Case 1:17-cv-02707 Document 1 Filed 12/19/17 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) Plaintiff, ) ) v. ) ) U.S. DEPARTMENT OF DEFENSE, ) 1600 Pentagon 3E788 ) Washington, DC 20301-1600 ) ) U.S. DEPARTMENT OF THE AIR FORCE, ) 1670 Air Force Pentagon ) Washington, DC 20330-1670 ) ) U.S. DEPARTMENT OF THE ARMY, ) 101 Army Pentagon ) Washington, DC 20310-0101 ) ) and ) ) U.S. DEPARTMENT OF THE NAVY, ) 1000 Navy Pentagon ) Washington, DC 20350-1000 ) ) Defendants. ) ) AMERICAN OVERSIGHT, 1030 15th Street NW, B255 Washington, DC 20005 Case No. 17-2707 COMPLAINT 1. Plaintiff American Oversight brings this action against the U.S. Department of Defense, the U.S. Department of the Air Force, the U.S. Department of the Army, and the U.S. Department of the Navy 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. 1 Case 1:17-cv-02707 Document 1 Filed 12/19/17 Page 2 of 17 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 Defendants have 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 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 uses the information it gathers, 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 U.S. Department of Defense (DOD) 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). DOD has possession, custody, and control of the records that American Oversight seeks. 2 Case 1:17-cv-02707 Document 1 Filed 12/19/17 Page 3 of 17 7. Defendant U.S. Department of the Air Force (Air Force) is a component of DOD and is also headquartered in Washington, DC. Air Force has possession, custody, and control of the records that American Oversight seeks. 8. Defendant U.S. Department of the Army (Army) is a component of DOD and is also headquartered in Washington, DC. Army has possession, custody, and control of the records that American Oversight seeks. 9. Defendant U.S. Department of the Navy (Navy) is a component of DOD and is also headquartered in Washington, DC. Navy has possession, custody, and control of the records that American Oversight seeks. STATEMENT OF FACTS 10. On July 26, 2017, President Trump announced over the course of three tweets that transgender persons would no longer be permitted to serve “in any capacity” in the U.S. military. 11. Following the president’s announcement there was confusion among the public as to whether and to what extent the White House consulted with the Pentagon prior to the president’s tweets. 12. On August 25, 2017, the White House issued a formal Presidential Memorandum banning transgender individuals from entering the military and requiring the military to authorize the discharge of transgender service members. 13. The president’s proposed ban has been the subject of federal litigation. 14. In an October 30, 2017 memorandum opinion, Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia noted that the reasons given for the president’s directives “do not appear to be supported by any facts” and that “the military itself” has rejected the reasons given. 3 Case 1:17-cv-02707 Document 1 Filed 12/19/17 Page 4 of 17 Generals FOIA 15. On July 28, 2017, American Oversight submitted a FOIA request to Defendants bearing internal tracking number DOD-17-0301 (the “Generals FOIA”) seeking access to the following records on an expedited basis: Any analysis or recommendations from any general, admiral, or military expert provided to the White House regarding DOD’s policy regarding the service of transgender individuals in the U.S. military from any DOD personnel in the following offices: a. the Office of the Secretary of Defense, including the secretary, chief of staff, deputy secretary, and the assistant to the secretary of defense for public affairs; b. the Office of the Joint Chiefs of Staff; c. the Office of the Secretary of the Air Force; d. the Office of the Secretary of the Army; e. the Office of the Secretary of the Navy; or f. the Office of the Under Secretary of Defense for Personnel & Readiness; or g. the Office of the Assistant Secretary of Defense for Manpower & Reserve Affairs; h. the Office of the Assistant Secretary of Defense for Health Affairs; or i. the Office of the General Counsel of the Department of Defense. Please provide all responsive records from January 20, 2017, through 8:55 AM EDT on July 26, 2017. A copy of the Generals FOIA is attached hereto as Exhibit A and incorporated herein. 16. DOD assigned the Generals FOIA tracking number 17-F-1385. 17. By a letter dated August 8, 2017, DOD denied expedited processing of the Generals FOIA. A copy of the letter is attached hereto as Exhibit B and incorporated herein. 18. On August 24, 2017, American Oversight appealed DOD’s denial of expedited processing of the Generals FOIA. A copy of the appeal is attached hereto as Exhibit C and incorporated herein. 4 Case 1:17-cv-02707 Document 1 Filed 12/19/17 Page 5 of 17 19. DOD assigned American Oversight’s appeal tracking number 17-A-1385-A1. 20. By a letter dated October 12, 2017, DOD affirmed the denial of expedited processing of the Generals FOIA. A copy of the letter is attached hereto as Exhibit D and incorporated herein. 21. Army assigned the Generals FOIA tracking number FA-17-0194. 22. Army did not make a decision with regard to the request for expedited processing of the Generals FOIA. 23. By a letter dated September 25, 2017, Army responded to the Generals FOIA stating that Army had conducted a search and that the “search failed to yield responsive records.” 24. On December 13, 2017, American Oversight mailed its appeal regarding the adequacy of Army’s search for records responsive to the Generals FOIA; according to U.S. Postal Service tracking, the appeal was received at Army on December 15. 25. Neither Air Force nor Navy has acknowledged the Generals FOIA. 26. Neither Air Force nor Navy has made a decision with regard to the request for expedited processing of the Generals FOIA. 27. Through DOD’s denial of American Oversight’s request for expedition, American Oversight has exhausted its administrative remedies as to that issue and seeks immediate judicial review. 28. Through Air Force’s and Navy’s failure to make a decision with regard to American Oversight’s request for expedition within the time period required by law, American Oversight has constructively exhausted its administrative remedies as to that issue and seeks immediate judicial review. 5 Case 1:17-cv-02707 Document 1 Filed 12/19/17 Page 6 of 17 29. As of the date of this Complaint, DOD, Air Force, and Navy have failed to (i) notify American Oversight of any determination regarding the Generals FOIA, including the scope of any responsive records DOD, Air Force, and Navy intend to produce or withhold and the reasons for any withholdings; or (ii) produce the requested records or demonstrate that the requested records are lawfully exempt from production. 30. Through DOD’s, Air Force’s, and Navy’s failure to make a determination as to the Generals FOIA within the time period required by law, American Oversight has constructively exhausted its administrative remedies as to that issue and seeks immediate judicial review. All Advice FOIA 31. On October 31, 2017, American Oversight submitted a FOIA request to Defendants bearing internal tracking number DOD-17-0464 (the “All Advice FOIA”) seeking access to the following records on an expedited basis: Any analysis, reports, or recommendations regarding DOD’s policy regarding the service of transgender individuals in the U.S. military from any DOD personnel in the following offices: a. the Office of the Secretary of Defense, including the secretary, chief of staff, deputy secretary, and the assistant to the secretary of defense for public affairs; b. the Office of the Joint Chiefs of Staff; c. the Office of the Secretary of the Air Force; d. the Office of the Secretary of the Army; e. the Office of the Secretary of the Navy; or f. the Office of the Under Secretary of Defense for Personnel & Readiness; or g. the Office of the Assistant Secretary of Defense for Manpower & Reserve Affairs; h. the Office of the Assistant Secretary of Defense for Health Affairs; or i. the Office of the General Counsel of the Department of Defense. 6 Case 1:17-cv-02707 Document 1 Filed 12/19/17 Page 7 of 17 Please provide all responsive records from January 20, 2017, through 8:55 AM EDT on July 26, 2017. A copy of the All Advice FOIA is attached hereto as Exhibit E and incorporated herein. 32. Navy assigned the All Advice FOIA tracking number DON-NAVY-2018-000947. 33. By an email on November 28, 2017, Navy denied expedited processing of the All Advice FOIA. A copy of the email is attached hereto as Exhibit F and incorporated herein. 34. Neither DOD, Air Force, nor Army has acknowledged the All Advice FOIA. 35. Neither DOD, Air Force, nor Army has made a decision with regard to the request for expedited processing of the All Advice FOIA. 36. Through Navy’s denial of American Oversight’s request for expedition, American Oversight has exhausted its administrative remedies as to that issue and seeks immediate judicial review. 37. Through DOD’s, Army’s, and Air Force’s failure to make a decision with regard to American Oversight’s request for expedition within the time period required by law, American Oversight has constructively exhausted its administrative remedies as to that issue and seeks immediate judicial review. 38. As of the date of this Complaint, all of the Defendants have failed to (i) notify American Oversight of any determination regarding the All Advice FOIA, including the scope of any responsive records Defendants intend to produce or withhold and the reasons for any withholdings; or (ii) produce the requested records or demonstrate that the requested records are lawfully exempt from production. 39. Through Defendants’ failure to make a determination as to the All Advice FOIA within the time period required by law, American Oversight has constructively exhausted its administrative remedies as to that issue and seeks immediate judicial review. 7 Case 1:17-cv-02707 Document 1 Filed 12/19/17 Page 8 of 17 Tweet FOIA 40. On October 31, 2017, American Oversight submitted a FOIA request to Defendants bearing internal tracking number DOD-17-0465 (the “Tweet FOIA”) seeking access to the following records on an expedited basis: All records reflecting communications (including emails, telephone call logs, calendar entries, or any other records reflecting communications) regarding President Trump’s tweet at 8:55 am that read “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow……” from any DOD military or civilian personnel in the following offices: a. the Office of the Secretary of Defense, including the secretary, chief of staff, deputy secretary, and the assistant to the secretary of defense for public affairs; b. the Office of the Joint Chiefs of Staff; c. the Office of the Secretary of the Air Force; d. the Office of the Secretary of the Army; e. the Office of the Secretary of the Navy; or f. the Office of the Under Secretary of Defense for Personnel & Readiness; or g. the Office of the Assistant Secretary of Defense for Manpower & Reserve Affairs; h. the Office of the Assistant Secretary of Defense for Health Affairs; or i. the Office of the General Counsel of the Department of Defense. Please provide all responsive records from 8:55 AM EDT through 12:00 pm EDT on July 26, 2017. A copy of the Tweet FOIA is attached hereto as Exhibit G and incorporated herein. 41. Navy assigned the Tweet FOIA tracking number DON-NAVY-2018-000946. 42. By an email on November 28, 2017, Navy denied expedited processing of the Tweet FOIA. A copy of the email is attached hereto as Exhibit H and incorporated herein. 43. Neither DOD, Air Force, nor Army has acknowledged the Tweet FOIA. 8 Case 1:17-cv-02707 Document 1 Filed 12/19/17 Page 9 of 17 44. Neither DOD, Air Force, nor Army has made a decision with regard to the request for expedited processing of the Tweet FOIA. 45. Through Navy’s denial of American Oversight’s request for expedition, American Oversight has exhausted its administrative remedies as to that issue and seeks immediate judicial review. 46. Through DOD’s, Army’s, and Air Force’s failure to make a decision with regard to American Oversight’s request for expedition within the time period required by law, American Oversight has constructively exhausted its administrative remedies as to that issue and seeks immediate judicial review. 47. As of the date of this Complaint, all of the Defendants have failed to (i) notify American Oversight of any determination regarding the Tweet FOIA, including the scope of any responsive records Defendants intend to produce or withhold and the reasons for any withholdings; or (ii) produce the requested records or demonstrate that the requested records are lawfully exempt from production. 48. Through Defendants’ failure to make a determination as to the Tweet FOIA within the time period required by law, American Oversight has constructively exhausted its administrative remedies as to that issue and seeks immediate judicial review COUNT I Violation of FOIA, 5 U.S.C. § 552 Failure to Grant Expedited Processing of the Generals FOIA by Air Force and Navy 49. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 50. American Oversight properly requested records within the possession, custody, and control of Air Force and Navy, components of DOD, on an expedited basis. 9 Case 1:17-cv-02707 Document 1 Filed 12/19/17 Page 10 of 17 51. DOD is an agency subject to FOIA, and its components Air Force and Navy must process FOIA requests on an expedited basis pursuant to the requirements of FOIA and Defendants’ regulations. 52. The records sought relate to an activity of the federal government about which there is an urgent need to inform the public, and American Oversight is primarily engaged in disseminating information to the public; therefore, the Generals FOIA justified expedited processing under FOIA and Defendants’ regulations. 53. Air Force and Navy failed to make a decision as to whether expedited processing was appropriate and notify American Oversight of any such decision within ten days after the date of the request. 54. The failure of Air Force and Navy to grant expedited processing of the Generals FOIA violates FOIA and Defendants’ regulations. 55. Plaintiff American Oversight is therefore entitled to injunctive and declaratory relief requiring Air Force and Navy to grant expedited processing of the Generals FOIA. COUNT II Violation of FOIA, 5 U.S.C. § 552 Wrongful Denial of Expedited Processing of the Generals FOIA by DOD 56. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 57. American Oversight properly requested records within the possession, custody, and control of DOD on an expedited basis. 58. DOD is an agency subject to FOIA and must process FOIA requests on an expedited basis pursuant to the requirements of FOIA and DOD’s regulations. 10 Case 1:17-cv-02707 Document 1 Filed 12/19/17 Page 11 of 17 59. The records sought relate to an activity of the federal government about which there is an urgent need to inform the public, and American Oversight is primarily engaged in disseminating information to the public; therefore, the Generals FOIA justified expedited processing under FOIA and DOD’s regulations. 60. DOD wrongfully denied expedited processing of the Generals FOIA. 61. DOD’s failure to grant expedited processing of the Generals FOIA violated FOIA and DOD’s regulations. 62. Plaintiff American Oversight is therefore entitled to declaratory and injunctive relief requiring DOD to grant expedited processing of the Generals FOIA. COUNT III Violation of FOIA, 5 U.S.C. § 552 Failure to Conduct Adequate Search for Records Responsive to the Generals FOIA by DOD, Air Force, and Navy 63. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 64. American Oversight properly requested records within the possession, custody, and control of DOD, Air Force, and Navy. 65. DOD, Air Force, and Navy are an agency and components thereof subject to FOIA and must therefore make reasonable efforts to search for requested records. 66. DOD, Air Force, and Navy have failed to promptly review agency records for the purpose of locating those records which are responsive to the Generals FOIA. 67. DOD’s, Air Force’s, and Navy’s failure to conduct an adequate search for responsive records violates FOIA. 11 Case 1:17-cv-02707 Document 1 Filed 12/19/17 Page 12 of 17 68. Plaintiff American Oversight is therefore entitled to injunctive and declaratory relief requiring DOD, Air Force, and Navy to promptly make reasonable efforts to search for records responsive to the Generals FOIA. COUNT IV Violation of FOIA, 5 U.S.C. § 552 Wrongful Withholding of Non-Exempt Records Responsive to the Generals FOIA by DOD, Air Force, and Navy 69. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 70. American Oversight properly requested records within the possession, custody, and control of DOD, Air Force, and Navy. 71. DOD, Air Force, and Navy are an agency and components thereof 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. 72. DOD, Air Force, and Navy are wrongfully withholding agency records requested by American Oversight by failing to produce records responsive to its Generals FOIA. 73. DOD’s, Air Force’s, and Navy’s failure to provide all records responsive to the Generals FOIA violates FOIA. 74. Plaintiff American Oversight is therefore entitled to injunctive and declaratory relief requiring DOD, Air Force, and Navy to promptly produce all non-exempt records responsive to the Generals FOIA and provide indexes justifying the withholding of any responsive records withheld under claim of exemption. 12 Case 1:17-cv-02707 Document 1 Filed 12/19/17 Page 13 of 17 COUNT V Violation of FOIA, 5 U.S.C. § 552 Failure to Grant Expedited Processing of the All Advice FOIA and the Tweet FOIA by DOD, Air Force, and Army 75. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 76. American Oversight properly requested records within the possession, custody, and control of DOD, Air Force, and Army on an expedited basis. 77. DOD, Air Force, and Army are an agency and components thereof subject to FOIA and must process FOIA requests on an expedited basis pursuant to the requirements of FOIA and Defendants’ regulations. 78. The records sought relate to an activity of the federal government about which there is an urgent need to inform the public, and American Oversight is primarily engaged in disseminating information to the public; therefore, the All Advice FOIA and the Tweet FOIA justified expedited processing under FOIA and Defendants’ regulations. 79. DOD, Air Force, and Army failed to make a decision as to whether expedited processing was appropriate and notify American Oversight of any such decision within ten days after the date of the requests. 80. The failure of DOD, Air Force, and Army to grant expedited processing of the All Advice FOIA and the Tweet FOIA violates FOIA and Defendants’ regulations. 81. Plaintiff American Oversight is therefore entitled to injunctive and declaratory relief requiring DOD, Air Force, and Army to grant expedited processing of the All Advice FOIA and the Tweet FOIA. 13 Case 1:17-cv-02707 Document 1 Filed 12/19/17 Page 14 of 17 COUNT VI Violation of FOIA, 5 U.S.C. § 552 Wrongful Denial of Expedited Processing of the All Advice FOIA and the Tweet FOIA by Navy 82. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 83. American Oversight properly requested records within the possession, custody, and control of Navy, a component of DOD, on an expedited basis. 84. DOD is an agency subject to FOIA, and its component Navy must process FOIA requests on an expedited basis pursuant to the requirements of FOIA and Defendants’ regulations. 85. The records sought relate to an activity of the federal government about which there is an urgent need to inform the public, and American Oversight is primarily engaged in disseminating information to the public; therefore, the All Advice FOIA and the Tweet FOIA justified expedited processing under FOIA and Defendants’ regulations. 86. Navy wrongfully denied expedited processing of the All Advice FOIA and the Tweet FOIA. 87. Navy’s failure to grant expedited processing of the All Advice FOIA and the Tweet FOIA violated FOIA and Defendants’ regulations. 88. Plaintiff American Oversight is therefore entitled to declaratory and injunctive relief requiring Navy to grant expedited processing of the All Advice FOIA and the Tweet FOIA. 14 Case 1:17-cv-02707 Document 1 Filed 12/19/17 Page 15 of 17 COUNT VII Violation of FOIA, 5 U.S.C. § 552 Failure to Conduct Adequate Search for Records Responsive to the All Advice FOIA and the Tweet FOIA 89. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 90. American Oversight properly requested records within the possession, custody, and control of the Defendants. 91. Defendants are an agency and components thereof subject to FOIA and must therefore make reasonable efforts to search for requested records. 92. Defendants have failed to promptly review agency records for the purpose of locating those records which are responsive to the All Advice FOIA and the Tweet FOIA. 93. Defendants’ failure to conduct an adequate search for records responsive to the All Advice FOIA and the Tweet FOIA violates FOIA. 94. Plaintiff American Oversight is therefore entitled to injunctive and declaratory relief requiring Defendants to promptly make reasonable efforts to search for records responsive to the All Advice FOIA and the Tweet FOIA. COUNT VIII Violation of FOIA, 5 U.S.C. § 552 Wrongful Withholding of Non-Exempt Records Responsive to the All Advice FOIA and the Tweet FOIA 95. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 96. American Oversight properly requested records within the possession, custody, and control of the Defendants. 15 Case 1:17-cv-02707 Document 1 Filed 12/19/17 Page 16 of 17 97. Defendants are an agency and components thereof 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. 98. Defendants are wrongfully withholding agency records requested by American Oversight by failing to produce records responsive to its All Advice FOIA and the Tweet FOIA. 99. Defendants’ failure to provide all records responsive to the All Advice FOIA and the Tweet FOIA violates FOIA. 100. Plaintiff American Oversight is therefore entitled to injunctive and declaratory relief requiring Defendants to promptly produce all non-exempt records responsive to the All Advice FOIA and the Tweet FOIA 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 Defendants to expedite the processing of American Oversight’s FOIA requests identified in this Complaint; (2) Order Defendants to conduct a search reasonably calculated to uncover all records responsive to American Oversight’s FOIA requests identified in this Complaint; (3) Order Defendants to produce, by such a 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; (4) Enjoin Defendants from continuing to withhold any and all non-exempt records responsive to American Oversight’s FOIA requests; 16 Case 1:17-cv-02707 Document 1 Filed 12/19/17 Page 17 of 17 (5) Award American Oversight attorneys’ fees and other litigation costs reasonably incurred in this action, pursuant to 5 U.S.C. § 552(a)(4)(E); and (6) Grant American Oversight such other relief as the Court deems just and proper. Dated: December 19, 2017 Respectfully submitted, /s/ Cerissa Cafasso Cerissa Cafasso D.C. Bar No. 1011003 /s/ John E. Bies John E. Bies D.C. Bar No. 483730 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 869-5244 cerissa.cafasso@americanoversight.org john.bies@americanoversight.org Counsel for Plaintiff 17 Case 1:17-cv-02707 Document 1-1 Filed 12/19/17 Page 1 of 10 Exhibit A Case 1:17-cv-02707 Document 1-1 Filed 12/19/17 Page 2 of 10 July 28, 2017 VIA ELECTRONIC MAIL Stephanie Carr OSD/JS FOIA Requester Service Center Office of Freedom of Information U.S. Department of Defense 1155 Defense Pentagon Washington, DC 20301-1155 whs.mc-alex.esd.mbx.osd-js-foia-requesterservice-center@mail.mil Alecia Bolling Freedom of Information Act Office Suite 144 7701 Telegraph Road, Room 150 Alexandria, VA 22315-3905 usarmy.belvoir.hqda-oaa-aha.mbx.rmdafoia@mail.mil JoAnne Collins SAF/AAII (FOIA) 1000 Air Force Pentagon Washington, DC 20330-1000 usaf.pentagon.saf-cio-a6.mbx.affoia@mail.mil Robin Patterson FOIA Contact, Chief of Naval Operations DNS-36 2000 Navy Pentagon Washington, DC 20350-2000 DONFOIA-PA@navy.mil Re: Expedited Freedom of Information Act Request Dear Freedom of Information Act Officers: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq. and the implementing regulations of the Department of Defense (DOD), 32 C.F.R. Part 286, American Oversight makes the following request for records. On Wednesday, July 26, 2017, President Trump announced over the course of three tweets that transgender persons are no longer permitted to serve “in any capacity” in the U.S. military. Reports promptly emerged that the decision was politically motivated. First, DOD officials said 1 1 Donald J. Trump (@realDonaldTrump), TWITTER (July 26, 2017, 8:55 AM), https://twitter.com/realDonaldTrump/status/890193981585444864 (“After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow......”); Donald J. Trump (@realDonaldTrump), TWITTER (July 26, 2017, 9:04 AM), https://twitter.com/realDonaldTrump/status/890196164313833472 (“....Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming....”); Donald J. Trump (@realDonaldTrump), TWITTER (July 26, 2017, 9:08 AM), https://twitter.com/realDonaldTrump/status/890197095151546369 (“....victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you”). 1030 15th Street NW, Suite B255, Washington, DC 20005 AmericanOversight.org Case 1:17-cv-02707 Document 1-1 Filed 12/19/17 Page 3 of 10 2 they were unaware of the president’s announcement until they saw his tweets, further evidenced by DOD’s transgender non-discrimination policy still being on the agency’s website. Second, and more directly, administration sources indicated that the announcement was politically motivated to target Democratic politicians in the Rust Belt. American Oversight submits this FOIA request to shed light on whether and to what extent DOD officials were involved in this change in DOD personnel policy. 3 4 Requested Records American Oversight requests that DOD produce the following within twenty business days: 1. Any analysis or recommendations from any general, admiral, or military expert provided to the White House regarding DOD’s policy regarding the service of transgender individuals in the U.S. military from any DOD personnel in the following offices: a. the Office of the Secretary of Defense, including the secretary, chief of staff, deputy secretary, and the assistant to the secretary of defense for public affairs; b. the Office of the Joint Chiefs of Staff; c. the Office of the Secretary of the Air Force; d. the Office of the Secretary of the Army; e. the Office of the Secretary of the Navy; or f. the Office of the Under Secretary of Defense for Personnel & Readiness; or g. the Office of the Assistant Secretary of Defense for Manpower & Reserve Affairs; h. the Office of the Assistant Secretary of Defense for Health Affairs; or i. the Office of the General Counsel of the Department of Defense. Please provide all responsive records from January 20, 2017, through 8:55 AM EDT on July 26, 2017. In addition to the records requested above, American Oversight also requests records describing the processing of this request, including records sufficient to identify search terms used and locations and custodians searched and any tracking sheets used to track the processing of this request. If DOD uses FOIA questionnaires or certifications completed by individual custodians or components to determine whether they possess responsive materials or to describe how they See Rebecca Ballhaus, Trump Administration to Bar Transgender Individuals from Serving in U.S. Military, WALL ST. J. (July 26, 2017, 11:35 AM), https://www.wsj.com/articles/trumpadministration-to-ban-transgender-individuals-from-serving-in-u-s-military-1501075174. See Asawin Suebsaeng, Trump Bows to Religious Right, Bans Trans Troops, DAILY BEAST (July 26, 2017, 12:33 PM), http://www.thedailybeast.com/trump-bows-to-religious-right-bans-transtroops. See Jonathan Swan (@jonathanvswan), TWITTER (July 26, 2017, 9:30 AM), https://twitter.com/jonathanvswan/status/890202683721863168. 2 3 4 2 DOD-17-0301 Case 1:17-cv-02707 Document 1-1 Filed 12/19/17 Page 4 of 10 conducted searches, we also request any such records prepared in connection with the processing of this request. American Oversight seeks all responsive records regardless of format, medium, or physical characteristics. In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions. Our request includes any attachments to these records. No category of material should be omitted from search, collection, and production. Please search all records regarding agency business. You may not exclude searches of files or emails in the personal custody of your officials, such as personal email accounts. Records of official business conducted using unofficial systems or stored outside of official files is subject to the Federal Records Act and FOIA. It is not adequate to rely on policies and procedures that require officials to move such information to official systems within a certain period of time; American Oversight has a right to records contained in those files even if material has not yet been moved to official systems or if officials have, through negligence or willfulness, failed to meet their obligations. 5 6 Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure, withholding information “only if . . . disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.” If it is your position that any portion of the requested records is exempt from disclosure, American Oversight requests that you provide an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). As you are aware, a Vaughn index must describe each document claimed as exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is actually exempt under FOIA.” Moreover, the Vaughn index “must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing 7 8 See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149—50 (D.C. Cir. 2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955—56 (D.C. Cir. 2016). See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8 (D.D.C. Dec. 12, 2016) (“The Government argues that because the agency had a policy requiring [the official] to forward all of his emails from his [personal] account to his business email, the [personal] account only contains duplicate agency records at best. Therefore, the Government claims that any hypothetical deletion of the [personal account] emails would still leave a copy of those records intact in [the official’s] work email. However, policies are rarely followed to perfection by anyone. At this stage of the case, the Court cannot assume that each and every work related email in the [personal] account was duplicated in [the official’s] work email account.” (citations omitted)). FOIA Improvement Act of 2016 § 2 (Pub. L. No. 114–185). Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). 5 6 7 8 3 DOD-17-0301 Case 1:17-cv-02707 Document 1-1 Filed 12/19/17 Page 5 of 10 9 the sought-after information.” Further, “the withholding agency must supply ‘a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.’” 10 In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document. Claims of nonsegregability must be made with the same degree of detail as required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release. 11 You should institute a preservation hold on information responsive to this request. American Oversight intends to pursue all legal avenues to enforce its right of access under FOIA, including litigation if necessary. Accordingly, DOD is on notice that litigation is reasonably foreseeable. To ensure that this request is properly construed, that searches are conducted in an adequate but efficient manner, and that extraneous costs are not incurred, American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and DOD can decrease the likelihood of costly and time-consuming litigation in the future. Where possible, please provide responsive material in electronic format by email or in PDF or TIF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15 Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on rolling basis. th Fee Waiver Request In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 32 C.F.R. § 286.12(l)(1), American Oversight requests a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government, and the disclosures will likely contribute to public understanding of those operations. Moreover, the request is primarily and fundamentally for non-commercial purposes. American Oversight requests a waiver of fees because “disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of” King v. U.S. Dep’t of Justice, 830 F.2d 210, 223–24 (D.C. Cir. 1987) (emphasis in original). Id. at 224 (citing Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). Mead Data Central, 566 F.2d at 261. 9 10 11 4 DOD-17-0301 Case 1:17-cv-02707 Document 1-1 Filed 12/19/17 Page 6 of 10 12 government operations. On July 26, 2017, President Trump announced a reversal of DOD personnel policy and reinstated a ban on transgender individuals serving “in any capacity” in the U.S. military. The implementation of a DOD personnel practice is a government activity, and the records responsive to this request would shed light on how the White House made the decision to discriminate against thousands of service members. The subject of this request is already of demonstrated public interest, and, as discussed further below, American Oversight has both the ability and the intention to effectively convey the information it receives to the public. 13 14 15 This request is primarily and fundamentally for non-commercial purposes. As a 501(c)(3) nonprofit, American Oversight does not have a commercial purpose and the release of the information requested is not in American Oversight’s financial interest. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on our public website and promote their availability on social media platforms, such as Facebook and Twitter. American Oversight has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, after receiving records regarding an ethics waiver received by a senior DOJ attorney, American Oversight promptly posted the records to its website and published an analysis of what the records reflected about DOJ’s process for ethics waivers. Additionally, American Oversight has a project called “Audit the Wall,” where the organization is gathering and analyzing information and commenting on public releases of information related to the administration’s proposed construction of a barrier along the U.S.Mexico border. 16 17 18 19 Accordingly, American Oversight qualifies for a fee waiver. 12 32 C.F.R. § 286.12(l)(1); 32 C.F.R. § 286.12(l)(2)(i)-(ii). See supra note 1. See Ballhaus, supra note 2; Suebsaeng, supra note 3; Swan, supra note 4. 32 C.F.R. § 286.12(l)(1); 32 C.F.R. § 286.12(l)(2)(iii)(A)-(B). American Oversight currently has approximately 11,200 page likes on Facebook, and 33,500 followers on Twitter. American Oversight, FACEBOOK, https://www.facebook.com/weareoversight/ (last visited July 28, 2017); American Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited July 28, 2017). Vetting the Nominees: Solicitor General Nominee Noel Francisco, AMERICAN OVERSIGHT, https://www.americanoversight.org/our-actions/vetting-nominees-solicitor-general-nominee-noelfrancisco. Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN OVERSIGHT, https://www.americanoversight.org/news/francisco-travel-ban-learned-doj-documents. Audit the Wall, AMERICAN OVERSIGHT, www.auditthewall.org. 13 14 15 16 17 18 19 5 DOD-17-0301 Case 1:17-cv-02707 Document 1-1 Filed 12/19/17 Page 7 of 10 Application for Expedited Processing Pursuant to 5 U.S.C. § 552(a)(6)(E) and 32 C.F.R. § 286.8(e), American Oversight requests that DOD expedite the processing of this request. I certify to be true and correct to the best of my knowledge and belief, that there is an urgent need to inform the public about the federal government activity that is the subject of this request. Media reports indicate that DOD was caught completely off-guard by the president’s announcement this morning. Moreover, even several hours after the president’s tweets, DOD’s website promoting its policy of non-discrimination toward transgender service members was still up. This kind of inconsistency calls into question the thoroughness of the deliberations leading to this decision and whether the impact of the decision on the thousands of transgender individuals currently serving in the U.S. military was fully considered. There is an urgency for those individuals and the American public as a whole to have access to the requested records so they can participate in an informed manner in the immediate debate that resulted from the president’s announcement. The 20 21 22 See Ballhaus, supra note 2; Julie Hirschfeld Davis & Helene Cooper, Trump Says Transgender People Will Not Be Allowed in the Military, N.Y. TIMES, July 26, 2017, https://www.nytimes.com/2017/07/26/us/politics/trump-transgender-military.html; Suebsaeng, supra note 3. See Suebsaeng, supra note 3. See Bill Bartel, Trump’s Ban on Transgender People in Military Draws Scorn of Three Virginia Lawmakers, THE VIRGINIAN-PILOT, July 26, 2017, https://pilotonline.com/news/government/nation/trump-s-ban-on-transgender-people-in-militarydraws-ire/article_dc0c2f1e-3691-5209-b24a-11b564d7cba4.html; Trump Bans Transgender People from Military, CBS ST. LOUIS (July 26, 2017, 8:34 AM), http://stlouis.cbslocal.com/2017/07/26/breaking-trump-bans-transgender-people-from-military/; Jeremy Diamond, Trump to Reinstate US Military Ban on Transgender People, CNNPOLITICS (July 26, 2017, 11:18 AM), http://www.cnn.com/2017/07/26/politics/trump-militarytransgender/index.html; Trump Turns Back on LGBT Community with Transgender Military Ban Tweets, FAST COMPANY (July 26, 2017, 9:39 AM), https://news.fastcompany.com/trumpturns-back-on-lgbt-community-with-transgender-military-ban-tweets-4045340; W.J. Hennigan, Trump Bars Transgender People from Serving ‘in Any Capacity’ in the U.S. Military, L.A. TIMES (July 26, 2017, 7:58 AM), http://www.latimes.com/politics/washington/la-na-essential-washingtonupdates-trump-transgender-people-will-not-be-1501074883-htmlstory.html; Patrick May & Tracy Seipel, Trump Bans Transgender People in Military; Bay Area Outraged, THE MERCURY NEWS (July 26, 2017, 10:57 AM), http://www.mercurynews.com/2017/07/26/trump-bans-transgenders-inmilitary-bay-area-outraged/; Chris Morris, Ivanka Said She Was ‘Proud to Support’ LGBT Americans. Her Dad Just Banned Them from the Military, FORTUNE (July 26, 2017, 10:37 AM), http://fortune.com/2017/07/26/donald-trump-ivanka-transgender-united-states-armed-forces/; Abby Phillip et al., Trump Announces Ban on Transgender People in the U.S. Military, WASH. POST (July 26, 2017, 10:57 AM), https://www.washingtonpost.com/news/postpolitics/wp/2017/07/26/trump-announces-ban-on-transgender-people-in-u-smilitary/?utm_term=.6efe0eb41a03; David Remnick, The Cruelty and Cynicism of Trump’s 20 21 22 6 DOD-17-0301 Case 1:17-cv-02707 Document 1-1 Filed 12/19/17 Page 8 of 10 requested records will inform the public about the president’s sudden decision to re-implement a discriminatory employment policy and the level of participation by the DOD in the White House’s announcement. The information American Oversight seeks concerns “a matter of a current exigency to the American public.” The continued, widespread coverage of the policy change indicates Mr. Trump’s announcement concerns a policy of public concern and it has not been well received by Congress, cisgender veterans, or members of the American public. Information regarding DOD’s role in this policy decision will inform the public on a matter of public concern, and will provide insight that can inform the public’s participation in the currently ongoing debate regarding the proposed policy and its implementation by the military branches. In fact, as DOD’s decision to 23 24 25 26 Transgender Ban, THE NEW YORKER (July 26, 2017, 12:43 PM), http://www.newyorker.com/news/news-desk/the-cruelty-and-cynicism-of-trumps-transgendermilitary-ban; Carter Blasts Trump’s Ban on Transgender, Says ‘Social Policy,’ REUTERS (July 26, 2017, 11:52 AM), http://www.reuters.com/article/us-usa-military-transgender-carteridUSKBN1AB27E?il=0; Mark Joseph Stern, In a Stunningly Cruel and Unjustified Move, Trump Bans Transgender Military Service, SLATE (July 26, 2017, 10:42 AM), http://www.slate.com/blogs/outward/2017/07/26/trump_bans_transgender_military_service_via_twi tter.html. Al-Fayed v. Cent. Intelligence Agency, 254 F.3d 300, 310 (D.C. Cir. 2001) (quoting H.R. Rep. No. 104-795, at 26 (1996), reprinted in 1996 U.S.C.C.A.N. 3448, 3469). See Jessica Estepa, Sen. Orrin Hatch: ‘Transgender People Are People and Deserve the Best We Can Do for Them,’ USA TODAY (July 26, 2017, 12:06 PM), https://www.usatoday.com/story/news/politics/onpolitics/2017/07/26/sen-orrin-hatch-transgenderpeople-people-and-deserve-best-we-can-do-them/512333001/; Kyle Stewart, Veterans in Congress Criticize Trump’s Military Transgender Ban, ROLL CALL (July 26, 2017, 5:56 PM), http://www.rollcall.com/news/politics/veterans-congress-transgender-trump. See John Kirby & Mark Hertling, Trump’s Transgender Tweets Are an Affront to the AllVolunteer Military, CNN (July 26, 2017, 8:26 PM), http://www.cnn.com/2017/07/26/opinions/trump-trans-military-opinion-hertling-kirby/index.html. See Sasha Buchert, Trump Cannot Hold Back Progress with a Tweet: Transgender Veteran, USA TODAY (July 27, 2017, 12:53 PM), https://www.usatoday.com/story/opinion/2017/07/27/trumps-transgender-ban-cannot-stamp-outprogress-sasha-buchert-column/514785001/; Jonathan Capehart, Let Me Thank Trump for His Tweets About Transgender Personnel, WASH. POST (July 27, 2017, 12:44 PM), https://www.washingtonpost.com/blogs/post-partisan/wp/2017/07/27/let-me-thank-trump-for-histweets-about-transgender-personnel/?utm_term=.032015b22e24; Daniel Hamburg, Local Reaction to President Trump’s Transgender Military Ban, 6 WJAC, July 27, 2017, http://wjactv.com/news/local/local-reaction-to-president-trumps-transgender-military-ban-07-272017; Ruth Kimata, Cheyenne Residents React to President Trump’s Transgender Military Ban, KGWN-TV (July 26, 2017, 6:12 PM), http://www.kgwn.tv/content/news/Cheyenne-residents-reactto-President--436837793.html. 23 24 25 26 7 DOD-17-0301 Case 1:17-cv-02707 Document 1-1 Filed 12/19/17 Page 9 of 10 27 withhold implementation indicates, the subject of this request concerns a currently unfolding story that has significant implications for the American people, including the thousands of transgender service members. Expedition is appropriate because a delayed response would deprive the public an opportunity to participate in this currently ongoing debate in a fully informed manner. I further certify that American Oversight is primarily engaged in disseminating information to the public. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. Similar to other organizations that have been found to satisfy the criteria necessary to qualify for expedition, American Oversight “‘gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an audience.’” American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, and other media. American Oversight also makes materials it gathers available on its public website and promote their availability on social media platforms, such as Facebook and Twitter. American Oversight has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, after receiving records regarding an ethics waiver received by a senior DOJ attorney, American Oversight promptly posted the records to its website and published an analysis of what the records reflected about DOJ’s process for ethics waivers. Additionally, American Oversight has a project called “Audit the Wall,” where the organization is gathering and analyzing information and commenting on public releases of information related to the administration’s proposed construction of a barrier along the U.S.-Mexico border. 28 29 30 31 32 33 Accordingly, American Oversight’s request satisfies the criteria for expedition. See Courtney Kube & Andrew Rafferty, Joint Chiefs: No Transgender Policy Changes Until Trump Clarifies Tweets, NBC NEWS (July 27, 2017, 11:37 AM), http://www.nbcnews.com/politics/national-security/joint-chiefs-no-transgender-policy-changes-untiltrump-clarifies-tweets-n787076; Barbara Starr et al., US Joint Chiefs Blindsided by Trump’s Transgender Ban, CNNPOLITICS (July 27, 2017, 1:53 PM), http://www.cnn.com/2017/07/27/politics/trump-military-transgender-ban-joint-chiefs/index.html. See ACLU v. U.S. Dep’t of Justice, 321 F. Supp. 2d 24, 30—31 (D.D.C. 2004); EPIC v. Dep’t of Defense, 241 F. Supp. 2d 5, 15 (D.D.C. 2003). ACLU, 321 F. Supp. 2d at 29 n.5 (quoting EPIC, 241 F. Supp. 2d at 11). American Oversight currently has approximately 11,200 page likes on Facebook, and 33,500 followers on Twitter. American Oversight, FACEBOOK, https://www.facebook.com/weareoversight/ (last visited July 28, 2017); American Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited July 28, 2017). Vetting the Nominees: Solicitor General Nominee Noel Francisco, AMERICAN OVERSIGHT, https://www.americanoversight.org/our-actions/vetting-nominees-solicitor-general-nominee-noelfrancisco. Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN OVERSIGHT, https://www.americanoversight.org/news/francisco-travel-ban-learned-doj-documents. Audit the Wall, AMERICAN OVERSIGHT, www.auditthewall.org. 27 28 29 30 31 32 33 8 DOD-17-0301 Case 1:17-cv-02707 Document 1-1 Filed 12/19/17 Page 10 of 10 Conclusion We share a common mission to promote transparency in government. American Oversight looks forward to working with DOD on this request. If you do not understand any part of this request, have any questions, or foresee any problems in fully releasing the requested records, please contact Cerissa Cafasso at foia@americanoversight.org or (202) 869-5246. Also, if American Oversight’s request for a fee waiver is not granted in full, please contact us immediately upon making such a determination. Sincerely, Austin R. Evers Executive Director American Oversight 9 DOD-17-0301 Case 1:17-cv-02707 Document 1-2 Filed 12/19/17 Page 1 of 12 Exhibit Case 1:17-cv-02707 Document 1-2 Filed 12/19/17 Page 2 of 12 DEPARTMENT OF DEFENSE OFFICE OF FREEDOM OF INFORMATION 1155 DEFENSE PENTAGON WASHINGTON, DC 20301-1155 Ms. Cerissa Cafasso American Oversight 1030 15?h Street. NW Suite [3255 Washington. DC 20005 Dear Ms. afasso: This is an interim response to your July 28. 2017. Freedom of Information Act (FOIA) request. a copy of which is enclosed for your convenience. We received your request on the same day it was submitted. and assigned it case number l7-F-l 385. We ask that you use this number when referring to your request. Expedited processing may be granted when the requester demonstrates a compelling need for the information and shows that the information has a particular value that would be lost if not processed on an expedited basis. A key word here is "demonstrates." Therefore. it is incumbent upon you to demonstrate that the requested records will serve an urgency purpose and that they will also be meaningful in the sense that they will provide a greater understanding of actual or alleged federal govemment activity on the part of the public-at-large than that which existed before such information was disseminated. Consequently. it must be clearly demonstrated that such information has a particular value that will be lost ifnot disseminated quickly. After carefully considering your request. this office finds that you have not clearly demonstrated how the information will lose its value if not processed on an expedited basis. For this reason, your request for expedited processing is denied. Although we have already begun processing your request. we will not be able to respond within the 20-day statutory time period as there are unusual circumstances which impact our ability to quickly process your request. The defines unusual circumstances as the need to search for and collect records from a facility geographically separated from this of?ce; the potential volume of records responsive to your request: and the need for consultation with one or more other agencies or components having a substantial interest in either the determination or the subject matter ofthe records. At least one. if not more ofthese scenarios applies or would likely apply to your request. While this office handles FOIA requests for the Office of the Secretary of Defense (OSD), the Joint Staff (J S) and other component offices, we do not actually hold their records and our office is not geographically located with these organizations. As we do not hold the records. until the required records searches are complete. we are unable to estimate the potential volume of records or the number of consultations that will be required to make a release determination. Case 1:17-cv-02707 Document 1-2 Filed 12/19/17 Page 3 of 12 Your request has been placed in our complex processing queue and is being worked based on the order in which the request was received. Our current administrative workload is approximately 2,500 open requests. In some instances, we have found that requesters who narrow the scope of their requests experience a reduction in the time needed to process their requests. If you have any questions or wish to discuss the reformulation of your request or an alternative time frame for the processing of your request, you may contact me, the Action Of?cer assigned to case number 17-F-1080, at megan.b.farre112.civ@mail.mil or 571-372-0409. The FOIA Public Liaison, Jim Hogan, is available at 571-372-0462 or by email at OSD.FOIALiaison@mail.mil to answer any concerns about the foregoing. Additionally, you may contact the Of?ce of Government information Services (OGIS) at the National Archives and Records Administration to inquire about the OIA mediation services they offer. The contact information for OGIS is as follows: Of?ce of Government Information Services National Archives and Records Administration 8601 Adelphi College Park, MD 20740 E-mail: ogis@nara.gov Telephone: 202-741-5770 Fax: 202-74 -5 769 Toll-free: 1-877-684-6448 You have the right to appeal to the appellate authority, Ms. Joo Chung, Director of Oversight and Compliance, Of?ce of the Secretary of Defense, by writing directly to ODCMO Directorate for Oversight and Compliance, 4800 Mark Center Drive, ATTN: FOIA Appeals, Mailbox# 24, Alexandria, VA 22350-1700. Your appeal must be postmarked within 90 calendar days of the date of this response. Alternatively, you may use the OSD FOIA request portal at or email your appeal to OSD.FOIA- APPEAL@mail.mil. If you use email, please include the words Appeal" in the subject of the email. Please also reference case number l7-F-l 385 in any appeal correspondence. We regret the delay in responding to your request and appreciate your patience. Sincerely, l, MM Case 1:17-cv-02707 Document 1-2 Filed 12/19/17 Page 4 of 12 AMERICAN VIA ELECTRONIC MAIL Stephanie Carr FOIA Requester Sen'iee Center Ollice of Freedom of Information l')epartment of Defense 1155 Defense Pentagon \Vashington, DC 20301-1 155 sen'ice-cciiler'? mailanil ?loAnne Collins (H 1000 Air Force Pentagon \Vashington. DC 20330-1000 July 28, 2017 Alecia Bolling Freedom of Information Act Office Suite M4 7701 'l?elegraph Road. Room 150 Alexandria, VA 22315-3905 loia?tbmailanil Rohin l?atterson FOIA Contact, Chiefof Naval Operations DNS-36 2000 Naxy Pentagon Washington. DC 20350-2000 Re: Expedited Freedom of Information Act Request Dear Freedom of Information Act Ollicers: Pursuant to the Freedom ofInforimition Act 5 11.8.(1. 552 el seq. and the implementing regulations ofthe Department of Defense (DOD), 32 (7.19.11. Part 286. American Oversight makes the following request for records. \Vednesday,July 26, 2017, President 'l?mmp announced over the course ofthree tweets that transgender persons are no longer permitted to SCITC ?in any capacity" in the US. military.? Reports emerged that the decision was politically motivated. First. DOD officials said Donald]. Trump (Inly 26, 2017, 8:55 AM), l/l- 186-1- (?After consultation with my Generals and military experts, please be advised that the United States Government will not accept. or allow Donald J. Trump (Iuly 26, 2017, 9:04 AM), individuals to in any capacity in the 11.8. Military. Our military must he focused on decisive and Domde. (Inly 26, 2017, 9:08 AM), and cannot be burdened with the tremendous medical costs and disruption that tr;uisgender in the military would entail. Thank you"). 1030 15th Street NW, Suite 8255, Washington, DC 20005 AmericanOversight.org Case 1:17-cv-02707 Document 1-2 Filed 12/19/17 Page 5 of 12 they were unaware of the president?s announcement until they saw his tweets,? further evidenced by transgender non-discrimination policy still being on the agency?s website.a Second, and more directly, administration sources indicated that the announcement was politically motivated to target Democratic politicians in the Rust Belt.? American Oversight submits this FOIA request to shed light on whether and to what extent DOD officials were involved in this change in DOD personnel policy. Requested Records American Oversight requests that DOD produce the following within twenty business days: 1. Any analysis or recommendations from any general, admiral, or military expert provided to the White House regarding policy regarding the service of transgender individuals in the US. military from any DOD personnel in the following of?ces: a. the Ollicc of the Secretary of Defense, including the secretary, chief of stall, deputy secretary, and the assistant to the secretary of defense for public alfairs; . the Ollice of the I oint Chiefs ofStall} c. the Ollicc of the Secretary of the Air Force; (1. the Ollice of the Secretary of the Army; e. the Ollice of the Secretary of the Navy; or f. the Ollice of the Under Secretary of Defense for Personnel Readiness; or the Office of the Assistant Secretary of Defense for Manpower Reserve Allairs; h. the Ollice of the Assistant Secretary of Defense for Health Affairs; or i. the Ollice of the General Counsel of the Department of Defense. Please provide all responsive records from January 20, 2017, through 8:55 AM EDT on July ?26, 2017. In addition to the records requested above, American Oversight also requests records describing the processing of this request, including records sullicient to identify search terms used and locations and custodians searched zuid any tracking sheets used to track the processing of this request. If DOD uses FOIA questionnaires or certifications completed by individual custodians or components to determine whether they possess responsive materials or to describe how they Sec Rebecca Ballhaus, Trump Admmistration to Bar ?mtsgender Individuals from Semhg in US. IVIilz't?ary, WALL STJ. (Iuly 26, 2017, 11:35 AM), Sec Asawin Suebsaeng, Trump Bows to Religious Right, Bans Trans Troops, DAILY BEAST (July 26, 2017, 12:33 PM), troops. SceJonathan Swan (@jonathzuwswan), TWITTER (Iuly 26, 2017, 9:30 AM), 2 DOD-17.0301 Case 1:17-cv-02707 Document 1-2 Filed 12/19/17 Page 6 of 12 conducted searches, we also request any such records prepared in connection witlr the processing 01? this request. American Oversight seeks all responsive records regardless of format, medium, or physical characteristics. In conducting your search, please understand the terms ?record," ?document,? and ?inlormatiorr? in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes 01' any meetings, telephone conversations or discussions. Our request includes any attaclnnents to these records. No category of material should be omitted from search, collection, and production. Please search all records regarding agency business. You may not exclude searches of ?les or emails in the personal custody of your of?cials, such as personal email accounts. Records of otlicial business conducted rising unollicial systems or stored outside ol'ollicial tiles is subject to the Federal Records Act and It is not adequate to rely on policies and procedures that require officials to move such information to of?cial systems within a certain period of time; American Oversight has a right to records contained in those ?les even if material has not yet been moved to official systems or if o?icials have, through negligence or willfulness, failed to meet their obligations.? Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure, withholding information ?only if. . . disclosure would harm an interest protected by an exemption? or ?disclosure is prohibited by law.?7 11' it is your position that any portion of the requested records is exempt from disclosure, American Oversight requests that you provide an index ol'those documents as required under Vaughn v. Rose?, 484 F.2d 820 (DC. Cir. 1973), cert. denied, 415 1.1.5. 977 (1974). As you are aware, a Vaughn index must describe each document claimed as exempt with sullicient speci?city ?to permit a reasoned judgment as to whether the material is actually exempt under Moreover, the Vaughn index ?must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing 5 See Competitive Enter. Inst. v. OlIicc ol'Sci. Tech. Policy, 827 F.3d 146, 149?50 Cir. 2016); Judicial Watch, Inc. Kerry, 844 F.3d 952, 955?56 (DC. Cir. 2016). See Competitive Enter. Inst. v. ()lh'ce 01?5ch Tech. Policy, No. l/l-cv-765, slip 0p. at 8 (D.D.C. Dec. 12, 2016) (?The Government argues that because the agency had a policy requiring [the ollicial] to lorward all ol?lris emails from his Ipersonall account to his business email, the [personal] account only contains duplicate agency records at best. Therefore, the Government claims that any hypothetical deletion of the [personal account] emails would still leave a copy of those records intact in [the ollicial?s] work email. However, policies are rarely followed to perfection by anyone. At this stage of the case, the Court cannot assume that each and every work related email in the Ipersonall account was duplicated in [the ollicial?sl work email account." (citations omitted?. FOLK Improvement Act of 2016 2 (Pub. L. No. 114-185). Founding Church oI'Scr'entology v. Bell, 603 F.2d 945, 949 (DC. Cir. 1979). DOD- 1 7-030! Case 1:17-cv-02707 Document 1-2 Filed 12/19/17 Page 7 of 12 the sought-after information.?1 Further, ?the withholding agency must supply ?a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part ofa withheld document to which they apply.""? In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document.? Claims ofnonsegregability must be made with the same degree of detail as required for claims ofexemptions in a Vang/tn index. Ifa request is denied in whole, please state speci?cally that it is not reasonable to segregate portions of the record for release. You should institute a preservation hold on information responsive to this request. American Oversight intends to pursue all legal avenues to enforce its right of access under FOIA, including litigation ifnecessaiy. Accordingly, DOD is on notice that litigation is reasonably foreseeable. To ensure that this request is properly construed, that searches are conducted in an adequate but ellicient manner, and that extraneous costs are not incurred, Ameiican Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and DOD can decrease the likelihood of costly and time-consuming litigation in the future. Where possible, please provide responsive material in electronic format by email or in l?Dl? or fonnat on a 17813 drive. Please send any responsive material being sent by mail to American Oversight, 1030 Street XXV, Suite 13255, \Vashington, DC 20005. Ifit will accelerate release of responsive records to American Oversight, please also provide responsive material on rolling basis. Fee Waiver Request In accordance with 5 U.S.C. and 32 American Oversight requests a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government, and the disclosures will likely conuibute to public understanding ofthose operations. .Vloreover. the request is primarily and fundamentally for non-commercial purposes. American Oversight requests a waiver of fees because ?disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of? King I Dept oil/usu?cc, 830 F.2d 210, 223-24 (DC. Cir. 1987) (emphasis in original). ?0 at 22-1- (citing il?lead Data Central, Inc. v. I 1.5. Dep?t ol'tlie Air Force, 566 F.2d 211-2, 251 (DC. Cir. 1977)). il/Icad Data Central, 566 F.2d at 261. Case 1:17-cv-02707 Document 1-2 Filed 12/19/17 Page 8 of 12 government operations." OnJuly 26, 2017, President Trump announced a reversal personnel policy and reinstated a ban on transgender individuals serving ?in any capacity? in the U.S. military." The implementation ofa DOD personnel practice is a government activity, and the records responsive to this request would shed light on how the White House made the decision to discriminate against thousands of service members. The subject of this request is already of demonstrated public interest,? and, as discussed further below, American Oversight has both the ability and the intention to echctively convey the information it receives to the public. This request is primarily and fundamentally for non-commercial purposes.? As a 501 (3) nonprofit, American Oversight does not have a commercial purpose and the release of the information requested is not in American Oversight?s financial interest. American Oversight?s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountabiliw of government ollicials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on our public website and promote their availability on social media platforms, such as Facebook and Twitter.? American Oversight has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, after receiving records regarding an ethics waiver received by a senior attorney, American Oversight posted the records to its website" and published an analysis of what the records reflected about process for ethics waivers." Additionally, American Oversight has a project called ?Audit the Wall,? where the organization is gathering and analyzing information and commenting on public releases of information related to the administration?s proposed construction ofa barrier along the US.- Mexico border." Accordingly, American Oversight qualifies for a fee waiver. 32 C.F.R. 32 C.F.R. See supra note 1. See Bauhaus, supra note 2; Sucbsaeng, supra note 3; Swan, supra note 4. 32 C.F.R. 32 C.F.R. American Oversight currently has approximately 1,200 page likes on acebook, and 33,500 followers on ?witter. American Oversight, FACEBOOK, (last visited July 28, 2017); American Oversight (@weareoversight), (last visited July 28, 2017). '7 Vetting the Nominees: Solicitor General Nominee Noel Francisco, AMERICAN OVERSIGHT, franciscu. Francisco the Travel Ban: What We Learned from the Documents, AMERICAN OVERSIGHT, Audit the Wall, AMERICAN OVERSIGHT, mvwaudittlIewall.org. 5 Case 1:17-cv-02707 Document 1-2 Filed 12/19/17 Page 9 of 12 Application for Expedited Processing Pursuant to 5 and 32 American Oversight requests that DOD expedite the processing of this request. I certify to be and correct to the best of my lurowledge and belief, that there is an urgent need to inform the public about the federal govemment activity that is the subject ofthis request. Media reports indicate that DOD was caught completely by the president?s announcement this morning.20 Moreover, even several hours alter the president?s tweets, website promoting its policy of nott-discrimination toward service members was still up." This kind of inconsistency calls into question the diorougbness of the deliberations leading to this decision and whether the impact ofthe decision on the thousands of transgender indisdduals currently serving in the military was fully considered. There is an urgency for those individuals and the American public as a whole to have access to the requested records so they can participate in an informed manner in the immediate debate that resulted from the president?s announcement.?1 The Sec Ballbaus, supra note 2;]ulie Davis IIelene Cooper, Trump Says 'Dansgendcr People 117/] Not Be Allowed in (he Ali/flat); N.Y. 'l?lMl-LS?Jnly 26, 2017, Suebsaeng, supra note 3. See Suebsaeng, supra note 3. ?7 See Bill Bartel, Trump ?5 Ban on -ople in illililmy Draws Scorn ol'Tln'ee Viignn'a Iat-vznakcrs, Tin-1 July 26, 201 7, la-l Trump Bans '11::1133ender People li'om Alwyn): CBS S't. Loris (Iuly 26, 2017, 8:34 AM), Jeremy Diamond. 'l'rump Io Reinslale US on 'l'ransgender People, (luly 20, 20?, 11218 AM), lulu): 2M 7 07-26 politics 'I?mmp Tums Back on with 'l?ransgemler[Military Ban Tweets, FAST COMPANY Only 26, 2017. 9:39 AM), littps: turns-backq 10 153 Trump Bars 'l'ransgender People from Sening ?in Any Capacily' in the US. Ali/[lags LA. TIMES (luly 26, 2017, 7:58 AM), politics waslntuilon; la-Iia-cssential-wasllinenm- Patrick May 'l'racy Seipel, Trump Bans 'liansgendcr People in iWililaly; Bay Area Outraged, THE MERCURY NEWS (Iuly 26, 2017, 10:57 AM), Chris Morris, Ivanlia Said She 1/Vas 'Proud (O Support?LGBT Americans. Her Dar/Just Banned Them from (he (luly 26, 2017, 10:37 AM), Abby Phillip et al., Trump Announces Ban on 'Iiansgender People in the I IS. Ali/flaw, ASH. POST (July 26, 2017, 10:57 AM), politics wp'2017 07. 26 military E?ntni term la03; David Remnick, The Cruelty and C?n'cism ol'Trump?s (i Dommsox Case 1:17-cv-02707 Document 1-2 Filed 12/19/17 Page 10 of 12 requested records will inform the public about the president?s sudden decision to re-implement a discriminatory employment policy and the level of participation by the DOD in the White IIouse's announcement. The inlormation American Oversight seeks concerns "a matter of a current exigency to the American public.?" The continued, widespread coverage of the policy change indicates Mr. Trump?s announcement concerns a policy ot?public concern and it has not been well received by Congress,? cisgender veterans,? or members 01' the American public.m Information regarding role in this policy decision will inform the public on a matter ol'public concern, and will provide insight that can inform the public?s participation in the currently ongoing debate regarding the proposed policy and its implementation by the military branches. In fact, as decision to 'Ii'ansgenderBan, NEW YORKER (luly 26, 2017, 12:13 PM), Iillp; military-ban; Carter Blasts '11'ump?s Ban on Transgender, Says '.S'oeial (luly 26, 2017, 1 1:52 AM). litlpz. article Mark Joseph Stern, In a Stunningli' Cruel and iWot'e, Trump Bans SLATE Only 26. 2017, AM), bans nnlilan' .wn'it't' \?ia lwi ?3 xil?l?ayed v. Cent. Intelligence Agency, 254 F.3d 300, 310 (D.C. Cir. 2001) (quoting HR. Rep. No. 104-795, at 26 (1996), reprinted in 1996 U.S.C.C.A.N. 3/148, 3/169). .S'cejessica lislepa, Sen. ()rrln Hatch: ?71'ansgender1"ople Are People and Deserve the Best life Can Do [or 771c?112, TODAY (Iuly 26, 2017, 12:06 PM), ilitics/t mpoliticsg 201 Kyle Stewart, Vetemns in Congress Criticize Trump '5 twilitmji' Transgender Han, ROLI. CALL Only 26, 2017, 5:56 PM), M): newspolitics, Sec-john Kirby Mark Herding, Trump?s '11a115gender Tweets Are an Alli'ont to the All- CNN ()1in 26. 2017, 8:26 PM). http: .S'ee Sasha Bucherl. Trump Cannot Hold Back Progress with a 'l?u-?eet: ?l?ransgender Veteran. USA (luly 27, 2017, 12:53 PM). 1785001/;Jonathau Capehart, Let [Me Thank Trump lorHis Tit'eets About 'I?ransgender Personnel, WASH. (Iuly 27, 2017, 12:44 PM), Daniel Hamburg, Local Reaction to President 'I?rnmp's Ali/italy Ban, 6 27, 2017, littpz. Ruth Kimata, Cheyenne Residents React to l?resrdent Trump?s 'I?ransgender 1W1'liliny Ban, (Iuly 26, 2017, 6:12 PM), to-l?rcsident?13681577931ilml. Case 1:17-cv-02707 Document 1-2 Filed 12/19/17 Page 11 of 12 withhold implementation? indicates, the subject ofthis request concerns a currently unfolding story that has signi?cant implications for the American people, including the thousands of transgender service members. Expedition is appropriate because a delayed response would deprive the public an opportunity to participate in this currently ongoing debate in a fully informed manner. I further certify that American Oversight is primarily engaged in disseminating information to the public. American Oversight?s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government of?cials. Similar to other organizations that have been found to satisfy the criteria necessary to qualify for expedition,? American Oversight ??gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, and other media. American Oversight also makes materials it gathers available on its public website and promote their availability on social media platforms, such as Facebook and Twitter.? American Oversight has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, after receiving records regarding an ethics waiver received by a senior attorney, American Oversight. posted the records to its website? and published an analysis of what the records re?ected about process for ethics waivers.? Additionally, American Oversight has a project called ?Audit the Wall,? where the organization is gathering and analyzing information and commenting on public releases of information related to the administration's proposed construction of a barrier along the U.S.-Mexico border.? Accordingly, American ()versight?s request satisfies the criteria for expedition. See Courtney Kube Andrew Ralferty, Joint Chie?s: No Transgender Policy Changes Until Trump Clari?es Tweets, NBC NEWS (July 27, 2017, 11:37 AM), Barbara Starr et al., (1510111! Chic-ls Blindsided by Tmmp?s Tmusgemler Ban, CN POLITICS (luly 27, 2017, 1:53 PM), 20 See ACLU r. U.S. Dep?t olJusa'ce, 321 F. Supp. 2d 24, 30?31 (D.D.C. 2004); EPIC v. Dep?t of Defense, 241 F. Supp. 2d 5, 15 (D.D.C. 2003). ?7 ACLU, 321 F. Supp. 2d at 29 11.5 (quoting EPIC, 211.1 F. Supp. 2d at 11). American Oversight currently has approximately 11,200 page likes on Facebook, and 33,500 followers on Twitter. American Oversight, FACEBOOK, (last visitedJuly 28, 2017); American Oversight (@weareoversight), TWITTER, (last visited July 28, 2017). Vetting the Nominees: Solicitor General Nominee Noel Francisco, AMERICAN OVERSIGHT, liaiicisco. Francisco the Travel Ban: Ill/hat We Learned from the Documents, AMERICAN OVERSIGHT, Audit- the Wall, AMERICAN OVERSIGHT, 8 Case 1:17-cv-02707 Document 1-2 Filed 12/19/17 Page 12 of 12 Conclusion We share a common mission to promote trzulsparency in government. American Oversight looks forward to working with DOD on this request. Ifyou do not understand any part of this request, have any questions, or foresee any problems in fully releasing the requested records, please contact Cerissa Cafasso at or (202) 869-5246. Also, if American Oversight?s request for a fee waiver is not granted in full, please contact us immediately upon making such a determination. Sincerely, ?ame? Austin R. Evers Executive Director American Oversight DO D-l 7-030 1 Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 1 of 28 Exhibit Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 2 of 28 August 24, 2017 VIA ELECTRONIC MAIL Ms. Joo Chung Director of Oversight and Compliance Office of the Secretary of Defense U.S. Department of Defense 4800 Mark Center Drive ATTN: DPCLTD, FOIA Appeals, Mailbox #24 Alexandria, VA 22350-1700 OSD.FOIA-APPEAL@mail.mil Re: Expedited Freedom of Information Act Appeal for 17-F-1385 Dear Ms. Chung: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552(a)(6)(A), and Department of Defense (DOD) regulations at 32 C.F.R. § 286.11, American Oversight submits the following administrative appeal. American Oversight submitted FOIA request number 17-F-1385 to DOD on July 28, 2017, seeking analysis or recommendations provided to the White House regarding DOD’s policy regarding the service of transgender individuals in the U.S. military. See Exhibit A. American Oversight sought expedition of its request pursuant to 32 C.F.R. § 286.8(e)(1)(i)(B). By letter dated August 3, 2017, DOD denied the request for expedition. See Exhibit B. Consistent with the requirements of 32 C.F.R. § 286.11, American Oversight hereby submits this administrative appeal of the denial of expedited processing. President Trump’s Tweet Announcement of the Transgender Ban On Wednesday, July 26, 2017, President Trump announced over the course of three tweets that transgender persons are no longer permitted to serve “in any capacity” in the U.S. military. 1 1 Donald J. Trump (@realDonaldTrump), TWITTER (July 26, 2017, 8:55 AM), https://twitter.com/realDonaldTrump/status/890193981585444864 (“After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow......”); Donald J. Trump (@realDonaldTrump), TWITTER (July 26, 2017, 9:04 AM), https://twitter.com/realDonaldTrump/status/890196164313833472 (“....Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming....”); Donald J. Trump (@realDonaldTrump), TWITTER (July 26, 2017, 9:08 AM), 1030 15th Street NW, Suite B255, Washington, DC 20005 AmericanOversight.org Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 3 of 28 Reports promptly emerged that the decision was politically motivated. First, DOD officials said they were unaware of the president’s announcement until they saw his tweets, which is further evidenced by DOD’s transgender non-discrimination policy still being on the agency’s website. Second, and more directly, administration sources indicated that the announcement was politically motivated to target Democratic politicians in the Rust Belt. American Oversight submitted this FOIA request to shed light on whether and to what extent DOD officials were involved in this change in DOD personnel policy. 2 3 4 Appeal of Denial of Expedited Processing Seeking records related to the president’s announcement, American Oversight requested expedited processing of its request under 32 C.F.R. § 286.8(e), which provides for expedited processing of a request when “[t]he information is urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged government activity.” 32 C.F.R. § 286.8(e)(1)(i)(B). DOD denied expedition, stating that American Oversight “ha[d] not clearly demonstrated how the information will lose its value if not processed on an expedited basis.” Contrary to DOD’s initial decision, American Oversight’s FOIA request is entitled to expedited processing. There is an urgent need to inform the public about the federal government activity that is the subject of this request. This urgency existed when American Oversight filed its request on July 28, and new urgency continues to arise as media reports indicate that implementation of the policy is forthcoming in the immediate future. In its initial FOIA request, American Oversight noted that media reports indicated that DOD was caught completely off-guard by the president’s announcement. Moreover, DOD’s website 5 https://twitter.com/realDonaldTrump/status/890197095151546369 (“....victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you”). See Rebecca Ballhaus, Trump Administration to Bar Transgender Individuals from Serving in U.S. Military, WALL ST. J. (July 26, 2017, 11:35 AM), https://www.wsj.com/articles/trumpadministration-to-ban-transgender-individuals-from-serving-in-u-s-military-1501075174. See Asawin Suebsaeng, Trump Bows to Religious Right, Bans Trans Troops, DAILY BEAST (July 26, 2017, 12:33 PM), http://www.thedailybeast.com/trump-bows-to-religious-right-bans-transtroops. See Jonathan Swan (@jonathanvswan), TWITTER (July 26, 2017, 9:30 AM), https://twitter.com/jonathanvswan/status/890202683721863168. See Ballhaus, supra note 2; Julie Hirschfeld Davis & Helene Cooper, Trump Says Transgender People Will Not Be Allowed in the Military, N.Y. TIMES, July 26, 2017, https://www.nytimes.com/2017/07/26/us/politics/trump-transgender-military.html; Suebsaeng, supra note 3. 2 3 4 5 2 DOD-17-0301 Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 4 of 28 6 promoting its policy of non-discrimination toward transgender service members remains live. This kind of inconsistency calls into question the thoroughness of the deliberations leading to this decision and whether the impact of the decision on the thousands of transgender individuals currently serving in the U.S. military was fully considered. There is an urgency for those individuals and the American public as a whole to have access to the requested records so they can participate in an informed manner in the immediate debate that has resulted from the president’s announcement. The requested records will inform the public about the president’s sudden decision to re-implement a discriminatory employment policy and the level of participation by the DOD in the White House’s announcement. 7 See Suebsaeng, supra note 3; Department of Defense Transgender Policy, U.S. DEP’T OF DEF., https://www.defense.gov/News/Special-Reports/0616_transgender-policy/ (last visited Aug. 21, 2017). See Bill Bartel, Trump’s Ban on Transgender People in Military Draws Scorn of Three Virginia Lawmakers, THE VIRGINIAN-PILOT, July 26, 2017, https://pilotonline.com/news/government/nation/trump-s-ban-on-transgender-people-in-militarydraws-ire/article_dc0c2f1e-3691-5209-b24a-11b564d7cba4.html; Trump Bans Transgender People from Military, CBS ST. LOUIS (July 26, 2017, 8:34 AM), http://stlouis.cbslocal.com/2017/07/26/breaking-trump-bans-transgender-people-from-military/; Jeremy Diamond, Trump to Reinstate US Military Ban on Transgender People, CNNPOLITICS (July 26, 2017, 11:18 AM), http://www.cnn.com/2017/07/26/politics/trump-militarytransgender/index.html; Trump Turns Back on LGBT Community with Transgender Military Ban Tweets, FAST COMPANY (July 26, 2017, 9:39 AM), https://news.fastcompany.com/trumpturns-back-on-lgbt-community-with-transgender-military-ban-tweets-4045340; W.J. Hennigan, Trump Bars Transgender People from Serving ‘in Any Capacity’ in the U.S. Military, L.A. TIMES (July 26, 2017, 7:58 AM), http://www.latimes.com/politics/washington/la-na-essential-washingtonupdates-trump-transgender-people-will-not-be-1501074883-htmlstory.html; Patrick May & Tracy Seipel, Trump Bans Transgender People in Military; Bay Area Outraged, THE MERCURY NEWS (July 26, 2017, 10:57 AM), http://www.mercurynews.com/2017/07/26/trump-bans-transgenders-inmilitary-bay-area-outraged/; Chris Morris, Ivanka Said She Was ‘Proud to Support’ LGBT Americans. Her Dad Just Banned Them from the Military, FORTUNE (July 26, 2017, 10:37 AM), http://fortune.com/2017/07/26/donald-trump-ivanka-transgender-united-states-armed-forces/; Abby Phillip et al., Trump Announces Ban on Transgender People in the U.S. Military, WASH. POST (July 26, 2017, 10:57 AM), https://www.washingtonpost.com/news/postpolitics/wp/2017/07/26/trump-announces-ban-on-transgender-people-in-u-smilitary/?utm_term=.6efe0eb41a03; David Remnick, The Cruelty and Cynicism of Trump’s Transgender Ban, THE NEW YORKER (July 26, 2017, 12:43 PM), http://www.newyorker.com/news/news-desk/the-cruelty-and-cynicism-of-trumps-transgendermilitary-ban; Carter Blasts Trump’s Ban on Transgender, Says ‘Social Policy,’ REUTERS (July 26, 2017, 11:52 AM), http://www.reuters.com/article/us-usa-military-transgender-carteridUSKBN1AB27E?il=0; Mark Joseph Stern, In a Stunningly Cruel and Unjustified Move, Trump Bans Transgender Military Service, SLATE (July 26, 2017, 10:42 AM), http://www.slate.com/blogs/outward/2017/07/26/trump_bans_transgender_military_service_via_twi tter.html. 6 7 3 DOD-17-0301 Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 5 of 28 Moreover, the information American Oversight seeks concerns “a matter of a current exigency to the American public.” The continued, widespread coverage of the policy change indicates Mr. Trump’s announcement concerns a policy of public concern and it has not been well received by Congress, cisgender veterans, or members of the American public. Information regarding DOD’s role in this policy decision is critical to inform the public on a matter of public concern, and will provide insight that can inform the public’s participation in the ongoing debate regarding the proposed policy and its implementation. In fact, as DOD’s decision to withhold implementation indicates, the subject of this request concerns a currently unfolding story that has significant implications for the American people, including the thousands of transgender service members. Expedition is appropriate because a delayed response would deprive the public an opportunity to participate in this currently ongoing debate in a fully informed manner. 8 9 10 11 12 Al-Fayed v. Cent. Intelligence Agency, 254 F.3d 300, 310 (D.C. Cir. 2001) (quoting H.R. Rep. No. 104-795, at 26 (1996), reprinted in 1996 U.S.C.C.A.N. 3448, 3469). See Jessica Estepa, Sen. Orrin Hatch: ‘Transgender People Are People and Deserve the Best We Can Do for Them,’ USA TODAY (July 26, 2017, 12:06 PM), https://www.usatoday.com/story/news/politics/onpolitics/2017/07/26/sen-orrin-hatch-transgenderpeople-people-and-deserve-best-we-can-do-them/512333001/; Kyle Stewart, Veterans in Congress Criticize Trump’s Military Transgender Ban, ROLL CALL (July 26, 2017, 5:56 PM), http://www.rollcall.com/news/politics/veterans-congress-transgender-trump. See John Kirby & Mark Hertling, Trump’s Transgender Tweets Are an Affront to the AllVolunteer Military, CNN (July 26, 2017, 8:26 PM), http://www.cnn.com/2017/07/26/opinions/trump-trans-military-opinion-hertling-kirby/index.html. See Sasha Buchert, Trump Cannot Hold Back Progress with a Tweet: Transgender Veteran, USA TODAY (July 27, 2017, 12:53 PM), https://www.usatoday.com/story/opinion/2017/07/27/trumps-transgender-ban-cannot-stamp-outprogress-sasha-buchert-column/514785001/; Jonathan Capehart, Let Me Thank Trump for His Tweets About Transgender Personnel, WASH. POST (July 27, 2017, 12:44 PM), https://www.washingtonpost.com/blogs/post-partisan/wp/2017/07/27/let-me-thank-trump-for-histweets-about-transgender-personnel/?utm_term=.032015b22e24; Daniel Hamburg, Local Reaction to President Trump’s Transgender Military Ban, 6 WJAC, July 27, 2017, http://wjactv.com/news/local/local-reaction-to-president-trumps-transgender-military-ban-07-272017; Ruth Kimata, Cheyenne Residents React to President Trump’s Transgender Military Ban, KGWN-TV (July 26, 2017, 6:12 PM), http://www.kgwn.tv/content/news/Cheyenne-residents-reactto-President--436837793.html. See Courtney Kube & Andrew Rafferty, Joint Chiefs: No Transgender Policy Changes Until Trump Clarifies Tweets, NBC NEWS (July 27, 2017, 11:37 AM), http://www.nbcnews.com/politics/national-security/joint-chiefs-no-transgender-policy-changes-untiltrump-clarifies-tweets-n787076; Barbara Starr et al., US Joint Chiefs Blindsided by Trump’s Transgender Ban, CNNPOLITICS (July 27, 2017, 1:53 PM), http://www.cnn.com/2017/07/27/politics/trump-military-transgender-ban-joint-chiefs/index.html. 8 9 10 11 12 4 DOD-17-0301 Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 6 of 28 There is renewed urgency of this request as recent news reports announced that the White House is expected to send implementation guidance to DOD in the coming days directing the military to deny admittance of transgender individuals, to cease health-care treatment for transgender service members, and to consider “deployability” when considering whether to discharge transgender troops. 13 With the White House’s guidance, DOD is about to begin the process of discharging transgender service members simply because they are transgender. Nothing less than the livelihoods of thousands of Americans is on the line. These records are essential to understand the full guidance and expertise DOD provided to the White House that inform this decision. Without these records, transgender troops, transgender recruits, and their advocates will not be in a position to provide the fullest defense possible as they work to ensure continued service. Accordingly, American Oversight’s request satisfied the criteria for expedition. Additionally, American Oversight asks that this appeal be handled on an expedited basis pursuant to the criteria of 32 C.F.R. § 286.8(e)(1). I certify to be true and correct that there is a compelling need for this information. As addressed above, there is an urgency to the release of the requested records, the value of which will be lost if it does not receive expedited treatment. Moreover, as DOD has already implicitly acknowledged in its letter denying expedition, the requested information concerns an actual or alleged government activity and American oversight is primarily engaged in disseminating information. Conclusion Thank you for your consideration of this appeal. As provided in 5 U.S.C. § 552(a)(6)(A)(ii), we look forward to your determination on our appeal within twenty working days. For questions regarding any part of this appeal or the underlying request for records, please contact Cerissa Cafasso at foia@americanoversight.org or 202.869.5246. Respectfully submitted, Austin R. Evers Executive Director American Oversight Gordon Lubold, White House Sets Rules for Military Transgender Ban, WALL ST. J. (Aug. 23, 2017, 9:58 PM), https://www.wsj.com/articles/white-house-sets-rules-for-military-transgender-ban1503534757. 13 5 DOD-17-0301 Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 7 of 28 Exhibit A Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 8 of 28 July 28, 2017 VIA ELECTRONIC MAIL Stephanie Carr OSD/JS FOIA Requester Service Center Office of Freedom of Information U.S. Department of Defense 1155 Defense Pentagon Washington, DC 20301-1155 whs.mc-alex.esd.mbx.osd-js-foia-requesterservice-center@mail.mil Alecia Bolling Freedom of Information Act Office Suite 144 7701 Telegraph Road, Room 150 Alexandria, VA 22315-3905 usarmy.belvoir.hqda-oaa-aha.mbx.rmdafoia@mail.mil JoAnne Collins SAF/AAII (FOIA) 1000 Air Force Pentagon Washington, DC 20330-1000 usaf.pentagon.saf-cio-a6.mbx.affoia@mail.mil Robin Patterson FOIA Contact, Chief of Naval Operations DNS-36 2000 Navy Pentagon Washington, DC 20350-2000 DONFOIA-PA@navy.mil Re: Expedited Freedom of Information Act Request Dear Freedom of Information Act Officers: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq. and the implementing regulations of the Department of Defense (DOD), 32 C.F.R. Part 286, American Oversight makes the following request for records. On Wednesday, July 26, 2017, President Trump announced over the course of three tweets that transgender persons are no longer permitted to serve “in any capacity” in the U.S. military. Reports promptly emerged that the decision was politically motivated. First, DOD officials said 1 1 Donald J. Trump (@realDonaldTrump), TWITTER (July 26, 2017, 8:55 AM), https://twitter.com/realDonaldTrump/status/890193981585444864 (“After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow......”); Donald J. Trump (@realDonaldTrump), TWITTER (July 26, 2017, 9:04 AM), https://twitter.com/realDonaldTrump/status/890196164313833472 (“....Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming....”); Donald J. Trump (@realDonaldTrump), TWITTER (July 26, 2017, 9:08 AM), https://twitter.com/realDonaldTrump/status/890197095151546369 (“....victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you”). 1030 15th Street NW, Suite B255, Washington, DC 20005 AmericanOversight.org Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 9 of 28 2 they were unaware of the president’s announcement until they saw his tweets, further evidenced by DOD’s transgender non-discrimination policy still being on the agency’s website. Second, and more directly, administration sources indicated that the announcement was politically motivated to target Democratic politicians in the Rust Belt. American Oversight submits this FOIA request to shed light on whether and to what extent DOD officials were involved in this change in DOD personnel policy. 3 4 Requested Records American Oversight requests that DOD produce the following within twenty business days: 1. Any analysis or recommendations from any general, admiral, or military expert provided to the White House regarding DOD’s policy regarding the service of transgender individuals in the U.S. military from any DOD personnel in the following offices: a. the Office of the Secretary of Defense, including the secretary, chief of staff, deputy secretary, and the assistant to the secretary of defense for public affairs; b. the Office of the Joint Chiefs of Staff; c. the Office of the Secretary of the Air Force; d. the Office of the Secretary of the Army; e. the Office of the Secretary of the Navy; or f. the Office of the Under Secretary of Defense for Personnel & Readiness; or g. the Office of the Assistant Secretary of Defense for Manpower & Reserve Affairs; h. the Office of the Assistant Secretary of Defense for Health Affairs; or i. the Office of the General Counsel of the Department of Defense. Please provide all responsive records from January 20, 2017, through 8:55 AM EDT on July 26, 2017. In addition to the records requested above, American Oversight also requests records describing the processing of this request, including records sufficient to identify search terms used and locations and custodians searched and any tracking sheets used to track the processing of this request. If DOD uses FOIA questionnaires or certifications completed by individual custodians or components to determine whether they possess responsive materials or to describe how they See Rebecca Ballhaus, Trump Administration to Bar Transgender Individuals from Serving in U.S. Military, WALL ST. J. (July 26, 2017, 11:35 AM), https://www.wsj.com/articles/trumpadministration-to-ban-transgender-individuals-from-serving-in-u-s-military-1501075174. See Asawin Suebsaeng, Trump Bows to Religious Right, Bans Trans Troops, DAILY BEAST (July 26, 2017, 12:33 PM), http://www.thedailybeast.com/trump-bows-to-religious-right-bans-transtroops. See Jonathan Swan (@jonathanvswan), TWITTER (July 26, 2017, 9:30 AM), https://twitter.com/jonathanvswan/status/890202683721863168. 2 3 4 2 DOD-17-0301 Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 10 of 28 conducted searches, we also request any such records prepared in connection with the processing of this request. American Oversight seeks all responsive records regardless of format, medium, or physical characteristics. In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions. Our request includes any attachments to these records. No category of material should be omitted from search, collection, and production. Please search all records regarding agency business. You may not exclude searches of files or emails in the personal custody of your officials, such as personal email accounts. Records of official business conducted using unofficial systems or stored outside of official files is subject to the Federal Records Act and FOIA. It is not adequate to rely on policies and procedures that require officials to move such information to official systems within a certain period of time; American Oversight has a right to records contained in those files even if material has not yet been moved to official systems or if officials have, through negligence or willfulness, failed to meet their obligations. 5 6 Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure, withholding information “only if . . . disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.” If it is your position that any portion of the requested records is exempt from disclosure, American Oversight requests that you provide an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). As you are aware, a Vaughn index must describe each document claimed as exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is actually exempt under FOIA.” Moreover, the Vaughn index “must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing 7 8 See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149—50 (D.C. Cir. 2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955—56 (D.C. Cir. 2016). See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8 (D.D.C. Dec. 12, 2016) (“The Government argues that because the agency had a policy requiring [the official] to forward all of his emails from his [personal] account to his business email, the [personal] account only contains duplicate agency records at best. Therefore, the Government claims that any hypothetical deletion of the [personal account] emails would still leave a copy of those records intact in [the official’s] work email. However, policies are rarely followed to perfection by anyone. At this stage of the case, the Court cannot assume that each and every work related email in the [personal] account was duplicated in [the official’s] work email account.” (citations omitted)). FOIA Improvement Act of 2016 § 2 (Pub. L. No. 114–185). Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). 5 6 7 8 3 DOD-17-0301 Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 11 of 28 9 the sought-after information.” Further, “the withholding agency must supply ‘a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.’” 10 In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document. Claims of nonsegregability must be made with the same degree of detail as required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release. 11 You should institute a preservation hold on information responsive to this request. American Oversight intends to pursue all legal avenues to enforce its right of access under FOIA, including litigation if necessary. Accordingly, DOD is on notice that litigation is reasonably foreseeable. To ensure that this request is properly construed, that searches are conducted in an adequate but efficient manner, and that extraneous costs are not incurred, American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and DOD can decrease the likelihood of costly and time-consuming litigation in the future. Where possible, please provide responsive material in electronic format by email or in PDF or TIF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15 Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on rolling basis. th Fee Waiver Request In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 32 C.F.R. § 286.12(l)(1), American Oversight requests a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government, and the disclosures will likely contribute to public understanding of those operations. Moreover, the request is primarily and fundamentally for non-commercial purposes. American Oversight requests a waiver of fees because “disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of” King v. U.S. Dep’t of Justice, 830 F.2d 210, 223–24 (D.C. Cir. 1987) (emphasis in original). Id. at 224 (citing Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). Mead Data Central, 566 F.2d at 261. 9 10 11 4 DOD-17-0301 Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 12 of 28 12 government operations. On July 26, 2017, President Trump announced a reversal of DOD personnel policy and reinstated a ban on transgender individuals serving “in any capacity” in the U.S. military. The implementation of a DOD personnel practice is a government activity, and the records responsive to this request would shed light on how the White House made the decision to discriminate against thousands of service members. The subject of this request is already of demonstrated public interest, and, as discussed further below, American Oversight has both the ability and the intention to effectively convey the information it receives to the public. 13 14 15 This request is primarily and fundamentally for non-commercial purposes. As a 501(c)(3) nonprofit, American Oversight does not have a commercial purpose and the release of the information requested is not in American Oversight’s financial interest. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on our public website and promote their availability on social media platforms, such as Facebook and Twitter. American Oversight has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, after receiving records regarding an ethics waiver received by a senior DOJ attorney, American Oversight promptly posted the records to its website and published an analysis of what the records reflected about DOJ’s process for ethics waivers. Additionally, American Oversight has a project called “Audit the Wall,” where the organization is gathering and analyzing information and commenting on public releases of information related to the administration’s proposed construction of a barrier along the U.S.Mexico border. 16 17 18 19 Accordingly, American Oversight qualifies for a fee waiver. 12 32 C.F.R. § 286.12(l)(1); 32 C.F.R. § 286.12(l)(2)(i)-(ii). See supra note 1. See Ballhaus, supra note 2; Suebsaeng, supra note 3; Swan, supra note 4. 32 C.F.R. § 286.12(l)(1); 32 C.F.R. § 286.12(l)(2)(iii)(A)-(B). American Oversight currently has approximately 11,200 page likes on Facebook, and 33,500 followers on Twitter. American Oversight, FACEBOOK, https://www.facebook.com/weareoversight/ (last visited July 28, 2017); American Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited July 28, 2017). Vetting the Nominees: Solicitor General Nominee Noel Francisco, AMERICAN OVERSIGHT, https://www.americanoversight.org/our-actions/vetting-nominees-solicitor-general-nominee-noelfrancisco. Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN OVERSIGHT, https://www.americanoversight.org/news/francisco-travel-ban-learned-doj-documents. Audit the Wall, AMERICAN OVERSIGHT, www.auditthewall.org. 13 14 15 16 17 18 19 5 DOD-17-0301 Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 13 of 28 Application for Expedited Processing Pursuant to 5 U.S.C. § 552(a)(6)(E) and 32 C.F.R. § 286.8(e), American Oversight requests that DOD expedite the processing of this request. I certify to be true and correct to the best of my knowledge and belief, that there is an urgent need to inform the public about the federal government activity that is the subject of this request. Media reports indicate that DOD was caught completely off-guard by the president’s announcement this morning. Moreover, even several hours after the president’s tweets, DOD’s website promoting its policy of non-discrimination toward transgender service members was still up. This kind of inconsistency calls into question the thoroughness of the deliberations leading to this decision and whether the impact of the decision on the thousands of transgender individuals currently serving in the U.S. military was fully considered. There is an urgency for those individuals and the American public as a whole to have access to the requested records so they can participate in an informed manner in the immediate debate that resulted from the president’s announcement. The 20 21 22 See Ballhaus, supra note 2; Julie Hirschfeld Davis & Helene Cooper, Trump Says Transgender People Will Not Be Allowed in the Military, N.Y. TIMES, July 26, 2017, https://www.nytimes.com/2017/07/26/us/politics/trump-transgender-military.html; Suebsaeng, supra note 3. See Suebsaeng, supra note 3. See Bill Bartel, Trump’s Ban on Transgender People in Military Draws Scorn of Three Virginia Lawmakers, THE VIRGINIAN-PILOT, July 26, 2017, https://pilotonline.com/news/government/nation/trump-s-ban-on-transgender-people-in-militarydraws-ire/article_dc0c2f1e-3691-5209-b24a-11b564d7cba4.html; Trump Bans Transgender People from Military, CBS ST. LOUIS (July 26, 2017, 8:34 AM), http://stlouis.cbslocal.com/2017/07/26/breaking-trump-bans-transgender-people-from-military/; Jeremy Diamond, Trump to Reinstate US Military Ban on Transgender People, CNNPOLITICS (July 26, 2017, 11:18 AM), http://www.cnn.com/2017/07/26/politics/trump-militarytransgender/index.html; Trump Turns Back on LGBT Community with Transgender Military Ban Tweets, FAST COMPANY (July 26, 2017, 9:39 AM), https://news.fastcompany.com/trumpturns-back-on-lgbt-community-with-transgender-military-ban-tweets-4045340; W.J. Hennigan, Trump Bars Transgender People from Serving ‘in Any Capacity’ in the U.S. Military, L.A. TIMES (July 26, 2017, 7:58 AM), http://www.latimes.com/politics/washington/la-na-essential-washingtonupdates-trump-transgender-people-will-not-be-1501074883-htmlstory.html; Patrick May & Tracy Seipel, Trump Bans Transgender People in Military; Bay Area Outraged, THE MERCURY NEWS (July 26, 2017, 10:57 AM), http://www.mercurynews.com/2017/07/26/trump-bans-transgenders-inmilitary-bay-area-outraged/; Chris Morris, Ivanka Said She Was ‘Proud to Support’ LGBT Americans. Her Dad Just Banned Them from the Military, FORTUNE (July 26, 2017, 10:37 AM), http://fortune.com/2017/07/26/donald-trump-ivanka-transgender-united-states-armed-forces/; Abby Phillip et al., Trump Announces Ban on Transgender People in the U.S. Military, WASH. POST (July 26, 2017, 10:57 AM), https://www.washingtonpost.com/news/postpolitics/wp/2017/07/26/trump-announces-ban-on-transgender-people-in-u-smilitary/?utm_term=.6efe0eb41a03; David Remnick, The Cruelty and Cynicism of Trump’s 20 21 22 6 DOD-17-0301 Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 14 of 28 requested records will inform the public about the president’s sudden decision to re-implement a discriminatory employment policy and the level of participation by the DOD in the White House’s announcement. The information American Oversight seeks concerns “a matter of a current exigency to the American public.” The continued, widespread coverage of the policy change indicates Mr. Trump’s announcement concerns a policy of public concern and it has not been well received by Congress, cisgender veterans, or members of the American public. Information regarding DOD’s role in this policy decision will inform the public on a matter of public concern, and will provide insight that can inform the public’s participation in the currently ongoing debate regarding the proposed policy and its implementation by the military branches. In fact, as DOD’s decision to 23 24 25 26 Transgender Ban, THE NEW YORKER (July 26, 2017, 12:43 PM), http://www.newyorker.com/news/news-desk/the-cruelty-and-cynicism-of-trumps-transgendermilitary-ban; Carter Blasts Trump’s Ban on Transgender, Says ‘Social Policy,’ REUTERS (July 26, 2017, 11:52 AM), http://www.reuters.com/article/us-usa-military-transgender-carteridUSKBN1AB27E?il=0; Mark Joseph Stern, In a Stunningly Cruel and Unjustified Move, Trump Bans Transgender Military Service, SLATE (July 26, 2017, 10:42 AM), http://www.slate.com/blogs/outward/2017/07/26/trump_bans_transgender_military_service_via_twi tter.html. Al-Fayed v. Cent. Intelligence Agency, 254 F.3d 300, 310 (D.C. Cir. 2001) (quoting H.R. Rep. No. 104-795, at 26 (1996), reprinted in 1996 U.S.C.C.A.N. 3448, 3469). See Jessica Estepa, Sen. Orrin Hatch: ‘Transgender People Are People and Deserve the Best We Can Do for Them,’ USA TODAY (July 26, 2017, 12:06 PM), https://www.usatoday.com/story/news/politics/onpolitics/2017/07/26/sen-orrin-hatch-transgenderpeople-people-and-deserve-best-we-can-do-them/512333001/; Kyle Stewart, Veterans in Congress Criticize Trump’s Military Transgender Ban, ROLL CALL (July 26, 2017, 5:56 PM), http://www.rollcall.com/news/politics/veterans-congress-transgender-trump. See John Kirby & Mark Hertling, Trump’s Transgender Tweets Are an Affront to the AllVolunteer Military, CNN (July 26, 2017, 8:26 PM), http://www.cnn.com/2017/07/26/opinions/trump-trans-military-opinion-hertling-kirby/index.html. See Sasha Buchert, Trump Cannot Hold Back Progress with a Tweet: Transgender Veteran, USA TODAY (July 27, 2017, 12:53 PM), https://www.usatoday.com/story/opinion/2017/07/27/trumps-transgender-ban-cannot-stamp-outprogress-sasha-buchert-column/514785001/; Jonathan Capehart, Let Me Thank Trump for His Tweets About Transgender Personnel, WASH. POST (July 27, 2017, 12:44 PM), https://www.washingtonpost.com/blogs/post-partisan/wp/2017/07/27/let-me-thank-trump-for-histweets-about-transgender-personnel/?utm_term=.032015b22e24; Daniel Hamburg, Local Reaction to President Trump’s Transgender Military Ban, 6 WJAC, July 27, 2017, http://wjactv.com/news/local/local-reaction-to-president-trumps-transgender-military-ban-07-272017; Ruth Kimata, Cheyenne Residents React to President Trump’s Transgender Military Ban, KGWN-TV (July 26, 2017, 6:12 PM), http://www.kgwn.tv/content/news/Cheyenne-residents-reactto-President--436837793.html. 23 24 25 26 7 DOD-17-0301 Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 15 of 28 27 withhold implementation indicates, the subject of this request concerns a currently unfolding story that has significant implications for the American people, including the thousands of transgender service members. Expedition is appropriate because a delayed response would deprive the public an opportunity to participate in this currently ongoing debate in a fully informed manner. I further certify that American Oversight is primarily engaged in disseminating information to the public. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. Similar to other organizations that have been found to satisfy the criteria necessary to qualify for expedition, American Oversight “‘gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an audience.’” American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, and other media. American Oversight also makes materials it gathers available on its public website and promote their availability on social media platforms, such as Facebook and Twitter. American Oversight has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, after receiving records regarding an ethics waiver received by a senior DOJ attorney, American Oversight promptly posted the records to its website and published an analysis of what the records reflected about DOJ’s process for ethics waivers. Additionally, American Oversight has a project called “Audit the Wall,” where the organization is gathering and analyzing information and commenting on public releases of information related to the administration’s proposed construction of a barrier along the U.S.-Mexico border. 28 29 30 31 32 33 Accordingly, American Oversight’s request satisfies the criteria for expedition. See Courtney Kube & Andrew Rafferty, Joint Chiefs: No Transgender Policy Changes Until Trump Clarifies Tweets, NBC NEWS (July 27, 2017, 11:37 AM), http://www.nbcnews.com/politics/national-security/joint-chiefs-no-transgender-policy-changes-untiltrump-clarifies-tweets-n787076; Barbara Starr et al., US Joint Chiefs Blindsided by Trump’s Transgender Ban, CNNPOLITICS (July 27, 2017, 1:53 PM), http://www.cnn.com/2017/07/27/politics/trump-military-transgender-ban-joint-chiefs/index.html. See ACLU v. U.S. Dep’t of Justice, 321 F. Supp. 2d 24, 30—31 (D.D.C. 2004); EPIC v. Dep’t of Defense, 241 F. Supp. 2d 5, 15 (D.D.C. 2003). ACLU, 321 F. Supp. 2d at 29 n.5 (quoting EPIC, 241 F. Supp. 2d at 11). American Oversight currently has approximately 11,200 page likes on Facebook, and 33,500 followers on Twitter. American Oversight, FACEBOOK, https://www.facebook.com/weareoversight/ (last visited July 28, 2017); American Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited July 28, 2017). Vetting the Nominees: Solicitor General Nominee Noel Francisco, AMERICAN OVERSIGHT, https://www.americanoversight.org/our-actions/vetting-nominees-solicitor-general-nominee-noelfrancisco. Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN OVERSIGHT, https://www.americanoversight.org/news/francisco-travel-ban-learned-doj-documents. Audit the Wall, AMERICAN OVERSIGHT, www.auditthewall.org. 27 28 29 30 31 32 33 8 DOD-17-0301 Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 16 of 28 Conclusion We share a common mission to promote transparency in government. American Oversight looks forward to working with DOD on this request. If you do not understand any part of this request, have any questions, or foresee any problems in fully releasing the requested records, please contact Cerissa Cafasso at foia@americanoversight.org or (202) 869-5246. Also, if American Oversight’s request for a fee waiver is not granted in full, please contact us immediately upon making such a determination. Sincerely, Austin R. Evers Executive Director American Oversight 9 DOD-17-0301 Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 17 of 28 Exhibit Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 18 of 28 DEPARTMENT OF DEFENSE OFFICE OF FREEDOM OF INFORMATION 1155 DEFENSE PENTAGON WASHINGTON, DC 20301-1155 Ms. Cerissa Cafasso American Oversight 1030 15?h Street. NW Suite [3255 Washington. DC 20005 Dear Ms. afasso: This is an interim response to your July 28. 2017. Freedom of Information Act (FOIA) request. a copy of which is enclosed for your convenience. We received your request on the same day it was submitted. and assigned it case number l7-F-l 385. We ask that you use this number when referring to your request. Expedited processing may be granted when the requester demonstrates a compelling need for the information and shows that the information has a particular value that would be lost if not processed on an expedited basis. A key word here is "demonstrates." Therefore. it is incumbent upon you to demonstrate that the requested records will serve an urgency purpose and that they will also be meaningful in the sense that they will provide a greater understanding of actual or alleged federal govemment activity on the part of the public-at-large than that which existed before such information was disseminated. Consequently. it must be clearly demonstrated that such information has a particular value that will be lost ifnot disseminated quickly. After carefully considering your request. this office finds that you have not clearly demonstrated how the information will lose its value if not processed on an expedited basis. For this reason, your request for expedited processing is denied. Although we have already begun processing your request. we will not be able to respond within the 20-day statutory time period as there are unusual circumstances which impact our ability to quickly process your request. The defines unusual circumstances as the need to search for and collect records from a facility geographically separated from this of?ce; the potential volume of records responsive to your request: and the need for consultation with one or more other agencies or components having a substantial interest in either the determination or the subject matter ofthc records. At least one. if not more ofthese scenarios applies or would likely apply to your request. While this office handles FOIA requests for the Office of the Secretary of Defense (OSD), the Joint Staff (J S) and other component offices, we do not actually hold their records and our of?ce is not geographically located with these organizations. As we do not hold the records. until the required records searches are complete. we are unable to estimate the potential volume of records or the number of consultations that will be required to make a release determination. Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 19 of 28 Your request has been placed in our complex processing queue and is being worked based on the order in which the request was received. Our current administrative workload is approximately 2,500 open requests. In some instances, we have found that requesters who narrow the scope of their requests experience a reduction in the time needed to process their requests. If you have any questions or wish to discuss the reformulation of your request or an alternative time frame for the processing of your request, you may contact me, the Action Of?cer assigned to case number 17-F-1080, at megan.b.farre112.civ@mail.mil or 571-372-0409. The FOIA Public Liaison, Jim Hogan, is available at 571-372-0462 or by email at OSD.FOIALiaison@mail.mil to answer any concerns about the foregoing. Additionally, you may contact the Of?ce of Government information Services (OGIS) at the National Archives and Records Administration to inquire about the OIA mediation services they offer. The contact information for OGIS is as follows: Of?ce of Government Information Services National Archives and Records Administration 8601 Adelphi College Park, MD 20740 E-mail: ogis@nara.gov Telephone: 202-741-5770 Fax: 202-74 -5 769 Toll-free: 1-877-684-6448 You have the right to appeal to the appellate authority, Ms. Joo Chung, Director of Oversight and Compliance, Of?ce of the Secretary of Defense, by writing directly to ODCMO Directorate for Oversight and Compliance, 4800 Mark Center Drive, ATTN: FOIA Appeals, Mailbox# 24, Alexandria, VA 22350-1700. Your appeal must be postmarked within 90 calendar days of the date of this response. Alternatively, you may use the OSD FOIA request portal at or email your appeal to OSD.FOIA- APPEAL@mail.mil. If you use email, please include the words Appeal" in the subject of the email. Please also reference case number l7-F-l 385 in any appeal correspondence. We regret the delay in responding to your request and appreciate your patience. Sincerely, MM Case 1:17-cv-02707 Document 1-3 AMERICAN VIA ELECTRONIC MAIL Stephanie Carr FOIA Requester Sen'iee Center ()llice of Freedom of Information Department of Defense 1155 Defense Pentagon \Vashington, DC 20301-1 155 sen'ice-ccitler'? mailanil ?loAnne Collins (H 1000 Air Force Pentagon \Vashington. DC 20330-1000 Filed 12/19/17 Page 20 0f 28 July 28, 2017 Alecia Bolling Freedom of Information Act Office Suite M4 7701 'l?elegraph Road. Room 150 Alexandria, VA 22315-3905 loiaftbmail.mil Robin Patterson FOIA Contact, Chiefof Naval Operations DNS-36 2000 Naxy Pentagon Washington. DC 20350-2000 Re: Expedited Freedom of Information Act Request Dear Freedom of Information Act Ollicers: Pursuant to the Freedom ofInformation Act 5 11.8.(1. 552 el seq. and the implementing regulations oftlie Department of Defense (DOD), 32 (7.19.11. Part 286. American Oversight makes the following request for records. \Vednesday,July 26, 2017, President 'l?mmp announced over the course ofthree tweets that transgender persons are no longer permitted to SCITC ?in any capacity" in the 11.8. military.? Reports emerged that the decision was politically motivated. First. DOD officials said Donald]. 'l'mmp (Inly 26, 20l7, 8:55 AM), l/l- 186-1- (?After consultation with my Generals and military experts, please be advised that the United States Government will not accept. or allow Donald J. Trump (Iuly 26, 2017, 9:04 AM), 96 6 1.3 885-13172 individuals to in any capacity in the 11.8. Military. 0111' military must l)C focused on decisive and Donald J. (Inly 26, 2017, 9:08 AM), tmtterwom. and cannot l)C burdened with the tremendous medical costs and disruption that tr;uisgender in the military would entail. Thank you"). 1030 15th Street NW, Suite 8255, Washington. DC 20005 AmericanOversight.org Case 1:17-cv-O2707 Document 1-3 Filed 12/19/17 Page 21 of 28 they were unaware of the president?s announcement until they saw his tweets,? further evidenced by transgender non-discrimination policy still being on the agency?s website.a Second, and more directly, administration sources indicated that the announcement was politically motivated to target Democratic politicians in the Rust Belt.? American Oversight submits this FOIA request to shed light on whether and to what extent DOD officials were involved in this change in DOD personnel policy. Requested Records American Oversight requests that DOD produce the following within twenty business days: 1. Any analysis or recommendations from any general, admiral, or military expert provided to the White House regarding policy regarding the service of transgender individuals in the US. military from any DOD personnel in the following of?ces: a. the Ollicc of the Secretary of Defense, including the secretary, chief of stall, deputy secretary, and the assistant to the secretary of defense for public alfairs; . the Ollice of the I oint Chiefs ofStall} c. the Ollice of the Secretary of the Air Force; (1. the Ollice of the Secretary of the Army; e. the Ollice of the Secretary of the Navy; or f. the Ollice of the Under Secretary of Defense for Personnel Readiness; or the Office of the Assistant Secretary of Defense for Manpower Reserve Allairs; h. the Ollice of the Assistant Secretary of Defense for Health Affairs; or i. the Ollice of the General Counsel of the Department of Defense. Please provide all responsive records from January 20, 2017, through 8:55 AM EDT on July ?26, 2017. In addition to the records requested above, American Oversight also requests records describing the processing of this request, including records sullicient to identify search terms used and locations and custodians searched zuid any tracking sheets used to track the processing of this request. If DOD uses FOIA questionnaires or certifications completed by individual custodians or components to determine whether they possess responsive materials or to describe how they Sec Rebecca Ballhaus, Trump Admmistration to Bar ?mtsgender bidiw'duals from Semhg in US. IVIilz'rary, WALL STJ. (Iuly 26, 2017, 11:35 AM), Sec Asawin Suebsaeng, Trump Bows to Religious Right, Bans Trans Troops, DAILY BEAST (July 26, 2017, 12:33 PM), troops. SceJonathan Swan (@jonatlnuwswan), TWITTER (Iuly 26, 2017, 9:30 AM), 2 DOD-17.0301 Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 22 of 28 conducted searches, we also request any such records prepared in connection witlr the processing of this request. American Oversight seeks all responsive records regardless of format, medium, or physical characteristics. In conducting your search, please understand the terms ?record," ?document,? and ?inlormation? in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes 01' any meetings, telephone conversations or discussions. Our request includes any attaclunents to these records. No category of material should be omitted from search, collection, and production. Please search all records regarding agency business. You may not exclude searches of ?les or emails in the personal custody of your of?cials, such as personal email accounts. Records of of?cial business conducted rising uuollicial systems or stored outside ol'ollicial ?les is subject to the Federal Records Act and It is not adequate to rely on policies and procedures that require officials to move such information to of?cial systems within a certain period of time; American Oversight has a right to records contained in those ?les even if material has not yet been moved to official systems or if o?icials have, through negligence or willfulness, failed to meet their obligations.? Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure, withholding information ?only if. . . disclosure would harm an interest protected by an exemption? or ?disclosure is prohibited by law.?7 11' it is your position that any portion of the requested records is exempt from disclosure, American Oversight requests that you provide an index ol'those as required under Vaughn v. Rose?, 484 F.2d 820 (DC. Cir. 1973), cert. denied, 415 1.1.5. 977 (1974). As you are aware, a l?rughn index must describe each document claimed as exempt with sullicient speci?city ?to permit a reasoned judgment as to whether the material is actually exempt under Moreover, the Vaughn index ?must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing Sec Competitive Enter. Inst. v. OlIicc ol'Sci. Tech. Policy, 827 F.3d 146, 149?50 Cir. 2016); d: Judicial Watch, Inc. Kerry, 844 F.3d 952, 955?56 (DC. Cir. 2016). See Competitive Enter. Inst. v. ()lh'cc 01?5ch Tech. Policy, No. l/l-cv-765, slip op. at 8 (D.D.C. Dec. 12, 2016) (?The Government argues that because the agency had a policy requiring [the ollicial] to lorward all ol?his emails from his Ipersorrall account to his business email, the [personal] account only contains duplicate agency records at best. Therefore, the Government claims that any hypothetical deletion of the [personal account] emails would still leave a copy of those records intact in [the ollicial?s] work email. However, policies are rarely followed to perfection by anyone. At this stage of the case, the Court cannot assume that each and every work related email in the Ipersonall account was duplicated in [the ollicial?sl work email account." (citations omitted?. FOLK Improvement Act 012016 2 (Pub. L. No. 114-185). Founding Church ol'Scr'cntology v. Bell, 603 F.2d 945, 949 (DC. Cir. 1979). DOD- 1 7-030! Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 23 of 28 the sought-after information.?1 Further, ?the withholding agency must supply ?a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part ofa withheld document to which they apply.""? In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document.? Claims ofnonsegregability must be made with the same degree of detail as required for claims ofexemptions in a Vaughn index. Ifa request is denied in whole, please state speci?cally that it is not reasonable to segregate portions of the record for release. You should institute a preservation hold on information responsive to this request. American Oversight intends to pursue all legal avenues to enforce its right of access under FOIA, including litigation Accordingly, DOD is on notice that litigation is reasonably foreseeable. To ensure that this request is properly construed, that searches are conducted in an adequate but ellicient manner, and that extraneous costs are not incurred, Ameiican Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and DOD can decrease the likelihood of costly and time-consuming litigation in the future. Where possible, please provide responsive material in electronic format by email or in l?Dl? or fonnat on a 17813 drive. Please send any responsive material being sent by mail to American Oversight, 1030 Street XXV, Suite 13255, \Vashington, DC 20005. Ifit will accelerate release of responsive records to American Oversight, please also provide responsive material on rolling basis. Fee Waiver Request In accordance with 5 U.S.C. and 32 American Oversight requests a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government, and the disclosures will likely conuibute to public understanding ofthose operations. .Vloreover. the request is primarily and fundamentally for non-commercial purposes. American Oversight requests a waiver of fees because ?disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of? King I 1)ep'( oil/usuce, 830 F.2d 210, 223-24 (DC. Cir. 1987) (emphasis in original). ?0 at 22-1- (citing il?lead Data Central, Inc. v. I 1.5. Dep?t ol'die Air Force, 566 F.2d 211-2, 251 (DC. Cir. 1977)). il/Icad Data Central, 566 F.2d at 261. Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 24 of 28 government operations." OnJuly 26, 2017, President Trump announced a reversal personnel policy and reinstated a ban on transgender individuals serving ?in any capacity? in the U.S. military." The implementation ofa DOD personnel practice is a government activity, and the records responsive to this request would shed light on how the White House made the decision to discriminate against thousands of service members. The subject of this request is already of demonsuated public interest,? and, as discussed further below, American Oversight has both the ability and the intention to echctively convey the information it receives to the public. This request is primarily and fundamentally for non-commercial purposes.? As a 501 (3) nonprofit, American Oversight does not have a commercial purpose and the release of the information requested is not in American Oversight?s financial interest. American Oversight?s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountabiliw of government ollicials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on our public website and promote their availability on social media platforms, such as Facebook and Twitter.? American Oversight has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, after receiving records regarding an ethics waiver received by a senior attorney, American Oversight posted the records to its website" and published an analysis of what the records reflected about process for ethics waivers." Additionally, American Oversight has a project called ?Audit the Wall,? where the organization is gathering and analyzing information and commenting on public releases of information related to the administration?s proposed construction ofa barrier along the US.- Mexico border." Accordingly, American Oversight qualities for a fee waiver. 32 C.F.R. 32 C.F.R. See supra note 1. See Bauhaus, supra note 2; Suebsaeng, supra note 3; Swan, supra note 4. 32 C.F.R. 32 C.F.R. American Oversight currently has approximately 1,200 page likes on acebook, and 33,500 followers on ?witter. American Oversight, FACEBOOK, (last visited July 28, 2017); American Oversight (@weareoversight), (last visited July 28, 2017). '7 Vetting (he Nominees: Solicitor General Nominee Noel Francisco, AMERICAN OVERSIGHT, franciscu. Francisco the Travel Ban: What We Learned from the Documents, AMERICAN OVERSIGHT, Audit the Wall, AMERICAN OVERSIGHT, mvw.audiltllewall.org. 5 Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 25 of 28 Application for Expedited Processing Pursuant to 5 and 32 American Oversight requests that DOD expedite the processing of this request. I certify to be and correct to the best of my lurowledge and belief, that there is an urgent need to inform the public about the federal govemment activity that is the subject ofthis request. Media reports indicate that DOD was caught completely by the president?s announcement this morning.20 Moreover, even several hours after the president?s tweets, website promoting its policy of nott-discrimination toward service members was still up." This kind of inconsistency calls into question the diorougbness of the deliberations leading to this decision and whether the impact ofthe decision on the thousands of transgender indixdduals currently serving in the military was fully considered. There is an urgency for those individuals and the American public as a whole to have access to the requested records so they can participate in an informed manner in the immediate debate that resulted from the president?s announcement.?1 The .S?ce Ballbaus, supra note 2;]ulie Davis IIelene Cooper, Trump Says 'Dansgemlcr People 117/] Not Be Allowed in (110 Ali/ital); N.Y. 'l?lMl-LS?July 26, 2017, supra note 3. See Suebsaeng, supra note 3. ?7 See Bill Bartel, Trump ?5 Ban on -ople in Airlilaiy Draws Scorn ol'Tln'ee Viignn'a Liliana/(cits, Tut-1 July 26, 201 7, Trump Bans 717:1:33emler People li'om A?lilan: CBS S't. Lot'is (Iuly 26, 2017, 8:34 AM), Jeremy Diamond. 'l'rump Io Reinslale US on 'l'ransgrender People, (luly 20, 2017, 11218 AM), lulu): 2017 07-26 politics trunIp-tnilitarv- 'I?mmp Tums Back on will) 'l?ransgemlcr[Military Ban Tweets, FAST COMPANY Only 26, 2017. 9:39 AM). littps: Trump Bars 'l'ransg'emler People from Sening ?in Any Capacity' in (110 US. Ali/[lags LA. TIMES (Iuly 26, 2017, 7:58 AM), politics washinelon; la-Iia-cssential-waslunett)n- Patrick May 'l'racy Seipel, Trump Bans 'liansgemlcr People in iWiliIaIy; Bay Area Otmaged, THE MERCURY NEWS (Iuly 26, 2017, 10:57 AM), Chris Morris, Ivanlia Said Slit: Vl/as 'Proud to Support?LGBT Americans. Her Dar/Just Banned Them from (luly 26, 2017, 10:37 AM), Abby Phillip et al., Trump Announces Ban on 'Iiansgender People in (lie I IS. Ali/flaw, ASH. POST (July 26, 2017, 10:57 AM), politics wp'2017 07. 26 military E?ntnt term .ticfetleb la03; David Remnick, The Cruelty and C?n'cism ol'Trump?s 6 Donamsox Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 26 of 28 requested records will inform the public about the president?s sudden decision to re-implement a discriminatory employment policy and the level of participation by the DOD in the White IIouse's announcement. The inlormation American Oversight seeks concerns "a matter of a current exigency to the American public.?" The continued, widespread coverage of the policy change indicates Mr. Trump?s announcement concerns a policy ot?public concern and it has not been well received by Congress,? cisgender veterans,? or members 01' the American public.m Information regarding role in this policy decision will inform the public on a matter ol'public concern, and will provide insight that can inform the public?s participation in the currently ongoing debate regarding the proposed policy and its implementation by the military branches. In fact, as decision to 'Ii'ansgenderBan, NEW YORKER (luly 26, 2017, 12:13 PM), Iillp; military-ban; Carter Blasts '11'ump?s Ban on Transgender, Says '.S'oeial (luly 26, 2017, 1 1:52 AM). litlpz. article Mark Joseph Stern, In a Stunningli' Cruel and iWot'e, Trump Bans SLATE Only 26. 2017, AM), bans nnlilan' .wn'it't' \?ia lwi ?3 xil?l?ayed v. Cent. Intelligence Agency, 254 F.3d 300, 310 (D.C. Cir. 2001) (quoting HR. Rep. No. 104-795, at 26 (1996), reprinted in 1996 U.S.C.C.A.N. 3/148, 3/169). .S'cejessica lislepa, Sen. ()rrln Hatch: ?71'ansgender1"ople Are People and Deserve the Best life Can Do [or 771c?112, TODAY (Iuly 26, 2017, 12:06 PM), ilitics/t mpoliticsg 201 Kyle Stewart, Vetemns in Congress Criticize Trump '5 twilitmji' Transgender Han, ROLI. CALL Only 26, 2017, 5:56 PM), M): newspolitics, Sec-john Kirby Mark Herding, Trump?s '11a115gender Tweets Are an Alli'ont to the All- CNN ()1in 26. 2017, 8:26 PM). http: .S'ee Sasha Bucherl. Trump Cannot Hold Back Progress with a 'l?u-?eet: ?l?ransgender Veteran. USA (luly 27, 2017, 12:53 PM). 1785001/;Jonathau Capehart, Let [Me Thank Trump lorHis Tit'eets About 'I?ransgender Personnel, WASH. (Iuly 27, 2017, 12:44 PM), Daniel Hamburg, Local Reaction to President 'I?rnmp's Ali/italy Ban, 6 27, 2017, littpz. Ruth Kimata, Cheyenne Residents React to l?resrdent Trump?s 'I?ransgender 1W1'liliny Ban, (Iuly 26, 2017, 6:12 PM), to-l?rcsident?13681577931ilml. Case 1:17-cv-O2707 Document 1-3 Filed 12/19/17 Page 27 of 28 withhold implementation? indicates, the subject ofthis request concerns a currently unfolding story that has signi?cant implications for the American people, including the thousands of transgender service members. Expedition is appropriate because a delayed response would deprive the public an opportunity to participate in this currently ongoing debate in a fully informed manner. I further certify that American Oversight is primarily engaged in disseminating information to the public. American Oversight?s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government of?cials. Similar to other organizations that have been found to satisfy the criteria necessary to qualify for expedition,? American Oversight ??gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, and other media. American Oversight also makes materials it gathers available on its public website and promote their availability on social media platforms, such as Facebook and Twitter.? American Oversight has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, after receiving records regarding an ethics waiver received by a senior attorney, American Oversight. posted the records to its website? and published an analysis of what the records re?ected about process for ethics waivers.? Additionally, American Oversight has a project called ?Audit the Wall,? where the organization is gathering and analyzing information and commenting on public releases of information related to the administration's proposed construction of a barrier along the U.S.-Mexico border.? Accordingly, American ()versight?s request satisfies the criteria for expedition. See Courtney Kube Andrew Ralferty, Joint Chie?s: No Transgender Policy Changes Until Trump Clari?es Tweets, NBC NEWS (July 27, 2017, 11:37 AM), Barbara Starr et al., (1510111! Chic-ls Blindsided by Tmmp?s Tmusgemler Ban, CN POLITICS (luly 27, 2017, 1:53 PM), 20 See ACLU r. U.S. Dep?t olJusa'ce, 321 F. Supp. 2d 24, 30?31 (D.D.C. 2004); EPIC v. Dep?t of Defense, 241 F. Supp. 2d 5, 15 (D.D.C. 2003). ?7 ACLU, 321 F. Supp. 2d at 29 11.5 (quoting EPIC, 211.1 F. Supp. 2d at 11). American Oversight currently has approximately 11,200 page likes on Facebook, and 33,500 followers on Twitter. American Oversight, FACEBOOK, (last visitedJuly 28, 2017); American Oversight (@weareoversight), TWITTER, (last visited July 28, 2017). Vetting the Nominees: Solicitor General Nominee Noel Francisco, AMERICAN OVERSIGHT, liaiicisco. Francisco the Travel Ban: Ill/hat We Learned from the Documents, AMERICAN OVERSIGHT, Audit- the Wall, AMERICAN OVERSIGHT, 8 Case 1:17-cv-02707 Document 1-3 Filed 12/19/17 Page 28 of 28 Conclusion We share a common mission to promote trzulsparency in government. American Oversight looks forward to working with DOD on this request. Ifyou do not understand any part of this request, have any questions, or foresee any problems in fully releasing the requested records, please contact Cerissa Cafasso at or (202) 869-5246. Also, if American Oversight?s request for a fee waiver is not granted in full, please contact us immediately upon making such a determination. Sincerely, ?ame? Austin R. Evers Executive Director American Oversight DO D-l 7-030 1 Case 1:17-cv-02707 Document 1-4 Filed 12/19/17 Page 1 of 3 Exhibit Case 1:17-cv-02707 Document 1-4 Filed 12/19/17 Page 2 of 3 OFFICE OF THE DEPUTY CHIEF MANAGEMENT OFFICER 9010 DEFENSE PENTAGON WASHINGTON. Dc 20301-5010 OCT 12 AND COMPLIANCE Ref: l7-A-l385-Al l7?F- I 385 Ms. Cerissa Cafasso American Oversight 1030 15th Street NW. Suite 8255 Washington, DC 20005 Dear Ms. Cafasso: This responds to your August 24. 2017. Freedom oflnforrnation Act (FOIA) appeal. You are appealing the Office of Freedom of In formation?s (OFOI) decision to deny your request for expedited processing for your July 23. 20 FOIA. I reviewed your appeal at the appellate level and determined that your request for expedited processing should continue to be denied. You sought expedited processing on the basis of compelling need. Department of Defense Regulation 5400.7-R 5.4.3.2. states that compelling need means that ?the information is urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged government activity.? The generally uses a standard in which urgently needed means that ?the information has a particular value that will be lost ifnot disseminated quickly. in order to determine "compelling need." the DOD has a three-pronged test to decide whether or not the information is "urgently needed.? The three prongs ofthc test are as follows: 1. Whether the request concerns a matter of current exigency to the American public. 2. Whether the consequences ofdelaying a response would compromise a significant recognized interest. 3. Whether the request concerns actual or alleged federal government activity. I have determined that your initial request does not meet the second prong of the test. The FOIA request to OFOI does not meet the standard of the second prong because you have not proven that the consequences of delaying a response to the request would compromise a signi?cant recognized interest. Reports about the DoD's policy regarding the service of transgender individuals in the US. military have been debated in numerous stories by members of the media. Therefore, I have determined that the information you seek will not lose its value processing is denied. Since you have not proven a compelling need for the information. OFOI will continue to process the request in its standard queue. Case 1:17-cv-02707 Document 1-4 Filed 12/19/17 Page 3 of 3 You have the right to judicial review of this decision in a United States District Court, in accordance with 5 U.S.C. Sincerely, MW 100 Y. Chung. Director cc: OFOI Case 1:17-cv-02707 Document 1-5 Filed 12/19/17 Page 1 of 10 Exhibit Case 1:17-cv-02707 Document 1-5 Filed 12/19/17 Page 2 of 10 October 31, 2017 VIA ELECTRONIC MAIL Stephanie Carr OSD/JS FOIA Requester Service Center Office of Freedom of Information U.S. Department of Defense 1155 Defense Pentagon Washington, DC 20301-1155 whs.mc-alex.esd.mbx.osd-js-foia-requesterservice-center@mail.mil Alecia Bolling Freedom of Information Act Office Suite 144 7701 Telegraph Road, Room 150 Alexandria, VA 22315-3905 usarmy.belvoir.hqda-oaa-aha.mbx.rmdafoia@mail.mil JoAnne Collins SAF/AAII (FOIA) 1000 Air Force Pentagon Washington, DC 20330-1000 usaf.pentagon.saf-cio-a6.mbx.affoia@mail.mil Robin Patterson FOIA Contact, Chief of Naval Operations DNS-36 2000 Navy Pentagon Washington, DC 20350-2000 DONFOIA-PA@navy.mil Re: Expedited Freedom of Information Act Request Dear Freedom of Information Act Officers: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 and the implementing regulations of the Department of Defense (DOD), 32 C.F.R. Part 286, American Oversight makes the following request for records. On Wednesday, July 26, 2017, President Trump announced over the course of three tweets that transgender persons are no longer permitted to serve “in any capacity” in the U.S. military. Reports promptly emerged that the decision was politically motivated. First, DOD officials said 1 1 Donald J. Trump (@realDonaldTrump), TWITTER (July 26, 2017, 8:55 AM), https://twitter.com/realDonaldTrump/status/890193981585444864 (“After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow......”); Donald J. Trump (@realDonaldTrump), TWITTER (July 26, 2017, 9:04 AM), https://twitter.com/realDonaldTrump/status/890196164313833472 (“....Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming....”); Donald J. Trump (@realDonaldTrump), TWITTER (July 26, 2017, 9:08 AM), https://twitter.com/realDonaldTrump/status/890197095151546369 (“....victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you”). 1030 15th Street NW, Suite B255, Washington, DC 20005 AmericanOversight.org Case 1:17-cv-02707 Document 1-5 Filed 12/19/17 Page 3 of 10 2 they were unaware of the president’s announcement until they saw his tweets, further evidenced by DOD’s transgender non-discrimination policy still being on the agency’s website. Second, and more directly, administration sources indicated that the announcement was politically motivated to target Democratic politicians in the Rust Belt. American Oversight submits this FOIA request to shed light on whether and to what extent DOD officials were involved in this change in DOD personnel policy and the initial response to the president’s announcement of the policy change. 3 4 Requested Records American Oversight requests that DOD produce the following within twenty business days: Any analysis, reports, or recommendations regarding DOD’s policy regarding the service of transgender individuals in the U.S. military from any DOD personnel in the following offices: a. the Office of the Secretary of Defense, including the secretary, chief of staff, deputy secretary, and the assistant to the secretary of defense for public affairs; b. the Office of the Joint Chiefs of Staff; c. the Office of the Secretary of the Air Force; d. the Office of the Secretary of the Army; e. the Office of the Secretary of the Navy; or f. the Office of the Under Secretary of Defense for Personnel & Readiness; or g. the Office of the Assistant Secretary of Defense for Manpower & Reserve Affairs; h. the Office of the Assistant Secretary of Defense for Health Affairs; or i. the Office of the General Counsel of the Department of Defense. Please provide all responsive records from January 20, 2017, through 8:55 AM EDT on July 26, 2017. In addition to the records requested above, American Oversight also requests records describing the processing of this request, including records sufficient to identify search terms used and locations and custodians searched and any tracking sheets used to track the processing of this request. If DOD uses FOIA questionnaires or certifications completed by individual custodians or components to determine whether they possess responsive materials or to describe how they conducted searches, we also request any such records prepared in connection with the processing of this request. See Rebecca Ballhaus, Trump Administration to Bar Transgender Individuals from Serving in U.S. Military, WALL ST. J. (July 26, 2017, 11:35 AM), https://www.wsj.com/articles/trumpadministration-to-ban-transgender-individuals-from-serving-in-u-s-military-1501075174. See Asawin Suebsaeng, Trump Bows to Religious Right, Bans Trans Troops, DAILY BEAST (July 26, 2017, 12:33 PM), http://www.thedailybeast.com/trump-bows-to-religious-right-bans-transtroops. See Jonathan Swan (@jonathanvswan), TWITTER (July 26, 2017, 9:30 AM), https://twitter.com/jonathanvswan/status/890202683721863168. 2 2 3 4 DOD-17-0464 Case 1:17-cv-02707 Document 1-5 Filed 12/19/17 Page 4 of 10 American Oversight seeks all responsive records regardless of format, medium, or physical characteristics. In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions. Our request includes any attachments to these records. No category of material should be omitted from search, collection, and production. Please search all records regarding agency business. You may not exclude searches of files or emails in the personal custody of your officials, such as personal email accounts. Records of official business conducted using unofficial systems or stored outside of official files is subject to the Federal Records Act and FOIA. It is not adequate to rely on policies and procedures that require officials to move such information to official systems within a certain period of time; American Oversight has a right to records contained in those files even if material has not yet been moved to official systems or if officials have, through negligence or willfulness, failed to meet their obligations. 5 6 Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure, withholding information “only if . . . disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.” If it is your position that any portion of the requested records is exempt from disclosure, American Oversight requests that you provide an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). As you are aware, a Vaughn index must describe each document claimed as exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is actually exempt under FOIA.” Moreover, the Vaughn index “must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information.” Further, “the withholding agency must supply ‘a relatively detailed 7 8 9 See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149—50 (D.C. Cir. 2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955—56 (D.C. Cir. 2016). See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8 (D.D.C. Dec. 12, 2016) (“The Government argues that because the agency had a policy requiring [the official] to forward all of his emails from his [personal] account to his business email, the [personal] account only contains duplicate agency records at best. Therefore, the Government claims that any hypothetical deletion of the [personal account] emails would still leave a copy of those records intact in [the official’s] work email. However, policies are rarely followed to perfection by anyone. At this stage of the case, the Court cannot assume that each and every work related email in the [personal] account was duplicated in [the official’s] work email account.” (citations omitted)). FOIA Improvement Act of 2016 § 2 (Pub. L. No. 114–185). Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). King v. U.S. Dep’t of Justice, 830 F.2d 210, 223–24 (D.C. Cir. 1987) (emphasis in original). 3 5 6 7 8 9 DOD-17-0464 Case 1:17-cv-02707 Document 1-5 Filed 12/19/17 Page 5 of 10 justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.’” 10 In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document. Claims of nonsegregability must be made with the same degree of detail as required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release. 11 You should institute a preservation hold on information responsive to this request. American Oversight intends to pursue all legal avenues to enforce its right of access under FOIA, including litigation if necessary. Accordingly, DOD is on notice that litigation is reasonably foreseeable. To ensure that this request is properly construed, that searches are conducted in an adequate but efficient manner, and that extraneous costs are not incurred, American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and DOD can decrease the likelihood of costly and time-consuming litigation in the future. Where possible, please provide responsive material in electronic format by email or in PDF or TIF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15 Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis. th Fee Waiver Request In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 32 C.F.R. § 286.12(l)(1), American Oversight requests a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government, and the disclosures will likely contribute to public understanding of those operations. Moreover, the request is primarily and fundamentally for non-commercial purposes. American Oversight requests a waiver of fees because “disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of” government operations. On July 26, 2017, President Trump announced a reversal of DOD personnel policy and reinstated a ban on transgender individuals serving “in any capacity” in the 12 Id. at 224 (citing Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). Mead Data Central, 566 F.2d at 261. 32 C.F.R. § 286.12(l)(1); 32 C.F.R. § 286.12(l)(2)(i)-(ii). 4 10 11 12 DOD-17-0464 Case 1:17-cv-02707 Document 1-5 Filed 12/19/17 Page 6 of 10 13 U.S. military. The implementation of a DOD personnel practice is a government activity, and the records responsive to this request would shed light on how the White House made the decision to discriminate against thousands of service members. The subject of this request is already of demonstrated public interest, and, as discussed further below, American Oversight has both the ability and the intention to effectively convey the information it receives to the public. 14 15 This request is primarily and fundamentally for non-commercial purposes. As a 501(c)(3) nonprofit, American Oversight does not have a commercial purpose and the release of the information requested is not in American Oversight’s financial interest. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on our public website and promote their availability on social media platforms, such as Facebook and Twitter. American Oversight has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, after receiving records regarding an ethics waiver received by a senior DOJ attorney, American Oversight promptly posted the records to its website and published an analysis of what the records reflected about DOJ’s process for ethics waivers. Additionally, American Oversight has a project called “Audit the Wall,” where the organization is gathering and analyzing information and commenting on public releases of information related to the administration’s proposed construction of a barrier along the U.S.Mexico border. 16 17 18 19 Accordingly, American Oversight qualifies for a fee waiver. See supra note 1. See Ballhaus, supra note 2; Camila Domonoske, Federal Judge Blocks Trump’s Ban on Transgender Service Members, NPR (Oct. 30, 2017, 2:30 PM), http://www.npr.org/sections/thetwo-way/2017/10/30/560847850/federal-judge-blocks-trumps-banon-transgender-service-members; Suebsaeng, supra note 3; Swan, supra note 4. 32 C.F.R. § 286.12(l)(1); 32 C.F.R. § 286.12(l)(2)(iii)(A)-(B). American Oversight currently has approximately 11,600 page likes on Facebook, and 35,300 followers on Twitter. American Oversight, FACEBOOK, https://www.facebook.com/weareoversight/ (last visited Oct. 30, 2017); American Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited Oct. 30, 2017). DOJ Civil Division Response Noel Francisco Compliance, AMERICAN OVERSIGHT, https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance. Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN OVERSIGHT, https://www.americanoversight.org/francisco-the-travel-ban-what-we-learned-from-thedoj-documents. Audit the Wall, AMERICAN OVERSIGHT, www.auditthewall.org. 5 13 14 15 16 17 18 19 DOD-17-0464 Case 1:17-cv-02707 Document 1-5 Filed 12/19/17 Page 7 of 10 Application for Expedited Processing Pursuant to 5 U.S.C. § 552(a)(6)(E) and 32 C.F.R. § 286.8(e), American Oversight requests that DOD expedite the processing of this request. I certify to be true and correct to the best of my knowledge and belief, that there is an urgent need to inform the public about the federal government activity that is the subject of this request. Media reports indicate that DOD was caught completely off-guard by the president’s announcement this morning. Moreover, DOD’s website promoting its policy of non-discrimination toward transgender service members has remained up since the president’s announcement and while the government is defending the transgender ban in court. This kind of inconsistency calls into question the thoroughness of the deliberations leading to this decision and whether the impact of the decision on the thousands of transgender individuals currently serving in the U.S. military was fully considered. The gap between the policy stated on DOD’s website and in litigation documents filed in court also raises questions regarding what, in fact, the current policy position of the military is. There is an urgency for those individuals and the American public as a whole to have access to the requested records so they can participate in an informed manner in the debate over the ban while the government continues to defend the discriminatory policy in court resulted. The 20 21 22 See Ballhaus, supra note 2; Julie Hirschfeld Davis & Helene Cooper, Trump Says Transgender People Will Not Be Allowed in the Military, N.Y. TIMES, July 26, 2017, https://www.nytimes.com/2017/07/26/us/politics/trump-transgender-military.html; Suebsaeng, supra note 3. See Suebsaeng, supra note 3; Department of Defense Transgender Policy, U.S. DEP’T OF DEF., https://www.defense.gov/News/Special-Reports/0616_transgender-policy/ (last visited Oct. 30, 2017); Charlie Savage, 5 Transgender Service Members Sue Trump Over Military Ban, N.Y. TIMES, Aug. 9, 2017, https://www.nytimes.com/2017/08/09/us/politics/5-transgender-servicemembers-sue-trump-over-military-ban.html. See Bill Bartel, Trump’s Ban on Transgender People in Military Draws Scorn of Three Virginia Lawmakers, THE VIRGINIAN-PILOT, July 26, 2017, https://pilotonline.com/news/government/nation/trump-s-ban-on-transgender-people-in-militarydraws-ire/article_dc0c2f1e-3691-5209-b24a-11b564d7cba4.html; Trump Bans Transgender People from Military, CBS ST. LOUIS (July 26, 2017, 8:34 AM), http://stlouis.cbslocal.com/2017/07/26/breaking-trump-bans-transgender-people-from-military/; Jeremy Diamond, Trump to Reinstate US Military Ban on Transgender People, CNNPOLITICS (July 26, 2017, 11:18 AM), http://www.cnn.com/2017/07/26/politics/trump-militarytransgender/index.html; Trump Turns Back on LGBT Community with Transgender Military Ban Tweets, FAST COMPANY (July 26, 2017, 9:39 AM), https://news.fastcompany.com/trumpturns-back-on-lgbt-community-with-transgender-military-ban-tweets-4045340; W.J. Hennigan, Trump Bars Transgender People from Serving ‘in Any Capacity’ in the U.S. Military, L.A. TIMES (July 26, 2017, 7:58 AM), http://www.latimes.com/politics/washington/la-na-essential-washingtonupdates-trump-transgender-people-will-not-be-1501074883-htmlstory.html; Patrick May & Tracy Seipel, Trump Bans Transgender People in Military; Bay Area Outraged, THE MERCURY NEWS (July 26, 2017, 10:57 AM), http://www.mercurynews.com/2017/07/26/trump-bans-transgenders-inmilitary-bay-area-outraged/; Chris Morris, Ivanka Said She Was ‘Proud to Support’ LGBT 6 20 21 22 DOD-17-0464 Case 1:17-cv-02707 Document 1-5 Filed 12/19/17 Page 8 of 10 requested records will inform the public about the president’s sudden decision to re-implement a discriminatory employment policy and the level of participation by the DOD in the White House’s announcement. The information American Oversight seeks concerns “a matter of a current exigency to the American public.” The continued, widespread coverage of the policy change indicates Mr. Trump’s announcement concerns a policy of public concern and it has not been well received by Congress, cisgender veterans, or members of the American public. Information regarding 23 24 25 26 Americans. Her Dad Just Banned Them from the Military, FORTUNE (July 26, 2017, 10:37 AM), http://fortune.com/2017/07/26/donald-trump-ivanka-transgender-united-states-armed-forces/; Abby Phillip et al., Trump Announces Ban on Transgender People in the U.S. Military, WASH. POST (July 26, 2017, 10:57 AM), https://www.washingtonpost.com/news/postpolitics/wp/2017/07/26/trump-announces-ban-on-transgender-people-in-u-smilitary/?utm_term=.6efe0eb41a03; David Remnick, The Cruelty and Cynicism of Trump’s Transgender Ban, THE NEW YORKER (July 26, 2017, 12:43 PM), http://www.newyorker.com/news/news-desk/the-cruelty-and-cynicism-of-trumps-transgendermilitary-ban; Carter Blasts Trump’s Ban on Transgender, Says ‘Social Policy,’ REUTERS (July 26, 2017, 11:52 AM), http://www.reuters.com/article/us-usa-military-transgender-carteridUSKBN1AB27E?il=0; Mark Joseph Stern, In a Stunningly Cruel and Unjustified Move, Trump Bans Transgender Military Service, SLATE (July 26, 2017, 10:42 AM), http://www.slate.com/blogs/outward/2017/07/26/trump_bans_transgender_military_service_via_twi tter.html. Al-Fayed v. Cent. Intelligence Agency, 254 F.3d 300, 310 (D.C. Cir. 2001) (quoting H.R. Rep. No. 104-795, at 26 (1996), reprinted in 1996 U.S.C.C.A.N. 3448, 3469). See Jessica Estepa, Sen. Orrin Hatch: ‘Transgender People Are People and Deserve the Best We Can Do for Them,’ USA TODAY (July 26, 2017, 12:06 PM), https://www.usatoday.com/story/news/politics/onpolitics/2017/07/26/sen-orrin-hatch-transgenderpeople-people-and-deserve-best-we-can-do-them/512333001/; Kyle Stewart, Veterans in Congress Criticize Trump’s Military Transgender Ban, ROLL CALL (July 26, 2017, 5:56 PM), http://www.rollcall.com/news/politics/veterans-congress-transgender-trump. See John Kirby & Mark Hertling, Trump’s Transgender Tweets Are an Affront to the AllVolunteer Military, CNN (July 26, 2017, 8:26 PM), http://www.cnn.com/2017/07/26/opinions/trump-trans-military-opinion-hertling-kirby/index.html. See Sasha Buchert, Trump Cannot Hold Back Progress with a Tweet: Transgender Veteran, USA TODAY (July 27, 2017, 12:53 PM), https://www.usatoday.com/story/opinion/2017/07/27/trumps-transgender-ban-cannot-stamp-outprogress-sasha-buchert-column/514785001/; Jonathan Capehart, Let Me Thank Trump for His Tweets About Transgender Personnel, WASH. POST (July 27, 2017, 12:44 PM), https://www.washingtonpost.com/blogs/post-partisan/wp/2017/07/27/let-me-thank-trump-for-histweets-about-transgender-personnel/?utm_term=.032015b22e24; Daniel Hamburg, Local Reaction to President Trump’s Transgender Military Ban, 6 WJAC, July 27, 2017, http://wjactv.com/news/local/local-reaction-to-president-trumps-transgender-military-ban-07-272017; Ruth Kimata, Cheyenne Residents React to President Trump’s Transgender Military Ban, 7 23 24 25 26 DOD-17-0464 Case 1:17-cv-02707 Document 1-5 Filed 12/19/17 Page 9 of 10 DOD’s role in this policy decision will inform the public on a matter of public concern, and will provide insight that can inform the public’s participation in the currently ongoing debate regarding the proposed policy and its implementation by the military branches. In fact, as DOD’s decision to withhold implementation indicates, the subject of this request concerns a currently unfolding story that has significant implications for the American people, including the thousands of transgender service members. Expedition is appropriate because a delayed response would deprive the public an opportunity to participate in this currently ongoing debate in a fully informed manner. 27 Moreover, on Monday, a federal court blocked DOD from implementing the policy because “it did not appear to be based on facts, but instead on ‘a desire to express disapproval of transgender people generally.’” It is essential that the public know what the true intentions of DOD and this administration are so that there can be an understanding of military readiness and focus as belligerent escalations are on the rise across the globe. 28 29 I further certify that American Oversight is primarily engaged in disseminating information to the public. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. Similar to other organizations that have been found to satisfy the criteria necessary to qualify for expedition, American Oversight “‘gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an audience.’” American Oversight uses the information gathered, and its analysis of it, to 30 31 KGWN-TV (July 26, 2017, 6:12 PM), http://www.kgwn.tv/content/news/Cheyenne-residents-reactto-President--436837793.html. See Courtney Kube & Andrew Rafferty, Joint Chiefs: No Transgender Policy Changes Until Trump Clarifies Tweets, NBC NEWS (July 27, 2017, 11:37 AM), http://www.nbcnews.com/politics/national-security/joint-chiefs-no-transgender-policy-changes-untiltrump-clarifies-tweets-n787076; Barbara Starr et al., US Joint Chiefs Blindsided by Trump’s Transgender Ban, CNNPOLITICS (July 27, 2017, 1:53 PM), http://www.cnn.com/2017/07/27/politics/trump-military-transgender-ban-joint-chiefs/index.html. Dave Philipps, Judge Blocks Trump’s Ban on Transgender Troops in Military, N.Y. TIMES, Oct. 30, 2017, https://www.nytimes.com/2017/10/30/us/military-transgender-ban.html. Associated Press, The Latest: Haley Evacuated from UN Camp in South Sudan, N.Y. TIMES (Oct. 25, 2017, 1:54 PM), https://www.nytimes.com/aponline/2017/10/25/world/africa/ap-af-us-unafrica-the-latest.html; DER SPIEGEL staff, Trump Risks New Conflagration in Middle East, SPIEGEL ONLINE (Oct. 17, 2017, 5:42 PM), http://www.spiegel.de/international/world/donaldtrump-risks-escalation-in-iran-over-nuclear-accord-a-1173313.html; Trump on North Korea: ‘Only One Thing Will Work!,’ L.A. TIMES, Oct. 7, 2017, http://www.latimes.com/politics/la-pol-updatestrump-tweets-north-korea-negotiations-htmlstory.html; Travis J. Tritten, Jim Mattis and Rex Tillerson Say New War Authorization Should Have No Time, Geographic Limits, WASH. EXAM’R (Oct. 30, 2017, 5:40 PM), http://www.washingtonexaminer.com/jim-mattis-and-rextillerson-say-new-war-authorization-should-have-no-time-geographic-limits/article/2639043. See ACLU v. U.S. Dep’t of Justice, 321 F. Supp. 2d 24, 30—31 (D.D.C. 2004); EPIC v. Dep’t of Defense, 241 F. Supp. 2d 5, 15 (D.D.C. 2003). ACLU, 321 F. Supp. 2d at 29 n.5 (quoting EPIC, 241 F. Supp. 2d at 11). 8 27 28 29 30 31 DOD-17-0464 Case 1:17-cv-02707 Document 1-5 Filed 12/19/17 Page 10 of 10 educate the public through reports, press releases, and other media. American Oversight also makes materials it gathers available on its public website and promote their availability on social media platforms, such as Facebook and Twitter. American Oversight has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, after receiving records regarding an ethics waiver received by a senior DOJ attorney, American Oversight promptly posted the records to its website and published an analysis of what the records reflected about DOJ’s process for ethics waivers. Additionally, American Oversight has a project called “Audit the Wall,” where the organization is gathering and analyzing information and commenting on public releases of information related to the administration’s proposed construction of a barrier along the U.S.-Mexico border. 32 33 34 35 Accordingly, American Oversight’s request satisfies the criteria for expedition. Conclusion We share a common mission to promote transparency in government. American Oversight looks forward to working with DOD on this request. If you do not understand any part of this request, have any questions, or foresee any problems in fully releasing the requested records, please contact Cerissa Cafasso at foia@americanoversight.org or (202) 869-5246. Also, if American Oversight’s request for a fee waiver is not granted in full, please contact us immediately upon making such a determination. Sincerely, Austin R. Evers Executive Director American Oversight 32 American Oversight currently has approximately 11,600 page likes on Facebook, and 35,300 followers on Twitter. American Oversight, FACEBOOK, https://www.facebook.com/weareoversight/ (last visited Oct. 30, 2017); American Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited Oct. 30, 2017). DOJ Civil Division Response Noel Francisco Compliance, AMERICAN OVERSIGHT, https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance. Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN OVERSIGHT, https://www.americanoversight.org/francisco-the-travel-ban-what-we-learned-from-thedoj-documents. Audit the Wall, AMERICAN OVERSIGHT, www.auditthewall.org. 9 33 34 35 DOD-17-0464 Case 1:17-cv-02707 Document 1-6 Filed 12/19/17 Page 1 of 2 Exhibit Case 1:17-cv-02707 Document 1-6 Filed 12/19/17 Page 2 of 2 From: Subject: Date: To: DONFOIA-PA@navy.mil FOIA Expedited Processing Disposition Reached for DON-NAVY-2018-000947 November 28, 2017 at 9:33 AM foia@americanoversight.org Your request for Expedited Processing for the FOIA request DON-NAVY-2018-000947 has been denied. Additional details for this request are as follows: Request Created on: 11/01/2017 Expedited Disposition Reason: Request does not meet criteria for expedited processing CTM Request Long Description: HI-VIZ: American Oversight requests that DOD produce the following within twenty business days: Any analysis, reports, or recommendations regarding DOD’s policy regarding the service of transgender individuals in the U.S. military from any DOD personnel in the following offices: a. the Office of the Secretary of Defense, including the secretary, chief of staff, deputy secretary, and the assistant to the secretary of defense for public affairs; b. the Office of the Joint Chiefs of Staff; c. the Office of the Secretary of the Air Force; d. the Office of the Secretary of the Army; e. the Office of the Secretary of the Navy; or f. the Office of the Under Secretary of Defense for Personnel & Readiness; or g. the Office of the Assistant Secretary of Defense for Manpower & Reserve Affairs; h. the Office of the Assistant Secretary of Defense for Health Affairs; or i. the Office of the General Counsel of the Department of Defense. Please provide all responsive records from January 20, 2017, through 8:55 AM EDT on July 26, 2017. Case 1:17-cv-02707 Document 1-7 Filed 12/19/17 Page 1 of 10 Exhibit Case 1:17-cv-02707 Document 1-7 Filed 12/19/17 Page 2 of 10 October 31, 2017 VIA ELECTRONIC MAIL Stephanie Carr OSD/JS FOIA Requester Service Center Office of Freedom of Information U.S. Department of Defense 1155 Defense Pentagon Washington, DC 20301-1155 whs.mc-alex.esd.mbx.osd-js-foia-requesterservice-center@mail.mil Alecia Bolling Freedom of Information Act Office Suite 144 7701 Telegraph Road, Room 150 Alexandria, VA 22315-3905 usarmy.belvoir.hqda-oaa-aha.mbx.rmdafoia@mail.mil JoAnne Collins SAF/AAII (FOIA) 1000 Air Force Pentagon Washington, DC 20330-1000 usaf.pentagon.saf-cio-a6.mbx.affoia@mail.mil Robin Patterson FOIA Contact, Chief of Naval Operations DNS-36 2000 Navy Pentagon Washington, DC 20350-2000 DONFOIA-PA@navy.mil Re: Expedited Freedom of Information Act Request Dear Freedom of Information Act Officers: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 and the implementing regulations of the Department of Defense (DOD), 32 C.F.R. Part 286, American Oversight makes the following request for records. On Wednesday, July 26, 2017, President Trump announced over the course of three tweets that transgender persons are no longer permitted to serve “in any capacity” in the U.S. military. Reports promptly emerged that the decision was politically motivated. First, DOD officials said 1 1 Donald J. Trump (@realDonaldTrump), TWITTER (July 26, 2017, 8:55 AM), https://twitter.com/realDonaldTrump/status/890193981585444864 (“After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow......”); Donald J. Trump (@realDonaldTrump), TWITTER (July 26, 2017, 9:04 AM), https://twitter.com/realDonaldTrump/status/890196164313833472 (“....Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming....”); Donald J. Trump (@realDonaldTrump), TWITTER (July 26, 2017, 9:08 AM), https://twitter.com/realDonaldTrump/status/890197095151546369 (“....victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you”). 1030 15th Street NW, Suite B255, Washington, DC 20005 AmericanOversight.org Case 1:17-cv-02707 Document 1-7 Filed 12/19/17 Page 3 of 10 2 they were unaware of the president’s announcement until they saw his tweets, further evidenced by DOD’s transgender non-discrimination policy still being on the agency’s website. Second, and more directly, administration sources indicated that the announcement was politically motivated to target Democratic politicians in the Rust Belt. American Oversight submits this FOIA request to shed light on whether and to what extent DOD officials were involved in this change in DOD personnel policy and the initial response to the president’s announcement of the policy change. 3 4 Requested Records American Oversight requests that DOD produce the following within twenty business days: All records reflecting communications (including emails, telephone call logs, calendar entries, or any other records reflecting communications) regarding President Trump’s tweet at 8:55 am that read “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow……” from any DOD military or civilian personnel in the following offices: a. the Office of the Secretary of Defense, including the secretary, chief of staff, deputy secretary, and the assistant to the secretary of defense for public affairs; b. the Office of the Joint Chiefs of Staff; c. the Office of the Secretary of the Air Force; d. the Office of the Secretary of the Army; e. the Office of the Secretary of the Navy; or f. the Office of the Under Secretary of Defense for Personnel & Readiness; or g. the Office of the Assistant Secretary of Defense for Manpower & Reserve Affairs; h. the Office of the Assistant Secretary of Defense for Health Affairs; or i. the Office of the General Counsel of the Department of Defense. Please provide all responsive records from 8:55 AM EDT through 12:00 pm EDT on July 26, 2017. In addition to the records requested above, American Oversight also requests records describing the processing of this request, including records sufficient to identify search terms used and locations and custodians searched and any tracking sheets used to track the processing of this request. If DOD uses FOIA questionnaires or certifications completed by individual custodians or components to determine whether they possess responsive materials or to describe how they See Rebecca Ballhaus, Trump Administration to Bar Transgender Individuals from Serving in U.S. Military, WALL ST. J. (July 26, 2017, 11:35 AM), https://www.wsj.com/articles/trumpadministration-to-ban-transgender-individuals-from-serving-in-u-s-military-1501075174. See Asawin Suebsaeng, Trump Bows to Religious Right, Bans Trans Troops, DAILY BEAST (July 26, 2017, 12:33 PM), http://www.thedailybeast.com/trump-bows-to-religious-right-bans-transtroops. See Jonathan Swan (@jonathanvswan), TWITTER (July 26, 2017, 9:30 AM), https://twitter.com/jonathanvswan/status/890202683721863168. 2 2 3 4 DOD-17-0465 Case 1:17-cv-02707 Document 1-7 Filed 12/19/17 Page 4 of 10 conducted searches, we also request any such records prepared in connection with the processing of this request. American Oversight seeks all responsive records regardless of format, medium, or physical characteristics. In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions. Our request includes any attachments to these records. No category of material should be omitted from search, collection, and production. Please search all records regarding agency business. You may not exclude searches of files or emails in the personal custody of your officials, such as personal email accounts. Records of official business conducted using unofficial systems or stored outside of official files is subject to the Federal Records Act and FOIA. It is not adequate to rely on policies and procedures that require officials to move such information to official systems within a certain period of time; American Oversight has a right to records contained in those files even if material has not yet been moved to official systems or if officials have, through negligence or willfulness, failed to meet their obligations. 5 6 Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure, withholding information “only if . . . disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.” If it is your position that any portion of the requested records is exempt from disclosure, American Oversight requests that you provide an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). As you are aware, a Vaughn index must describe each document claimed as exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is actually exempt under FOIA.” Moreover, the Vaughn index “must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing 7 8 See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149—50 (D.C. Cir. 2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955—56 (D.C. Cir. 2016). See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8 (D.D.C. Dec. 12, 2016) (“The Government argues that because the agency had a policy requiring [the official] to forward all of his emails from his [personal] account to his business email, the [personal] account only contains duplicate agency records at best. Therefore, the Government claims that any hypothetical deletion of the [personal account] emails would still leave a copy of those records intact in [the official’s] work email. However, policies are rarely followed to perfection by anyone. At this stage of the case, the Court cannot assume that each and every work related email in the [personal] account was duplicated in [the official’s] work email account.” (citations omitted)). FOIA Improvement Act of 2016 § 2 (Pub. L. No. 114–185). Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). 3 5 6 7 8 DOD-17-0465 Case 1:17-cv-02707 Document 1-7 Filed 12/19/17 Page 5 of 10 9 the sought-after information.” Further, “the withholding agency must supply ‘a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.’” 10 In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document. Claims of nonsegregability must be made with the same degree of detail as required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release. 11 You should institute a preservation hold on information responsive to this request. American Oversight intends to pursue all legal avenues to enforce its right of access under FOIA, including litigation if necessary. Accordingly, DOD is on notice that litigation is reasonably foreseeable. To ensure that this request is properly construed, that searches are conducted in an adequate but efficient manner, and that extraneous costs are not incurred, American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and DOD can decrease the likelihood of costly and time-consuming litigation in the future. Where possible, please provide responsive material in electronic format by email or in PDF or TIF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15 Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis. th Fee Waiver Request In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 32 C.F.R. § 286.12(l)(1), American Oversight requests a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government, and the disclosures will likely contribute to public understanding of those operations. Moreover, the request is primarily and fundamentally for non-commercial purposes. American Oversight requests a waiver of fees because “disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of” King v. U.S. Dep’t of Justice, 830 F.2d 210, 223–24 (D.C. Cir. 1987) (emphasis in original). Id. at 224 (citing Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). Mead Data Central, 566 F.2d at 261. 4 9 10 11 DOD-17-0465 Case 1:17-cv-02707 Document 1-7 Filed 12/19/17 Page 6 of 10 12 government operations. On July 26, 2017, President Trump announced a reversal of DOD personnel policy and reinstated a ban on transgender individuals serving “in any capacity” in the U.S. military. The implementation of a DOD personnel practice is a government activity, and the records responsive to this request would shed light on how the White House made the decision to discriminate against thousands of service members. The subject of this request is already of demonstrated public interest, and, as discussed further below, American Oversight has both the ability and the intention to effectively convey the information it receives to the public. 13 14 15 This request is primarily and fundamentally for non-commercial purposes. As a 501(c)(3) nonprofit, American Oversight does not have a commercial purpose and the release of the information requested is not in American Oversight’s financial interest. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on our public website and promote their availability on social media platforms, such as Facebook and Twitter. American Oversight has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, after receiving records regarding an ethics waiver received by a senior DOJ attorney, American Oversight promptly posted the records to its website and published an analysis of what the records reflected about DOJ’s process for ethics waivers. Additionally, American Oversight has a project called “Audit the Wall,” where the organization is gathering and analyzing information and commenting on public releases of information related to the administration’s proposed construction of a barrier along the U.S.Mexico border. 16 17 18 19 Accordingly, American Oversight qualifies for a fee waiver. 12 32 C.F.R. § 286.12(l)(1); 32 C.F.R. § 286.12(l)(2)(i)-(ii). See supra note 1. See Ballhaus, supra note 2; Camila Domonoske, Federal Judge Blocks Trump’s Ban on Transgender Service Members, NPR (Oct. 30, 2017, 2:30 PM), http://www.npr.org/sections/thetwo-way/2017/10/30/560847850/federal-judge-blocks-trumps-banon-transgender-service-members; Suebsaeng, supra note 3; Swan, supra note 4. 32 C.F.R. § 286.12(l)(1); 32 C.F.R. § 286.12(l)(2)(iii)(A)-(B). American Oversight currently has approximately 11,600 page likes on Facebook, and 35,300 followers on Twitter. American Oversight, FACEBOOK, https://www.facebook.com/weareoversight/ (last visited Oct. 30, 2017); American Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited Oct. 30, 2017). DOJ Civil Division Response Noel Francisco Compliance, AMERICAN OVERSIGHT, https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance. Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN OVERSIGHT, https://www.americanoversight.org/francisco-the-travel-ban-what-we-learned-from-thedoj-documents. Audit the Wall, AMERICAN OVERSIGHT, www.auditthewall.org. 5 13 14 15 16 17 18 19 DOD-17-0465 Case 1:17-cv-02707 Document 1-7 Filed 12/19/17 Page 7 of 10 Application for Expedited Processing Pursuant to 5 U.S.C. § 552(a)(6)(E) and 32 C.F.R. § 286.8(e), American Oversight requests that DOD expedite the processing of this request. I certify to be true and correct to the best of my knowledge and belief, that there is an urgent need to inform the public about the federal government activity that is the subject of this request. Media reports indicate that DOD was caught completely off-guard by the president’s announcement this morning. Moreover, DOD’s website promoting its policy of non-discrimination toward transgender service members has remained up since the president’s announcement and while the government is defending the transgender ban in court. This kind of inconsistency calls into question the thoroughness of the deliberations leading to this decision and whether the impact of the decision on the thousands of transgender individuals currently serving in the U.S. military was fully considered. The gap between the policy stated on DOD’s website and in litigation documents filed in court also raises questions regarding what, in fact, the current policy position of the military is. There is an urgency for those individuals and the American public as a whole to have access to the requested records so they can participate in an informed manner in the debate over the ban while the government continues to defend the discriminatory policy in court resulted. The 20 21 22 See Ballhaus, supra note 2; Julie Hirschfeld Davis & Helene Cooper, Trump Says Transgender People Will Not Be Allowed in the Military, N.Y. TIMES, July 26, 2017, https://www.nytimes.com/2017/07/26/us/politics/trump-transgender-military.html; Suebsaeng, supra note 3. See Suebsaeng, supra note 3; Department of Defense Transgender Policy, U.S. DEP’T OF DEF., https://www.defense.gov/News/Special-Reports/0616_transgender-policy/ (last visited Oct. 30, 2017); Charlie Savage, 5 Transgender Service Members Sue Trump Over Military Ban, N.Y. TIMES, Aug. 9, 2017, https://www.nytimes.com/2017/08/09/us/politics/5-transgender-servicemembers-sue-trump-over-military-ban.html. See Bill Bartel, Trump’s Ban on Transgender People in Military Draws Scorn of Three Virginia Lawmakers, THE VIRGINIAN-PILOT, July 26, 2017, https://pilotonline.com/news/government/nation/trump-s-ban-on-transgender-people-in-militarydraws-ire/article_dc0c2f1e-3691-5209-b24a-11b564d7cba4.html; Trump Bans Transgender People from Military, CBS ST. LOUIS (July 26, 2017, 8:34 AM), http://stlouis.cbslocal.com/2017/07/26/breaking-trump-bans-transgender-people-from-military/; Jeremy Diamond, Trump to Reinstate US Military Ban on Transgender People, CNNPOLITICS (July 26, 2017, 11:18 AM), http://www.cnn.com/2017/07/26/politics/trump-militarytransgender/index.html; Trump Turns Back on LGBT Community with Transgender Military Ban Tweets, FAST COMPANY (July 26, 2017, 9:39 AM), https://news.fastcompany.com/trumpturns-back-on-lgbt-community-with-transgender-military-ban-tweets-4045340; W.J. Hennigan, Trump Bars Transgender People from Serving ‘in Any Capacity’ in the U.S. Military, L.A. TIMES (July 26, 2017, 7:58 AM), http://www.latimes.com/politics/washington/la-na-essential-washingtonupdates-trump-transgender-people-will-not-be-1501074883-htmlstory.html; Patrick May & Tracy Seipel, Trump Bans Transgender People in Military; Bay Area Outraged, THE MERCURY NEWS (July 26, 2017, 10:57 AM), http://www.mercurynews.com/2017/07/26/trump-bans-transgenders-in6 20 21 22 DOD-17-0465 Case 1:17-cv-02707 Document 1-7 Filed 12/19/17 Page 8 of 10 requested records will inform the public about the president’s sudden decision to re-implement a discriminatory employment policy and the level of participation by the DOD in the White House’s announcement. The information American Oversight seeks concerns “a matter of a current exigency to the American public.” The continued, widespread coverage of the policy change indicates Mr. Trump’s announcement concerns a policy of public concern and it has not been well received by Congress, cisgender veterans, or members of the American public. Information regarding 23 24 25 26 military-bay-area-outraged/; Chris Morris, Ivanka Said She Was ‘Proud to Support’ LGBT Americans. Her Dad Just Banned Them from the Military, FORTUNE (July 26, 2017, 10:37 AM), http://fortune.com/2017/07/26/donald-trump-ivanka-transgender-united-states-armed-forces/; Abby Phillip et al., Trump Announces Ban on Transgender People in the U.S. Military, WASH. POST (July 26, 2017, 10:57 AM), https://www.washingtonpost.com/news/postpolitics/wp/2017/07/26/trump-announces-ban-on-transgender-people-in-u-smilitary/?utm_term=.6efe0eb41a03; David Remnick, The Cruelty and Cynicism of Trump’s Transgender Ban, THE NEW YORKER (July 26, 2017, 12:43 PM), http://www.newyorker.com/news/news-desk/the-cruelty-and-cynicism-of-trumps-transgendermilitary-ban; Carter Blasts Trump’s Ban on Transgender, Says ‘Social Policy,’ REUTERS (July 26, 2017, 11:52 AM), http://www.reuters.com/article/us-usa-military-transgender-carteridUSKBN1AB27E?il=0; Mark Joseph Stern, In a Stunningly Cruel and Unjustified Move, Trump Bans Transgender Military Service, SLATE (July 26, 2017, 10:42 AM), http://www.slate.com/blogs/outward/2017/07/26/trump_bans_transgender_military_service_via_twi tter.html. Al-Fayed v. Cent. Intelligence Agency, 254 F.3d 300, 310 (D.C. Cir. 2001) (quoting H.R. Rep. No. 104-795, at 26 (1996), reprinted in 1996 U.S.C.C.A.N. 3448, 3469). See Jessica Estepa, Sen. Orrin Hatch: ‘Transgender People Are People and Deserve the Best We Can Do for Them,’ USA TODAY (July 26, 2017, 12:06 PM), https://www.usatoday.com/story/news/politics/onpolitics/2017/07/26/sen-orrin-hatch-transgenderpeople-people-and-deserve-best-we-can-do-them/512333001/; Kyle Stewart, Veterans in Congress Criticize Trump’s Military Transgender Ban, ROLL CALL (July 26, 2017, 5:56 PM), http://www.rollcall.com/news/politics/veterans-congress-transgender-trump. See John Kirby & Mark Hertling, Trump’s Transgender Tweets Are an Affront to the AllVolunteer Military, CNN (July 26, 2017, 8:26 PM), http://www.cnn.com/2017/07/26/opinions/trump-trans-military-opinion-hertling-kirby/index.html. See Sasha Buchert, Trump Cannot Hold Back Progress with a Tweet: Transgender Veteran, USA TODAY (July 27, 2017, 12:53 PM), https://www.usatoday.com/story/opinion/2017/07/27/trumps-transgender-ban-cannot-stamp-outprogress-sasha-buchert-column/514785001/; Jonathan Capehart, Let Me Thank Trump for His Tweets About Transgender Personnel, WASH. POST (July 27, 2017, 12:44 PM), https://www.washingtonpost.com/blogs/post-partisan/wp/2017/07/27/let-me-thank-trump-for-histweets-about-transgender-personnel/?utm_term=.032015b22e24; Daniel Hamburg, Local Reaction to President Trump’s Transgender Military Ban, 6 WJAC, July 27, 2017, http://wjactv.com/news/local/local-reaction-to-president-trumps-transgender-military-ban-07-272017; Ruth Kimata, Cheyenne Residents React to President Trump’s Transgender Military Ban, 7 23 24 25 26 DOD-17-0465 Case 1:17-cv-02707 Document 1-7 Filed 12/19/17 Page 9 of 10 DOD’s role in this policy decision will inform the public on a matter of public concern, and will provide insight that can inform the public’s participation in the currently ongoing debate regarding the proposed policy and its implementation by the military branches. In fact, as DOD’s decision to withhold implementation indicates, the subject of this request concerns a currently unfolding story that has significant implications for the American people, including the thousands of transgender service members. Expedition is appropriate because a delayed response would deprive the public an opportunity to participate in this currently ongoing debate in a fully informed manner. 27 Moreover, on Monday, a federal court blocked DOD from implementing the policy because “it did not appear to be based on facts, but instead on ‘a desire to express disapproval of transgender people generally.’” It is essential that the public know what the true intentions of DOD and this administration are so that there can be an understanding of military readiness and focus as belligerent escalations are on the rise across the globe. 28 29 I further certify that American Oversight is primarily engaged in disseminating information to the public. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. Similar to other organizations that have been found to satisfy the criteria necessary to qualify for expedition, American Oversight “‘gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an audience.’” American Oversight uses the information gathered, and its analysis of it, to 30 31 KGWN-TV (July 26, 2017, 6:12 PM), http://www.kgwn.tv/content/news/Cheyenne-residents-reactto-President--436837793.html. See Courtney Kube & Andrew Rafferty, Joint Chiefs: No Transgender Policy Changes Until Trump Clarifies Tweets, NBC NEWS (July 27, 2017, 11:37 AM), http://www.nbcnews.com/politics/national-security/joint-chiefs-no-transgender-policy-changes-untiltrump-clarifies-tweets-n787076; Barbara Starr et al., US Joint Chiefs Blindsided by Trump’s Transgender Ban, CNNPOLITICS (July 27, 2017, 1:53 PM), http://www.cnn.com/2017/07/27/politics/trump-military-transgender-ban-joint-chiefs/index.html. Dave Philipps, Judge Blocks Trump’s Ban on Transgender Troops in Military, N.Y. TIMES, Oct. 30, 2017, https://www.nytimes.com/2017/10/30/us/military-transgender-ban.html. Associated Press, The Latest: Haley Evacuated from UN Camp in South Sudan, N.Y. TIMES (Oct. 25, 2017, 1:54 PM), https://www.nytimes.com/aponline/2017/10/25/world/africa/ap-af-us-unafrica-the-latest.html; DER SPIEGEL staff, Trump Risks New Conflagration in Middle East, SPIEGEL ONLINE (Oct. 17, 2017, 5:42 PM), http://www.spiegel.de/international/world/donaldtrump-risks-escalation-in-iran-over-nuclear-accord-a-1173313.html; Trump on North Korea: ‘Only One Thing Will Work!,’ L.A. TIMES, Oct. 7, 2017, http://www.latimes.com/politics/la-pol-updatestrump-tweets-north-korea-negotiations-htmlstory.html; Travis J. Tritten, Jim Mattis and Rex Tillerson Say New War Authorization Should Have No Time, Geographic Limits, WASH. EXAM’R (Oct. 30, 2017, 5:40 PM), http://www.washingtonexaminer.com/jim-mattis-and-rextillerson-say-new-war-authorization-should-have-no-time-geographic-limits/article/2639043. See ACLU v. U.S. Dep’t of Justice, 321 F. Supp. 2d 24, 30—31 (D.D.C. 2004); EPIC v. Dep’t of Defense, 241 F. Supp. 2d 5, 15 (D.D.C. 2003). ACLU, 321 F. Supp. 2d at 29 n.5 (quoting EPIC, 241 F. Supp. 2d at 11). 8 27 28 29 30 31 DOD-17-0465 Case 1:17-cv-02707 Document 1-7 Filed 12/19/17 Page 10 of 10 educate the public through reports, press releases, and other media. American Oversight also makes materials it gathers available on its public website and promote their availability on social media platforms, such as Facebook and Twitter. American Oversight has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, after receiving records regarding an ethics waiver received by a senior DOJ attorney, American Oversight promptly posted the records to its website and published an analysis of what the records reflected about DOJ’s process for ethics waivers. Additionally, American Oversight has a project called “Audit the Wall,” where the organization is gathering and analyzing information and commenting on public releases of information related to the administration’s proposed construction of a barrier along the U.S.-Mexico border. 32 33 34 35 Accordingly, American Oversight’s request satisfies the criteria for expedition. Conclusion We share a common mission to promote transparency in government. American Oversight looks forward to working with DOD on this request. If you do not understand any part of this request, have any questions, or foresee any problems in fully releasing the requested records, please contact Cerissa Cafasso at foia@americanoversight.org or (202) 869-5246. Also, if American Oversight’s request for a fee waiver is not granted in full, please contact us immediately upon making such a determination. Sincerely, Austin R. Evers Executive Director American Oversight 32 American Oversight currently has approximately 11,600 page likes on Facebook, and 35,300 followers on Twitter. American Oversight, FACEBOOK, https://www.facebook.com/weareoversight/ (last visited Oct. 30, 2017); American Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited Oct. 30, 2017). DOJ Civil Division Response Noel Francisco Compliance, AMERICAN OVERSIGHT, https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance. Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN OVERSIGHT, https://www.americanoversight.org/francisco-the-travel-ban-what-we-learned-from-thedoj-documents. Audit the Wall, AMERICAN OVERSIGHT, www.auditthewall.org. 9 33 34 35 DOD-17-0465 Case 1:17-cv-02707 Document 1-8 Filed 12/19/17 Page 1 of 2 Exhibit Case 1:17-cv-02707 Document 1-8 Filed 12/19/17 Page 2 of 2 From: Subject: Date: To: DONFOIA-PA@navy.mil FOIA Expedited Processing Disposition Reached for DON-NAVY-2018-000946 November 28, 2017 at 9:31 AM foia@americanoversight.org Your request for Expedited Processing for the FOIA request DON-NAVY-2018-000946 has been denied. Additional details for this request are as follows: Request Created on: 11/01/2017 Expedited Disposition Reason: Request does not meet criteria for expedited processing CTM Request Long Description: HI-VIZ: American Oversight requests that DOD produce the following within twenty business days: All records reflecting communications (including emails, telephone call logs, calendar entries, or any other records reflecting communications) regarding President Trump’s tweet at 8:55 am that read “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow……” from any DOD military or civilian personnel in the following offices: a. the Office of the Secretary of Defense, including the secretary, chief of staff, deputy secretary, and the assistant to the secretary of defense for public affairs; b. the Office of the Joint Chiefs of Staff; c. the Office of the Secretary of the Air Force; d. the Office of the Secretary of the Army; e. the Office of the Secretary of the Navy; or f. the Office of the Under Secretary of Defense for Personnel & Readiness; or g. the Office of the Assistant Secretary of Defense for Manpower & Reserve Affairs; h. the Office of the Assistant Secretary of Defense for Health Affairs; or i. the Office of the General Counsel of the Department of Defense. Please provide all responsive records from 8:55 AM EDT through 12:00 pm EDT on July 26, 2017.