`
`In the United States District Court
`
`FOR THE DISTRICT OF COLUMBIA
`
`
`
`CENTER FOR FOOD SAFETY,
`660 Pennsylvania Ave SE #402
`Washington, DC 20003
`
`
`
`
`Plaintiff,
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`
`
`
`
`
`vs.
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`
`
`
`
`
`UNITED STATES ARMY CORPS OF
`ENGINEERS,
`441 G Street N.W.
`Washington, DC 20314-1000
`
`
`
` Defendant.
`
`
`
`
`
`
`
`)
`)
`)
`)
`) Case No. 1:22-cv-2183
`)
`
`)
`) COMPLAINT FOR DECLARATORY
`) AND INJUNCTIVE RELIEF
`)
`)
`)
`)
`)
`)
`)
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`
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`Case 1:22-cv-02183-CKK Document 1 Filed 07/25/22 Page 2 of 15
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`I.
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`NATURE OF ACTION
`
`1.
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`The Center for Food Safety (CFS)—a nonprofit public interest and environmental
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`advocacy organization working to protect public health and the environment—brings this civil
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`action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, challenging the United
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`States Army Corps of Engineers’ (USACE) unlawful withholding of records that pertain to
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`USACE’s approval of nationwide permit (NWP) 56.
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`2.
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`CFS filed a FOIA request with USACE to gain a better understanding of USACE’s
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`decision to approve NWP 56, which allows structures in marine and estuarine waters for finfish
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`aquaculture. The goal of the request was to open the operations and activities of government to
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`public scrutiny and contribute significantly to the public’s understanding of the agency’s action.
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`CFS also requested a fee waiver in accordance with 5 U.S.C. § 552(a)(4)(A)(iii).
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`3.
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`USACE is violating FOIA by failing to produce records in response to CFS’s FOIA
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`request, failing to conduct an adequate search for responsive records, and by failing to provide an
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`initial determination as to the scope of the records to be produced or withheld, an estimated date
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`by which the agency’s search will be complete, and a determination on CFS’s fee waiver request.
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`4.
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`USACE’s unlawful withholding of public records undermines FOIA’s basic
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`purpose of government transparency. Because prompt access to these records is necessary to
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`effectuate FOIA’s purpose, CFS seeks declaratory relief establishing that USACE is in violation of
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`FOIA, and injunctive relief directing USACE to provide responsive records without any further
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`delay.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`II.
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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.
`
`6.
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`Venue properly vests in this Court pursuant to 5 U.S.C. § 552(a)(4)(B), which
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`expressly provides a venue for FOIA cases in the District Court of the District of Columbia.
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`7.
`
`8.
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`Declaratory relief is appropriate under 28 U.S.C. § 2201.
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`Injunctive relief is appropriate under 28 U.S.C. § 2202 and 5 U.S.C.
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`§ 552(a)(4)(B).
`
`III.
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`PARTIES
`
`9.
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`Plaintiff CFS is a national 501(c)(3) nonprofit public interest and environmental
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`advocacy organization with a mission to protect public health and the environment by curbing the
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`proliferation of harmful food production technologies, such as industrial aquaculture practices,
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`and by promoting sustainable forms of food production. CFS represents over one million
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`members who reside in every state across the country, who support safe, sustainable food
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`production. CFS has long had a specific aquaculture program, dedicated to addressing the adverse
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`environmental and public health impacts of industrial aquaculture, including numerous policy,
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`scientific, and legal staff. In its program, CFS strives to ensure and improve aquaculture oversight,
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`furthering policy and cultural dialogue with regulatory agencies, consumers, chefs, landowners,
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`and legislators on the critical need to protect public health and the environment from industrial
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`aquaculture and to promote and protect more sustainable alternatives. CFS and its members are
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`harmed by USACE’s violations of FOIA, as such violations preclude CFS from gaining a full
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 1:22-cv-02183-CKK Document 1 Filed 07/25/22 Page 4 of 15
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`understanding of the decision-making process regarding the approval of NWP 56 and prevent CFS
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`from disseminating information to the public concerning USACE’s oversight of this novel
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`industry.
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`10. Defendant USACE is an agency within the United States Government. USACE is
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`in possession and control of the records that CFS seeks and is an agency within the meaning of 5
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`U.S.C. § 552(f)(1). USACE is therefore subject to FOIA.
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`IV.
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`LEGAL BACKGROUND
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`11.
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`The basic purpose of FOIA is to promote government transparency and public
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`oversight of agency action. The statute effectuates this objective by establishing the public’s right to
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`access all federal agency records unless such records may be withheld pursuant to one of nine,
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`narrowly construed exemptions. 5 U.S.C. § 552(b)(1)-(9).
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`12.
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`FOIA imposes stringent deadlines on federal agencies with regard to making initial
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`determinations in response to FOIA requests. Within twenty working days of receiving a FOIA
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`request, an agency must determine whether it will release the requested records, and must notify
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`the requester of its determination, the reasons for its decision, and the requester’s right to appeal
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`an adverse decision to the head of the agency. Id. § 552(a)(6)(A). An agency must also make a
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`determination as to a fee waiver request within the twenty-day time period. Bensman v. Nat’l Park
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`Serv., 806 F. Supp. 2d 31, 39 (D.D.C. 2011).
`
`13.
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`Congress has specified certain limited instances in which federal agencies may
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`extend this twenty-working-day deadline. First, an agency may toll the deadline to seek additional
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`information or clarification from a requester, but that tolling period ends when the agency receives
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`such information or clarification. Id. § 552(a)(6)(A)(ii). Second, in “unusual circumstances” an
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`agency may extend the deadline no more than ten additional working days by providing written
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`notice to the requester that sets forth the circumstances justifying the extension. Id. §
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`552(a)(6)(B)(i).
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`14.
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`FOIA requires that a determination under 5 U.S.C. § 552(a)(6)(A) “must be more
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`than just an initial statement that the agency will generally comply with a FOIA request and will
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`produce non-exempt documents and claim exemptions in the future.” Citizens for Responsibility and
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`Ethics in Wash. v. Fed. Election Comm’n, 711 F.3d 180, 188 (D.C. Cir. 2013).
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`15.
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`For a determination to trigger the administrative exhaustion requirement, the
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`agency must at least “(i) gather and review the documents; (ii) determine and communicate the
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`scope of the documents it intends to produce and withhold, and the reasons for withholding any
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`documents; and (iii) inform the requester that it can appeal whatever portion of the
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`‘determination’ is adverse.” Id. at 188.
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`16.
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`If the agency fails to respond within the applicable time limit, the requester “shall
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`be deemed to have exhausted his administrative remedies.” 5 U.S.C. § 552(a)(6)(C)(i).
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`17.
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`Such constructive exhaustion1 “allows immediate recourse to the courts to compel
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`the agency’s response to a FOIA request.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 62, 64 (D.C.
`
`Cir. 1990).
`
`18.
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`The court “then has the authority to oversee and supervise the agency’s progress in
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`responding to the request.” Seavey v. DOJ, Case No. 15–1303, 2017 WL 3112816, at *2 (D.D.C.
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`July 20, 2017) (citing Citizens for Responsibility and Ethics in Wash., 711 F.3d at 189); see also Clemente
`
`
`1 “Constructive exhaustion is determined by the actions (or lack thereof) an agency has taken by
`the time a suit is filed in the district court.” Wisdom v. U.S. Tr. Program, 232 F. Supp. 3d 97, 113
`(D.D.C. 2017) (citing Oglesby, 920 F.2d at 64).
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`v. FBI, 71 F. Supp. 3d 262, 269 (D.D.C. 2014) (a court “may use its equitable powers to require
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`the agency to process documents according to a court-imposed timeline.”).
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`19.
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`FOIA requires each agency to search for records in a manner that is reasonably
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`calculated to locate all records that are responsive to the FOIA request. 5 U.S.C. § 552(a)(3)(C)-
`
`(D).
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`20. With regard to production of responsive records, “FOIA requires that the agency
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`make the records ‘promptly available,’ which depending on the circumstances typically would
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`mean within days or a few weeks of a ‘determination,’ not months or years.” Citizens for
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`Responsibility and Ethics in Wash., 711 F.3d at 188 (citing 5 U.S.C. § 552(a)(3)(A), (a)(6)(C)).
`
`21.
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`In certain limited instances, an agency may withhold records or portions of records
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`pursuant to nine specific exemptions. 5 U.S.C. § 552(b). These exemptions must be “construed
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`narrowly in keeping with FOIA’s presumption in favor of disclosure.” Pub. Citizen, Inc. v. Office of
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`Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010).
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`22.
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`FOIA places the burden on the agency to prove that it may withhold responsive
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`records or portions of records from a requester. 5 U.S.C. § 552(a)(4)(B).
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`23.
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`FOIA provides this Court jurisdiction “to enjoin the agency from withholding
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`agency records and to order the production of any agency records improperly withheld from the
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`complainant.” Id. § 552(a)(4)(B).
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`24.
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`In addition, FOIA provides a waiver for fees associated with the procurement of
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`documents subject to FOIA requests. Such fee waivers are granted “if disclosure of the information
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`is in the public interest because it is likely to contribute significantly to public understanding of
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`the operations or activities of the government and is not primarily in the commercial interest of
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`the requester.” Id. § 552(a)(4)(A)(iii).
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`25.
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`Finally, FOIA requires that the agency provide “information about the status of a
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`request . . . including . . . an estimated date on which the agency will complete action on the
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`request.” 5 U.S.C. § 552(a)(7)(B)(ii).
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`V.
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`FACTUAL BACKGROUND
`
`26.
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`CFS, through its aquaculture program, works to protect public health and the
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`environment from the impacts of industrial aquaculture operations. CFS has a long history of
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`promoting greater oversight concerning the environmental and public health impacts of animal
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`factories, and specifically offshore industrial aquaculture facilities.
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`27. On May 5, 2022, CFS submitted a FOIA request to USACE, seeking “[a]ny and all
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`documents from May 7, 2020 to January 13, 2021 regarding the U.S. Army Corps of Engineers’
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`decision to issue Nationwide Permit 56, previously referred to as Nationwide Permit B.” This is a
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`narrow request, considering the date range (less than one year).
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`28.
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`CFS explained that release of the requested records was in the public’s best interest
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`because disclosure would significantly contribute to public understanding of the operations or
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`activities of government, and because obtaining the information was of no commercial interest to
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`CFS. CFS also requested a fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii).
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`29. On May 9, 2022, USACE emailed CFS stating a formal acknowledgement and
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`tracking number would be forthcoming. Exhibit A.
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`30.
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`An initial determination on the May 5 FOIA Request was due by June 3, 2022,
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`twenty working days after the date CFS submitted the request.
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`31. On May 31, 2022, CFS emailed USACE asking for an update, tracking number,
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`and formal acknowledgement of the request. Exhibit A.
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`32. On June 3, 2022, USACE responded with a formal acknowledgement of the
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`request and a tracking number (FP-22-018337). Exhibit A.
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`33. On June 3, 2022, CFS responded asking for an estimated date of completion for
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`the request. Exhibit A.
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`34. On June 14, 2022, CFS again requested an estimated completion date for the
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`request and offered to help narrow the request if necessary. Exhibit A.
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`35. On June 15, 2022, USACE responded that it was in touch with a records custodian
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`and would be back in touch with CFS soon. CFS responded that same day, again requesting that
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`USACE provide an estimated completion date as soon as possible. Exhibit A.
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`36. On June 21, 2022, CFS followed up with USACE asking for an update and an
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`estimated completion date. Exhibit A.
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`37. On July 13, 2022, CFS again followed up asking for an estimated completion date.
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`Exhibit A.
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`38. On July 18, 2022, USACE responded that it received documents for the FOIA
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`request but cannot provide an estimated completion date. Exhibit A.
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`39. Over six weeks have passed since USACE logged in the May 5, 2022 FOIA
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`Request, yet USACE has not provided an initial determination in response to the May 5, 2022
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`FOIA Request, made a determination of CFS’s fee waiver request, supplied an estimated date of
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`completion, or produced any responsive records.
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`40.
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`As of the date of this complaint, CFS has received no further communications
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`from USACE.
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`41. None of FOIA’s nine exemptions to the statute’s disclosure mandate apply to the
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`records responsive to the May 5 FOIA Request.
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`42.
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`CFS has been required to expend resources to prosecute this action.
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`VI.
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`CAUSES OF ACTION
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`FIRST CAUSE OF ACTION
`Defendant Failed to Comply with FOIA’s Mandatory Determination Deadline
`
`The allegations made in all preceding paragraphs are realleged and incorporated by
`
`43.
`
`reference herein.
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`44. USACE violated FOIA by failing to make a determination on CFS’s May 5 FOIA
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`Request, including CFS’s fee waiver request. 5 U.S.C. § 552(a)(6).
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`45.
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`CFS has a statutory right to receive a determination within the congressionally-
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`mandated deadline of twenty working days. Id.
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`46.
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`To date—over two months since CFS filed the May 5 FOIA Request—USACE has
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`not provided a determination, notwithstanding the requirement of 5 U.S.C. § 552(a)(6)(A) of an
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`agency response within twenty working days detailing the scope of the records the agency intends
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`to produce and withhold, the reasons for making that determination, and an explanation of the
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`process by which a requester can administratively appeal that determination.
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`47. USACE’s failure to make an initial determination with regard to the May 5 FOIA
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`Request, thus unlawfully delaying its response beyond the deadline that FOIA mandates, has
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`prejudiced CFS’s ability to timely obtain public records. Id. § 552(a)(6)(A)(i).
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`48.
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`As such, CFS has exhausted the applicable administrative remedies with respect to
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`the May 5 FOIA Request pursuant to 5 U.S.C. § 552(a)(6)(C)(i).
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`49. Due to the nature of CFS’s organizational activities, it will undoubtedly continue to
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`employ FOIA’s provisions in record requests to USACE in the foreseeable future.
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`50.
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`CFS’s organizational activities will be adversely affected if USACE continues to
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`violate FOIA by failing to disclose responsive records as it has in this case.
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`51. Unless enjoined and made subject to a declaration of CFS’s legal rights by this
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`Court, USACE will continue to violate CFS’s rights to receive public records under FOIA.
`
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`SECOND CAUSE OF ACTION
`Defendant Failed to Conduct an Adequate Search for Responsive Records
`
`The allegations made in all preceding paragraphs are realleged and incorporated by
`
`52.
`
`reference herein.
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`53. USACE violated FOIA by failing to conduct an adequate search for responsive
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`records pursuant to 5 U.S.C. § 552(a)(3)(C)-(D).
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`54.
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`CFS has a statutory right to have USACE process its May 5 FOIA Request in a
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`manner that complies with FOIA. Id.
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`55. USACE violated CFS’s right when it unlawfully failed to undertake a search that is
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`reasonably calculated to locate all records that are responsive to the May 5 FOIA Request, thus
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`prejudicing CFS’s ability to timely obtain public records.
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`56.
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`CFS has exhausted the applicable administrative remedies with respect to the May
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`5 FOIA Request pursuant to 5 U.S.C. § 552(a)(6)(C)(i).
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`57. Due to the nature of CFS’s organizational activities, it will undoubtedly continue to
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`employ FOIA’s provisions in record requests to USACE in the foreseeable future.
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`58.
`
`CFS’s organizational activities will be adversely affected if USACE continues to
`
`violate FOIA by failing to disclose responsive records as it has in this case.
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`59. Unless enjoined and made subject to a declaration of CFS’s legal rights by this
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`Court, USACE will continue to violate CFS’s rights to receive public records under FOIA.
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`THIRD CAUSE OF ACTION
`Defendant Unlawfully Withheld All Responsive Records
`
`The allegations made in all preceding paragraphs are realleged and incorporated by
`
`60.
`
`reference herein.
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`61. USACE violated FOIA by failing to promptly disclose records that are responsive to
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`CFS’s May 5 FOIA Request. 5 U.S.C. § 552(a)(4)(B).
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`62.
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`CFS has a statutory right to the records it seeks, and there are no applicable
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`exemptions under FOIA that provide a legal basis for USACE to withhold these records from
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`CFS. See id. § 552(b)(1)-(9).
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`63.
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`To date, USACE has not provided any records requested by CFS in the May 5
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`FOIA Request, notwithstanding the requirement of 5 U.S.C. § 552(a)(3)(A) and 5 U.S.C. §
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`552(a)(6)(C) to make agency records “promptly available.”
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`64.
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`As such, USACE is wrongfully withholding disclosure of information sought by
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`CFS, information to which it is entitled and for which no valid disclosure exemption has been
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`claimed. USACE’s unlawful withholding prejudices CFS’s ability to timely obtain public records.
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`65.
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`CFS has exhausted the applicable administrative remedies with respect to the May
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`5 FOIA Request pursuant to 5 U.S.C. § 552(a)(6)(C)(i).
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`66. Due to the nature of CFS’s organizational activities, it will undoubtedly continue to
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`employ FOIA’s provisions in record requests to USACE in the foreseeable future.
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`67.
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`CFS’s organizational activities will be adversely affected if USACE continues to
`
`violate FOIA by failing to disclose responsive records as it has in this case.
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`68. Unless enjoined and made subject to a declaration of CFS’s legal rights by this
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`Court, USACE will continue to violate CFS’s rights to receive public records under FOIA.
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`FOURTH CAUSE OF ACTION
`Defendant Failed to Provide Reasonably Segregable Portions of Any Lawfully Exempt Records
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`The allegations made in all preceding paragraphs are realleged and incorporated by
`
`69.
`
`reference herein.
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`70. USACE violated FOIA by failing to take reasonable steps to segregate and release
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`nonexempt portions of lawfully exempt records in response to the May 5 FOIA Request. 5 U.S.C.
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`§ 552(a)(8)(A)(ii)(II).
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`71.
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`CFS has a statutory right to any reasonably segregable portion of a record that
`
`contains information that is subject to any of FOIA’s exemptions. Id.
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`72.
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`To date, USACE has failed to disclose any records to CFS, including nonexempt
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`information that could be reasonably segregated and released in response to the May 5 FOIA
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`Request, thus prejudicing CFS’s ability to timely obtain public records.
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`73.
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`CFS has exhausted the applicable administrative remedies with respect to the May
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`5 FOIA Request pursuant to 5 U.S.C. § 552(a)(6)(C)(i).
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`74. Due to the nature of CFS’s organizational activities, it will undoubtedly continue to
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`employ FOIA’s provisions in record requests to USACE in the foreseeable future.
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`75.
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`CFS’s organizational activities will be adversely affected if USACE continues to
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`violate FOIA by failing to disclose responsive records as it has in this case.
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`76. Unless enjoined and made subject to a declaration of CFS’s legal rights by this
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`Court, USACE will continue to violate CFS’s rights to receive public records under FOIA.
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`FIFTH CAUSE OF ACTION
`Defendant Failed to Provide an Estimated Date of Completion as Required by FOIA
`
`The allegations made in all preceding paragraphs are realleged and incorporated by
`
`77.
`
`reference herein.
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`78. USACE violated FOIA by failing to provide CFS with an estimated date of
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`completion as required by 5 U.S.C. § 552(a)(7)(A)-(B).
`
`79.
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`CFS has a statutory right to have USACE process its May 5 FOIA Request in a
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`manner which complies with FOIA. USACE has violated Plaintiff’s rights in this regard by its
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`failure to provide—by any means—an estimated completion date for its response to the May 5 FOIA
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`Request as required by FOIA. 5 U.S.C. § 552(a)(7)(A)-(B).
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`80. USACE’s failure to inform CFS of an estimated completion date for the May 5
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`FOIA Request has prejudiced CFS’s ability to timely obtain public records.
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`81.
`
`CFS has exhausted the applicable administrative remedies with respect to the May
`
`5 FOIA Request pursuant to 5 U.S.C. § 552(a)(6)(C)(i).
`
`82. Due to the nature of CFS’s organizational activities, it will undoubtedly continue to
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`employ FOIA’s provisions in record requests to USACE in the foreseeable future.
`
`83.
`
`CFS’s organizational activities will be adversely affected if USACE continues to
`
`violate FOIA by failing to disclose responsive records as it has in this case.
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`84. Unless enjoined and made subject to a declaration of CFS’s legal rights by this
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`Court, USACE will continue to violate CFS’s rights to receive public records under FOIA.
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`
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`REQUESTS FOR RELIEF
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`WHEREFORE, Plaintiff respectfully requests that this Court:
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`1.
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`Order Defendant to provide a lawful initial determination on Plaintiff’s FOIA
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`request, including Plaintiffs’ fee waiver request as required by FOIA by a date certain;
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`2.
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`Order Defendant to conduct searches that are reasonably calculated to locate all
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`records responsive to Plaintiff’s May 5 FOIA Request with the cut-off date for searches being the
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`date the searches are conducted, and to provide to Plaintiff, by a date certain, with all responsive
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`records and reasonably segregable portions of lawfully exempt records sought in this action.
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`3.
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`Declare that Defendant unlawfully failed to make and communicate an initial
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`determination on Plaintiff’s May 5 FOIA Request as required by 5 U.S.C. § 552(a)(6)(A)(i).
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`4.
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`Declare that Defendant unlawfully failed to undertake a search and disclosure of all
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`records responsive to Plaintiff’s May 5 FOIA Request as required by 5 U.S.C. § 552(a)(6)(A)(i).
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`5.
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`Declare that Defendant unlawfully failed to provide Plaintiff with reasonably
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`segregable portions of records which may be lawfully subject to a FOIA exemption as required by 5
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`U.S.C. § 552(a)(7)(b).
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`6.
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`Declare that Defendant unlawfully failed to provide Plaintiff with an estimated date
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`of completion as to the search and production of Plaintiff’s May 5 FOIA Request as required by 5
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`U.S.C. § 552(a)(7)(B)(ii).
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`7.
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`Provide for expeditious proceedings in this action.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 1:22-cv-02183-CKK Document 1 Filed 07/25/22 Page 15 of 15
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`8.
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`Award Plaintiff its costs and reasonable attorney fees pursuant to 5 U.S.C.
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`§ 552(a)(4)(E) or 28 U.S.C. § 2412.
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`9.
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`Grant such other relief as the Court may deem appropriate.
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`Dated this 25th day of July, 2022.
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`Respectfully submitted,
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`CENTER FOR FOOD SAFETY,
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`/s/ Meredith Stevenson
`Meredith Stevenson (CA00123)
`Center for Food Safety
`303 Sacramento Street, 2nd Floor
`San Francisco, CA 94111
`(415) 826-2770
`Email: mstevenson@centerforfoodsafety.org
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`Counsel for Plaintiff
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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