Case 1:05-cv-01127-CKK Document 26-1 Filed 11/30/2006 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________
CITIZENS FOR RESPONSIBILITY AND ETHICS )
IN WASHINGTON, )
)
Plaintiff, ) CV-05-1127 (CKK)
)
vs. )
)
UNITED STATES DEPARTMENT OF )
HEALTH AND HUMAN SERVICES )
)
Defendant. )
________________________________________________)

DEFENDANT’S [AMENDED] MOTION FOR A STAY OF PROCEEDINGS

Pursuant to 5 U.S.C. § 552(a)(6)(C)(i) and Open Am. v. Watergate Special Prosecution

Force, 547 F.2d 605 (D.C. Cir. 1976), defendant, United States Department of Health and

Human Services, by and through its undersigned counsel, hereby move this Court for a stay of

proceedings as set forth in the Memorandum attached to its Motion for a Stay of Proceedings,

dated November 17, 2006 (Docket # 25). Defendant amends that motion based on information

contained in the Supplemental Declaration of Robert Eckert, Director of the Freedom of

Information/Privacy Acts Division, Office of the Assistant Secretary for Public Affairs,

Department of Health and Human Services, attached to this motion. Defendant respectfully

requests that this Court order defendant to produce all documents, besides the documents from

the National Institute of Health (“NIH”), responsive to plaintiff’s Freedom of Information Act

request on a rolling basis every six weeks, beginning January 26, 2007, and ending on April 20,

2007. For the documents from the NIH, defendant asks this Court to order plaintiff to narrow its
 Case 1:05-cv-01127-CKK Document 26-1 Filed 11/30/2006 Page 2 of 2

request to exclude all contact information or to give defendant until January 26, 2010,1 to

produce all such documents.

Dated November 30, 2006 Respectively Submitted,

PETER D. KEISLER
Assistant Attorney General

JEFFREY A. TAYLOR
United States Attorney

ELIZABETH J. SHAPIRO
(D.C. Bar 418925)
Assistant Branch Director
U.S. Department of Justice
Civil Division, Federal Programs Branch

/s/ Adam D Kirschner

ADAM D. KIRSCHNER
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
Mailing Address
P.O. Box 883
Washington, D.C., 20044
Delivery Address
20 Massachusetts Ave., NW., Room 7126
Washington, D.C. 20001
Telephone: (202) 353-9265
Fax: (202) 616-8470
adam.kirschner@usdoj.gov

Counsel for Defendant

1
Due to a clerical error, the proposed order attached to the motion filed November 17,
2006, stated that the NIH documents be produced by August 10, 2010. See Docket #25. That
has been changed in the proposed order attached to this motion to be consistent with the
November 17th motion and this amended motion. It now reads that the NIH documents be
produced by January 26, 2010.

2
 Case 1:05-cv-01127-CKK Document 26-2 Filed 11/30/2006 Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY )

AND ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. ) Civil Action No. 05-1127
)
UNITED STATES DEPARTMENT OF )
HEALTH AND HUMAN SERVICES, )
)
Defendant. )
)

SUPPLEMENTAL DECLARATION OF ROBERT ECKERT

I, Robert Eckert, declare as follows:

1. I am the Director of the Freedom of Information/Privacy Acts Division, Office of the

Assistant Secretary for Public Affairs, Department of Health and Human Services (HHS, or the

Department) and filed a declaration in this litigation.

2. This supplemental declaration adjusts certain information from my previous

declaration, dated November 17,2006.

3. I make this supplemental declaration based on my personal knowledge and on

information I received in the performance of my official duties.

4. On November 29, 2006, I became aware of a change in the estimated responsive pages

from the Centers for Medicare and Medicaid Services (CMS). It was earlier estimated that they

might have approximately 27,000 pages, and this estimate was included as part of the 30,000

pages estimated that all HHS components, except the National Institutes of Health (NIH),

identified as potentially responsive in paragraph 38 of my earlier declaration. CMS now

estimates that ofthe 27,000 pages, it will have approximately 6,000 to 7,000 pages of responsive
 Case 1:05-cv-01127-CKK Document 26-2 Filed 11/30/2006 Page 2 of 3

documents. Since my November 17,2006 declaration, other HHS components have provided

my office with additional rough estimates of responsive pages. As of today, we estimate that the

HHS components, except NIH, have identified approximately 11,000 to 12,000 pages as

potentially responsive that have yet to be produced, and they are still being reviewed.

5. CMS has revised its page estimate because of information it has learned while

processing CREW's request. CMS had made the original estimate of potentially responsive

pages based on what the different offices in CMS had forwarded to its FOIA office. The different

offices had forwarded approximately 27,000 pages of documents relating to public affairs

entities, including contracts with such entities. While reviewing those pages, CMS has become

aware that those pages include documents that the FOIA office does not consider responsive.

Specifically, the documents include contract deliverables and contractor invoices, which fall

outside the scope of CREW's request. HHS has interpreted the word "contacts" in CREW's

FOIA request to include direct communications between HHS employees and employees of

public affairs firms, and not to include the actual contract deliverables and invoices. It has been

our experience that requesters are not seeking copies of deliverables (e.g., posters, hand-outs,

CD, etc.) which are identified in the contract document and many of which are publicly available.

With respect to invoices, total costs are also identified in the contracts, along with accounting

information, and this type of disclosure usually negates the necessity of providing actual copies

of paid invoices. Further, the only information available from an invoice is the amount actually

paid by the agency and not the supporting documentation provided by the contractor that

identifies line item expenses, which are subject to withholding pursuant to FOIA Exemption 4.

CMS is still reviewing the 27,000 pages and sorting out the non-responsive pages. CMS has

2
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completed review of approximately 5,000 out of the 27,000 pages. It estimates that it will

ultimately have 6,000 to 7,000 pages of responsive documents.

6. CMS is still searching and reviewing potentially responsive documents. As CMS

identifies a batch of documents it considers responsive, it will forward that batch of documents to

the central HHS FOIA office. CMS anticipates sending approximately 1,400 pages to the central

FOIA office for processing by December 8,2006. This is in addition to the approximately 1,160

pages from CMS that HHS has already produced to CREW.

7. Due to the decrease in the number of CMS pages that will be transmitted to my office

for review, we are reducing our estimated date to complete processing the FOIA request for all

records, except NIH records, to April 20, 2007.

I declare under penalty of perjury that the foregoing to true and correct. Executed on this

3~dayofNovember, 2006.