I am pleased to give an update on my FOIA lawsuit:
Yesterday, the United States District Court for the Northern District of California ruled that HHS and NIH (government) violated the Freedom of Information Act (FOIA) when they improperly withheld documents from me in response to my FOIA request regarding HHS’s contract with the Institute of Medicine (IOM) for the study of diagnostic criteria for ME/CFS.
Accordingly, the Court granted my motion for summary judgment and ordered the government “to produce, within 60 days, all documents responsive to [my] request that are not covered by any exemption to FOIA’s disclosure requirements.” [emphasis added] The Court also denied the government’s motion for summary judgment asking for a dismissal of my lawsuit.
I believe that holding HHS and NIH legally responsible for their violation of federal law is a tremendous victory for our patient population. However, since this litigation is ongoing, I will not, at this time, be able to comment further or answer any questions beyond the following details and quotes from the Court’s ruling. Although there will hopefully be more good news before the case is over.
In January of this year, I sued the government under FOIA for failure to respond to my FOIA request for documents regarding the HHS-IOM contract. I have been represented in this legal action by the global law firm of Baker & McKenzie LLP. Only after my filing of the lawsuit (and after the statutory time period for their response had lapsed) did the government produce a meager amount of documents despite the fact that my FOIA request was very broad.
It was apparent that the government’s search for responsive documents was woefully inadequate, as obviously existing documents covered by my request that would have been easily available to the government and that a reasonable document search would have uncovered were not provided. The Court agreed and held that the search was the result of “obviously an unreasonably narrow interpretation of Burmeister’s request.” [emphasis added] The Court further states, “Indeed, [the HHS FOIA specialist] explains in her supplemental declaration that a broader search (the one the government should have conducted given the actual language of Burmeister’s request) ‘is a completely different type of search and presumably would have resulted in a much larger production.’” [emphasis added]
The Court goes on to address the unreasonably narrow interpretation of my FOIA request by the government in more detail:
“And [the HHS FOIA specialist] is correct about that. For example, without listing every document that could be responsive to Burmeister’s actual request, it is obvious that all records relating to the original effort by HHS to enter into a sole-source contract with the Institute of Medicine, and documents relating to the subsequent decision to change course and proceed with a task order in response to expressions of concern by members of the public about the manner in which HHS was proceeding, would be responsive. Such records exist, but the government did not provide them to Burmeister.
“Because [the HHS FOIA specialist’s] supplemental declaration demonstrates that the government adopted an unreasonably narrow interpretation of Burmeister’s request, because [the HHS FOIA specialist] concedes she would have performed a much broader search had she interpreted the request correctly, and because that search would have uncovered additional records responsive to the request, the government has ‘improperly withheld agency records’ in violation of FOIA.” [emphasis added]
The Court then addresses the government’s meritless claim that my lawsuit is moot due to the government’s production of some documents after the complaint was filed despite the fact that the document search was inadequate:
“To avoid this conclusion, the government argues that Burmeister’s lawsuit should be dismissed as moot. Specifically, the government contends that even if Burmeister had the right to file her lawsuit because HHS failed to respond to her request within the time period required by FOIA, its subsequent production to Burmeister moots the lawsuit, even if the production was deficient. At the hearing on this motion, counsel for the government insisted that the case law compels this result – he argued that even if the production was deficient, the case law required that the lawsuit be dismissed as moot and that Burmeister be left to submit a response to the government’s production explaining how she believed it was deficient, so that the government would have a chance to remedy the deficiencies. However, the case law says exactly the opposite of what counsel for the government represented at the hearing,” namely, “To moot a FOIA claim, however, the agency’s production must give the plaintiff everything to which he is entitled. [emphasis added] Otherwise, there remains some ‘effective relief’ that can be provided the plaintiff, and the case is not moot.”
According to the Court, the government’s argument that I did not exhaust my administrative remedies and, thus, my lawsuit should be dismissed also fails:
“The government also contends Burmeister’s lawsuit should be dismissed for failure to exhaust her administrative remedies with respect to her claim that the agency’s search was inadequate. Specifically, the government argues that it responded to Burmeister’s request on January 7, two days before Burmeister sued, and that Burmeister should have objected to HHS about the adequacy of the response before filing the lawsuit. But the government’s response was not postmarked until January 8, and Burmeister credibly asserts she did not receive it until several days after she filed her complaint. Nor, in any event, was the government’s response a final or complete one – in other words, it was not a real response. The real response (which was, as discussed above, inadequate) came on February 3. Because the government failed to timely respond to Burmeister’s records request, and because Burmeister did not receive a final decision from the government until after she filed this lawsuit, her case is properly before the Court.” [emphasis added]
The 60-day period the Court allowed for the government to produce all documents responsive to my request (and not exempt under FOIA from production) runs on November 3. Let’s hope that the Court’s ruling will be a wake-up call for the government and a reminder that it is not above the law.
Thoughts About M.E. 
WOW. Great work. Thank you.
Well done! Thank you.
David vs Goliath! Thank you, Jeanette.
Take me to your leader. Well done.
you terrier… my god, one should absolutely not underestimate you! Congrats! And buckets full of thanks of course.
Alles Wird Gut 😉
Very well done. They (HHS and the IOM) work for all of us and this is an excellent reminder of that fact.
This is wonderful news! Thank you so much for doing this incredible work on behalf of ME patients everywhere!
Oh that has made my day.. 🙂
Great victory!!! Thank you, Jeannette, for fighting for us and for employing your expertise so well! Congratulations!
Reblogged this on Short Blogs for the Distracted……… and commented:
🙂
Well done Jeanette. You have done a great service for the benefit of us all. Thankyou.
You deserve a huge round of applause! A summary judgment victory against the government is a big, big deal!! Excellent work!
What wonderful news! For once, a government agency (US District Court) does the right thing. Thanks so much for all your hard work on behalf of patients everywhere. Your sacrifice and efforts have not gone unnoticed.
Thank You, Thank You, Thank You Jeannette!
You are a force to be reckoned with and I stand with you.
I couldn’t ask for a better early birthday present.
We’ll keep on fighting!
This is terrific news! Finally, HHS is held legally accountable to the ME population. The agency won’t be able to make this court decision disappear. Well done, Jeannette!
Well done!
Thank you! Even here in Ireland I can feel the rumbles 🙂
Wonderful news! You did a great job! Thank you so much, Jeannette!
Yessss!!!!!!!!!! Great work, Jeannette!
Whoot! Jeannette! You did it! Yahoo! All us canaries thank you! Congrats & good luck with the future of this suit! And keep yourself well and safe! ♥
Oodles of thanks, Jeannette! To say You Rock is definitely an understatment.
This is so awesome, Jeannette–thank you very much. Your efforts are paying off–YAHOOOO!!! Onward we go!!!
Thank you so much, Jeanette!
Impeccable work! Thank you from millions of invisibles! Can’t wait to see what’s in those FOIAs!
Great!! You are a very persistent warrior. Thank you so much, Jeannette.
Thank you, Jeannette, and congratulations!
I’ve also been curious about the legalities of IOM’s ME/CFS FACA-required public access file.
An IOM representative wrote that IOM charges a fee to access this file [snail mail CD only], in order to cover IOM’s costs (staff and materials) for assembling the file — for example, copying/scanning a print publication/book/photo into electronic form. (IOM’s example – not mine. I don’t understand how this works with copyright law.)
My question though is – Why aren’t FACA-associated costs included in/covered by the million dollar fee paid by HHS to IOM? Isn’t IOM essentially saying that HHS failed to provide the funding necessary for IOM to fulfill its FACA Section 15 legal requirement?
(Consider also: NAS has stated that its “mission” with free online content “is to disseminate the institutions’ content as widely as possible.” One could, therefore, infer that IOM’s mission with an access-fee, snail-mail CD is to contain public comment as restrictively as possible. http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=06022011
The following IOM page/link describes IOM’s broad social media outreach tools and IOM’s “goal…to share ideas and information with as many individuals as possible”: http://www.iom.edu/about-iom/social-media.aspx)
Congratulations, again.
Thanks, Ren. I am completely fried after all this. Plus our attorneys’ fees motion is due shortly. Just don’t have any steam left right now to try to process your questions. I am really sorry.
Of course! (I’d just been wondering and thought I’d throw it out into the world, should it be worth anything at any point.) Best wishes for healing-and-much-earned tranquil downtime.
Jeannette,
Yay! Nice to see the District Courts working (as they usually do in my experience, in sharp contrast to the dysfunction of HHS).
I would assume the Court would grant your fees motion since it clearly sees through HHS’ BS. Good luck with your motion and thank you and Baker so much for your hard work! (I bet something interesting turns up in the document production, crossing my fingers)
Justin
Ren, Really good points. I agree and have said so elsewhere.
But the policy does not clearly violate FACA. Section 15 (b) 3 reads, in pertinent part, “The Academy shall make available to the public, at reasonable charge if appropriate, written materials presented to the committee by individuals who are not officials, agents, or employees of the Academy…”
“Doh!” (in Homer Simpson voice). Thanks, Justin. A good reminder for me to read, read, read the details in the source document!
Yeah, reading statute subclauses is painful, but sometimes necessary.
Reblogged this on The Other Side Of The Stretcher and commented:
This is a Major Win For the M.E. Patient Community!
A Big Thanks From All of Us In The M.E. Patient Community To
Patient Advocate Attorney Extraordinare
Jeanette Burmeister For A Job Well Done!!!! 🙂
Some good news for a change! Thanks for all of your work on this. It’s very much appreciated!
Excellent! Thanks so much!
Jeannette, We owe you a huge debt of gratitude for all you have done for us. It’s only fair we help with your legal fees. (No pun intended)
Love your hard work. Thank you for all your care for ME people . Well done . 🙂 XX
Marvelous, Jeannette. Well done.
yes, for those of us who would like to contribute to the legal fees, do you have a paypal acct? please post it IN the blog as well as in the comments section here, so all can see it.
You guys are sweet, but let’s hope the judge orders the government to pick up the tab. Motion for attorneys’ fees is in the works. (It never ends, it seems.)
Best news I’ve had in 30 years! Thanks, Jeannette 🙂
I held my breath with the excitement I felt as I read your whole report. It is overwhelming. What a great job! Thank you on behalf of my daughter and the world’s population of M.E. patients.
Reblogged this on Sunshinebright and commented:
Jeannette Burmeister is a heroine. She fights with all her strength (doesn’t have that much, as she is an M.E. patient herself), to right a wrong. With it all, she perseveres with the patience of a saint. Thank you, Jeannette.
A hearty “Thank You” from Canada! WONDERFUL NEWS, with your efforts appreciated around the world. Transparency, accountability, scientific credibility – that’s all we’re asking for. Sometimes a little legal strong-arming is required, just to receive information that we are legally entitled to. Way to go Jeannette! Congratulations, and THANK YOU for your Herculean efforts!
Outstanding!!! Thank you for taking this on, Jeannette. You amaze me.
The government is not above the law! Yeeeesss!
Great inspiration for us Lyme patients who need to do a similar FOIA request to CDC.
This is amazing!!!! Thank you so much for all the work that you do!
Congratulations I blog about many other disorders but will be sharing this to show the power 1 person can exert if they know their rights.
Reblogged this on Migraine Discussions and commented:
A fantastic victory for someone wth Chronic Illness over our government for withholding information. What a victory it is congratulations Jeannette!
Outstanding!!! Thank you Jeannette!
Hallellujah! Great work Jeannette. Astonishing what garbage the US attorneys argued. Astonishing how the acts of the HHS bureaucrats have become directly opposite to the intentions of the legislature.
Hallellujah! Great work, great result Jeannette. Astonishing how the intent of HHS runs directly contrary to the intent of the Congress (in passing FOIA, etc..)
Is there any party that might helpfully file amicus briefs in respect of costs?
Now let’s see exactly what they do turn over. I have a feeling that this battle is not yet over.
Congrats on this amazing accomplishment! Thank you for all the hard, energy-sapping work on behalf of all ME sufferers!
We obviously had the better lawyer 🙂 Thankyou again Jeannette for a job well done!!! We so do appreciate you.
Kudos, kudos, and more kudos! ❤
Fantastic work Jeannette. ANd I’m guessing Edward. Many thanks.
Wonderful news. Thank you!
To you, Jeannette, with our THANKS!!
youtube.com/watch?v=J91ti_MpdHA …
WE R just warming up—WE R on FIRE!!
Thank you, Jeannette!
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Jeannette, congratulations! Thank you for all your hard work. HHS and NIH obviously didn’t know who were dealing with when they didn’t comply with your FOIA request. It so helps to have a great attorney on our side.
This is so helpful to the entire ME/CFS community, a big boost.
Hopefully, the government won’t appeal, but the legal process here can drag on.
At any rate, this is a victory for us, and we all express our gratitude.
Thanks, Kathy!
I feel quite confident that the decision would hold up on appeal. But of course, an appeal would add to the legal fees, which, if the decision stands (as I strongly suspect), would have to be paid by the government.
Glad you’re confident the decision would stand up on appeal. It’s interesting that one part of the government is clamping down on another, but then that happens with federal court decisions finding against state legislators. So, sometimes the system works, sometimes.
And hope the attorneys’ fees work out smoothly.
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This is the United States, and NO ONE is above the Law. It took one very ill woman to remind the courts of that fact.
(Just look at what you did, Jeannette! Thank you!)
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