Case 4:18-cv-00044 Document 1 Filed 01/03/18 Page 1 of 10 D. Victoria Baranetsky (SBN 311892) THE CENTER FOR INVESTIGATIVE REPORTING 1400 65th St., Suite 200 Emeryville, CA 94608 Telephone: (510) 809-3160 Fax: (510) 849-6141 Vbaranetsky@revealnews.org Attorney for Plaintiff UNITED STATES DISTRICT COURT . FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND-SAN FRANCISCO DIVISION THE CENTER FOR INVESTIGATIVE Case No. REPORTING, COMPLAINT FOR INJUNCTIVE Plaintiff, RELIEF V. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant. INTRODUCTION 1. This is an action under the Freedom of Information Act 5 U.S.C. 552, for injunctive and other appropriate relief. The Center for Investigative Reporting or ?Plaintiff seeks expedited processing and release of agency records requested from Defendant the United States Department of Homeland Security 2. On March 21, 2017, Plaintiff submitted a Freedom of Information Act request (the c?Request?) to Customs and Border Protection a component of DHS seeking records related to the federal government?s land acquisition at the United States border and related real estate costs. -1- COMPLAINT FOR INJUNCTIVE RELIEF OKD Case Document 1 Filed 01/03/18 Page 2 of 10 3. To date, Defendant has failed to comply with statutory deadlines and has provided no response to Plaintiff. 4. failure to provide any response is of particular concern because of the immense public importance involving land acquisition at the U.S. border. Indeed, since the presidential debates there has been extensive reporting and public concern over the government?s land operations at the border wall. 5. At the same time, the public interest in the release of the DHS records, which detail information about public funds amounting to potentially millions, if not billions of tax dollars is substantial. 6. Plaintiff now asks the Court for an injunction requiring DHS to release the withheld records. PARTIES 7. Plaintiff CIR publishes Reveal, an online news site at and Reveal, a weekly public radio show with approximately 1 million listeners a week. Founded in 1977, as the ?rst national investigative news organization, CIR has received multiple awards for its reporting. CIR is a nonprofit established under the laws of the State of California, with its primary of?ce in Emeryville, California. 8. Defendant DHS is a department of the executive branch of the U.S. government and an ?agency? within the meaning of 5 U.S.C. CBP is a component of DHS. DHS has its headquarters in Washington, DC, and of?ces all over the country, including in Oakland and San Francisco, California. JURISDICTION 9. The Court has subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. 552(a)(4)(B) and This Court also has jurisdiction over this action pursuant to 28 U.S.C. 1331 and 1436, and 5 U.S.C. 701?706. ll -2- FOR INJUNCTIVE RELIEF Case 4:18-cv-00044 Document 1 Filed 01/03/18 Page 3 of 10 VENUE AND INTRADISTRICT ASSIGNMENT 10. Venue is proper in this district under 5 U.S.C. 552(a)(4)(B) and 28 U.S.C. 1391(e) and 1402. Plaintiff CIR has its principal place of business in this district. 11. Assignment to the Oakland Division is proper pursuant to Local Rule 3-2(c) and because a substantial portion of the events giving rise to this action occurred in Alameda County, where Plaintiffs principal place of business is located. FACTUAL BACKGROUND Policies at the United States border wall 12. On October 26, 2006, President George W. Bush signed the Secure Fence Act of 2006, Pub. L. 109?367, 120 Stat. 2638 into law stating, ?This bill will help protect the American people.? Press Release, The White House, Fact Sheet: The Secure Fence Act of 2006, (Oct. 26, 2006), 13. The White House stated that, among other things, the Act ?Authorizes the construction of hundreds of miles of additional fencing along our Southern Id. 14. As a consequence of the Secure Fence Act, for the next decade, the federal government initiated hundreds of eminent domain cases to acquire land at the border. See John Burnett, Landowners Likely To Bring More Lawsuits As Tramp Moves 0n Border Wall, NPR.0RG, Feb. 23, 2017, Andrew Becker and David Rodriguez, Feds hunt down mystery landowners in bid to build border wall, REVEAL, June 21, 2017, 15. The federal government also pursued land purchases to acquire border property. Id. In addition, contractors working for the federal government constructed hundreds of miles of border fence. Id. The fence segments were built on federal land, as well as land acquired from state and local governments, and many private citizens. Id. 16. Upon taking office, President Barack Obama continued pursuit of land acquisition and fence construction at the border. April Reese, US. Mexico Fence Bat/ding Continues Despite Obama ?3 Promise to Review E?eets, NY. TIMES, April 16, 2009, If -3- COMPLAINT FOR RELIEF Case 4:18-cv-00044 Document 1 Filed 01/03/18 Page 4 of 10 17. In 2011, President Obama announced in a speech delivered in El Paso, Texas that the border fence was ?basically now complete.? See Robert Farley, Obama says the border fence is ?now basically complete?, POLITIFACT, May 16, 2011, http://bitJy/ereKWg. 18. During the 2016 presidential campaign, candidate Donald Trump once more reignited conversations about expanding the existing border wall. See, e. g. Kurtis Lee, Tramp and Clinton clash over border security and [IS?Mexico relations, LA. TIMES, Oct. 19, 2016, Tramp ?s border wall, immigration plans re-emerge at top of national debate, FOX NEWS, Aug. 5, 2017, 19. Since taking of?ce, tensions have heightened as President Trump has made building the border wall a national priority. On January 25, 2017, President Trump released two Executive Orders involving the U.S. border. Executive Order No. 13767, among other things, demanded new construction of a physical wall along parts of the nearly 2,000-mi1e southern border of the United States as well as additional resources to Border Patrol agents. See Border Security and Immigration Enforcement Improvements, 82 Fed. Reg. 8793 (Jan. 25, 2017).1 20. In February 2017, President Trump released a budget asking Congress for an amount of $21.6 billion to build new walls or replace existing barriers. Rachel Chason, California takes aim at one ofTrump ?s key campaign promises, THE WASHINGTON POST, Sept. 21, 2017, Michael Corey and Andrew Becker, Senate Democrats answer questions, raise concerns with Trump 3? wall, REVEAL, April 19, 2017, Andrew Becker, Tramp ?s wall is wrong path for immigration reform, say, REVEAL, Jan. 25, 2017, M. 21. In response, public outcry over the amount of federal dollars to be spent on the border wall reached a fever pitch. See, e. g, Alicia Caldwell, US. Warns Border Wall Construction Coalal Spark Large-Scale Protests, THE WALL ST. JOURNAL, Sept. 12, 2017, 1 Available at -4- COMPLAINT FOR INJUNCTIVE RELIEF JibCase 4:18-cv-00044 Document 1 Filed 01/03/18 Page 5 of 10 22. In addition, Democratic and Republican members of Congress began to publicly oppose the plan. See Laura Meclder and Kristina Peterson, Border Lawmakers Balk at Donald Trump ?s Wall Request, Wall St. Journal, April 21, 2017, 23. While Congress has allocated small amounts of money for prototype projects, there has been intense Congressional debate about whether large scale expansion of the border fence is economically prudent or strategically valuable, especially as estimates have reached up to $70 billion dollars. Ron Nixon, Border Wall Could Cost 3 Times Estimates, Senate Democrats? Report Says, NY. TIMES, April 18, 2017, Michael Corey and Andrew Becker, Senate Democrats answer questions, raise concerns with Trump ?s wall, REVEALORG, April 19, 2017, http://bitJy/20NOYDZ. 24. CIR has repeatedly written on this subject in over the past year. See, e. Michael Corey and Andrew Becker, The wall: Building a continuous US?Mexieo barrier would be a tall order, REVEAL, Jan. 22, 2017, Andrew Becker, The Cost of rump ?s Border ?Wall? is Going Up, REVEAL, Feb. 10, 2017, Neena Satija and Kiah Collier, Scientists say Trump ?s border wall would devastate wildlife habitat, REVEAL, March 4, 2017, 25. Any information on the amount of federal dollars spent on the border wall is Vital to the ongoing public interest, congressional debates, and news reports on this subject. See generally T. Christian Miller, Kiah Collier and Julian Aguilar, The Taking, PROPUBLICA, Dec. 14, 2017, 26. In pursuit of this information, on May 26, 2017, CIR sent a OIA request to the Department of Army among other agencies, seeking records documenting the federal purchases of land at the United States border, similar to the request at issue here. On November 2, 2017, DOA agents released responsive documents containing the amount of money paid to private landowners to acquire border fence property. A true and correct copy of some of those records are attached as Exhibit 1. FOR INJUNCTIVE RELIEF 43-hCase Document 1 Filed 01/03/18 Page 6 of 10 27. In subsequent phone conversations, DOA represented to CIR that it prepared its documents for CBP to likely update a more complete list held by CBP. federal government would inform the public on this important and urgent topic of public concern. 28. Release of the requested documents from DHS involving acquisition of land by the The FOIA Request 29. By letter dated March 21, 2017, Plaintiff submitted through its reporter Andrew Becker, a OIA request to CBP (hereinafter ?the Request?) seeking records pertaining to land acquisition at the U.S. border and related real estate costs. A copy of the Request is attached hereto as Exhibit 2. 30. Plaintiff?s Request seeks: a. The amount of money Customs and Border Protection and/or DHS has paid to . private landowners in non-condemnation real estate transactions to acquire private property related to border fence construction, with a breakdown by individual recipient?s name, location, amount paid, date paid, amount of acreage b. The amount of money CBP and/or DHS has paid to the Department of the Interior in environmental mitigation fees/costs related to fence construction, with a breakdown by amount paid, date paid, reason for mitigation fee, and location related to mitigation fee. 0. The amount of money CBP and/or DHS has paid in litigation fees/costs related to border fence condemnation suits, with a breakdown by fiscal year, region/?eld office/U attorney's office, date paid, reason for payment. The amount of money paid to property owners for land condemned and taken through eminent domain, with a breakdown by individual recipient, acreage, location of land, date paid, amount paid. The number of pending condemnation lawsuits, with a breakdown by filing date, docket number, location, and potential real estate exposure. d. The total expense to date for DOJ litigation fees/costs -6- COMPLAINT FOR INIUNCTIVE RELIEF Case Document 1 Filed 01/03/18 Page 7 of 10 e. The precise location, including parcel/tracts numbers, geolocation data and owners involving all acquisitions related to border?fence construction. f. The total amount of real estate related costs associated with border fence and/wall construction to date, with a breakdown by type of expense, date of expense, funding source, place of performance. 31. Plaintiff sought expedited processing of the Request on the grounds that there is a ?compelling need? for these records because the information requested is urgently needed by an organization primarily engaged in disseminating information in order to inform the public about actual or alleged federal government activity. 5 U.S.C. 32. Plaintiff sought a waiver of search, review, and reproduction fees on the grounds that disclosure of the requested records is ?in the public interest because it is likely to contribute signi?cantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.? Id. 33. Plaintiff also sought a waiver of search and review fees on the grounds that it quali?es as a ?representative of the news media? and that the records are not sought for commercial use. Id. 34. By letter dated March 22, 2017, CBP sent a letter acknowledging the Request. A true and correct copy of that response is attached as Exhibit 3. 35. On May 23, 2017, CBP sent an email requesting a timefrarne clari?cation. A true and correct copy of that response is attached as Exhibit 4. 36. The next day, on May 24, 2017, Mr. Becker emailed CBP offering a timeframe clarification. A true and correct copy of that response is attached as Exhibit 5. 37. On June 7, 2017, Mr. Becker received an email with a ?nal disposition as to the request for a fee waiver and expedited processing and was told his case was closed because he did not provide a timeframe clari?cation. A true and correct copy of that response is attached as Exhibit 6. -7- COMPLAINT FOR RELIEF Case 4:18-cv-00044 Document 1 Filed 01/03/18 Page 8 of 10 38. On June 9, 2017 Mr. Becker appealed the final disposition and that same day received an acknowledgement letter with tracking number CBP-AP-2017-0643 64. A true and correct copy of that response is attached as Exhibit 7. 39. On June 19, 2017, Mr. Becker received a determination from the appeals of?ce remanding the request back to the FOIA division, and stating CBP should process the Request within 20 days, and if not Mr. Becker should be noti?ed. A true and correct copy of that response is attached as Exhibit 8. 40. The next day, on June 20, 2017, Mr. Becker received a letter from CBP apologizing for the miscommunication and stating there was no record of correspondence pertaining to Mr. Becker?s timeframe clari?cation. A true and correct copy of the communication is attached as Exhibit 9. 41. On November 20, 2017, CIR General Counsel, D. Victoria Baranetsky sent a letter to CBP notifying it that the DOA had disclosed records responsive to a similar request and alerting CBP that it likely holds more complete responsive documents. A true and correct copy of the letter (without attachments) is attached as Exhibit 10. The letter requested an immediate response and processing of the Request. Plaintiff received no response from CBP. 42. In a letter dated November 29, 2017, CBP FOIA Appeals division once more remanded the request to FOIA Division for processing within twenty days and notified . Plaintiff that it may immediately Challenge a failure to respond. A true and correct copy of that response is attached as Exhibit 1 1. 43. To date, CBP has made no final determination on the Request. 44. DHS has twice failed to comply with requirement that an agency will respond to the Request within the 20 business days. 45. Having exhausted all administrative remedies, Plaintiff now seeks injunctive relief. 1/ If If -8- COMPLAINT FOR INJUNCTIVE RELIEF Nat/1th Case Document 1 Filed 01/03/18 Page 9 of 10 CAUSE OF ACTION Violation of Freedom of Information Act 46. Plaintiff repeats and realleges paragraphs 1?45. 47. DHS is subject to 01A and must therefore release in response to a FOIA request any disclosable records in its possession at the time of the request and provide a lawful reason for withholding any materials as to which it is claiming an exemption. 48. DHS has no lawful basis for declining to release the records requested by Plaintiff under 01A. 49. DHS has failed to act on Plaintiff Request Within the 20 business days required by FOIA. See 5 U.S.C. Accordingly, Plaintiff is deemed to have exhausted its administrative remedies under FOIA. 50. Plaintiff is entitled to an order compelling DHS to produce records responsive to the Request. REQUESTED RELIEF WHEREFORE, Plaintiff prays that this Court: 1. Declare that Defendant DHS violated FOIA by failing to comply with the 20 business days required by FOIA and notifying Plaintiff of any determination; 2. Declare that DHS violated FOIA by failing to determine whether to provide expedited processing within 10 days and thereafter notifying Plaintiff of such determination; 3. Declare that the documents sought by their FOIA request, as described in the foregoing paragraphs, are public under 5 U.S.C. 552 and must be disclosed; 4. Order Defendant DHS to provide the requested documents to Plaintiff within 20 business days of the Court?s order, or in the alternative, provide for expedited proceedings to adjudicate Plaintiffs rights under 5. Award Plaintiff the costs of this proceeding, including reasonable attorneys? fees, as expressly permitted by and 6. Grant Plaintiff such other and further relief as this Court may deem just and proper. -9- COMPLAINT FOR RELIEF Case 4:18-cv-00044 Document 1 Filed 01/03/18 Page 10 of 10 DATED: January 3, 2018 Respectfully submitted, By: D. Victoli??Bafanet?ky (SBN 311392) THE CENTER FOR INVESTIGATIVE REPORTING 1400 65th St, Suite 200 Emeryville, CA 94608 Telephone: (510) 809-3160 Vbaranetsky@reveah1ews.org Attorney for Plaintiff -10- COMPLAINT FOR RELIEF