Case 1:22-cv-00430 Document 1 Filed 02/16/22 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`NATIONAL PUBLIC RADIO, INC.
`1111 North Capitol Street, NE
`Washington, DC 20002
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`and
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`JINGNAN HUO
`c/o National Public Radio, Inc.
`1111 North Capitol Street, NE
`Washington, DC 20002
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`Case No:
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`UNITED STATES DEPARTMENT OF )
`HEALTH AND HUMAN SERVICES
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`200 Independence Avenue, S.W.
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`Washington, DC 20201
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`v.
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`Plaintiffs,
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`Defendant.
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF FOR
`VIOLATION OF THE FREEDOM OF INFORMATION ACT
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`Plaintiffs National Public Radio, Inc. and Jingnan Huo (collectively, “NPR”), by their
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`undersigned attorneys, allege as follows:
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`Background
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`1.
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`NPR brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C.
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`§ 552, et seq., to enjoin the U.S. Department of Health & Human Services (“HHS”), a Cabinet-
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`level department of the Federal executive branch, from improperly withholding records
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`responsive to NPR’s FOIA request submitted on August 18, 2020 (the “Request”).
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`2.
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`NPR’s Request seeks records related to HHS’s dealings with TeleTracking, Inc., a
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`vendor awarded several multi-million dollar contracts to collect and coordinate COVID-19 data.
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`NPR’s reporting has raised questions about irregularities in how those contracts were awarded.
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`3.
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`The Freedom of Information Act “focuses on the citizens’ right to be informed
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`about ‘what their government is up to,’” by requiring the release of “[o]fficial information that
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`sheds light on an agency’s performance of its statutory duties.” DOJ v. Reporters Comm. for
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`Freedom of the Press, 489 U.S. 749, 750, 773 (1989) (citation omitted). “[D]isclosure, not
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`secrecy, is the dominant objective” of FOIA. Dept’t of Interior v. Klamath Water Users
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`Protective Ass’n, 532 U.S. 1, 8 (2001) (internal quotation marks and citations omitted). NPR
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`plays a critical role in providing information to citizens about “what their government is up to.”
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`Indeed, the First Amendment’s guarantee of freedom of the press is meant to enable journalists
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`to play an “essential role in our democracy,” to “bare the secrets of government and inform the
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`people.” New York Times. Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J. concurring).
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`4.
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`Through its FOIA Request, NPR seeks to fulfill its journalistic function and to shine
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`a public light on the operations of HHS and its managing of COVID-19 data.
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`Jurisdiction and Venue
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`5.
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`This Court has both subject matter jurisdiction over this action and personal
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`jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B). This Court also has jurisdiction
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`over this action pursuant to 28 U.S.C. §§ 1331, 2201(a) and 2202. Venue lies in this district
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`under 5 U.S.C. § 552(a)(4)(B).
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`Parties
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`6.
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`Plaintiff National Public Radio, Inc. is a non-profit multimedia organization and the
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`leading provider of non-commercial news, information, and entertainment programming to the
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`American public. NPR’s fact-based, independent journalism helps the public stay on top of
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`breaking news, follow the most critical stories of the day, and track complex issues over the long
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`term. NPR reaches approximately 53 million people on broadcast radio, podcasts, NPR apps,
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`NPR.org and YouTube video content per month. NPR distributes its radio broadcasts through
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`more than 1,000 non-commercial, independently operated radio stations, licensed to more than
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`250 NPR members and numerous other NPR-affiliated entities.
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`7.
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`Plaintiff Jingnan Huo is a resident of Virginia, and an award-winning journalist who
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`works as an assistant producer on NPR’s investigations team. Ms. Huo has reported on black lung
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`disease’s resurgence, as well as air monitoring data to see if lockdowns during the coronavirus
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`pandemic have made the air cleaner. She has a Master’s degree from Northwestern University’s
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`Medill School of Journalism.
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`8.
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`Defendant U.S. Department of Health and Human Services (“HHS”) is a Cabinet-level
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`department of the Executive branch of the Federal government that was created to protect the
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`health of all Americans. Accordingly, HHS is an agency subject to FOIA. Upon information
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`and belief, HHS has possession and control of the records sought by the Request.
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`Facts
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`9.
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`On August 18, 2020, NPR submitted a FOIA Request seeking records related to the
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`agency’s interactions with TeleTracking Technologies, Inc., a government vendor tasked with
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`managing COVID-19 data. Specifically, the Request sought: 1) White Papers or Full Proposals
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`submitted to HHS under the Broad Agency Announcement, BAA-19-ASPR NEXT-SOL-
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`75A50119R0044, Area of Interest 4: “Real-Time Healthcare System Capacity Reporting”; 2)
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`written evaluation reports created in response to White Papers or Full Proposals under Area of
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`Interest 4; 3) any white paper submitted by TeleTracking to HHS between Aug. 1, 2019 and
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`3
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`Aug. 1, 2020; 4) the Non-Disclosure Agreement signed by TeleTracking relating to BAA-19-
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`ASPR NEXT-SOL-75A50119R0044; 5) the contract signed by TeleTracking ASPR-BARDA,
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`Contract No. 75A50120C0042; 6) emails referring to “TeleTracking” from Feb. 1, 2020 to Aug.
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`18, 2020, to, from, or copying the following HHS or CDC officials: Bryan Shuy, Jose Arrieta,
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`Jim Parker, Dr. Deborah Birx, Robert Redfield, Cameron Hernandez; 7) emails referring to
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`“TeleTracking” from June 1, 2020 to Aug. 18, 2020, to, from, or copying the following HHS
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`officials: Michael Caputo, Katherine McKeogh. Attached as Exhibit A is a copy of the Request.
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`10. Although HHS acknowledged receipt of NPR’s Request on August 20, 2020, it did
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`not provide a final response until three months later, on November 19, 2020 (the “Response”).
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`In its Response, HHS declared that to date, the Assistant Secretary for Preparedness and
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`Response (ASPR) and the Assistant Secretary for Administration (ASA) had located 31 pages of
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`responsive records; HHS determined two pages were to be withheld in their entirety under
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`Exemptions (b)(4) (the exemption for trade secrets and privileged commercial or financial
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`information) and (b)(5) (the deliberative process privilege) of the FOIA; and seven pages were to
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`be withheld in part under Exemptions (b)(4) (the exemption for trade secrets and privileged
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`commercial or financial information) and (b)(6) (the personal privacy privilege). Attached as
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`Exhibit B is a copy of the acknowledgement of the Request and attached as Exhibit C is a copy
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`of the final Response letter.
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`11. NPR appealed this decision on December 8, 2020 (the “Appeal”). Attached as
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`Exhibit D is a copy of the Appeal letter.
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`12.
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`In its Appeal, NPR noted that HHS conducted an inadequate search for records.
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`HHS returned no records relating to white papers, proposals, or written evaluation; it returned no
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`records relating to TeleTracking’s own white paper submissions; and it returned no records
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`4
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`relating to TeleTracking’s non-disclosure agreement. Ex. D at 3-4. In addition, HHS conducted
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`an inadequate email search, producing only a fragment of one email. Ex. D at 4-5. HHS merely
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`asserts that ASPR and ASA conducted a search, but HHS does not provide information on what
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`databases it searched, what search terms it used, or what files it searched.
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`13. NPR also noted that HHS improperly redacted information under Exemptions 4 and
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`5. The TeleTracking contract cannot be considered a “trade secret” or “commercial” information
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`because TeleTracking is not engaged in the production of “trade commodities.” Nor is the
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`information in the contract “confidential” — TeleTracking’s own website contains a page
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`dedicated to 16 case studies describing the company’s COVID-19 work. Ex. D at 6. The
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`deliberative process privilege would not apply because the TeleTracking contract was executed
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`on April 10, 2020, and any discussions of TeleTracking after that would be post-decisional and
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`disqualified from the privilege. Ex. D at 7. TeleTracking’s contract was recently renewed for
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`another year. Attached as Exhibit F is an article from the Pittsburgh Business Times disclosing
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`the renewal. The public should be able to view the contract of a company acting as the federal
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`government’s main conduit for COVID-19 data.
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`14. HHS finally responded on June 29, 2021, estimating that it would require another
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`12 months or more to process NPR’s appeal. HHS responded later that same day that it was
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`taking another look at the appeal. Attached as Exhibit E is a copy of the Response to Appeal.
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`15. To date, NPR has not heard anything further from HHS.
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`16. As of the filing of this Complaint, over a year has elapsed since NPR made its
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`Request to HHS, and filed its Appeal. TeleTracking has been awarded another year on its
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`contract, making the need for transparency more relevant. Because the agency has failed to
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`respond to NPR’s Appeal within 20 working days, Plaintiffs are deemed to have exhausted their
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`administrative remedies under 5 U.S.C. § 552(a)(6)(C)(i).
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`PLAINTIFFS’ CLAIM FOR RELIEF
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`COUNT I
`(Improper denial of FOIA Request)
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`17. Plaintiffs repeat and re-allege paragraphs 1-16.
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`18. NPR properly submitted a FOIA request for documents from HHS—namely, copies
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`of records related to the agency’s interactions with TeleTracking Technologies, Inc., a
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`government vendor tasked with managing COVID-19 data.
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`19. Defendant HHS is an agency subject to FOIA. Defendant’s response violated FOIA
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`in several ways:
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`(1) Defendant conducted an inadequate search, failing to locate records in several
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`categories that were specifically noted in NPR’s Request.
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`(2) Defendant improperly withheld two pages of documents under Exemptions (b)(4)
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`and (b)(5) of the FOIA.
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`(3) Defendant improperly redacted seven pages of documents under Exemptions
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`(b)(4) and (b)(6).
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`20. Plaintiffs timely appealed and Defendant did not respond to Plaintiffs’ appeal.
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`21. NPR has a statutory right to receive a timely determination on its Appeal from
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`HHS.
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`22. As a result of the actions complained of herein, NPR’s access to the requested
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`government records has been improperly delayed, in violation of the FOIA.
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`23. Accordingly, NPR is entitled to injunctive and declaratory relief with respect to the
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`immediate issuance of a determination on and processing of its Request.
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`Case 1:22-cv-00430 Document 1 Filed 02/16/22 Page 7 of 7
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`Requested Relief
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`WHEREFORE, Plaintiffs respectfully request that this Court:
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`(1)
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`Order Defendant to immediately and fully process NPR’s December 8, 2020
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`Appeal and disclose all non-exempt documents immediately to Plaintiffs;
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`(2)
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`Issue a declaration that NPR is entitled to immediate processing and disclosure of
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`the requested records;
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`(3)
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`Retain jurisdiction of this action to ensure no agency records are wrongfully
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`withheld;
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`(4)
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`(5)
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`Award Plaintiffs their costs and reasonable attorneys’ fees in this action; and
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`Grant such other relief as the Court may deem just and proper.
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`Dated: February 16, 2022
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`Respectfully submitted,
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`/s/ Courtney T. DeThomas
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`Courtney DeThomas (D.C. Bar. No. 888304075)
`DAVIS WRIGHT TREMAINE LLP
`1301 K Street NW; Suite 500 East
`Washington, D.C. 20005-3317
`202-973-4200
`courtneydethomas@dwt.com
`Abigail Zeitlin (D.C. Bar No. 888314368)
` (D.D.C. attorney admission application to be filed)
`DAVIS WRIGHT TREMAINE LLP
`865 South Figueroa Street, Suite 2400
`Los Angeles, CA 90017
`213-633-8614
`abigailzeitlin@dwt.com
`Thomas R. Burke (pro hac vice application to be filed)
`DAVIS WRIGHT TREMAINE LLP
`505 Montgomery Street, Suite 800
`San Francisco, CA 94111
`415-276-6500
`thomasburke@dwt.com
`Counsel for Plaintiffs
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`7
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