Case 1:17-cv-01228 Document 1 Filed 02/17/17 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
________________________________________________
X
:

THE NEW YORK TIMES COMPANY
and CHARLIE SAVAGE,

:
Plaintiffs,
:
COMPLAINT
- against -

:

U.S. DEPARTMENT OF DEFENSE,

:
Defendant.

:

:
________________________________________________X

Plaintiffs THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE, by their
undersigned attorneys, allege for their Complaint:
1.

This is an action under the Freedom of Information Act (“FOIA”), 5

U.S.C. § 552, to obtain an order for the production of agency records from Defendant in response
to a FOIA request properly made by Plaintiffs.
2.

In 2016, the U.S. House of Representatives directed the Office of the

Inspector General for the Department of Defense (“DOD-OIG”) to assess information security at
the National Security Agency (“NSA”). In particular, the House asked DOD-OIG to determine
whether the NSA had addressed certain vulnerabilities exposed by the actions of former NSA
contractor Edward Snowden.
3.

DOD-OIG issued the requested report on August 29, 2016. It is labeled

“Report 2016-129” and entitled “The National Security Agency Should Take Additional Steps in
Its Privileged Access-Related Secure the Net Initiatives” (“the IG Report”).
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4.

According to a declassified report issued by the House Permanent Select

Committee on Intelligence, the DOD-OIG concluded in the IG Report that the NSA had failed to
fully implement certain security measures meant to make the agency less vulnerable to security
breaches. STAFF OF THE H. PERMANENT SELECT COMM. ON INTELLIGENCE, 114TH CONG., REVIEW
OF THE UNAUTHORIZED DISCLOSURES OF FORMER NATIONAL SECURITY AGENCY CONTRACTOR

EDWARD SNOWDEN 29-30 & n.215 (Sept. 15, 2016), available at http://bit.ly/2i5AveS.
5.

The FOIA request at issue in this action, filed by Plaintiffs in January

2017, seeks the disclosure of the IG Report.
6.

The U.S. Department of Defense (“DOD”) failed to respond to the request

in 20 business days, as required under FOIA. See 5 U.S.C. § 552(a)(6)(A).
PARTIES
7.

Plaintiff The New York Times Company publishes The New York Times

newspaper and www.nytimes.com. The New York Times Company is headquartered in this
judicial district at 620 Eighth Avenue, in Manhattan.
8.

Plaintiff Charlie Savage is a reporter for The New York Times and an

employee of The New York Times Company.
9.

Defendant DOD is an agency of the federal government that has

possession and control of the records that Plaintiffs seek.
JURISDICTION AND VENUE
10.

This Court has subject matter jurisdiction over this action, pursuant to 28

U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B).
11.

Venue is premised on the place of business of Plaintiffs and is proper in

this district under 5 U.S.C. § 552(a)(4)(B).
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12.

Plaintiffs have exhausted all administrative remedies available. Defendant

has failed to make an initial determination within the time frame set by FOIA, and therefore
Plaintiffs are deemed to have exhausted all administrative remedies, pursuant to 5 U.S.C. §
552(a)(6)(C).
FACTS
13.

The IG Report relates to Plaintiffs’ ongoing reporting on the federal

government’s response to the Snowden revelations.
14.

On January 13, 2017, Plaintiffs submitted a FOIA request to DOD-OIG,

seeking “the August 2016 DOD IG report 2016-129, ‘NSA Should Take Additional Steps in Its
Privileged Access-Related Secure-the-Net Initiatives.’”
15.

DOD acknowledged receipt of the request on January 18, 2017.

16.

DOD has failed to issue a response to the request within 20 business days,

as required under FOIA.
COUNT I
17.

Plaintiffs repeat, reallege, and reincorporate the allegations in the

foregoing paragraphs as though fully set forth herein.
18.

Defendant DOD is subject to FOIA and must therefore release in response

to a FOIA request any disclosable records in its possession at the time of the request and provide
a lawful reason for withholding any materials as to which it is claiming an exemption.
19.

DOD failed to act on Plaintiffs’ request within the 20 business days

required by FOIA. See 5 U.S.C. § 552(a)(6)(A). Accordingly, Plaintiffs are deemed to have
exhausted their administrative remedies under FOIA.
20.

DOD has no lawful basis for declining to release the IG Report.
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21.

Accordingly, Plaintiffs are entitled to an order compelling DOD to

produce the IG Report.
REQUEST FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
22.

Declare that the IG Report, as described in the foregoing paragraphs, is

public under 5 U.S.C. § 552 and must be disclosed;
23.

Order DOD to provide the IG Report to Plaintiffs within 20 business days

of the Court’s order;
24.

Award Plaintiffs the costs of this proceeding, including reasonable

attorneys’ fees, as expressly permitted by FOIA; and
25.

Grant Plaintiffs such other and further relief as this Court deems just and

proper.

Dated: New York, NY
February 17, 2017
_____________/s/_________________
David E. McCraw, Esq.
Legal Department
The New York Times Company
620 8th Avenue, 18th Floor
New York, NY 10018
phone: (212) 556-4031
fax: (212) 556-1009
e-mail: mccrad@nytimes.com
Counsel for Plaintiffs

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