Case 1:17-cv-01492 Document 1 Filed 07/26/17 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN OVERSIGHT, 1030 15th Street NW, B255 Washington, DC 20005 v. FEDERAL COMMUNICATIONS COMMISSION, 445 12th Street SW Washington, DC 20554 ) ) ) ) ) Plaintiff, ) ) ) ) ) ) ) ) ) Defendant. ) Case No. 17-1492 COMPLAINT 1. Plaintiff American Oversight brings this action against the Federal Communications Commission 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 Case 1:17-cv-01492 Document 1 Filed 07/26/17 Page 2 of 10 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 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 Federal Communications Commission (FCC) is an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1) headquartered in Washington, DC. FCC has possession, custody, and control of the records that American Oversight seeks. STATEMENT OF FACTS 7. As described below, American Oversight filed two FOIA requests seeking documents that would shed light on a matter of significant public concern: the FCC’s plans for net neutrality, including the fate of existing rules established by the Commission under the Obama administration. 8. As described in those requests, FCC Chair Ajit Pai has withdrawn or suspended multiple regulatory actions undertaken by the Obama administration. Mr. Pai has also met with telecommunications trade associations and large internet companies to discuss the future of net neutrality. 2 Case 1:17-cv-01492 Document 1 Filed 07/26/17 Page 3 of 10 Pai Calendars & Communications FOIA 9. On April 26, 2017, American Oversight submitted a FOIA request (“Pai FOIA”) to FCC seeking access to the following records: (1) All calendars or calendar entries for any of the individuals listed below, or anyone maintaining calendar entries on their behalf, relating to net neutrality: a. b. c. d. e. f. FCC Chairman Ajit Pai Chief of Staff Matthew Berry Senior Counsel Nicholas Degani Acting Wire Line Advisor Jay Schwarz Policy Advisor Nathan Leamer Acting Wireless Advisor Rachael Bender For calendar entries created in Outlook or similar programs, the documents should be produced in “memo” form to include all invitees, any notes, and all attachments. Please do not limit your search to Outlook calendars—we request the production of any calendar—paper or electronic, whether on governmentissued or personal devices—used to track or coordinate how these individuals allocate their time on agency business. Your search should encompass other ways of referring to the concept known as “net neutrality,” including but not limited to discussions of open internet, Title II regulations, common carrier rules, and the proper regulatory classification of internet service providers. (2) All records reflecting communications (including correspondence, emails, telephone call logs, calendar entries, meeting agendas, or any other records reflecting communications) between any of the individuals listed below and any internet service provider (or anyone acting on behalf of an internet service provider) regarding net neutrality: a. b. c. d. e. f. FCC Chairman Ajit Pai Chief of Staff Matthew Berry Senior Counsel Nicholas Degani Acting Wire Line Advisor Jay Schwarz Policy Advisor Nathan Leamer Acting Wireless Advisor Rachael Bender 3 Case 1:17-cv-01492 Document 1 Filed 07/26/17 Page 4 of 10 Your search should encompass other ways of referring to the concept known as “net neutrality,” including but not limited to discussions of open internet, Title II regulations, common carrier rules, and the proper regulatory classification of internet service providers. The request sought records from November 8, 2016, to the date of the search. A copy of the Pai FOIA request is attached hereto as Exhibit A and incorporated herein. 10. American Oversight requested expedited processing of the Pai FOIA request under 47 C.F.R. § 0.461(h)(3)(ii). Congressional Communications FOIA 11. On April 26, 2017, American Oversight submitted a FOIA request (“Congressional Communications FOIA”) to FCC seeking access to the following records: (1) All records reflecting communications (including correspondence, emails, telephone call logs, calendar entries, meeting agendas, or any other records reflecting communications) between employees in the office of Chairman Ajit Pai and any members of Congress or congressional staff relating to net neutrality. Your search should encompass other ways of referring to the concept known as “net neutrality,” including but not limited to discussions of open internet, Title II regulations, common carrier rules, and the proper regulatory classification of internet service providers. (2) All records reflecting communications (including correspondence, emails, telephone call logs, calendar entries, meeting agendas, or any other records reflecting communications) between employees in the office of Chairman Ajit Pai and members of the press or media relating to net neutrality. Your search should encompass other ways of referring to the concept known as “net neutrality,” including but not limited to discussions of open internet, Title II regulations, common carrier rules, and the proper regulatory classification of internet service providers. 4 Case 1:17-cv-01492 Document 1 Filed 07/26/17 Page 5 of 10 The request sought records from November 8, 2016, to the date of the search. A copy of the Congressional Communications FOIA request is attached hereto as Exhibit B and incorporated herein. 12. American Oversight requested expedited processing of the Congressional Communications FOIA request under 47 C.F.R. § 0.461(h)(3)(ii). Agency Responses 13. FCC assigned the Pai FOIA request the tracking number 2017-555. 14. FCC assigned the Congressional Communications FOIA request the tracking number 2017-556. 15. FCC informed American Oversight by a letter dated May 3, 2017 that it had granted American Oversight’s request for expedited processing with respect to both requests. 16. On June 12, 2017, FCC requested an extension of time to respond to both requests until June 24, 2017. American Oversight agreed to that extension. 17. On June 21, 2017, FCC requested an extension of time to respond to both requests until July 24, 2017. American Oversight agreed to that extension. 18. On July 21, 2017, FCC requested an additional one-month extension to both requests to August 24, 2017. On July 24, 2017, American Oversight informed FCC that it would not agree to a further extension. 19. American Oversight has received no further communication from FCC regarding the processing of its FOIA requests. 5 Case 1:17-cv-01492 Document 1 Filed 07/26/17 Page 6 of 10 Exhaustion of Administrative Remedies 20. FCC has not responded to American Oversight’s FOIA requests described in paragraphs 9 and 11, notwithstanding the obligation of the agency under FOIA to respond within twenty working days. 21. Through FCC’s failure to respond to American Oversight’s FOIA requests within the time period required by law, American Oversight has constructively exhausted its administrative remedies and seeks immediate judicial review. COUNT I Violation of FOIA, 5 U.S.C. § 552 Failure to Conduct Adequate Search for Records Responsive to Pai FOIA Request 22. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 23. American Oversight properly requested records within the possession, custody, and control of Defendant. 24. Defendant is an agency subject to FOIA and must therefore make reasonable efforts to search for requested records. 25. Defendant has failed to review promptly agency records for the purpose of locating those records which are responsive to American Oversight’s Pai FOIA request. 26. Defendant’s failure to conduct an adequate search for responsive records violates 27. Plaintiff American Oversight is therefore entitled to injunctive and declaratory FOIA. relief requiring Defendant to promptly make reasonable efforts to search for records responsive to American Oversight’s Pai FOIA request. 6 Case 1:17-cv-01492 Document 1 Filed 07/26/17 Page 7 of 10 COUNT II Violation of FOIA, 5 U.S.C. § 552 Wrongful Withholding of Non-Exempt Records Responsive to Pai FOIA Request 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 Defendant. 30. Defendant is an agency subject to FOIA and must therefore release in response to a FOIA request any disclosable records and provide a lawful reason for withholding any materials. 31. Defendant is wrongfully withholding agency records requested by American Oversight by failing to produce records responsive to its Pai FOIA request. 32. Defendant’s failure to provide all responsive records violates FOIA. 33. Plaintiff American Oversight is therefore entitled to declaratory and injunctive relief requiring Defendant to promptly produce all non-exempt records responsive to its Pai FOIA request and provide indexes justifying the withholding of any responsive records withheld under claim of exemption. COUNT III Violation of FOIA, 5 U.S.C. § 552 Failure to Conduct Adequate Search for Records Responsive to Congressional Communications FOIA Request 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 Defendant. 7 Case 1:17-cv-01492 Document 1 Filed 07/26/17 Page 8 of 10 36. Defendant is an agency subject to FOIA and must therefore make reasonable efforts to search for requested records. 37. Defendant has failed to review promptly agency records for the purpose of locating those records which are responsive to American Oversight’s Congressional Communications FOIA request. 38. Defendant’s failure to conduct an adequate search for responsive records violates 39. Plaintiff American Oversight is therefore entitled to injunctive and declaratory FOIA. relief requiring Defendant to promptly make reasonable efforts to search for records responsive to American Oversight’s Congressional Communications FOIA request. COUNT IV Violation of FOIA, 5 U.S.C. § 552 Wrongful Withholding of Non-Exempt Records Responsive to Congressional Communications FOIA Request 40. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 41. American Oversight properly requested records within the possession, custody, and control of Defendant. 42. Defendant is an agency subject to FOIA and must therefore release in response to a FOIA request any disclosable records and provide a lawful reason for withholding any materials. 43. Defendant is wrongfully withholding agency records requested by American Oversight by failing to produce records responsive to its Congressional Communications FOIA request. 44. Defendant’s failure to provide all responsive records violates FOIA. 8 Case 1:17-cv-01492 Document 1 Filed 07/26/17 Page 9 of 10 45. Plaintiff American Oversight is therefore entitled to declaratory and injunctive relief requiring Defendant to promptly produce all non-exempt records responsive to its Congressional Communication FOIA request 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 reasonably calculated to uncover all records responsive to American Oversight’s FOIA requests submitted to FCC on April 26, 2017; (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; (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: July 26, 2017 Respectfully submitted, /s/ Elizabeth France__ Elizabeth France D.C. Bar No. 999851 John E. Bies 9 Case 1:17-cv-01492 Document 1 Filed 07/26/17 Page 10 of 10 D.C. Bar No. 483730 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 869-5246 beth.france@americanoversight.org john.bies@americanoversight.org Counsel for Plaintiff 10