Case 1:17-cv-02599-CKK Document 11 Filed 03/05/18 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
)
Plaintiff, )
)
v.
)
)
U.S. ENVIRONMENTAL PROTECTION
)
AGENCY,
)
1200 Pennsylvania Avenue NW
)
Washington, DC 20460
)
)
Defendant. )
)
AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

Case No. 17-2599 (CKK)

AMENDED COMPLAINT
1.

Plaintiff American Oversight brings this action against the Environmental

Protection Agency 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

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Case 1:17-cv-02599-CKK Document 11 Filed 03/05/18 Page 2 of 7

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 Environmental Protection Agency (EPA) is an agency of the federal

government within the meaning of 5 U.S.C. ? 552(f)(1) headquartered in Washington, DC. EPA
has possession, custody, and control of the records that American Oversight seeks.
STATEMENT OF FACTS
Office Renovations FOIA
7.

On November 1, 2017, American Oversight submitted a FOIA request to EPA

seeking access to the following records:
1) All records reflecting any actual or projected expenditures for
renovations (including remodeling or changes to decor) of any part
of the office suites (including foyers, waiting rooms, conference
rooms, adjacent hallways, or other common areas) for any
individuals in, or acting in, Senate-confirmed (PAS) positions at
your agency.
2) All communications relating to actual or potential renovations
(including remodeling or changes to decor) of any part of the office
suites (including foyers, waiting rooms, conference rooms, adjacent
hallways, or other common areas) for any individuals in, or acting
in, Senate-confirmed (PAS) positions at your agency.

2

Case 1:17-cv-02599-CKK Document 11 Filed 03/05/18 Page 3 of 7

The request sought records from January 20, 2017, to the date of the search.
8.

On November 13, 2017, American Oversight sent an unsolicited email to EPA

making explicit that the Office Renovations FOIA request should be construed to include records
relating to changes to furniture or other tangible objects in the office suites and common areas in
question.
9.

EPA assigned the Office Renovations FOIA request the tracking number EPA-

HQ-2018-001290.
10.

On November 15, 2017, EPA sent a letter to American Oversight granting

American Oversight's request for a fee waiver under 40 C.F.R. ? 2.107(l) in connection with its
FOIA request.
11.

American Oversight has received no further communication from EPA regarding

the processing of the Office Renovations FOIA request.
Bugs and Locks FOIA
12.

On December 21, 2017, American Oversight submitted a FOIA request to EPA

relating to media reports that EPA had paid Edwin Steinmetz Associates to conduct a "sweep for
covert/illegal surveillance devices" in the Washington, DC, office of Administrator Scott Pruitt
and had also paid to have biometric locks installed in Mr. Pruitt's office.
13.

The request sought access to the following records:
1) All communications between any of the individuals listed below and
(a) anyone at Edwin Steinmetz Associates; (b) anyone at the firm(s)
hired to install the biometric locks detailed above; (c) anyone at
Sequoia Security Group; or (d) Edwin Steinmetz:
- Scott Pruitt
- Mike Flynn
- Ryan Jackson
- John Reeder

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Case 1:17-cv-02599-CKK Document 11 Filed 03/05/18 Page 4 of 7

-

Samantha Dravis (Office of Policy)
Brittany Bolen (Office of Policy)
Shannon Kenny (Office of Policy)
Sarah Greenwalt
Liz Bowman
John Konkus
Denise Benjamin Sirmons
David Schnare (transition team member)
David Kreutzer (transition team member)
Don Benton
Kimberly Patrick (Office of Acquisition Management)
Pam Legare (Office of Acquisition Management)
Keith Stewart (HQ Procurement Operations Division)
Any other individuals known by EPA to have engaged in
communications with any of the entities listed above.

2) All records regarding the Edwin Steinmetz Associates contract for
security sweeping, including a copy of the contract itself (and any
contract modifications), as well as all records regarding the terms of
the contract, including the decision whether to use a "no-bid
contract."
3) All records regarding the contract for the installation of biometric
locks by an unnamed provider(s), including a copy of any
contract(s) (and any contract modifications), as well as all records
regarding the terms of the contract(s), including the decision
whether to use a "no-bid contract" and the decision to pay for
materials and services over multiple payments.
14.

The request sought records from January 20, 2017, to the date of the search, and

provided clarification of particular offices that should be included in the search for responsive
records.
15.

EPA assigned the Bugs and Locks FOIA tracking number EPA-HQ-2018-002857.
Purchase Cards FOIA

16.

On January 9, 2018, American Oversight submitted a FOIA request to EPA

seeking access to the following records:
All records reflecting any advancements or reimbursements for
expenses paid by a government purchase card or personal credit card

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by anyone in the Office of the Administrator, including
Administrator Scott Pruitt.
The request sought all records from February 17, 2017, to the date the search is conducted.
17.

EPA has assigned the Purchase Cards FOIA tracking number EPA-HQ-2018-

003413.
Exhaustion of Administrative Remedies
18.

As of the date of this amended complaint, EPA has failed to (a) notify American

Oversight of a final determination regarding any of the FOIA requests, including the full scope
of any responsive records EPA intends to produce or withhold and the reasons for any
withholdings; or (b) produce the requested records or demonstrate that the requested records are
lawfully exempt from production.
19.

Through EPA's failure to make a determination as 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 Responsive Records
20.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
21.

American Oversight properly requested records within the possession, custody,

and control of Defendant.
22.

Defendant is an agency subject to FOIA and must therefore make reasonable

efforts to search for requested records.
23.

Defendant has failed to review promptly agency records for the purpose of

locating those records which are responsive to American Oversight's FOIA requests.

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24.

Defendant's failure to conduct adequate searches for responsive records violates

25.

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 FOIA requests.
COUNT II
Violation of FOIA, 5 U.S.C. ? 552
Wrongful Withholding of Non-Exempt Responsive Records
26.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
27.

American Oversight properly requested records within the possession, custody,

and control of Defendant.
28.

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.
29.

Defendant is wrongfully withholding agency records requested by American

Oversight by failing to produce records responsive to its FOIA requests.
30.

Defendant's failure to provide all responsive records violates FOIA.

31.

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.

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Case 1:17-cv-02599-CKK Document 11 Filed 03/05/18 Page 7 of 7

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;
(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: March 5, 2018

Respectfully submitted,
/s/ Sara Kaiser Creighton
Sara Kaiser Creighton
D.C. Bar No. 1002367
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
john.bies@americanoversight.org
Counsel for Plaintiff

7

Case 1:17-cv-02599 Document 1 Filed 12/05/17 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
)
Plaintiff, )
)
v.
)
)
U.S. ENVIRONMENTAL PROTECTION
)
AGENCY,
)
1200 Pennsylvania Avenue NW
)
Washington, DC 20460
)
)
Defendant. )
)
AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

Case No. 17-2599

COMPLAINT
1.

Plaintiff American Oversight brings this action against the Environmental

Protection Agency 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-02599 Document 1 Filed 12/05/17 Page 2 of 6

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 Environmental Protection Agency (EPA) is an agency of the federal

government within the meaning of 5 U.S.C. § 552(f)(1) headquartered in Washington, DC. EPA
has possession, custody, and control of the records that American Oversight seeks.
STATEMENT OF FACTS
7.

On November 1, 2017, American Oversight submitted a FOIA request to EPA

seeking access to the following records:
1) All records reflecting any actual or projected expenditures for
renovations (including remodeling or changes to décor) of any part
of the office suites (including foyers, waiting rooms, conference
rooms, adjacent hallways, or other common areas) for any
individuals in, or acting in, Senate-confirmed (PAS) positions at
your agency.
2) All communications relating to actual or potential renovations
(including remodeling or changes to décor) of any part of the office
suites (including foyers, waiting rooms, conference rooms, adjacent
hallways, or other common areas) for any individuals in, or acting
in, Senate-confirmed (PAS) positions at your agency.

2

 Case 1:17-cv-02599 Document 1 Filed 12/05/17 Page 3 of 6

The request sought records from January 20, 2017, to the date of the search.
8.

On November 13, 2017, American Oversight sent an unsolicited email to EPA

making explicit that the FOIA request should be construed to include records relating to changes
to furniture or other tangible objects in the office suites and common areas in question.
9.

EPA assigned the FOIA request the tracking number EPA-HQ-2018-001290.

10.

On November 15, 2017, EPA sent a letter to American Oversight granting

American Oversight’s request for a fee waiver under 40 C.F.R. § 2.107(l) in connection with its
FOIA request.
11.

American Oversight has received no further communication from EPA regarding

the processing of its FOIA request.
12.

EPA has not made a determination whether to grant or deny American

Oversight’s FOIA request, notwithstanding the obligation of the agency under FOIA to make a
determination within twenty working days.
13.

Through EPA’s failure to make a determination as to American Oversight’s FOIA

request 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 Responsive Records
14.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
15.

American Oversight properly requested records within the possession, custody,

and control of Defendant.

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 Case 1:17-cv-02599 Document 1 Filed 12/05/17 Page 4 of 6

16.

Defendant is an agency subject to FOIA and must therefore make reasonable

efforts to search for requested records.
17.

Defendant has failed to review promptly agency records for the purpose of

locating those records which are responsive to American Oversight’s FOIA request.
18.

Defendant’s failure to conduct an adequate search for responsive records violates

19.

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 FOIA request.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
20.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
21.

American Oversight properly requested records within the possession, custody,

and control of Defendant.
22.

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.
23.

Defendant is wrongfully withholding agency records requested by American

Oversight by failing to produce records responsive to its FOIA request.
24.

Defendant’s failure to provide all responsive records violates FOIA.

25.

Plaintiff American Oversight is therefore entitled to declaratory and injunctive

relief requiring Defendant to promptly produce all non-exempt records responsive to its FOIA

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 Case 1:17-cv-02599 Document 1 Filed 12/05/17 Page 5 of 6

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 request submitted to EPA on November 1,
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 request 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 request;
(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: December 5, 2017

Respectfully submitted,
/s/ Sara Kaiser Creighton
Sara Kaiser Creighton
D.C. Bar No. 1002367
John E. Bies
D.C. Bar No. 483730
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005

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 Case 1:17-cv-02599 Document 1 Filed 12/05/17 Page 6 of 6

(202) 869-5246
sara.creighton@americanoversight.org
john.bies@americanoversight.org
Counsel for Plaintiff

6