Open Society Justice Initiative v. U.S. Department of Defense et al. and U.S. Department of Health and Human Services et al.
The Open Society Justice Initiative seeks disclosure of records concerning the timing and substance of the U.S. government’s response to the novel coronavirus, now known as severe acute respiratory syndrome coronavirus 2 or “SARS-CoV-2,” the virus that causes coronavirus disease 2019 or “COVID-19.”
Since the first U.S. case was recorded in January 2020, the U.S. government’s efforts to counter the novel coronavirus have been a matter of life and death for the American public. As of August 12, 2020, there were over 5 million confirmed cases of COVID-19 in the U.S. and over 163,000 have died—figures that are projected to rise considerably. In addressing the pandemic, the federal government has reacted inconsistently and issued widely conflicting statements and unsound guidance about central issues including the threat of the virus, the duration of transmission, the efficacy of preventative measures, and the availability and advisability of testing. It has also fluctuated its position on and cooperation with the World Health Organization, foreign governments, U.S. congress, state governors, the scientific community, the media and the public.
These contradictions and disinformation places serious doubt on the reliability of the federal government’s response to the pandemic and the information it is sharing with the American public. Transparent information regarding how the federal government is addressing COVID-19 is vitally important so that the public can determine how best to protect themselves and their loved ones.
The American public’s right to records critical for assessing the U.S. government’s response to the COVID-19 pandemic
The Freedom of Information Act (FOIA) is a U.S. statute that enshrines the public’s right to know what its government is up to. It requires the U.S. government to disclose, upon request, records in its possession about a specific subject matter. The information requested by the Justice Initiative is critical for assessing the government’s response to the COVID-19 pandemic and to help the American public make informed decisions about life and physical safety.
Since April 2020, the Justice Initiative has submitted multiple FOIA requests to relevant government departments and their components regarding COVID-19. FOIA requests were submitted to the:
- Central Intelligence Agency (CIA)
- Department of Defense (DOD), and its components the Defense Intelligence Agency (DIA) and U.S. Indo-Pacific Command (Indo-Pac)
- Department of Health and Human Services (HHS) and its components the Office of Global Affairs (OGA), Office of the Assistant Secretary for Preparedness and Response (ASPR), Public Health Service (PHS), Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), the National Institute for Health (NIH) and the National Institute of Allergy and Infectious Diseases (NIAID)
- Department of Homeland Security (DHS), and its component the Federal Emergency Management Agency (FEMA)
- Department of State (State)
- Department of Treasury (Treasury)
- Office of the Director of National Intelligence (ODNI)
However, the U.S. government has failed to comply with its obligations under the FOIA by not turning over responsive records, thereby obstructing the public’s access to vital information regarding the government’s competence to combat the virus and protect lives. The CIA refused to confirm or deny the existence of responsive records.
On July 2, the Justice Initiative filed suit in the United States District Court for the Southern District of New York (SDNY), against DOD, DIA, Indo-Pac, State, Treasury, ODNI and CIA (i.e. Open Society Justice Initiative v. U.S. Department of Defense et al.) for failure to comply with their obligations under the FOIA. On August 12, a subsequent suit was filed in SDNY against HHS, FDA, NIH, CDC, DHS and FEMA (i.e. Open Society Justice Initiative v. U.S. Department of Health and Human Services et al.).
In both cases, the Justice Initiative requests the court to order the respective government departments and agencies to immediately conduct a thorough search for responsive records and turn them over without delay.
Open Society Justice Initiative Involvement
The Open Society Justice Initiative is the plaintiff in the case. It is also co-counsel in the case along with the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP.
Accessing Released Documents
Documents released can be viewed via the Open Society Foundations’ account on Document Cloud.
The court grants the CIA summary judgment with respect to only five of 21 items in Justice Initiative’s FOIA request, determining that the CIA did not adequately justified its Glomar response to the other 16 items. The CIA is provided with additional time to perfect its arguments by supplemental brief.
Justice Initiative files its reply brief further supporting its cross-motion for summary judgment.
CIA files its reply brief further supporting its motion for summary judgment and opposition to Justice Initiative’s cross-motion for summary judgment.
Justice Initiative files its opposition and cross-motion for summary judgment against the CIA, requesting that it either produce responsive records or provides a Vaughn index explaining the records it is withholding.
The court places the government on a processing schedule, requiring each agency to process a minimum number of pages per month, which is to increase until each agency is processing at least 2,000 pages every month. The court notes that “to the extent that the agencies lack the resources needed to satisfy the mandate that Congress has imposed on them [under the FOIA], the answer is not for courts to roll over and deny plaintiffs the relief they seek under the law; instead, it is for the agencies to seek, and Congress to provide, the resources needed to actually comply with the law.”
CIA files for summary judgment arguing that its “Glomar” response to Justice Initiative’s FOIA is appropriate, claiming that confirming or denying records would reveal “properly classified information,” would disclose information specifically exempted by the 1947 National Security Act, and “that the information at issue is not already in the public domain and has not been the subject of official acknowledgment.”
The court consolidates both lawsuits.
Justice Initiative files a second lawsuit against HHS, FDA, NIH, CDC, DHS and FEMA for failure to provide responsive records.
The U.S. government files its answer to Justice Initiative’s July 2 lawsuit, denying all underlying claims and requesting that the case is dismissed.
The Justice Initiative files lawsuit against DOD, DIA, Indo-Pac, State, Treasury, ODNI and CIA, for failure to provide responsive records.
The CIA provides a final response to the Justice Initiative’s request, stating it can neither confirm nor deny the existence of responsive records.
Justice Initiative submits FOIA requests to relevant government departments and their components regarding COVID-19.
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