.
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`Highly invasive experiments that permanently damage primates’ brains cause
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`irreparable harm to treated primates, as well as significant pain and suffering. For example, records
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`that PETA previously obtained from NIMH through FOIA requests reveal that primates subjected
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`to experiments involving brain surgery display “stereotypic behaviors,” which are repetitive
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`motions that indicate trauma, or pull out their fur, another sign of trauma. Additionally, despite the
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`fact that the primates involved in these experiments are social animals who require regular
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`interaction in order to maintain their health and well-being, primates subject to these experiments
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`5
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`Case 1:21-cv-01241 Document 1 Filed 05/06/21 Page 6 of 18
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`are often housed alone on a permanent basis, causing further suffering. Primates subjected to these
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`types of experiments may also be killed once the experiments conclude.
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`21.
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`Similarly, NIH and NIMH have also regularly funded and/or authorized
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`experiments that cause irreparable harm to the brains of rats and mice and expose these animals to
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`various stressful conditions. These experiments subject animals to chemicals that kill brain cells,
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`then expose these permanently brain-damaged animals to stress, for example through electric
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`shocks or “forced swim tests” that involve dropping animals into tanks of water to determine how
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`long they will attempt to save their lives by swimming.
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`22.
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`NIH and NIMH have expended vast sums of taxpayer dollars on such experiments,
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`but the experiments have failed to yield any treatment of human disease or mental illness. To
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`PETA’s knowledge, NIH and NIMH have spent at least roughly $50 million funding such invasive
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`experiments on primates’ brains, as well as the brains of other animals. However, to PETA’s
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`knowledge, although these experiments have resulted in scientific publications, they have not led
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`to any treatments that improve human physical or mental health.
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`23.
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`FOIA requests provide the public’s principal tool for obtaining information about
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`the treatment of primates and other animals in experiments funded or conducted by NIH and
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`NIMH. Although experiments conducted or funded by NIH and NIMH may lead to the publication
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`of articles in scientific journals, these articles are often inaccessible to the public, both because
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`accessing such articles frequently requires costly subscriptions and because understanding such
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`scientific articles may require specialized education or expertise. NIH and NIMH generally do not
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`make available to the public information about the acquisition, handling, transport, veterinary care,
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`or pain and suffering of primates used in experiments.
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`6
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`Case 1:21-cv-01241 Document 1 Filed 05/06/21 Page 7 of 18
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`24.
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`To better understand NIH and NIMH’s treatment of primates and other animals in
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`experiments, and to educate the public about these agencies’ activities and expenditures of public
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`resources, PETA submitted a series of FOIA requests detailed below. These FOIA requests seek
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`information about the procurement, treatment, and disposition of primates and other animals
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`subject to experiments funded or conducted by NIH and NIMH. Additionally, through these FOIA
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`requests, PETA seeks information about how NIH and NIMH have reacted to PETA’s prior efforts
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`to obtain information and raise public awareness regarding the agencies’ treatment of captive
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`primates.
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`25.
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`PETA intends to use the information obtained through these FOIA requests to
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`educate the public regarding the conduct of NIH and NIMH, the agencies’ imprudent use of federal
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`funds for experiments that do not yield any therapeutic value for humans, and the inhumane—and
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`possibly unlawful—treatment of non-human primates in the charge of these federal agencies.
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`FIRST REQUEST: AGENCY REFERENCE NO. 53447
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`26.
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`On or about January 28, 2020, PETA requested from NIMH certain information
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`pursuant to the FOIA (“First Request,” agency reference number 53447).
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`27.
`
`The First Request stated:
`
`From the period of January 1, 2015 to the present, all
`videographic and photographic records related to or containing
`information about experiments on animals conducted by, or
`under the direction of, NIMH principal investigator Heather
`Cameron, and funded by, and/or otherwise subject to the terms
`of, National
`Institutes
`of Health project number
`1ZIAMH002784 titled, “Neurogenesis of the Adult Brain.”
`
`From the period of January 1, 2015 to the present, all animal
`study proposals (ASPs) submitted by Heather Cameron and/or
`associated with project number 1ZIAMH002784
`titled,
`“Neurogenesis of the Adult Brain.”
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`7
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`28.
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`29.
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`The First Request reasonably described the records sought.
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`On February 4, 2020 Defendant NIMH’s FOIA officer informed PETA that NIMH
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`would not timely provide responses, and inquired if PETA would stipulate to the redaction of
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`animal locations and the names/identifiers of secondary staff from responsive records, and if PETA
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`would accept samples of responsive photos and videos rather than all such photos and videos.
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`30.
`
`On February 7, 2020, PETA informed Defendant NIMH’s FOIA officer that PETA
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`agreed to the redaction of animal locations and the names/identifiers of secondary staff from
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`responsive records, and that for this Request PETA would accept samples of responsive photos
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`and videos in lieu of all such photos and videos.
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`31.
`
`Later on February 7, 2020, Defendant NIMH’s FOIA officer contacted PETA and
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`acknowledged receipt of the PETA communication described in the previous paragraph.
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`32.
`
`On December 14, 2020, PETA contacted Defendant NIMH’s FOIA officer to
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`request an update about NIMH’s response to the First Request.
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`33.
`
`On December 15, 2020, Defendant NIMH’s FOIA officer contacted PETA and
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`acknowledged receipt of the PETA communication described in the previous paragraph.
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`34.
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`On January 12, 2021, Defendant NIMH’s FOIA officer contacted PETA and stated
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`NIMH’s response to the First Request is “ready for release, but is pending review at NIH FOIA.”
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`35.
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`As of the date of this pleading, NIMH still has not produced records responsive to
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`the First Request, a final determination for the Request, or a timeframe for a response.
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`36.
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`NIMH constructively denied the First Request by failing to make determinations
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`and provide responsive documents within the timeframes the FOIA mandates.
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`
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`8
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`Case 1:21-cv-01241 Document 1 Filed 05/06/21 Page 9 of 18
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`SECOND REQUEST: AGENCY REFERENCE NO. 53579
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`37.
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`On or about February 14, 2020, PETA requested from NIMH certain information
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`pursuant to the FOIA (“Second Request,” agency reference number 53579).
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`38.
`
`The Second Request stated:
`
`I am writing to request documents related to five monkeys used
`in Principal Investigator (PI) Elisabeth Murray’s project,
`“Neural Mechanisms of Reward Processing and Emotion”
`(supported by the intramural award ZIAMH002887). In videos
`received by PETA from the National Institute of Mental Health,
`the five monkeys of interest are identified as: Beamish,
`Guinness, Jaws, Nick Nack, and Sam Smith.
`
`
` am requesting copies of the following items:
`
` I
`
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`1. Acquisition records for the five monkeys identified above;
`2. The complete veterinary clinical records from the National
`Institutes of Health (NIH) for the five monkeys identified
`above;
`3. The complete list of all surgical procedures performed on the
`five monkeys identified above while they were held at the
`NIH; and
`4. All NIH pathology and/or necropsy records/reports for the
`monkeys identified above.
`
`
`Also, for the period from January 1, 2016 to the date of
`fulfillment, we are requesting copies of the following items:
`
`
`1. Any and all communications, including but not limited to
`emails, text messages,
`letters, memoranda, notes of
`conversations, reports, records, and site
`inspections,
`between NIH employees and the members of PI Murray’s
`laboratory that reference the acquisition, health, wellbeing
`and/or care of the five monkeys identified above.
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`The Second Request reasonably described the records sought.
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`NIH emailed PETA on February 14, 2020 to acknowledge receipt of the Second
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`9
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`39.
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`40.
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`Request.
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`

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`Case 1:21-cv-01241 Document 1 Filed 05/06/21 Page 10 of 18
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`THIRD REQUEST: AGENCY REFERENCE NO. 53812
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`41.
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`On or about March 26, 2020, PETA requested from NIMH certain information
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`pursuant to the FOIA (“Third Request,” agency reference number 53812).
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`42.
`
`The Third Request stated:
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`PETA requests copies of all records dated January 1, 2020, to
`the date this request is fulfilled—including but not limited to
`emails, letters, text messages, memoranda, and reports on
`government-issued devices or personal devices and records of
`instant messages from applications including but not limited to
`Confide, WhatsApp, Slack, and Signal—pertaining
`to
`experiments on monkeys carried out by National Institutes of
`Health Principal Investigator (PI) Elisabeth Murray.
`
` I
`
` am particularly interested in documents generated in response
`to PETA’s campaign focused on these experiments. Please
`exclude copies of form e-mails received by the NIH from
`concerned members of the public that may have been forwarded
`to different offices within NIH.
`
` I
`
` voluntarily agree to have the following information redacted
`from the documents that are found to be responsive to this
`request: all telephone numbers, room numbers, and the names
`of
`secondary
`individuals
`(e.g.
`administrative
`support/clerical/clinical staff).
`
`The Third Request reasonably described the records sought.
`
`NIH emailed PETA on March 27, 2020 to acknowledge receipt of the Third
`
`43.
`
`44.
`
`Request.
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`FOURTH REQUEST: AGENCY REFERENCE NO. 54272
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`45.
`
`On or about May 16, 2020, PETA requested from NIMH certain information
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`pursuant to the FOIA (“Fourth Request”, agency reference number 54272).
`
`46.
`
`The Fourth Request states:
`
`I am writing to request documents related to Principal Investigator
`(PI) Elisabeth Murray’s project, “Neural Substrates of Sensory
`Memory, Reward, and Emotion” (Proposal LN20 ).
`
`
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`10
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`Case 1:21-cv-01241 Document 1 Filed 05/06/21 Page 11 of 18
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`For the period from January 1, 2019, to the present, I am requesting
`copies of the following items:
`
`
`1.
`Copies of acquisition records and disposition records for
`monkeys used in the project specified above; and
`
`2.
`Copies of all adverse event reports associated with the project
`specified above.
`
`Also, for the period from April 25, 2019, to the present, I am
`requesting copies of all videographic records collected for the project
`specified above.
`
`The Fourth Request reasonably described the records sought.
`
`NIH emailed PETA on May 16, 2020 to acknowledge receipt of the Fourth Request.
`
`
`
`47.
`
`48.
`
`FIFTH REQUEST: AGENCY REFERENCE NO. 54483
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`49.
`
`On or about May 27, 2020, PETA requested from NIMH certain information
`
`pursuant to the FOIA (“Fifth Request”, agency reference number 54483).
`
`50.
`
`The Fifth Request states:
`
`I am writing to request documents related to the National
`Institutes of Health (NIH) Nonhuman Primate (NHP) Recycling
`Program. In particular, for the period from January 1, 2019, to
`the present, I request any NHP census or inventory documents
`associated with this program.
`
`Also, for the period from January 1, 2019, to the present, I
`request copies of the following documents for monkeys acquired
`by NIH Principal Investigator Elisabeth Murray from the NIH
`NHP Recycling Program for use in her protocols:
`
`1.
`
`2.
`The complete veterinary clinical records from the NIH
`for the monkeys identified above, including for the period before
`they were transferred to PI Murray;
`
`Acquisition records for any monkeys identified above;
`
`3.
`The complete list of all surgical procedures performed on
`the monkeys identified above while they were held at the NIH,
`including before they were transferred to PI Murray; and
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`Case 1:21-cv-01241 Document 1 Filed 05/06/21 Page 12 of 18
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`4.
`All NIH pathology and/or necropsy records/reports for
`the monkeys identified above.
`
`
`
`51.
`
`52.
`
`The Fifth Request reasonably described the records sought.
`
`NIH emailed PETA on May 27, 2020 to acknowledge receipt of the Fifth Request.
`
`SIXTH REQUEST: AGENCY REFERENCE NO. 55141
`
`53.
`
`On or about September 19, 2020, PETA requested from NIMH certain information
`
`pursuant to the FOIA (“Sixth Request”, agency reference number 55141).
`
`54.
`
`The Sixth Request states:
`
`For the period from February 1, 2020, to the present, I am
`writing to request copies of the following documents:
`
`1.
`Any and all correspondence, electronic or otherwise and
`including but not limited to emails and text messages on
`government-issued devices or personal devices and records of
`instant messages from applications including but not limited to
`Confide, WhatsApp, Slack, and Signal, between Joshua
`Gordon, Director of the National Institute of Mental Health
`(NIMH), and any employees of the National Institutes of Health
`(NIH), related to PETA’s campaign focused on experiments
`carried out by Elisabeth Murray;
`
`2.
`Any and all correspondence, electronic or otherwise and
`including but not limited to emails and text messages on
`government-issued devices or personal devices and records of
`instant messages from applications including but not limited to
`Confide, WhatsApp, Slack, and Signal, between Joshua Gordon
`and any employees of the NIH, related to Freedom of
`Information Act requests submitted by PETA
`to
`the
`NIH/NIMH; and
`
`3.
`Any and all correspondence, electronic or otherwise and
`including but not limited to emails and text messages on
`government-issued devices or personal devices and records of
`instant messages from applications including but not limited to
`Confide, WhatsApp, Slack, and Signal, between Joshua Gordon
`and any persons external to the NIH, related to PETA’s
`campaign focused on experiments carried out by Elisabeth
`Murray.
`
`
`12
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`

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`Case 1:21-cv-01241 Document 1 Filed 05/06/21 Page 13 of 18
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`Please exclude copies of form e-mails received by the NIH from
`concerned members of the public that may have been forwarded
`to different offices within NIH.
`
`
` voluntarily agree to have the following information redacted
`from the documents that are found to be responsive to this
`request: all telephone numbers, room numbers, and the names
`of
`secondary
`individuals
`(e.g.
`administrative
`support/clerical/clinical staff).
`
`The Sixth Request reasonably described the records sought.
`
` I
`
`NIH emailed PETA on September 19, 2020 to acknowledge receipt of the Sixth
`
`55.
`
`56.
`
`Request.
`
`SEVENTH REQUEST: AGENCY REFERENCE NO. 55191
`
`57.
`
`On or about October 1, 2020, PETA requested from NIMH certain information
`
`pursuant to the FOIA (“Seventh Request”, agency reference number 55191).
`
`58.
`
`The Seventh Request states:
`
`For the period from February 1, 2020, to the present, I am
`writing to request copies of the following documents:
`
`1.
`Any and all correspondence, electronic or otherwise and
`including but not limited to emails and text messages on
`government-issued devices or personal devices and accounts,
`and records of instant messages from applications including but
`not limited to Confide, WhatsApp, Slack, and Signal, between
`Joshua Gordon, Director of the National Institute of Mental
`Health
`(NIMH), or any representatives
`thereof, and
`representatives of the American Psychological Association
`(APA), related to PETA’s campaign focused on experiments
`carried out by Elisabeth Murray;
`
`2.
`Any and all correspondence, electronic or otherwise and
`including but not limited to emails and text messages on
`government-issued devices or personal devices accounts, and
`records of instant messages from applications including but not
`limited to Confide, WhatsApp, Slack, and Signal, between
`Joshua Gordon, Director of the National Institute of Mental
`Health
`(NIMH), or any representatives
`thereof, and
`representatives of the Federation of Associations in Behavioral
`
`
`
`13
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`Case 1:21-cv-01241 Document 1 Filed 05/06/21 Page 14 of 18
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`and Brain Sciences, related to PETA’s campaign focused on
`experiments carried out by Elisabeth Murray; and
`
`
`
`3.
`Any and all documentation related to the new coalition,
`the Friends of NIMH, including correspondence, electronic or
`otherwise and including but not limited to emails and text
`messages on government-issued devices or personal devices and
`accounts, and records of instant messages from applications
`including but not limited to Confide, WhatsApp, Slack, and
`Signal, related to this new coalition.
`
`Please exclude copies of form e-mails received by the NIH from
`concerned members of the public that may have been forwarded
`to different offices within NIH.
`
`
` voluntarily agree to have the following information redacted
`from the documents that are found to be responsive to this
`request: all telephone numbers, room numbers, and the names
`of
`secondary
`individuals
`(e.g.
`administrative
`support/clerical/clinical staff).
`
`The Seventh Request reasonably described the records sought.
`
` I
`
`NIH emailed PETA on October 1, 2020 to acknowledge receipt of the Seventh
`
`59.
`
`60.
`
`Request.
`
`GROUPED COMMUNICATIONS REGARDING THE SECOND THROUGH SEVENTH REQUESTS
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`61.
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`As of November 6, 2020, PETA had not received final determinations, responsive
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`information, or any meaningful updates or timetables with respect to its Second through Seventh
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`Requests.
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`62.
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`PETA left voicemail messages with the Defendant NIMH’s FOIA officer on
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`November 6, 2020 and November 10, 2020 seeking an update about NIMH’s responses to the
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`Second through Seventh Requests.
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`63.
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`PETA emailed Defendant NIMH’s FOIA officer on November 11, 2020 seeking
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`an update about NIMH’s responses to the Second through Seventh Requests.
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`Case 1:21-cv-01241 Document 1 Filed 05/06/21 Page 15 of 18
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`64.
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`On November 16, 2020, Defendant NIMH’s FOIA officer emailed PETA to inform
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`PETA that NIMH is still processing the Second through Seventh Requests.
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`65.
`
`On November 18, 2020, PETA emailed Defendant NIMH’s FOIA officer to request
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`an estimated date of completion with respect to NIMH’s processing of the Second through Seventh
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`Requests.
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`66.
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`On November 20, 2020, Defendant NIMH’s FOIA officer responded that it could
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`not provide an accurate estimated completion date but would provide a more substantive update
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`the following week.
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`67.
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`On November 24, 2020, Defendant NIMH’s FOIA officer emailed PETA and stated
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`the Second through Seventh Requests are still being processed but are delayed due to backlogged
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`cases.
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`68.
`
`On December 1, 2020, PETA emailed Defendant NIMH’s FOIA officer to
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`emphasize the urgency of the Requests.
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`69.
`
`On December 2, 2020, Defendant NIMH’s FOIA officer responded by again
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`emphasizing the backlog of cases as the reason for the delay and providing additional information
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`about the backlog and the number and laboriousness of other cases in the queue. Defendant
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`NIMH’s FOIA officer also inquired if PETA was agreeable to reducing the scope of the Second
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`through Seventh Requests. Defendant NIMH’s FOIA officer also inquired if PETA agreed to the
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`redaction of secondary names and identifiers, and locations, from any documents released in
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`response to the Second Request.
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`70.
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`On or about December 4, 2020, PETA informed Defendant NIMH’s FOIA officer
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`it would not reduce the scope of the Second through Seventh Requests. However, PETA informed
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`Defendant NIMH’s FOIA officer that PETA agreed to the redaction of secondary names and
`
`
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`15
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`Case 1:21-cv-01241 Document 1 Filed 05/06/21 Page 16 of 18
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`identifiers, and locations, from any documents released in response to the Second Request. PETA
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`also informed Defendant that PETA agreed to reduce the scope of the Fourth Request by removing
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`the demand for videos (videographic records).
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`71.
`
`On December 8, 2020, Defendant NIMH’s FOIA officer acknowledged that PETA
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`declined to reduce the scope of the Second through Seventh Requests, but that PETA agreed to
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`secondary identifiers and locations being redacted from any response to the Second Request, and
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`agreed to reduce the scope of the Fourth Request by removing the demand for videos.
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`72.
`
`As of the date of this pleading, NIMH still has not produced information responsive
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`to the Second through Seventh Requests, final determinations for the Requests, or timeframes for
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`responses.
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`73.
`
`NIMH constructively denied the Second through Seventh Requests by failing to
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`make determinations and provide responsive information within the timeframes the FOIA
`
`mandates.
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`PLAINTIFF’S CLAIMS FOR RELIEF
`
`COUNT ONE
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`74.
`
`Plaintiff realleges and incorporates by reference all previous paragraphs as if fully
`
`set forth herein.
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`75.
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`The First through Seventh Requests seek “agency” records within Defendants’
`
`possession and control.
`
`76.
`
`There is no basis to withhold, in whole or in part, the information or records sought
`
`by the First through Seventh Requests and Defendants have wrongfully withheld the information
`
`or records in violation of the FOIA, 5 U.S.C. §§ 552(a)(6)(A) and (a)(4)(B).
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`
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`16
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`Case 1:21-cv-01241 Document 1 Filed 05/06/21 Page 17 of 18
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`77.
`
`By failing to provide an estimated date on which Defendant would complete a
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`response to Plaintiff’s FOIA Requests despite Plaintiff’s repeated pleas for an estimated
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`completion date, Defendants are in violation of FOIA’s requirement that agencies must provide an
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`estimated date by which the agency will respond to a request. See 5 U.S.C. § 552(a)(7)(B)(ii).
`
`78.
`
`Plaintiff is being irreparably harmed by reason of Defendants’ FOIA violations,
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`and Plaintiff will continue to be irreparably harmed unless Defendants are compelled to conform
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`their conduct to the requirements of the law.
`
`79.
`
`Plaintiff is entitled to declaratory relief finding that Defendants have violated the
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`FOIA and that Plaintiff is immediately entitled to receive all information or records responsive to
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`the First through Seventh Requests.
`
`80.
`
`Plaintiff is further entitled to injunctive relief, ordering Defendants to immediately
`
`produce copies of all information or records responsive to the First through Seventh Requests
`
`without further delay.
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`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff respectfully requests the Court:
`
`
`A.
`
`Declare that Defendants’ failure to provide PETA with all non-exempt information
`
`or records responsive to PETA’s Requests described above, is in violation of the FOIA;
`
`B.
`
`Order Defendants to immediately produce to PETA, and at no cost to PETA, all
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`non-exempt responsive information or records, and any required indexes of any responsive
`
`information or records withheld under a claim of exemption;
`
`C.
`
`Enjoin Defendants from continuing to withhold responsive records;
`
`D.
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`Maintain jurisdiction over this action until Defendants comply with the FOIA and
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`all orders of this Court;
`
`
`
`17
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`Case 1:21-cv-01241 Document 1 Filed 05/06/21 Page 18 of 18
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`E.
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`Award PETA its reasonable costs, litigation expenses, and attorneys’ fees in
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`prosecuting this civil action under the FOIA, 5 U.S.C. § 552(a)(4)(E); and
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`F.
`
`Grant such further relief as the Court may deem just and proper.
`
`
`
`Dated: May 6, 2021
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`Respectfully submitted,
`
`/s/ William N. Lawton
`William N. Lawton
`D.C. Bar No. 1046604
`EUBANKS & ASSOCIATES PLLC
`1331 H Street NW, Suite 902
`Washington, DC 20005
`(202) 556-1243
`nick@eubankslegal.com
`
`
`FOUNDATION TO SUPPORT
`ANIMAL PROTECTION
`(PETA FOUNDATION)
`501 Front Street
`Norfolk, Virginia 23510
`(757) 622-7382 Telephone
`
`By:
`/s/Aaron Frazier
` AARON FRAZIER*
`
`New York State Bar No. 5187869
`
`AaronF@PetaF.org
`
`*Pro hac vice application forthcoming
`
`ATTORNEYS FOR PLAINTIFF
`PEOPLE FOR THE ETHICAL
`TREATMENT OF ANIMALS, INC.
`
`
`
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`18
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