Case 1:18-cv-00568 Document 1 Filed 03/14/18 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF AGRICULTURE,
)
1400 Independence Avenue SW
)
Washington, DC 20250
)
)
U.S. DEPARTMENT OF COMMERCE,
)
1401 Constitution Avenue NW
)
Washington, DC 20230
)
)
U.S. DEPARTMENT OF DEFENSE,
)
1600 Pentagon 3E788
)
Washington, DC 20301-1600
)
)
U.S. DEPARTMENT OF EDUCATION,
)
400 Maryland Avenue SW
)
Washington, DC 20202
)
)
U.S. DEPARTMENT OF ENERGY,
)
1000 Independence Avenue SW
)
Washington, DC 20585
)
)
U.S. GENERAL SERVICES
)
ADMINISTRATION,
)
1800 F Street NW
)
Washington, DC 20405
)
)
U.S. DEPARTMENT OF HEALTH AND
)
HUMAN SERVICES,
)
200 Independence Avenue SW
)
Washington, DC 20201
)
)
U.S. DEPARTMENT OF HOMELAND
)
SECURITY,
)
245 Murray Lane SW
)
Washington, DC 20528
)
AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

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Case No. 18-568

 Case 1:18-cv-00568 Document 1 Filed 03/14/18 Page 2 of 12

)
U.S. DEPARTMENT OF THE INTERIOR,
)
1849 C Street NW
)
Washington, DC 20240
)
)
U.S. DEPARTMENT OF JUSTICE,
)
950 Pennsylvania Avenue NW
)
Washington, DC 20530
)
)
U.S. DEPARTMENT OF LABOR,
)
200 Constitution Avenue NW
)
Washington, DC 20210
)
)
U.S. DEPARTMENT OF TRANSPORTATION, )
1200 New Jersey Avenue SE
)
Washington, DC 20590
)
)
U.S. DEPARTMENT OF THE TREASURY,
)
1500 Pennsylvania Avenue NW
)
Washington, DC 20220
)
)
U.S. DEPARTMENT OF VETERANS
)
AFFAIRS,
)
810 Vermont Avenue NW
)
Washington, DC 20420
)
)
OFFICE OF MANAGEMENT AND BUDGET, )
725 17th Street NW
)
Washington, DC 20503
)
)
and
)
)
U.S. DEPARTMENT OF STATE,
)
2201 C Street NW
)
Washington, DC 20520
)
)
Defendants. )
)
COMPLAINT
1.

Plaintiff American Oversight brings this action against the Defendant agencies

under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), and the Declaratory Judgment

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Act, 28 U.S.C. §§ 2201 and 2202, seeking declaratory and injunctive relief to compel
compliance with the requirements of FOIA.
JURISDICTION AND VENUE
2.

This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B)

and 28 U.S.C. §§ 1331, 2201, and 2202.
3.

Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C.

§ 1391(e).
4.

Because 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 agencies 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 promoting transparency in government, educating the public about government
activities, and ensuring the accountability of government officials. Through research and FOIA
requests, American Oversight uses the information gathered, and its analysis of it, to educate the
public about the activities and operations of the federal government through reports, published
analyses, press releases, and other media. The organization is incorporated under the laws of the
District of Columbia.
6.

Defendant the U.S. Department of Agriculture (USDA) is a department of the

executive branch of the U.S. government headquartered in Washington, DC, and an agency of

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the federal government within the meaning of 5 U.S.C. § 552(f)(1). USDA has possession,
custody, and control of records that American Oversight seeks.
7.

Defendant the U.S. Department of Commerce (Commerce) 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). Commerce has possession,
custody, and control of records that American Oversight seeks.
8.

Defendant the 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 records that American Oversight seeks.
9.

Defendant the U.S. Department of Education (Education) is a department of the

executive branch of the U.S. government headquartered in Washington, DC, and an agency of
the federal government within the meaning of 5 U.S.C. § 552(f)(1). Education has possession,
custody, and control of records that American Oversight seeks.
10.

Defendant the U.S. Department of Energy (DOE) 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). DOE has possession, custody, and
control of records that American Oversight seeks.
11.

Defendant the U.S. General Services Administration (GSA) is an agency of the

federal government within the meaning of 5 U.S.C. § 552(f)(1) headquartered in Washington,
DC. GSA has possession, custody, and control of records that American Oversight seeks.
12.

Defendant the U.S. Department of Health and Human Services (HHS) is a

department of the executive branch of the U.S. government headquartered in Washington, DC,

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and an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1). HHS has
possession, custody, and control of records that American Oversight seeks.
13.

Defendant the U.S. Department of Homeland Security (DHS) 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). DHS has possession,
custody, and control of records that American Oversight seeks.
14.

Defendant the U.S. Department of the Interior (DOI) 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). DOI has possession, custody,
and control of records that American Oversight seeks.
15.

Defendant the U.S. Department of Justice (DOJ) 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). DOJ has possession, custody, and
control of records that American Oversight seeks.
16.

Defendant the U.S. Department of Labor (DOL) 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). DOL has possession, custody, and
control of records that American Oversight seeks.
17.

Defendant the U.S. Department of Transportation (DOT) 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). DOT has possession,
custody, and control of records that American Oversight seeks.

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18.

Defendant the U.S. Department of the Treasury (Treasury) 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). Treasury has possession,
custody, and control of records that American Oversight seeks.
19.

Defendant the U.S. Department of Veterans Affairs (VA) 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). VA has possession, custody,
and control of records that American Oversight seeks.
20.

Defendant the Office of Management and Budget (OMB) is an agency of the

federal government within the meaning of 5 U.S.C. § 552(f)(1) headquartered in Washington,
DC. OMB has possession, custody, and control of records that American Oversight seeks.
21.

Defendant the U.S. Department of State (State) 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). State has possession, custody, and
control of records that American Oversight seeks.
STATEMENT OF FACTS
22.

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

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

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hallways, or other common areas) for any individuals in, or acting
in, Senate-confirmed (PAS) positions at your agency.
The request sought records from January 20, 2017, to the date of the search. A copy of the FOIA
request is attached hereto as Exhibit A and incorporated herein.
23.

On November 13, 2017, American Oversight contacted each of the defendant

agencies to make explicit that the FOIA request should be construed to include records relating
to changes to furniture or other tangible objects in the office suites and common areas in
question.
24.

USDA assigned the FOIA request tracking number 2018-OCIO-00717-F.

25.

Commerce assigned the FOIA request tracking number DOC-OS-2018-000203.

26.

DOD assigned the FOIA request tracking number 18-F-0169.

27.

By letter dated November 7, 2017, DOD issued a final response to American

Oversight’s FOIA request indicating that the agency could not conduct a search for responsive
records without additional clarifying information.
28.

On November 28, 2017, American Oversight provided the requested clarification

to DOD.
29.

Between December 13 and December 18, 2017, DOD sought, and American

Oversight provided, clarification about several additional aspects of the FOIA request.
30.

Education assigned the FOIA request tracking number 18-00333-F.

31.

DOE assigned the FOIA request tracking number HQ-2018-00196-F.

32.

GSA assigned the FOIA request tracking number GSA-2018-000142.

33.

DHS assigned the FOIA request tracking number 2018-HQFO-00164.

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34.

On November 29, 2017, DHS informed American Oversight that it could only

search for records at DHS headquarters, and asked whether American Oversight would like to
have the request transferred to other component offices within DHS.
35.

On December 6, 2017, American Oversight responded and requested that DHS

transfer the request to the Federal Emergency Management Agency (FEMA), the U.S.
Immigration and Customs Enforcement (ICE), and the U.S. Citizenship and Immigration
Services (USCIS).
36.

FEMA assigned the FOIA request tracking number 2018-FEFO-00279.

37.

ICE assigned the FOIA request tracking number 2018-ICFO-19816.

38.

American Oversight has not yet received a tracking number from USCIS.

39.

DOI assigned the FOIA request tracking number OS-2018-00245.

40.

DOJ assigned the FOIA request tracking number EMRUFOIA110117-2.

41.

DOL assigned the FOIA request tracking number 844593.

42.

DOT assigned the FOIA request tracking number 2018-47.

43.

Treasury assigned the FOIA request tracking number 2017-11-015.

44.

VA assigned the FOIA request the following tracking numbers: 18-05282-F (for

information regarding the Secretary, Deputy Secretary, or Chief of Staff); 18-05284-F (for
information regarding the Assistant Secretary for Congressional and Legislative Affairs); 1805285-F (for information regarding the Assistant Secretary for Human Resource Administration
(OSHRA)); 18-05286-F (for information regarding the General Counsel); 18-05288-F (for
information regarding the Acting Under Secretary of Memorial Affairs); 18-05289-F (for
information regarding the Executive in Charge/Acting Vice Chairman, BVA); 18-05291-F (for
information regarding the Assistant Secretary for Public and Intergovernmental Affairs, OPIA);

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18-05292-F (for information regarding the Acting Assistant Secretary for Enterprise Integration);
and 18-05294-F (for information regarding the Acting Assistant Secretary for Management and
Chief Financial Officer).
45.

OMB assigned the FOIA request tracking number 2018-043.

46.

State assigned the FOIA request tracking number F-2017-017815.

47.

As of the date of this Complaint, HHS has not contacted American Oversight to

provide a tracking number for the FOIA request.
Exhaustion of Administrative Remedies
48.

As of the date of this Complaint, Defendants have failed to (a) notify American

Oversight of a final determination regarding the FOIA request, including the scope of any
responsive records they intend to produce or withhold and the reasons for any withholdings; or
(b) produce the requested records or demonstrate that the requested records are lawfully exempt
from production.1
49.

Through Defendants’ failure to respond to American Oversight’s FOIA request

within the time period required by law, American Oversight has constructively exhausted its
administrative remedies and seeks immediate judicial review.
COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Searches for Responsive Records
50.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.

1

On December 6, 2017, DHS provided a final response on behalf of headquarters, but the other three DHS
components to whom the request was transferred—ICE, FEMA, and USCIS—have not yet notified American
Oversight of any determination regarding the request.

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51.

American Oversight properly requested records within the possession, custody,

and control of Defendants.
52.

Defendants are agencies subject to FOIA and must therefore make reasonable

efforts to search for requested records.
53.

Defendants have failed to review promptly agency records for the purpose of

locating those records which are responsive to American Oversight’s FOIA request.
54.

Defendants’ failure to conduct adequate searches for responsive records violates

55.

Plaintiff American Oversight is therefore entitled to injunctive and declaratory

FOIA.

relief requiring Defendants to promptly make reasonable efforts to search for records responsive
to American Oversight’s FOIA request.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
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 Defendants.
58.

Defendants are agencies subject to FOIA and must therefore release in response to

a FOIA request any non-exempt records and provide a lawful reason for withholding any
materials.
59.

Defendants are wrongfully withholding non-exempt agency records requested by

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

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60.

Defendants are wrongfully withholding non-exempt agency records requested by

American Oversight by failing to segregate exempt information in otherwise non-exempt records
responsive to American Oversight’s FOIA request.
61.

Defendants’ failure to provide all responsive records violates FOIA.

62.

Plaintiff American Oversight is therefore entitled to declaratory and injunctive

relief requiring Defendants to promptly produce all non-exempt records responsive to its FOIA
request and provide indexes justifying the withholding of any responsive records withheld under
claim of exemption.
REQUESTED RELIEF
WHEREFORE, American Oversight respectfully requests the Court to:
(1) Order Defendants to conduct a search reasonably calculated to uncover all records
responsive to American Oversight’s FOIA request submitted on November 1, 2017;
(2) Order Defendants to produce, within twenty days of the Court’s order, or by such
other date as the Court deems appropriate, any and all non-exempt records responsive
to American Oversight’s FOIA request and indexes justifying the withholding of any
responsive records withheld under claim of exemption;
(3) Enjoin Defendants from continuing to withhold any and all non-exempt records
responsive to American Oversight’s FOIA request;
(4) Award American Oversight the costs of this proceeding, including reasonable
attorneys’ fees and other litigation costs reasonably incurred in this action, pursuant
to 5 U.S.C. § 552(a)(4)(E); and
(5) Grant American Oversight such other relief as the Court deems just and proper.

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Dated: March 14, 2018

Respectfully submitted,
/s/ Sara Kaiser Creighton
Sara Kaiser Creighton
D.C. Bar No. 1002367
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-5245
sara.creighton@americanoversight.org
Counsel for Plaintiff

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