Case 1:18-cv-01344 Document 1 Filed 06/06/18 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

v.
U.S. DEPARTMENT OF
HOMELAND SECURITY,
245 Murray Lane SW
Washington, DC 20528

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Plaintiff, )
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Defendant. )
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Case No. 18-cv-1344

COMPLAINT
1.

Plaintiff American Oversight brings this action against the U.S. Department of

Homeland Security under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), and the
Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, seeking declaratory and injunctive
relief to compel compliance with the requirements of FOIA.
JURISDICTION AND VENUE
2.

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

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

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

§ 1391(e).
4.

Because Defendant has failed to comply with the applicable time-limit provisions

of the FOIA, American Oversight is deemed to have exhausted its administrative remedies
pursuant to 5 U.S.C. § 552(a)(6)(C)(i) and is now entitled to judicial action enjoining the agency

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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 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 the records that American Oversight seeks.
STATEMENT OF FACTS
7.

On October 20, 2017, a DHS component—U.S. Customs and Border Protection—

tweeted pictures of four men awaiting dispositions on felony criminal immigration violations
with the hashtag “#CatchOfTheDay.”
8.

On October 24, 2017, American Oversight submitted a FOIA request to DHS1

seeking the following records:

1

American Oversight also submitted the request to U.S. Customs and Border Protection but is
only seeking relief against DHS in this Complaint.
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1. All electronic mail containing any of the following
terms:
a. Catch of the Day
b. #CatchOfTheDay
c. Keeping America Safe
d. #KeepingAmericaSafe
2. All electronic mail containing the word “hashtag” and
any of the following words or phrases:
a. S1
b. S2
c. Secretary
d. Deputy Secretary
e. DepSec
f. Kelly
g. Duke
3. All electronic mail containing any hashtags (“#”) and
any of the following words or phrases:
a. Illegal
b. Illegals
c. Alien
d. Aliens
e. Felon
f. Felons
g. Criminal
h. Criminals
American Oversight sought all responsive records from January 20, 2017, through the date of the
search, and limited DHS’s search to the following offices:
•
•
•
•

The Office of the Secretary;
The Office of the Deputy Secretary;
The Office of the Under Secretary for Management; and
The Office of the Assistant Secretary of Public Affairs.
9.

DHS assigned the request tracking number 2018-HQFO-00133.
Exhaustion of Administrative Remedies

10.

As of the date of this Complaint, Defendant has failed to (a) notify American

Oversight of any determination regarding the request, including the scope of any responsive
records Defendant intend to produce or withhold and the reasons for any withholdings; or

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(b) produce the requested records or demonstrate that the requested records are lawfully exempt
from production.
11.

Through Defendant’s 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 Search for Records
12.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
13.

American Oversight properly requested records within the possession, custody,

and control of the Defendant.
14.

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

efforts to search for requested records.
15.

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

locating those records which are responsive to American Oversight’s request.
16.

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

17.

Plaintiff American Oversight is therefore entitled to injunctive and declaratory

FOIA.

relief requiring Defendant to promptly make reasonable efforts to search for records responsive
to American Oversight’s FOIA request.

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COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Records
18.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
19.

American Oversight properly requested records within the possession, custody,

and control of the Defendant.
20.

Defendant is an agency 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.
21.

Defendant is wrongfully withholding non-exempt agency records requested by

American Oversight by failing to produce non-exempt records responsive to its FOIA request.
22.

Defendant is 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.
23.

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

24.

Plaintiff American Oversight is therefore entitled to injunctive and declaratory

relief requiring Defendant 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 Defendant to conduct searches reasonably calculated to uncover all records
responsive to American Oversight’s FOIA request identified in this Complaint;

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(2) Order Defendant to produce, within twenty days of the Court’s order, by such other
date as the Court deems appropriate, any and all non-exempt records responsive to
American Oversight’s FOIA request and indexes justifying the withholding of any
responsive records withheld under claim of exemption;
(3) Enjoin Defendant from continuing to withhold any and all non-exempt records
responsive to American Oversight’s FOIA request;
(4) Award American Oversight attorneys’ fees and other litigation costs reasonably
incurred in this action, pursuant to 5 U.S.C. § 552(a)(4)(E); and
(5) Grant American Oversight such other relief as the Court deems just and proper.

Dated: June 6, 2018

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

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