Case 1:17-cv-01247 Document 1 Filed 06/26/17 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) Plaintiff, ) ) v. ) ) U.S. DEPARTMENT OF EDUCATION, ) 400 Maryland Avenue SW ) Washington, DC 20202 ) ) Defendant. ) ) AMERICAN OVERSIGHT, 1030 15th Street NW, B255 Washington, DC 20005 Case No. 17-1247 COMPLAINT 1. Plaintiff American Oversight brings this action against the U.S. Department of Education 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-01247 Document 1 Filed 06/26/17 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 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, and its application for section 501(c)(3) status is pending with the Internal Revenue Service. 6. Defendant U.S. Department of Education (Education) is a department of the executive branch of the U.S. government headquartered in Washington, DC, and an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1). Education 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: potential conflicts of interest affecting higher education policymaking at Education. 8. Betsy DeVos was confirmed as U.S. Secretary of Education in February 2017. 9. Since Secretary DeVos’s confirmation, Education has made several major policy changes affecting higher education, especially for-profit institutions. Examples include delaying the gainful employment rule, which requires institutions to provide data on graduates’ debt 2 Case 1:17-cv-01247 Document 1 Filed 06/26/17 Page 3 of 10 relative to their earnings; guidance barring debt collectors from charging past-due loans; and a rule covering borrower defense to repaying debts when schools defraud students. 10. Two former advocates for for-profit institutions, Taylor Hansen and Robert Eitel, reportedly joined the Department with Secretary DeVos, though Mr. Hansen resigned in March. 11. The for-profit educational institutions to which Messrs. Eitel and Hansen have ties stand to benefit from the policy and regulatory changes Education has made and continues to make under Secretary DeVos. DeVos Calendars & Logs FOIA 12. On April 11, 2017, American Oversight submitted a FOIA request (“DeVos FOIA”) to Education seeking access to the following records: 1) All calendars or calendar entries for Betsy DeVos or any other political or SES appointees in the Office of the Secretary, including any calendars maintained on behalf of these individuals (e.g., by an administrative assistant). 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 government-issued or personal devices—used to track or coordinate how these individuals allocate their time on agency business. 2) Any logs or other records tracking incoming and outgoing telephone calls made or received by Betsy DeVos or any other political or SES appointees in the Office of the Secretary, or anyone placing or receiving telephone calls on behalf of those individuals. The request sought records from February 7, 2017, to the date of the search. A copy of the DeVos FOIA request is attached hereto as Exhibit A and incorporated herein. 13. Education assigned the DeVos FOIA request the tracking number 17-01479-F. 3 Case 1:17-cv-01247 Document 1 Filed 06/26/17 Page 4 of 10 14. On April 21, 2017, Education sent American Oversight a letter requesting clarification of a portion of the DeVos FOIA request. American Oversight responded with the requested clarification the same day that Education requested it. 15. On May 1, 2017, counsel for American Oversight contacted Education by phone to follow-up and was informed by the Education FOIA officer that Education had not received the clarification. American Oversight re-sent the clarification and confirmed that Education received it on that same day. 16. On May 12, 2017, Education sent American Oversight an email indicating that Education was conducting a search for responsive records. 17. American Oversight has received no further communication from Education regarding the processing of the DeVos FOIA request. Hansen/Eitel FOIA 18. On April 11, 2017, American Oversight submitted a FOIA request (“Hansen/Eitel FOIA”) to Education seeking access to the following records: 1) All calendars or calendar entries for Taylor Hansen or Robert Eitel, including any calendars maintained on behalf of these individuals (e.g., by an administrative assistant). 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 government-issued or personal devices—used to track or coordinate how these individuals allocate their time on agency business. 2) Any logs or other records tracking incoming and outgoing telephone calls made or received by Taylor Hansen, Robert Eitel, or anyone placing or receiving telephone calls on behalf of those individuals. 3) Records reflecting any recusals or disqualifications for Taylor Hansen or Robert Eitel. 4 Case 1:17-cv-01247 Document 1 Filed 06/26/17 Page 5 of 10 4) Any conflicts or ethics waivers or authorizations issued for Taylor Hansen, including authorizations pursuant to 5 C.F.R. § 2635.502. 5) Any conflicts or ethics waivers or authorizations issued for Robert Eitel, including authorizations pursuant to 5 C.F.R. § 2635.502. 6) All communications involving Taylor Hansen, Robert Eitel, or anyone acting on behalf of those individuals, relating to the decision to extend the deadline for appealing data determinations under the gainful employment rule. 7) All communications involving Taylor Hansen or anyone acting on his behalf relating to the decision to revoke guidance barring debt collectors from charging high fees for past-due loans. The request sought records from February 7, 2017, to the date of the search. A copy of the Hansen/Eitel request is attached hereto as Exhibit B and incorporated herein. 19. Education assigned the Hansen/Eitel FOIA request the tracking number 2017-01480-F. 20. On May 2, 2017, Education granted American Oversight’s request for waiver of fees associated with processing the Hansen/Eitel FOIA request. 21. American Oversight has received no further communication from Education regarding the processing of the Hansen/Eitel FOIA request. Exhaustion of Administrative Remedies 22. Education has not responded to American Oversight’s FOIA requests described in paragraphs 12 and 18, notwithstanding the obligation of the agency under FOIA to respond within twenty working days. 23. Through Education’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. 5 Case 1:17-cv-01247 Document 1 Filed 06/26/17 Page 6 of 10 COUNT I Violation of FOIA, 5 U.S.C. § 552 Failure to Conduct Adequate Search for Records Responsive to DeVos FOIA 24. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 25. American Oversight properly requested records within the possession, custody, and control of Defendant. 26. Defendant is an agency subject to FOIA and must therefore make reasonable efforts to search for requested records. 27. Defendant has failed to review promptly agency records for the purpose of locating those records which are responsive to American Oversight’s DeVos FOIA request. 28. Defendant’s failure to conduct an adequate search for responsive records violates 29. 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 DeVos FOIA request. COUNT II Violation of FOIA, 5 U.S.C. § 552 Wrongful Withholding of Non-Exempt Records Responsive to DeVos FOIA 30. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 31. American Oversight properly requested records within the possession, custody, and control of Defendant. 6 Case 1:17-cv-01247 Document 1 Filed 06/26/17 Page 7 of 10 32. 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. 33. Defendant is wrongfully withholding agency records requested by American Oversight by failing to produce records responsive to its DeVos FOIA request. 34. Defendant’s failure to provide all responsive records violates FOIA. 35. Plaintiff American Oversight is therefore entitled to declaratory and injunctive relief requiring Defendant to promptly produce all non-exempt records responsive to its DeVos 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 Hansen/Eitel FOIA 36. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 37. American Oversight properly requested records within the possession, custody, and control of Defendant. 38. Defendant is an agency subject to FOIA and must therefore make reasonable efforts to search for requested records. 39. Defendant has failed to review promptly agency records for the purpose of locating those records which are responsive to American Oversight’s Hansen/Eitel FOIA request. 40. Defendant’s failure to conduct an adequate search for responsive records violates FOIA. 7 Case 1:17-cv-01247 Document 1 Filed 06/26/17 Page 8 of 10 41. 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 Hansen/Eitel FOIA request. COUNT IV Violation of FOIA, 5 U.S.C. § 552 Wrongful Withholding of Non-Exempt Records Responsive to Hansen/Eitel FOIA 42. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 43. American Oversight properly requested records within the possession, custody, and control of Defendant. 44. 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. 45. Defendant is wrongfully withholding agency records requested by American Oversight by failing to produce records responsive to its Hansen/Eitel FOIA request. 46. Defendant’s failure to provide all responsive records violates FOIA. 47. Plaintiff American Oversight is therefore entitled to declaratory and injunctive relief requiring Defendant to promptly produce all non-exempt records responsive to its Hansen/Eitel FOIA request and provide indexes justifying the withholding of any responsive records withheld under claim of exemption. 8 Case 1:17-cv-01247 Document 1 Filed 06/26/17 Page 9 of 10 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 Education on April 11, 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: June 26, 2017 Respectfully submitted, /s/ Sara Kaiser Creighton Sara Kaiser Creighton D.C. Bar No. 1002367 Elizabeth France D.C. Bar No. 999851 John E. Bies D.C. Bar No. 483730 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 869-5246 sara.creighton@americanoversight.org 9 Case 1:17-cv-01247 Document 1 Filed 06/26/17 Page 10 of 10 beth.france@americanoversight.org john.bies@americanoversight.org Counsel for Plaintiff 10