Page 1 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF JUSTICE,
) Pennsylvania Avenue NW
)
Washington, DC 20530
)
)
Defendant. )
)
AMERICAN OVERSIGHT, 15th Street NW, B255
Washington, DC 20005
Case No. 18-cv-166
COMPLAINT.
Plaintiff American Oversight brings this action against the U.S. Department of
Justice under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), and the Declaratory
Judgment Act, 28 U.S.C. §§ 2201 and 2202, seeking declaratory and injunctive relief to compel
compliance with the requirements of FOIA.
JURISDICTION AND VENUE.
This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B)
and 28 U.S.C. §§ 1331, 2201, and 2202..
Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C.
§ 1391(e)..
Because Defendant has failed to comply with the applicable time-limit provisions
of the FOIA, American Oversight is deemed to have exhausted its administrative remedies
pursuant to 5 U.S.C. § 552(a)(6)(C)(i) and is now entitled to judicial action enjoining the agency Page 2 from continuing to withhold agency records and ordering the production of agency records
improperly withheld.
PARTIES.
Plaintiff American Oversight is a nonpartisan, non-profit section 501(c)(3)
organization primarily engaged in disseminating information to the public. American Oversight
is committed to the promotion of transparency in government, the education of the public about
government activities, and ensuring the accountability of government officials. Through research
and FOIA requests, American Oversight will use the information gathered, and its analysis of it,
to educate the public about the activities and operations of the federal government through
reports, published analyses, press releases, and other media. The organization is incorporated
under the laws of the District of Columbia..
Defendant the U.S. Department of Justice (DOJ) is a department of the executive
branch of the U.S. government headquartered in Washington, D.C., and an agency of the federal
government within the meaning of 5 U.S.C. § 552(f)(1). The Office of Information Policy (OIP)
is a component of DOJ and processes FOIA requests on behalf of certain other components of
DOJ, including the Office of the Attorney General (OAG). OIP also adjudicates administrative
appeals from adverse determinations made by any DOJ component. The National Security
Division (NSD) is also a component of DOJ. OAG and NSD have possession, custody, and
control of the records that American Oversight seeks.
STATEMENT OF FACTS
OAG FOIA.
American Oversight submitted a FOIA request to OIP (“OAG FOIA”) seeking the
following records: Page 3 1) All communications from Chief of Staff Jody Hunt to anyone in the
National Security Division or Criminal Division that discuss any
ongoing investigation and in which Mr. Hunt express any views
regarding the outcome of the investigation, including, but not
limited to, stating or directing that the investigation should end in a
particular outcome; or stating or implying that a particular outcome
would be preferable, better, easier, or more palatable, including that
a particular outcome would be preferable for litigation, policy,
optical, or other reasons; and any responses thereto.) All communications from Counselor to the Attorney General
Rachael Tucker to anyone in the National Security Division or
Criminal Division that discuss any ongoing investigation and in
which Ms. Tucker express any views regarding the outcome of the
investigation, including, but not limited to, stating or directing that
the investigation should end in a particular outcome; or stating or
implying that a particular outcome would be preferable, better,
easier, or more palatable, including that a particular outcome would
be preferable for litigation, policy, optical, or other reasons; and any
responses thereto.
American Oversight sought all responsive records from January 20, 2017, to the date of the
search. A copy of the OAG FOIA is attached hereto as Exhibit A and incorporated herein..
OIP has assigned the OAG FOIA tracking number DOJ-2017-005438.
.
By letter dated August 28, 2017, OIP responded to the OAG FOIA on behalf of
OAG, wherein it stated that the records American Oversight sought are protected from
disclosure. See Exhibit B..
DOJ has failed to conduct a search for records responsive to the OAG FOIA. See
Exhibit B..
On information and belief, DOJ has invoked Exemption 7(A) for records
responsive to the OAG FOIA without making a document-by-document determination regarding
the applicability of the exemption. Page 4 12.
DOJ has invoked Exemption 7(A) for as-yet-unidentified records responsive to
the OAG FOIA without explaining how the records sought could reasonably be expected to
interfere with the law enforcement proceeding at issue See Exhibit B..
DOJ has invoked Exemption 7(A) for as-yet-unidentified records responsive to
the OAG FOIA without providing functional categories of withheld documents, to include
conducting a document-by-document review to determine whether particular responsive
documents fit into one of those categories or may be disclosed, in whole or in part. See
Exhibit B..
On information and belief, DOJ did not evaluate records responsive to the OAG
FOIA to determine whether it could release any reasonably segregable portion of any of the
responsive records..
American Oversight timely appealed OIP’s adverse determination on November
, 2017. See Exhibit C. OIP assigned the appeal tracking number DOJ-AP-2018-001045.
NSD FOIA.
American Oversight sought similar records from the NSD (“NSD FOIA”),
specifically:) All communications from Chief of Staff Jody Hunt to anyone in the
National Security Division (NSD) that discuss any ongoing
investigation and in which Mr. Hunt express any views regarding
the outcome of the investigation, including, but not limited to,
stating or directing that the investigation should end in a particular
outcome; or stating or implying that a particular outcome would be
preferable, better, easier, or more palatable, including that a
particular outcome would be preferable for litigation, policy,
optical, or other reasons; and any responses thereto.) All communications from Counselor to the Attorney General
Rachael Tucker to anyone in the NSD that discuss any ongoing
investigation and in which Ms. Tucker express any views regarding
the outcome of the investigation, including, but not limited to, Page 5 stating or directing that the investigation should end in a particular
outcome; or stating or implying that a particular outcome would be
preferable, better, easier, or more palatable, including that a
particular outcome would be preferable for litigation, policy,
optical, or other reasons; and any responses thereto.) Any communications between or including employees within NSD
discussing how to respond to any communications responsive to
Items 1 or 2, or how to respond to any comparable oral
communications. Please search NSD employees likely to have any
responsive records, including, but not limited to, Acting Assistant
Attorney General Mary McCord; Acting Assistant Attorney General
Dana Boente; the Chief of Staff for the NSD; the Principal Deputy
Assistant Attorney General; any Deputy Assistant Attorney
General; or any appointee serving in the NSD as a non-career
member of the Senior Executive Service, a Schedule C appointee,
or temporary political appointment.) Any communications to employees of the NSD addressing any
communications responsive to Items 1 and 2 or comparable oral
communications.
American Oversight sought all responsive records from January 20, 2017, to the date of the
search. A copy of the NSD FOIA is attached hereto as Exhibit D and incorporated herein..
NSD assigned the NSD FOIA tracking number 17-240.
.
By email dated August 17, 2017, NSD responded to the NSD FOIA, wherein it
stated that the records American Oversight sought are protected from disclosure. See Exhibit E..
DOJ has failed to conduct a search for records responsive to the NSD FOIA. See
Exhibit E..
On information and belief, DOJ has invoked Exemption 7(A) for records
responsive to the NSD FOIA without making a document-by-document determination regarding
the applicability of the exemption. Page 6 21.
DOJ has invoked Exemption 7(A) for as-yet-unidentified records responsive to
the NSD FOIA without explaining how the records sought could reasonably be expected to
interfere with the law enforcement proceeding at issue See Exhibit E..
DOJ has invoked Exemption 7(A) for as-yet-unidentified records responsive to
the NSD FOIA without providing functional categories of withheld documents, to include
conducting a document-by-document review to determine whether particular responsive
documents fit into one of those categories or may be disclosed, in whole or in part. See
Exhibit E..
On information and belief, DOJ did not evaluate records responsive to the NSD
FOIA to determine whether it could release any reasonably segregable portion of any of the
responsive records..
American Oversight timely appealed NSD’s adverse determination on November
, 2017. See Exhibit F. OIP assigned the appeal tracking number DOJ-AP-2018-00966.
Exhaustion of Administrative Remedies.
American Oversight timely appealed OAG’s and NSD’s final determinations. See
Exhibits C and F..
OIP has not made a determination with respect to either appeal.
.
Through DOJ’s failure to make a determination regarding American Oversight’s
appeals within the time period required by law, American Oversight has constructively
exhausted its administrative remedies and seeks immediate judicial review. Page 7 COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Search for Responsive Records.
American Oversight repeats the allegations in the foregoing paragraphs and
incorporates them as though fully set forth herein..
American Oversight properly requested records within the possession, custody,
and control of DOJ..
DOJ is an agency subject to FOIA, and its components OAG and NSD must
therefore make reasonable efforts to search for requested records..
DOJ, through its components OAG and NSD, has failed to promptly review
agency records for the purpose of locating those records which are responsive to American
Oversight’s FOIA requests..
DOJ’s failure to conduct an adequate search for responsive records violates FOIA.
.
Plaintiff American Oversight is therefore entitled to injunctive and declaratory
relief requiring Defendant to promptly make reasonable efforts to search for records responsive
to American Oversight’s FOIA requests.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records.
American Oversight repeats the allegations in the foregoing paragraphs and
incorporates them as though fully set forth herein..
American Oversight properly requested records within the possession, custody,
and control of DOJ. Page 8 36.
DOJ is an agency subject to FOIA, and its components OAG and NSD must
therefore release in response to a FOIA request any non-exempt records and provide a lawful
reason for withholding any materials..
DOJ, through its components OAG and NSD, is wrongfully withholding non-
exempt agency records requested by American Oversight by failing to produce non-exempt
records responsive to its FOIA requests..
DOJ, through its components OAG and NSD, is wrongfully withholding non-
exempt agency records requested by American Oversight by failing to segregate exempt
information in otherwise non-exempt records responsive to its FOIA requests..
DOJ’s failure to provide all non-exempt responsive records violates FOIA.
.
Plaintiff American Oversight is therefore entitled to declaratory and injunctive
relief requiring Defendant to promptly produce all non-exempt records responsive to its FOIA
requests and provide indexes justifying the withholding of any responsive records withheld under
claim of exemption.
REQUESTED RELIEF
WHEREFORE, American Oversight respectfully requests the Court to:
(1) Order Defendant to conduct a search or searches reasonably calculated to uncover all
records responsive to American Oversight’s FOIA requests;
(2) Order Defendant to produce, within twenty days of the Court’s order, or by such other
date as the Court deems appropriate, any and all non-exempt records responsive to
American Oversight’s FOIA requests and indexes justifying the withholding of any
responsive records withheld under claim of exemption; Page 9 (3) Enjoin Defendant from continuing to withhold any and all non-exempt records
responsive to American Oversight’s FOIA requests;
(4) Award American Oversight the costs of this proceeding, including reasonable
attorneys’ fees and other litigation costs reasonably incurred in this action, pursuant
to 5 U.S.C. § 552(a)(4)(E); and
(5) Grant American Oversight such other relief as the Court deems just and proper.
Dated: January ##, 2018
Respectfully submitted,
/s/ Cerissa Cafasso
Cerissa Cafasso
D.C. Bar No. 1011003
/s/ Austin R. Evers
Austin R. Evers
D.C. Bar No. 1006999
AMERICAN OVERSIGHT 15th Street NW, B255
Washington, DC 20005
(202) 869-5244
cerissa.cafasso@americanoversight.org
austin.evers@americanoversight.org
Counsel for Plaintiff
PDF Page 1
PlainSite Cover Page
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Case 1:18-cv-00166 Document 1 Filed 01/26/18 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF JUSTICE,
)
950 Pennsylvania Avenue NW
)
Washington, DC 20530
)
)
Defendant. )
)
AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005
Case No. 18-cv-166
COMPLAINT
1.
Plaintiff American Oversight brings this action against the U.S. Department of
Justice under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), and the Declaratory
Judgment Act, 28 U.S.C. §§ 2201 and 2202, seeking declaratory and injunctive relief to compel
compliance with the requirements of FOIA.
JURISDICTION AND VENUE
2.
This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B)
and 28 U.S.C. §§ 1331, 2201, and 2202.
3.
Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C.
§ 1391(e).
4.
Because Defendant has failed to comply with the applicable time-limit provisions
of the FOIA, American Oversight is deemed to have exhausted its administrative remedies
pursuant to 5 U.S.C. § 552(a)(6)(C)(i) and is now entitled to judicial action enjoining the agency
1
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Case 1:18-cv-00166 Document 1 Filed 01/26/18 Page 2 of 9
from continuing to withhold agency records and ordering the production of agency records
improperly withheld.
PARTIES
5.
Plaintiff American Oversight is a nonpartisan, non-profit section 501(c)(3)
organization primarily engaged in disseminating information to the public. American Oversight
is committed to the promotion of transparency in government, the education of the public about
government activities, and ensuring the accountability of government officials. Through research
and FOIA requests, American Oversight will use the information gathered, and its analysis of it,
to educate the public about the activities and operations of the federal government through
reports, published analyses, press releases, and other media. The organization is incorporated
under the laws of the District of Columbia.
6.
Defendant the U.S. Department of Justice (DOJ) is a department of the executive
branch of the U.S. government headquartered in Washington, D.C., and an agency of the federal
government within the meaning of 5 U.S.C. § 552(f)(1). The Office of Information Policy (OIP)
is a component of DOJ and processes FOIA requests on behalf of certain other components of
DOJ, including the Office of the Attorney General (OAG). OIP also adjudicates administrative
appeals from adverse determinations made by any DOJ component. The National Security
Division (NSD) is also a component of DOJ. OAG and NSD have possession, custody, and
control of the records that American Oversight seeks.
STATEMENT OF FACTS
OAG FOIA
7.
American Oversight submitted a FOIA request to OIP (“OAG FOIA”) seeking the
following records:
2
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Case 1:18-cv-00166 Document 1 Filed 01/26/18 Page 3 of 9
1) All communications from Chief of Staff Jody Hunt to anyone in the
National Security Division or Criminal Division that discuss any
ongoing investigation and in which Mr. Hunt express any views
regarding the outcome of the investigation, including, but not
limited to, stating or directing that the investigation should end in a
particular outcome; or stating or implying that a particular outcome
would be preferable, better, easier, or more palatable, including that
a particular outcome would be preferable for litigation, policy,
optical, or other reasons; and any responses thereto.
2) All communications from Counselor to the Attorney General
Rachael Tucker to anyone in the National Security Division or
Criminal Division that discuss any ongoing investigation and in
which Ms. Tucker express any views regarding the outcome of the
investigation, including, but not limited to, stating or directing that
the investigation should end in a particular outcome; or stating or
implying that a particular outcome would be preferable, better,
easier, or more palatable, including that a particular outcome would
be preferable for litigation, policy, optical, or other reasons; and any
responses thereto.
American Oversight sought all responsive records from January 20, 2017, to the date of the
search. A copy of the OAG FOIA is attached hereto as Exhibit A and incorporated herein.
8.
OIP has assigned the OAG FOIA tracking number DOJ-2017-005438.
9.
By letter dated August 28, 2017, OIP responded to the OAG FOIA on behalf of
OAG, wherein it stated that the records American Oversight sought are protected from
disclosure. See Exhibit B.
10.
DOJ has failed to conduct a search for records responsive to the OAG FOIA. See
Exhibit B.
11.
On information and belief, DOJ has invoked Exemption 7(A) for records
responsive to the OAG FOIA without making a document-by-document determination regarding
the applicability of the exemption.
3
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Case 1:18-cv-00166 Document 1 Filed 01/26/18 Page 4 of 9
12.
DOJ has invoked Exemption 7(A) for as-yet-unidentified records responsive to
the OAG FOIA without explaining how the records sought could reasonably be expected to
interfere with the law enforcement proceeding at issue See Exhibit B.
13.
DOJ has invoked Exemption 7(A) for as-yet-unidentified records responsive to
the OAG FOIA without providing functional categories of withheld documents, to include
conducting a document-by-document review to determine whether particular responsive
documents fit into one of those categories or may be disclosed, in whole or in part. See
Exhibit B.
14.
On information and belief, DOJ did not evaluate records responsive to the OAG
FOIA to determine whether it could release any reasonably segregable portion of any of the
responsive records.
15.
American Oversight timely appealed OIP’s adverse determination on November
17, 2017. See Exhibit C. OIP assigned the appeal tracking number DOJ-AP-2018-001045.
NSD FOIA
16.
American Oversight sought similar records from the NSD (“NSD FOIA”),
specifically:
1) All communications from Chief of Staff Jody Hunt to anyone in the
National Security Division (NSD) that discuss any ongoing
investigation and in which Mr. Hunt express any views regarding
the outcome of the investigation, including, but not limited to,
stating or directing that the investigation should end in a particular
outcome; or stating or implying that a particular outcome would be
preferable, better, easier, or more palatable, including that a
particular outcome would be preferable for litigation, policy,
optical, or other reasons; and any responses thereto.
2) All communications from Counselor to the Attorney General
Rachael Tucker to anyone in the NSD that discuss any ongoing
investigation and in which Ms. Tucker express any views regarding
the outcome of the investigation, including, but not limited to,
4
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Case 1:18-cv-00166 Document 1 Filed 01/26/18 Page 5 of 9
stating or directing that the investigation should end in a particular
outcome; or stating or implying that a particular outcome would be
preferable, better, easier, or more palatable, including that a
particular outcome would be preferable for litigation, policy,
optical, or other reasons; and any responses thereto.
3) Any communications between or including employees within NSD
discussing how to respond to any communications responsive to
Items 1 or 2, or how to respond to any comparable oral
communications. Please search NSD employees likely to have any
responsive records, including, but not limited to, Acting Assistant
Attorney General Mary McCord; Acting Assistant Attorney General
Dana Boente; the Chief of Staff for the NSD; the Principal Deputy
Assistant Attorney General; any Deputy Assistant Attorney
General; or any appointee serving in the NSD as a non-career
member of the Senior Executive Service, a Schedule C appointee,
or temporary political appointment.
4) Any communications to employees of the NSD addressing any
communications responsive to Items 1 and 2 or comparable oral
communications.
American Oversight sought all responsive records from January 20, 2017, to the date of the
search. A copy of the NSD FOIA is attached hereto as Exhibit D and incorporated herein.
17.
NSD assigned the NSD FOIA tracking number 17-240.
18.
By email dated August 17, 2017, NSD responded to the NSD FOIA, wherein it
stated that the records American Oversight sought are protected from disclosure. See Exhibit E.
19.
DOJ has failed to conduct a search for records responsive to the NSD FOIA. See
Exhibit E.
20.
On information and belief, DOJ has invoked Exemption 7(A) for records
responsive to the NSD FOIA without making a document-by-document determination regarding
the applicability of the exemption.
5
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21.
DOJ has invoked Exemption 7(A) for as-yet-unidentified records responsive to
the NSD FOIA without explaining how the records sought could reasonably be expected to
interfere with the law enforcement proceeding at issue See Exhibit E.
22.
DOJ has invoked Exemption 7(A) for as-yet-unidentified records responsive to
the NSD FOIA without providing functional categories of withheld documents, to include
conducting a document-by-document review to determine whether particular responsive
documents fit into one of those categories or may be disclosed, in whole or in part. See
Exhibit E.
23.
On information and belief, DOJ did not evaluate records responsive to the NSD
FOIA to determine whether it could release any reasonably segregable portion of any of the
responsive records.
24.
American Oversight timely appealed NSD’s adverse determination on November
15, 2017. See Exhibit F. OIP assigned the appeal tracking number DOJ-AP-2018-00966.
Exhaustion of Administrative Remedies
25.
American Oversight timely appealed OAG’s and NSD’s final determinations. See
Exhibits C and F.
26.
OIP has not made a determination with respect to either appeal.
27.
Through DOJ’s failure to make a determination regarding American Oversight’s
appeals within the time period required by law, American Oversight has constructively
exhausted its administrative remedies and seeks immediate judicial review.
6
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COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Search for Responsive Records
28.
American Oversight repeats the allegations in the foregoing paragraphs and
incorporates them as though fully set forth herein.
29.
American Oversight properly requested records within the possession, custody,
and control of DOJ.
30.
DOJ is an agency subject to FOIA, and its components OAG and NSD must
therefore make reasonable efforts to search for requested records.
31.
DOJ, through its components OAG and NSD, has failed to promptly review
agency records for the purpose of locating those records which are responsive to American
Oversight’s FOIA requests.
32.
DOJ’s failure to conduct an adequate search for responsive records violates FOIA.
33.
Plaintiff American Oversight is therefore entitled to injunctive and declaratory
relief requiring Defendant to promptly make reasonable efforts to search for records responsive
to American Oversight’s FOIA requests.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
34.
American Oversight repeats the allegations in the foregoing paragraphs and
incorporates them as though fully set forth herein.
35.
American Oversight properly requested records within the possession, custody,
and control of DOJ.
7
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Case 1:18-cv-00166 Document 1 Filed 01/26/18 Page 8 of 9
36.
DOJ is an agency subject to FOIA, and its components OAG and NSD must
therefore release in response to a FOIA request any non-exempt records and provide a lawful
reason for withholding any materials.
37.
DOJ, through its components OAG and NSD, is wrongfully withholding non-
exempt agency records requested by American Oversight by failing to produce non-exempt
records responsive to its FOIA requests.
38.
DOJ, through its components OAG and NSD, is wrongfully withholding non-
exempt agency records requested by American Oversight by failing to segregate exempt
information in otherwise non-exempt records responsive to its FOIA requests.
39.
DOJ’s failure to provide all non-exempt responsive records violates FOIA.
40.
Plaintiff American Oversight is therefore entitled to declaratory and injunctive
relief requiring Defendant to promptly produce all non-exempt records responsive to its FOIA
requests and provide indexes justifying the withholding of any responsive records withheld under
claim of exemption.
REQUESTED RELIEF
WHEREFORE, American Oversight respectfully requests the Court to:
(1) Order Defendant to conduct a search or searches reasonably calculated to uncover all
records responsive to American Oversight’s FOIA requests;
(2) Order Defendant to produce, within twenty days of the Court’s order, or by such other
date as the Court deems appropriate, any and all non-exempt records responsive to
American Oversight’s FOIA requests and indexes justifying the withholding of any
responsive records withheld under claim of exemption;
8
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Case 1:18-cv-00166 Document 1 Filed 01/26/18 Page 9 of 9
(3) Enjoin Defendant from continuing to withhold any and all non-exempt records
responsive to American Oversight’s FOIA requests;
(4) Award American Oversight the costs of this proceeding, including reasonable
attorneys’ fees and other litigation costs reasonably incurred in this action, pursuant
to 5 U.S.C. § 552(a)(4)(E); and
(5) Grant American Oversight such other relief as the Court deems just and proper.
Dated: January ##, 2018
Respectfully submitted,
/s/ Cerissa Cafasso
Cerissa Cafasso
D.C. Bar No. 1011003
/s/ Austin R. Evers
Austin R. Evers
D.C. Bar No. 1006999
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-5244
cerissa.cafasso@americanoversight.org
austin.evers@americanoversight.org
Counsel for Plaintiff
9
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