UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________
CITIZENS FOR RESPONSIBILITY AND :
ETHICS IN WASHINGTON :
1400 Eye Street, N.W., Suite 450 :
Washington, D.C. 20005 :
:
Plaintiff, :
:
v. : Civil Action No.____________
:
U.S. DEPARTMENT OF THE ARMY :
The Pentagon :
Washington, D.C. 20301 :
:
Defendant. :
________________________________________:

COMPLAINT FOR DECLARATORY JUDGMENT

1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as

amended, challenging the failure of the United States Department of Army (“Army”), to fulfill

the request of Citizens for Responsibility and Ethics in Washington (“CREW”) for documents

relating to guidance regarding the diagnosis of post traumatic stress disorder (“PTSD”) in Army

personnel.

2. This case seeks declaratory relief that defendant is in violation of the FOIA for failing

to fulfill plaintiff’s request for records, in violation of the FOIA for failing to grant plaintiff’s

request for a waiver of fees and injunctive relief that defendant immediately and fully comply

with plaintiff’s request under the FOIA.

JURISDICTION AND VENUE

3. This Court has both subject matter jurisdiction over this action and personal
jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B). This Court also has jurisdiction

over this action pursuant to 28 U.S.C. § 1331. Venue lies in this district under 5 U.S.C.

§ 552(a)(4)(B).

4. Plaintiff CREW is a non-profit corporation, organized under section 501(c)(3) of the

Internal Revenue code. CREW is committed to protecting the right of citizens to be informed

about the activities of government officials and to ensuring the integrity of those officials.

CREW seeks to empower citizens to have an influential voice in government decisions and in the

governmental decision-making process through the dissemination of information about public

officials and their actions. To advance its mission, CREW uses a combination of research,

litigation and advocacy. As part of its research, CREW uses government records made available

to it under the FOIA.

5. CREW has invested considerable organizational resources in pushing the U.S.

government to take ethics issues seriously. CREW monitors closely the laws and rules

applicable to government agencies.

6. CREW is harmed by the Army’s failure to comply with the FOIA because that failure

harms CREW’s ability to provide full, accurate and current information to the public on a matter

of public interest. 5 U.S.C. § 552(a)(6)(c). Absent this critical information, CREW cannot

advance its mission of educating the public to ensure that the public continues to have a vital

voice in government decisions.

7. CREW will analyze the information it receives that is responsive to its request and

will share it with the public through memoranda, reports, or press releases. In addition, CREW

will disseminate any documents it acquires from its request to the public through an interactive

2
website that CREW has founded, www.governmentdocs.org, where members of the public can

analyze and comment on public documents. CREW’s own website, www.citizensforethics.org,

contains links to thousands of pages of documents CREW has acquired from multiple FOIA

requests as well as documents relating to CREW’s FOIA litigation.

8. Defendant Army is an agency within the meaning of 5 U.S.C. § 552(f). Defendant is

the federal agency with possession and control of the requested records and is responsible for

fulfilling CREW’s FOIA request.

STATUTORY FRAMEWORK

The Freedom of Information Act

9. The FOIA, 5 U.S.C. § 552, requires agencies of the federal government to release

requested records to the public unless one or more specific statutory exemptions apply.

10. An agency must respond to a party making a FOIA request within 20 working days,

notifying that party of at least the agency’s determination whether or not to fulfill the request and

of the requester’s right to appeal the agency’s determination to the agency head. 5 U.S.C.

§ 552(a)(6)(A)(i).

11. An agency must respond to a FOIA appeal within 20 working days, notifying the

appealing party of the agency’s determination to either release the withheld records or uphold the

denial. 5 U.S.C. § 552(a)(6)(A)(ii).

12. In “unusual circumstances,” an agency may delay its response to a FOIA request or

appeal, but must provide notice and must also provide “the date on which a determination is

expected to be dispatched.” 5 U.S.C. § 552(a)(6)(B).

13. The FOIA also requires each agency to promulgate regulations specifying a fee

3
schedule for the processing of FOIA requests and establishing procedures and guidelines for the

waiver or reduction of fees. 5 U.S.C. § 552(a)(4)(A). Defendant Army’s fee waiver regulations

are found at 32 C.F. R Sec. 518.19(d). Under the FOIA, agencies should produce documents at

no charge to the requester or at a reduced charge if “disclosure of the information is in the public

interest because it is likely to contribute significantly to public understanding of the operations or

activities of the government and is not primarily in the commercial interest of the requester.” 5

U.S.C. § 552(a)(4)(A)(iii).

14. This Court has jurisdiction, upon receipt of a complaint, “to enjoin the agency from

withholding agency records and to order the production of any agency records improperly

withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B).

15. The FOIA provides a mechanism for disciplinary action against agency officials who

have acted inappropriately in withholding records. Specifically, when requiring the release of

improperly withheld records, if the court makes a written finding that “the circumstances

surrounding the withholding raise questions whether agency personnel acted arbitrarily or

capriciously,” a disciplinary investigation is triggered. 5 U.S.C. § 552(a)(4)(F).

FACTS GIVING RISE TO PLAINTIFF’S CLAIMS FOR RELIEF

16. On April 17, 2009, CREW sent a FOIA request to the Army seeking documents

relating to the diagnosis of Post Traumatic Stress Disorder (“PTSD”) in Army personnel. Letter

from Melanie Sloan, CREW, to Department of the Army, FOIA Request (April 17, 2009)

(attached as Exhibit 1). Specifically, CREW requested records “from March 19, 2003, to the

present relating to any and all guidance given to any Army staff, consultants and/or other

recipient(s) of federal funds regarding the diagnosis of post traumatic stress disorder . . . .” Id.

4
CREW’s request includes, but is not limited to, guidance “regarding the diagnosis of post

traumatic stress disorder (“PTSD”), alternative diagnoses that should or could be made in lieu of

diagnosing PTSD and guidance on PTSD diagnoses as they relate to benefit appeals. Id. Please

note that CREW is not seeking records about individual soldiers or individual soldier

applications for benefits. CREW also requested a waiver of fees associated with the processing

of its request, in light of published reports quoting an Army psychologist as stating, “Not only

myself, but all clinicians up here are being pressured not to diagnose PTSD and diagnose anxiety

disorder instead…I am under a lot of pressure not to diagnose PTSD… It is not fair. I think it is

a horrible way to treat soldiers…”. Id. at 2-3.

17. By letter dated April 23, 2009 the Freedom of Information and Privacy Division

(“FOIP”) of the Department of Army acknowledged receipt of CREW’s request and informed

CREW that it is the referral point and policy office for the Department of Army Freedom of

Information Act and Privacy Act entities. Further the letter notified CREW that its FOIA request

had been forwarded to the Joint Services Records Research Center for action and direct response

to CREW. April 23, 2009 Army FOIP Division letter attached hereto as Exhibit 2.

18. By letter dated April 28, 2009 the U.S. Army & Joint Services Records Research

Center (“JSRRC”) informed CREW that it “has no official role in the diagnosis of PTSD or in

the adjudication of PTSD claims”, and that “the function of the PTSD unit is to provide

documented information in support of veterans’ involvement in stressful incidents while serving

in the military. Our office does not provide medical treatment or guidance concerning treatment

of PTSD.” JSRRC provided CREW with no records as a result of this letter. April 28, 2009

Army JSRRC letter attached as Exhibit 3.

5
 19. By letter dated June 2, 2009, CREW administratively appealed each of these two

determinations and requested that the Army search for responsive records in the Army

components most likely to hold them, such as the Army’s Department of Behavioral Health, part

of the U.S. Army Medical Command. Letter from Daniel S. Alcorn, Counsel to Department of

Army Freedom of Information and Privacy Division and U.S. Army & Joint Services Records

Research Center (June 2, 2009) (“Appeal Letter”) (attached as Exhibit 4). CREW explained that

news reports had described statements by a member of the medical staff of the Army’s

Department of Behavioral Health that Army doctors “are under a lot of pressure to not diagnose

PTSD,” and “all of the clinicians up here are being pressured to not diagnose PTSD and to

diagnose anxiety disorder NOS [instead].” The Army’s Department of Behavioral Health is part

of the Army’s Medical Command according to Army websites. CREW informed the Army that a

likely place to locate records responsive to CREW’s request would be the Army’s Medical

Command and it Department of Behavioral Health since these components appear to be involved

in the diagnosis and treatment of PTSD. Appeal letter, Page 2.

20. The U.S. Army & Joint Services Records Research Center responded to CREW’s

administrative appeal with a short letter dated June 15, 2009, stating “The Joint Services Records

Research Center (JSRRC) does not maintain records in regard to the diagnosis of PTSD or the

adjudication of PTSD claims. The JSRRC is not involved in the allocation of federal funds; nor

do we provide opinions, medical or clinical treatment, recommendations, evaluations,

conclusions, or decisions concerning the merits of PTSD claims.” June 15, 2009 JSRRC letter,

Exhibit 5 hereto.

21. As of the filing of this complaint, the Army’s Freedom of Information and Privacy

6
Division has not responded to CREW’s administrative appeal, nor has it provided any documents

responsive to CREW’s request. Further, CREW has received no communication from Army’s

Medical Command or its Department of Behavioral Health, nor has it received any records

responsive to its request from any Army component.

22. CREW has now exhausted its administrative remedies with respect to the processing

of CREW’s FOIA request. See, e.g., Judicial Watch v. Rossoti, 326 F.3d 1309, 1310 (D.C. Cir.

2003), citing 5 U.S.C. § 552(a)(6)(C).

PLAINTIFF’S CLAIMS FOR RELIEF

CLAIM ONE
(Failure to Produce Records Under the FOIA)

23. Plaintiff realleges and incorporates by reference all preceding paragraphs.

24. Plaintiff properly asked for records within the Army’s control.

25. Plaintiff is entitled by law to access to the records requested under the FOIA, unless

defendant makes an explicit and justified statutory exemption claim.

26. The Army has produced no records to CREW.

27. Therefore, the Army violated FOIA’s mandate to release agency records to the public

by failing to release the records as plaintiff specifically requested. 5 U.S.C. §§ 552(a)(3)(A),

552(a)(4)(B).

CLAIM TWO
(Improper Denial of Fee Waiver)

28. Plaintiff realleges and incorporates by reference all preceding paragraphs.

29. Plaintiff has demonstrated that it is entitled to a waiver of fees associated with

processing its FOIA request because disclosure of responsive records will likely contribute

7
significantly to public understanding of the operations or activities of the government and is not

primarily in the commercial interest of the plaintiff.

30. Therefore, defendant violated the FOIA and defendant’s own regulations when it has

failed to grant CREW a fee waiver. 5 U.S.C. § 552(a)(4)(A)(iii); 32 C.F.R. § 518.19(d).

PRAYER FOR RELIEF

WHEREFORE, plaintiff respectfully requests that this Court:

(1) Declare that the Army has violated the Freedom of Information Act by failing to

lawfully satisfy plaintiff’s FOIA request of April 17, 2009;

(2) Order the Army to release immediately all records responsive to plaintiff’s FOIA

request;

(3) Declare that the Army violated the Freedom of Information Act and agency

regulations when it failed to grant plaintiff a waiver of all fees associated with the processing of

its FOIA request and declare that plaintiff is entitled to a fee waiver;

(3) Award plaintiff its reasonable attorney fees and litigation costs in this action, pursuant

to 5 U.S.C. § 552(a)(4)(E); and

(4) Grant such other and further relief as the Court may deem just and proper.

Respectfully submitted,

__________/s/_____________
Daniel S. Alcorn
Counsel for Plaintiff Citizens for
Responsibility and Ethics in Washington
(D.C. Bar No. 383267)
9024 Belcourt Castle Place
Great Falls, VA 22066
Phone: (703) 759-2816

8
 Anne L. Weismann
(D.C. Bar No. 298190)
Melanie Sloan
(D.C. Bar No. 434584)
Citizens for Responsibility and
Ethics in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
Phone: (202) 408-5565
Fax: (202) 588-5020

July 31, 2009 Attorneys for Plaintiff