Case 1:18-cv-01621-TSC Document 4 Filed 07/16/18 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) Plaintiff, ) ) v. ) ) U.S. NATIONAL ARCHIVES AND RECORDS ) ADMINISTRATION, ) ) Defendant. ) ) FIX THE COURT, Case No. 18-1621 (TSC) PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION Pursuant to Federal Rule of Civil Procedure 65, Plaintiff Fix the Court respectfully moves this Court to issue a preliminary injunction enjoining Defendant the U.S. National Archives and Records Administration (“NARA”) from unlawfully impeding Fix the Court’s access to records that must be made available under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”). Fix the Court seeks injunctive relief ordering NARA to expedite the processing of Fix the Court’s pending FOIA request. Fix the Court’s request seeks records related to Supreme Court nominee Brett Kavanaugh’s past work with Kenneth Starr, the Independent Counsel appointed to investigate issues related to then-sitting President Clinton. Such records will allow Fix the Court to inform the public’s participation in the debate regarding Judge Kavanaugh’s nomination to the U.S. Supreme Court. Fix the Court further seeks an injunction ordering NARA to search for and produce all documents responsive to Fix the Court’s FOIA request by such date as the Court deems appropriate. Case 1:18-cv-01621-TSC Document 4 Filed 07/16/18 Page 2 of 4 The grounds for this motion are set forth in the accompanying Memorandum in Support of Plaintiff’s Motion for a Preliminary Injunction. Pursuant to Local Rule 65.1(d), Fix the Court asks that the Court schedule a hearing on this motion at the Court’s earliest convenience. Dated: July 16, 2018 Respectfully submitted, /s/ Elizabeth France Elizabeth France D.C. Bar No. 999851 /s/ John E. Bies John E. Bies D.C. Bar No. 483730 /s/ Austin R. Evers Austin R. Evers D.C. Bar No. 1006999 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 869-5244 beth.france@americanoversight.org john.bies@americanoversight.org austin.evers@americanoversight.org Counsel for Plaintiff Fix the Court 2 Case 1:18-cv-01621-TSC Document 4 Filed 07/16/18 Page 3 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) Plaintiff, ) ) v. ) ) U.S. NATIONAL ARCHIVES AND RECORDS ) ADMINISTRATION, ) ) Defendant. ) ) FIX THE COURT, Case No. 18-1621 (TSC) PROPOSED ORDER Upon consideration of Plaintiff’s Motion for a Preliminary Injunction, Defendant’s Response thereto, and the entire record, it is hereby ORDERED that Plaintiff’s Motion for a Preliminary Injunction is GRANTED; and it is further ORDERED that Defendant the U.S. National Archives and Records Administration shall process Plaintiff’s FOIA request dated April 4, 2018; and it is further ORDERED that Defendant the U.S. National Archives and Records Administration shall produce all records responsive to Plaintiff’s FOIA request dated April 4, 2018, within ___ days of the date of this order; and it is further SO ORDERED. Date: ________________________ ____________________________________ United States District Judge Case 1:18-cv-01621-TSC Document 4 Filed 07/16/18 Page 4 of 4 CERTIFICATE OF SERVICE I hereby certify that on July 16, 2018, I caused a copy of the foregoing Motion for a Preliminary Injunction to be hand-delivered to defendant at the following address: U.S. National Archives and Records Administration 8601 Adelphi Road College Park, MD 20740 In addition, a courtesy copy has been delivered to: Jessie K. Liu U.S. Attorney for the District of Columbia 555 4th Street NW Washington, DC 20530 Dated: July 16, 2018 Respectfully submitted, /s/ Elizabeth France Elizabeth France D.C. Bar No. 999851 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 869-5244 beth.france@americanoversight.org Counsel for Plaintiff Fix the Court Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 1 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) Plaintiff, ) ) v. ) ) U.S. NATIONAL ARCHIVES AND RECORDS ) ADMINISTRATION, ) ) Defendant. ) ) FIX THE COURT, Case No. 18-1621 (TSC) MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION In April 2018, Plaintiff Fix the Court, a non-partisan, grassroots organization dedicated to reform and transparency of the Supreme Court and public education regarding the same, sought public records concerning Judge Brett M. Kavanaugh’s past public service, in order to inform the public rapidly in the event Judge Kavanaugh should be considered for a future vacancy on the Supreme Court. On July 9, 2018, President Trump indeed nominated Judge Kavanaugh to fill a vacancy created by Justice Anthony Kennedy’s retirement. Yet despite Fix the Court’s diligence in seeking vital, relevant information via the Freedom of Information Act (“FOIA”) in advance of the nomination, the actions of the U.S. National Archives and Records (“NARA”) to date leave serious concern that the public will not receive these records in time to consider the information before a confirmation vote. Indeed, NARA has stated that the bulk of Fix the Court’s FOIA request could take years to fulfill. Judge Kavanaugh brings to his nomination a lengthy career demanding thorough public scrutiny, and the non-public record of his activities before his appointment to the federal bench holds high value to the public. With Senate Majority Leader Mitch McConnell promising to fast- Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 2 of 22 track confirmation proceedings (with cooperation and coordination with the Trump administration), NARA’s failure to meet its FOIA obligations now threatens to deprive Fix the Court and the American public of information essential to ensure that Judge Kavanaugh’s appointment receives rigorous, informed debate—in the Senate and among the general public— appropriate for a critical post in a representative democracy. Fix the Court and the American public have a brief opportunity to sift the record of Judge Kavanaugh’s public career and inform the Senate as it makes an effectively irreversible decision that will shape the federal judiciary for decades. Fix the Court seeks immediate injunctive relief to protect its vital interests and those of the public it serves. STATEMENT OF FACTS On April 4, 2018, Fix the Court submitted a FOIA request to NARA seeking copies of the following records of Independent Counsel Kenneth Starr: • “Complaints regarding Mr. Kavanaugh received from within the OIC [Office of Independent Counsel] Department of Justice or from members of the public; • Digital (e-mail), print or other correspondence and attachments involving Mr. Kavanaugh, including instances where he is merely carbon copied (CC’d); • Performance reviews of Mr. Kavanaugh and [his] service with the OIC or Department of Justice; and • Warnings or reprimands issued regarding Mr. Kavanaugh and [his] service with the OIC or Department of Justice.” Compl. ¶ 7, ECF No. 1; Declaration of Gabe Roth in Support of Plaintiff’s Motion for a Preliminary Injunction (“Roth Decl.”) ¶¶ 10, 13; Ex.1 A. Fix the Court, a non-partisan, grassroots 1 Lettered exhibits referenced herein are attached to the Roth Declaration. 2 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 3 of 22 organization dedicated to reform and transparency of the Supreme Court and public education concerning issues related to the Court, was interested in obtaining these records related to Judge Kavanaugh’s past public service, due to his inclusion on President Trump’s “short list” of potential Supreme Court nominees. Roth Decl. ¶¶ 1-2, 10.2 On April 20, 2018, NARA sent to Fix the Court a list of boxes in NARA’s possession containing records related to Judge Kavanaugh and asked that Fix the Court review NARA’s file manifests to identify more specific files potentially responsive to its request. Compl. ¶ 8; Roth Decl. ¶ 14; Ex. B at 3. Fix the Court responded on the same day, identifying eight full boxes and specified items within eleven additional boxes for NARA to review and produce if responsive to Fix the Court’s request. Compl. ¶ 9; Roth Decl. ¶ 15; Ex. B at 3. After brief communications on May 14, 2018 and May 22, 2018 concerning status updates and clarification of the original request, on May 30, 2018, NARA provided a preliminary assessment, confirmed in further correspondence on June 12, 2018, detailing further reviews NARA would have to perform with respect to the boxes and items identified by Fix the Court, as well as timeframes for each category of review. Compl. ¶¶ 10-12, 14; Roth Decl. ¶¶ 16-21; Ex. B at 1-2; Ex. C. With regard to most of the requested records, NARA informed Fix the Court that it would require several months to years to process the potentially responsive records.3 Specifically, NARA indicated that a small set of items identified by Fix the Court was small enough that NARA believed could be processed in six months. Roth Decl. ¶¶ 18, 21; Ex. B at 2; Ex. C. A second set of items identified See Press Release, President Donald J. Trump’s Supreme Court List, Nov. 17, 2017, https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-supreme-court-list/. 2 With regard to the other requested records, NARA informed Fix the Court that the specified item in one box was determined to be nonresponsive, and the specified item in another box did not exist. As to the latter, NARA through subsequent correspondence, Fix the Court and NARA determined the correct identification of the item number in question and NARA determined it to be nonresponsive. Compl. ¶¶ 12-14; Roth Decl. ¶¶ 19-21; Ex. B at 2; Ex. C. 3 3 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 4 of 22 NARA claimed would take approximately 22 months to process. Id. NARA stated that the remaining items would be assigned to NARA’s second-tier processing queue, which was experiencing such a substantial backlog that NARA “[was] currently processing requests received in February 2013”—in short, indicating those items could take over five years to process. See id. Beyond these estimated processing times, NARA provided no further information as to the scope of the records to be produced. On July 9, 2018, President Trump nominated Judge Kavanaugh to the Supreme Court.4 Fix the Court filed the present action on July 10, 2018, as NARA has failed either to make a determination regarding whether it will grant Fix the Court’s request or to produce the requested records within twenty working days, as required by FOIA. See Compl., ECF No. 1; 5 U.S.C. § 552(a)(6)(A)(i). On July 12, 2018, Fix the Court submitted a request for expedited processing to NARA, stating that, [T]he information requested is urgently needed in order to inform the public concerning actual or alleged government activity. As you know, on July 9 President Trump announced that he has nominated Mr. Kavanaugh to the Supreme Court, and Senate Majority Leader Mitch McConnell had previously stated that the Senate will act quickly to confirm the President’s nominee. The American public has a substantial and urgent need to have access to public records concerning Mr. Kavanaugh’s public service record to inform its understanding of the impending confirmation hearings. Roth Decl. ¶ 26; Ex. B at 1. Recognizing the urgency of the matter, NARA granted Fix the Court’s request for expedition within hours. See Roth Decl. & 27; Ex. D.5 But to date, NARA Trump Chooses Brett Kavanaugh for the Supreme Court, N.Y. Times, July 9, 2018, https://www.nytimes.com/2018/07/09/us/politics/trump-supreme-court-nominee.html. 4 In granting the request, NARA properly conceded the existence of “[a]n urgent need to inform the public about an actual or alleged Federal Government activity” and Fix the Court’s status as “a person primarily engaged in disseminating information to the public.” 36 C.F.R. § 1250.28(a)(3). 5 4 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 5 of 22 has not made the required determination, produced records, or indicated to what extent expedited processing may impact the previously-quoted 22-month to five-year period for fulfilling Fix the Court’s FOIA request. Roth Decl. ¶ 22; see also Ex. D. ARGUMENT Judge Kavanaugh was nominated to replace Justice Anthony Kennedy on the Supreme Court of the United States on July 9, 2018, and Senate Republicans have indicated their intention to move forward with the confirmation process as soon as possible, putting the nomination to a vote no later than fall of 2018, before the November elections.6 Because Judge Kavanaugh had been included in the president’s “short list” for the Supreme Court, Fix the Court submitted a FOIA request to NARA in April 2018 seeking records concerning Judge Kavanaugh’s past public service. See Roth Decl. ¶¶ 10-12. Judicial opinions reflecting Judge Kavanaugh’s tenure as a federal judge are readily available, but equally important records reflecting his credentials and conduct prior to his appointment to the federal bench are not. These records, which Fix the Court seeks, are highly relevant to the Senate’s consideration of his nomination in the rapidly approaching confirmation hearing. Examples of pre-judicial records that bear on issues Judge Kavanaugh would be likely to encounter in cases before the Supreme Court include those reflecting: • His work for Independent Counsel Kenneth Starr during the investigation of President Bill Clinton, including drafting portions of the report that led to the president’s impeachment (the “Starr Report”); and See, e.g., A Senate Deadline for Kavanaugh, Wall St. J. (July 10, 2018, 7:37 PM), https://www.wsj.com/articles/a-senate-deadline-for-kavanaugh-1531265850 (“Mr. McConnell is saying he intends to have a vote in the fall, and the goal should be to have a Justice Kavanaugh ready to sit on the High Court when it opens its new term on Oct. 1.”). 6 5 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 6 of 22 • His service as Senior Associate Counsel, Associate Counsel to the President, and White House Staff Secretary for President George W. Bush, during a time of critical policy and legal decisions regarding national security and due process of law, such as the indefinite detention of inmates at a camp in Guantanamo Bay, Cuba. These non-public records hold great public interest and should see daylight before confirmation hearings. To date, NARA has failed to comply with FOIA’s requirement that it provide a determination as to the scope of records it will produce in response to Fix the Court’s request, including whether it will withhold requested records in full in or in part. Indeed, NARA has indicated that the majority of the request will take years to fulfill, once it actually starts processing the request at some undefined point in the future. NARA’s recent grant of expedited processing of the request is appropriate but insufficient. Even on an expedited track, Fix the Court has no guarantee, or even reasonable expectation, that it will receive records in time to use them in connection with Mr. Kavanaugh’s pending nomination. NARA’s FOIA expedition is no match for the expedition the Senate has promised to move Judge Kavanaugh’s nomination. Accordingly, Fix the Court asks the Court to act now to enjoin NARA from irreparably harming Fix the Court and the public interest through its wrongful withholding of records. Fix the Court meets the requirements for preliminary injunctive relief—indeed, if informing the public regarding an imminent lifetime appointment to the Supreme Court fails to qualify for such relief, it is hard to imagine what would. Fix the Court is likely to succeed in establishing that it is entitled to receive the requested records. Fix the Court’s request implicates an urgency to inform the public, as NARA has conceded in granting Fix the Court’s request for 6 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 7 of 22 expedited processing. Moreover, anything less than immediate relief requiring NARA to process Fix the Court’s FOIA request and produce the requested records promptly would irreparably harm Fix the Court’s ability to use the requested records to advance its mission and inform the general public in a timely fashion about the nomination of Judge Kavanaugh. See Roth Decl. ¶¶ 5-7, 11-12. The requested injunction would not harm NARA’s interests or the interests of the general public; in fact, it would bolster the public interest by dramatically enhancing the public’s ability to evaluate a nominee for the Supreme Court and to empower their senators to represent them accurately in the confirmation process. Because all four of the relevant factors weigh in Fix the Court’s favor, this Court should grant the requested injunctive relief compelling NARA to process the request promptly and produce non-exempt, responsive records on a timely basis. I. THIS COURT HAS JURISDICTION TO GRANT THE REQUESTED RELIEF. The FOIA statute itself provides jurisdiction for this Court to consider this matter and grant all necessary injunctive relief. It states: On complaint, the district court of the United States . . . in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo . . . . 5 U.S.C. § 552(a)(4)(B). When an agency fails to comply with the applicable time-limit provisions in the FOIA statute, a requester “shall be deemed to have exhausted his administrative remedies with respect to such request.” 5 U.S.C. § 552(a)(6)(C)(i); see also Oglesby v. Dep’t of Army, 920 F.2d 57, 62 (D.C. Cir. 1990) (holding that a requester may bring suit if an agency fails to comply with statutory time limits). This includes a failure to respond to a FOIA request within the statutorily imposed timeframe. See Wash. Post v. Dep’t of Homeland Sec., 459 F. Supp. 2d 61, 74 (D.D.C. 2006) (“failure to process FOIA requests in a timely fashion is ‘tantamount to 7 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 8 of 22 denial.’”) (quoting H.R. Rep. No. 93-876, at 6 (1974)). Fix the Court has therefore exhausted all applicable administrative remedies, and this claim is ripe for adjudication. II. FIX THE COURT IS ENTITLED TO A PRELIMINARY INJUNCTION. In considering a plaintiff’s request for injunctive relief, a court must weigh four factors: (1) whether the plaintiff has a substantial likelihood of success on the merits; (2) whether the plaintiff would suffer irreparable injury absent injunctive relief; (3) whether an injunction would substantially injure other interested parties; and (4) whether the grant of an injunction would further the public interest. Al-Fayed v. C.I.A., 254 F.3d 300, 303 (D.C. Cir. 2001); Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998). A consideration of these factors here demonstrates Fix the Court’s entitlement to injunctive relief. A. Fix the Court is Likely to Succeed on the Merits. As a clear matter of established law, Fix the Court is entitled to the timely processing of its FOIA request and production of non-exempt responsive records. FOIA clearly and unambiguously provides that federal agencies—like the named defendant in this case—must make records “promptly available to any person” who reasonably describes the records they seek in accordance with established procedures. 5 U.S.C. § 552(a)(3)(A). As an initial matter, the material Fix the Court seeks—correspondence among Mr. Kavanaugh and others in connection with the Starr Report, and complaints, performance reviews, warnings, or reprimands concerning Mr. Kavanaugh’s service with the U.S. Department of Justice in connection with the Starr Report—undoubtedly falls within the statutory category of agency records that an agency must produce under FOIA. See U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989) (defining “agency records” as materials “create[d] or obtain[ed]” by the agency and within the agency’s control at the time the request is made). In addition, the request “reasonably described” 8 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 9 of 22 the records sought (specifying in detail the specific records sought, and further narrowing and specifying the request in correspondence with NARA) and complied with all necessary procedures. See Roth Decl. ¶¶ 13-16; Ex. A; Ex. B at 2-3. Fix the Court is therefore more than likely to succeed in establishing its entitlement to the requested records. Moreover, NARA has clearly not satisfied FOIA’s requirement that NARA comply “promptly” with Fix the Court’s request. Once Fix the Court submitted its initial FOIA request to NARA on April 4, 2018, it was entitled to a determination by the agency as to the scope of the records that would be produced within twenty working days. 5 U.S.C. § 552(a)(6)(A)(i); Citizens for Responsibility and Ethics in Wash. v. Fed. Election Comm’n, 711 F.3d 180, 182-83 (D.C. Cir. 2013) (“[T]he agency must at least indicate within the relevant time period the scope of the documents it will produce and the exemptions it will claim with respect to any withheld documents.”). NARA has since indicated that for a small subset of potentially responsive documents, Fix the Court will not receive a determination for six months. Roth Decl. ¶¶ 18, 21; Ex. B at 2; Ex. C. For the remaining bulk of potentially responsive records, NARA indicated that Fix the Court should not expect a determination at least 22 months, if not in excess of five years. Id. This extreme delay amounts to nothing less than a denial of Fix the Court’s request. See Wash. Post, 459 F. Supp. 2d at 74 (“failure to process FOIA requests in a timely fashion is ‘tantamount to denial.’”) (quoting H.R. Rep. No. 93-876, at 6 (1974)). Fix the Court will ultimately prevail in demonstrating its entitlement to timely processing and prompt disclosure of any non-exempt records responsive to its FOIA request. FOIA provides clear statutory directives to agencies in responding to FOIA requests, and NARA has violated them. In the meantime, Fix the Court urgently needs NARA to fulfill its obligations. Judge 9 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 10 of 22 Kavanaugh has been nominated. Senator McConnell seeks a rapid confirmation. Time is of the essence. B. Fix the Court Will Be Irreparably Harmed Absent the Requested Relief. Fix the Court will be harmed irreparably if NARA does not promptly process its request and produce non-exempt records, especially if further delays prevent disclosure of these records until after the Senate has made a decision on Judge Kavanaugh’s nomination. Only preliminary injunctive relief can address this urgent need and the specter of irretrievably losing Fix the Court’s rights under FOIA. As this Circuit has long held, “stale information is of little value.” Payne Enters., Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988). Judge Kavanaugh’s nomination has triggered the exigency Congress envisioned in crafting FOIA’s expedition provisions. For that reason, Fix the Court requested expedited processing from NARA—but that request alone will be inadequate to protect its rights.7 See Roth In April 2018, when Fix the Court submitted its initial FOIA request to NARA seeking records related to Judge Kavanaugh, sustained speculation that Judge Kavanaugh was a likely nominee in the event of a vacancy would likely have supported a request for expedited processing. See, e.g., Adam Liptak, How Trump Chose His Supreme Court Nominee, N.Y. Times, Feb. 6, 2017, https://www.nytimes.com/2017/02/06/us/politics/neil-gorsuch-trump-supreme-courtnominee.html (noting speculation that “should Justice Anthony M. Kennedy decide to step down[, Judge Kavanaugh] would be a leading candidate”); Lydia Wheeler, Trump Eying Second Supreme Court Seat, The Hill (Apr. 23, 2017, 10:30 AM), http://thehill.com/regulation/courtbattles/329981-trump-eyeing-second-supreme-court-seat (“[Kavanaugh] wasn’t included in the original list of possible picks Trump drafted with the help of the Heritage Foundation, but he appears to be a viable candidate now.”). Given the lack of an active vacancy at that time, however, Fix the Court did not initially seek expedited processing. Judge Kavanaugh’s nomination materially changes the situation and makes NARA’s extreme processing times all the more inexcusable. See, e.g., Wash. Post, 459 F. Supp. 2d at 74-75 (time of the essence with respect to records relevant to upcoming election). Fix the Court has accordingly submitted a request for expedited processing, as allowed at any time by NARA’s regulations. See 36 C.F.R. § 1250.28(c) (“You may request expedited processing . . . at any time during NARA’s processing of your request or appeal.”). But even though the request has been granted, NARA has not indicated how much expedited processing may reduce its previous estimates that processing will take at least 22 months, and possibly in excess of five years. The Court’s assistance is still 7 10 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 11 of 22 Decl. ¶ 26; Ex. B at 1. Only accelerated review by this Court can ensure that unchecked delays do not irrevocably deprive Fix the Court of the prompt determination on its request and the value of the non-exempt records to which it is entitled under FOIA. As this Court has previously noted, “[t]o afford the plaintiff less than expedited judicial review would all but guarantee that the plaintiff would not receive expedited agency review of its FOIA request.” Wash. Post, 459 F. Supp. 2d at 66; see Elec. Privacy Info. Ctr. v. U.S. Dep’t of Justice (“EPIC”), 416 F. Supp. 2d 30, 40-41 (D.D.C. 2006) (“[T]he statutory right to expedition in certain cases underlined Congress’ recognition of the value in hastening release of certain information. As [the plaintiff] correctly notes, the loss of that value constitutes a cognizable harm. As time is necessarily of the essence in cases like this such harm will likely be irreparable.” (internal citations and quotation marks omitted)). Further delay in processing the request will irreparably harm the ability of Fix the Court—and the public—to obtain information in time to inform the public discussion of Judge Kavanaugh’s nomination and its implications for the future of the United States Supreme Court. Losing the ability to review Judge Kavanaugh’s record would be particularly harmful to Fix the Court, whose mission is to promote transparency, accountability, and reform on the Supreme Court. Roth Decl. ¶¶ 1-2. Fix the Court’s entire purpose is to use transparency to help it, and the public, assess judges’ records and, in particular in connection with a nomination, a judge’s fitness to be a justice of the Supreme Court and his commitment to the values and reforms Fix the Court advocates. Id. ¶¶ 4-6. A prompt determination and timely production of non-exempt records would equip Fix the Court to enhance the public debate on these issues and urgently needed to protect the interests of both Fix the Court and the general public, for the reasons articulated in this motion. 11 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 12 of 22 to raise awareness of reforms Fix the Court believes are necessary to improve the Supreme Court’s transparency and accountability. Id. ¶ 9. These records therefore possess unique value while Judge Kavanaugh’s nomination is pending and is a subject of widespread public debate, and that value will evaporate when the Senate makes its decision on Judge Kavanaugh’s nomination and the public debate ends. The records Fix the Court seeks from NARA are particularly relevant to its mission of promoting accountability and transparency with regard to the Supreme Court, and timely receipt of these records is essential for Fix the Court to participate in the public debate on these issues. Specifically, the records at issue here involve Judge Kavanaugh’s work with Kenneth Starr, the Independent Counsel appointed to investigate issues related to then-sitting President Clinton. Judge Kavanaugh’s experience, conduct, legal assessments, and views expressed in connection with that investigation will provide essential information about his stance regarding accountability for presidents, including the limits on criminal or other investigations of sitting presidents. There is a distinct possibility that the Supreme Court will be called upon to decide similar issues involving the ongoing special counsel investigation related to President Trump and many of his associates, including potential controversies over the president’s obligations to respond in the event the special counsel issues a subpoena for his testimony.8 Judge Kavanaugh’s experience with an analogous investigation, and the influence that experience would have on his See, e.g., Adam Liptak, Showdown on a Trump Subpoena Could Overshadow Brett Kavanaugh’s Confirmation, N.Y. Times, July 10, 2018, https://www.nytimes.com/2018/07/10/us/politics/brett-kavanaugh-trump-mueller-subpoena.html (“‘It is not at all far-fetched to think that the question of whether President Trump must respond to a subpoena could come before the Supreme Court shortly after the confirmation process,’ said Walter Dellinger, who served as acting United States solicitor general in the Clinton administration.”). 8 12 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 13 of 22 reasoning as a Supreme Court justice, is therefore directly relevant to Fix the Court’s focus on accountability, transparency, and the integrity of the Court. Deferring receipt of these records would deprive Fix the Court of its opportunity to participate meaningfully in advocacy on these issues at the core of its mission, including disseminating information that would promote robust public discourse on the Court’s commitment to its role as a nonpartisan and unbiased check on the executive branch. See Roth Decl. ¶¶ 2-9. Our system of representative democracy depends upon an informed citizenry. That principle animates FOIA. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) (“[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”). Fix the Court’s public advocacy embodies that principle. Its work strives to provide the public with important information about the Supreme Court and, in this case, an individual who may join it. Roth Decl. ¶¶ 5-6. The public can in turn use that information to influence the nomination process, which is often shaped by constituents’ communications to their elected officials about their support for or opposition to a nominee. Members of the public cannot reliably fulfill that role or meaningfully participate in the process without adequate information on which to base their opinions, and organizations like Fix the Court cannot inform and participate in the public discourse about crucial government institutions and reforms without access to information about government activities. In light of the Senate Majority Leader’s announced commitment to fast-track a decision on Judge Kavanaugh’s nomination, there is an urgent need to inform the public—now—about his legal career and qualifications for a lifetime appointment to the nation’s highest court. 13 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 14 of 22 If NARA is allowed to drag its feet in processing Fix the Court’s request and the Senate confirms (or votes not to confirm) Judge Kavanaugh without the public having the benefit of the insight contained in the records sought by this request, the public’s ability to participate meaningfully in the debate will have been irreparably harmed, as will Fix the Court’s interest in obtaining its statutorily-guaranteed access to these records and using those records in support of its reform and accountability mission. This case is therefore much like Washington Post v. Department of Homeland Security, in which the plaintiff sought visitor logs for the Vice President’s office and residence, which the plaintiff asserted would “assist the public in the degree to which lobbyists and special interest representatives may have influenced policy decisions of the Bush administration.” 459 F. Supp. 2d at 65 (internal quotation marks omitted). The plaintiff explained that “[w]ith the midterm elections looming, any delay in processing this request would deprive the public of its ability to make its views known in a timely fashion.” Id. Issuing its opinion in October of 2006, this Court concluded that “[b]ecause the urgency with which the plaintiff makes its FOIA request is predicated on a matter of current national debate, due to the impending election, a likelihood for irreparable harm exists if the plaintiff’s FOIA request does not receive expedited treatment.” Id. at 75.9 The same is true here, with the Senate rushing to take up Judge Kavanaugh’s nomination before the upcoming midterm elections in November. The nomination has attracted widespread media and public interest and general recognition that the Senate’s decision on his nomination has the potential to alter the balance of the Supreme Court, and the future of its jurisprudence on In subsequent, unrelated litigation, the D.C. Circuit held that White House visitor logs are not “agency records” for purposes of FOIA. See Judicial Watch v. U.S. Secret Service, 726 F.3d 208, 228-29 (D.C. Cir. 2013). However, nothing in that decision affects this Court’s analysis regarding irreparable harm in Washington Post v. Department of Homeland Security, 459 F. Supp. 2d 61 (D.D.C. 2006). 9 14 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 15 of 22 fundamental constitutional questions, for decades.10 The window for public education and discussion will be open only briefly, and it is imperative that Fix the Court receive the records it seeks before that window closes. See Elec. Frontier Found. v. Office of the Dir. of Nat’l Intelligence, 542 F. Supp. 2d 1181, 1187 (N.D. Cal. 2008) (“Although, and perhaps because, the Court cannot predict the timing of passage of the legislation in light of the ongoing debate in the legislature and with the Administration, the Court finds that delayed disclosure of the requested materials may cause irreparable harm to a vested constitutional interest in ‘the uninhibited, robust, and wide-open debate about matters of public importance that secures an informed citizenry.’”) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Indeed, by now it is almost axiomatic that “stale information is of little value.” Payne, 837 F.2d at 494; accord Calderon v. U.S. Dep’t of Ag., 236 F. Supp. 3d 96, 114 (D.D.C. 2017); see also Dunlap v. Presidential Advisory Comm'n on Election Integrity, 286 F. Supp. 3d 96, 110 (D.D.C. 2017) (“District courts in this circuit have recognized that, where an obligation to disclose exists, plaintiffs may suffer irreparable harm if they are denied access to information that is highly relevant to an ongoing public debate.” (citing Wash. Post, 459 F. Supp. 2d at 75; EPIC, 416 F. Supp. 2d at 41)). Thus, “failure to process FOIA requests in a timely fashion is ‘tantamount to denial.’” Wash. Post, 459 F. Supp. 2d at 74 (quoting H.R. Rep. No. 93-876, at 6 (1974)). That is no doubt why courts in this jurisdiction have repeatedly issued preliminary See, e.g., Stephen Jessee & Neil Malhotra, The Chart That Shows the Supreme Court Will Be Out of Step With the Country, N.Y. Times, July 12, 2018, https://www.nytimes.com/2018/07/12/opinion/kavanaugh-supreme-court-right.html (arguing that “[i]f Judge Brett Kavanaugh joins the Supreme Court, it will mark a sharp move to the right”); Oliver Roeder & Amelia Thomson-DeVeaux, How Brett Kavanaugh Would Change the Supreme Court, FiveThirtyEight (July 9, 2018, 9:34 PM), https://fivethirtyeight.com/features/how-brettkavanaugh-would-change-the-supreme-court/; Brian Bennett, How Brett Kavanaugh Could Change the Supreme Court—and America, Time, July 12, 2018, http://time.com/5336621/brettkavanaugh-supreme-court/. 10 15 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 16 of 22 injunctions in FOIA cases where the requester seeks information urgently needed to inform a pending or developing situation. See, e.g., id. at 74-75 (finding irreparable harm where requested records could inform public opinion in advance of upcoming election); EPIC, 416 F. Supp. 2d at 40-41 (finding irreparable harm where requested records related to “current and ongoing debate surrounding the legality of the Administration’s warrantless surveillance program”); Aguilera v. FBI, 941 F. Supp. 144, 151-52 (D.D.C. 1996) (finding irreparable harm where requested records related to prisoner’s challenge to conviction while already serving prison sentence); Cleaver v. Kelley, 427 F. Supp. 80, 81-82 (D.D.C. 1976) (granting preliminary injunction for records needed for upcoming criminal trial); cf. Sai v. Transp. Sec. Admin., 54 F. Supp. 3d 5, 10-11 (D.D.C. 2014) (finding no irreparable harm because plaintiff offered no evidence that requested records would be of “vital public interest for an upcoming congressional election or congressional or agency decision-making process requiring public input” (internal citations and quotation marks omitted)). As in many of those cases, Fix the Court’s ability to contribute to the public’s understanding of the qualifications of the nominee to the Supreme Court will be irreparably harmed if NARA is not required to promptly process Fix the Court’s FOIA request and produce all responsive documents on an accelerated schedule. NARA itself recognizes this reality, and through this motion, Fix the Court seeks judicial intervention to ensure NARA will comply with its obligations to expedite disclosure. C. The Requested Relief Will Not Burden Others’ Interests. No other interests would be harmed by granting Fix the Court its requested relief. To be sure, NARA itself cannot claim to be harmed by an order compelling it to comply with its statutory obligations. In the past, NARA has been able to marshal the resources necessary to 16 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 17 of 22 review voluminous records of extraordinary and urgent importance to the public. For example, while the Senate considered Justice Elena Kagan’s nomination to the Supreme Court, NARA processed and made nearly 170,000 pages of material from the Clinton Presidential Library available to the public over approximately six weeks.11 There is no reason to believe that a similar effort is not practicable here. Nor would granting Fix the Court relief unduly burden other FOIA requesters. The whole purpose of the addition of the expedited processing provision in 1996 was to prioritize requesters with an urgent need for information. See EPIC, 416 F. Supp. 2d at 36 (explaining 1996 amendment adding expedited processing requirements). Thus, Congress itself contemplated that certain requesters would go to the head of the queue upon a showing of compelling need—as NARA agrees Fix the Court has made in this instance. See Roth Decl. ¶ 27; Ex. D. Thus, an order from this Court that NARA promptly process Fix the Court’s request and provide all nonexempt responsive records on an accelerated schedule set by this Court will not harm the interests of the non-moving party or any other entity. D. The Public Interest Favors the Requested Relief. A preliminary injunction is indispensable to protect the public’s right to government transparency and essential interest in informed and meaningful participation in the Senate confirmation process. Consequently, the requested relief clearly serves the public interest. First, courts in this jurisdiction have long recognized that “there is an overriding public interest . . . in the general importance of an agency’s faithful adherence to its statutory mandate.” Jacksonville Port Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977); accord Wash. Post, 459 F. AOTUS Blog, Processing the Presidential Records of Elena Kagan, THE NATIONAL ARCHIVES, June 22, 2010, https://aotus.blogs.archives.gov/2010/06/22/processing-thepresidential-records-of-elena-kagan/. 11 17 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 18 of 22 Supp. 2d at 76. The very existence of the Freedom of Information Act is rooted in the selfevident premise that transparency and disclosure are a public benefit in a participatory democracy. U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772-73 (1989); see also Ctr. to Prevent Handgun Violence v. U.S. Dep’t of the Treasury, 49 F. Supp. 2d 3, 5 (D.D.C. 1999) (“There is public benefit in the release of information that adds to citizens’ knowledge” of government activities). NARA’s previous indications that its processing of the bulk of Fix the Court’s request will stretch out over years suggests that without intervention by the Court, even purportedly expedited processing will unduly defer the public benefits of transparency that FOIA is intended to protect. But the public benefit of injunctive relief here extends far beyond the general public interest in transparency and faithful adherence to FOIA. Congress enacted FOIA to ensure that citizens are able to participate in public debate in an informed manner, and this interest grows with the gravity of public decisions at hand. See Robbins Tire, 437 U.S. at 242 (“The basic purpose of [the] FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”). There are few moments of public debate with urgency equal to that surrounding selection of a new justice to serve on the nation’s highest court. Courts have recognized the importance of timely disclosure when information is relevant to elections. See, e.g., Wash. Post, 459 F. Supp. 2d at 74-75. The public’s need is arguably stronger in advance of a Supreme Court confirmation, because the public will not have an opportunity to revisit this decision post-confirmation with the benefit of either hindsight or belated disclosures. Congress and the Executive Branch comprise myriad individuals and face regular elections that afford the public regular opportunities to affirm or disavow their actions 18 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 19 of 22 and to shape their priorities; while each election is significant, there are natural limits on the effects of each individual election and frequent opportunities for the public to redress errors or reverse course. Not so for the third branch of government. Vacancies on the Supreme Court are relatively rare, and lifetime appointments render the decisions on how to fill them all but irrevocable. Although the public enjoys far less ability to influence its highest court than it wields over the political branches, the Supreme Court, and each of its justices, exerts acute influence over the day-to-day lives of the American public. As one of only nine justices on a court that has been, of late, sharply divided, Judge Kavanaugh would be in a position to have significant impact for a generation with regard to fundamental rights and equal protection of the laws and to exert substantial, even dispositive, influence on resolution of cases guiding the relationship between the branches of government and defining the limits of executive and legislative power. The public’s need for an informed discourse on Judge Kavanaugh’s nomination is particularly strong given brewing conflicts between President Trump and the special counsel. As noted, if the special counsel issues a subpoena for the president’s testimony, the Supreme Court may imminently be called upon to decide a dispute that implicates the limits of executive power, the judiciary’s role in interpreting and guarding those limits, and other core issues of government accountability, integrity, and transparency. See Liptak, supra note 8. While it would be important to examine any nominee’s approach to such issues, Judge Kavanaugh’s involvement in the independent counsel investigation of President Clinton demands exploration before he can be confirmed. The records Fix the Court has requested will provide a rich source of information about Judge Kavanaugh’s past conduct, views, and reasoning on these issues, which will promote probing the consistency of his current views with his previous positions and allow the 19 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 20 of 22 public, and the Senators who represent them, to assess whether those views turn on sound and impartial legal reasoning or change with the party or ideology of the president facing investigation. Such a robust dialogue is necessary both to ensure that the Senate’s decision is well informed and to reassure that public that judicial decisions essential to the integrity and accountability of the government will be based on the law, free from partisan politics or pressures. The public has only one opportunity to assess Judge Kavanaugh’s fitness for this august position and to convey its views and concerns to the senators entrusted with weighing his nomination. A preliminary injunction ensuring timely processing and disclosure of records reflecting Judge Kavanaugh’s record of government service maximizes that public’s ability to avail itself of that opportunity. CONCLUSION For the foregoing reasons, Plaintiff Fix the Court respectfully requests that this Court grant a preliminary injunction requiring NARA to process Fix the Court’s FOIA request and produce all non-exempt responsive records and an index justifying the withholding of any withheld records by such date as the Court deems appropriate. 20 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 21 of 22 Dated: July 16, 2018 Respectfully submitted, /s/ Elizabeth France Elizabeth France D.C. Bar No. 999851 /s/ John E. Bies John E. Bies D.C. Bar No. 483730 /s/ Austin R. Evers Austin R. Evers D.C. Bar No. 1006999 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 869-5244 beth.france@americanoversight.org austin.evers@americanoversight.org Counsel for Plaintiff Fix the Court 21 Case 1:18-cv-01621-TSC Document 4-1 Filed 07/16/18 Page 22 of 22 CERTIFICATE OF SERVICE I hereby certify that on July 16, 2018, I caused a copy of the foregoing Memorandum in Support of Plaintiff’s Motion for a Preliminary Injunction to be hand-delivered to defendant at the following address: U.S. National Archives and Records Administration 8601 Adelphi Road College Park, MD 20740 In addition, a courtesy copy has been delivered to: Jessie K. Liu U.S. Attorney for the District of Columbia 555 4th Street NW Washington, DC 20530 /s/ Elizabeth France Elizabeth France D.C. Bar No. 999851 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 869-5244 beth.france@americanoversight.org Dated: July 16, 2018 Counsel for Plaintiff Fix the Court 22 Case 1:18-cv-01621-TSC Document 4-2 Filed 07/16/18 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) Plaintiff, ) ) v. ) ) U.S. NATIONAL ARCHIVES AND RECORDS ) ADMINISTRATION, ) ) Defendant. ) ) FIX THE COURT, Case No. 18-cv-1621 (TSC) DECLARATION OF GABE ROTH I, GABE ROTH, hereby declare as follows: 1. I am the Executive Director of Fix the Court, a national, non-partisan grassroots organization created to promote pro-transparency reform at the United States Supreme Court. Fix the Court’s Mission and Contributions 2. Fix the Court focuses solely on examining activities of the federal judiciary, including educating the public regarding the Supreme Court’s justices and activities, and proposing reforms to improve transparency and public confidence. 3. Fix the Court undertakes a range of activities to support its mission. These include obtaining and publicizing financial disclosure forms filed by Supreme Court justices; requesting prompt release of audio recordings of oral arguments; providing commentary and analysis on the justices’ financial disclosures and recusals; and identifying opportunities for public action and engagement. 4. Through its work, Fix the Court has made numerous concrete contributions to making the federal judiciary more accessible, open, and accountable. These include requesting Case 1:18-cv-01621-TSC Document 4-2 Filed 07/16/18 Page 2 of 7 and being granted live online audio for the D.C. Circuit’s hearing in Garza v. Hargan; working with senators on a bipartisan basis to seek same-day audio for all October Term Supreme Court proceedings in 2018; securing digital access for the public to judges’ and justices’ financial disclosure reports; and increasing public awareness of conflicts issues involving stock ownership by federal judges and the potential for divestitures to reduce the need for recusals. 5. With regard to nominations to the Supreme Court, though Fix the Court has never taken a position on whether a nominee should be confirmed by the Senate and never will, it does focus on helping the public and the Senate assess judges’ records and fitness to be justices of the Supreme Court and their commitment to the values and reforms Fix the Court advocates. 6. Specifically, Fix the Court researches likely nominees and identifies sources of relevant records regarding their credentials and jurisprudence; submits public information requests to obtain these records; summarizes, analyzes, and distributes records it receives; and educates the public about the nominee and the confirmation process, including how to contact senators to request that they probe certain topics in the confirmation process or ultimately support or oppose a nominee. 7. Contributing to the public discourse and promoting public engagement are key components of Fix the Court’s mission. Fix the Court collaborates with individuals and organizations nationwide—and across the political spectrum—to raise awareness of these issues and advocate for reforms. For example, Fix the Court has partnered with the Federalist Society and the American Constitution Society to co-host events at a dozen law schools. 8. In my role as Executive Director, I make frequent media appearances to discuss Fix the Court’s work, to inform the public discourse regarding the Supreme Court’s activities, and to advocate for reforms, such as increasing media and public access to the Court’s 2 Case 1:18-cv-01621-TSC Document 4-2 Filed 07/16/18 Page 3 of 7 proceedings, strengthening protections against conflicts of interest, and making financial disclosures more robust and readily available for public review. 9. Fix the Court’s ability to obtain public records on a prompt basis is crucial to its goals of promoting accountability, transparency, and reform at the Supreme Court. Prompt responses to public records requests and timely production of relevant documents are crucial to its ability to inform and enhance the public debate surrounding these issues, and to raise awareness of the reforms Fix the Court advocates. Fix the Court’s FOIA Request to NARA 10. In light of widespread media speculation that Judge Brett M. Kavanaugh could be nominated to the Supreme Court, on April 4, 2018, Fix the Court submitted a Freedom of Information Act (“FOIA”) request to the U.S. National Archives and Records Administration (“NARA”), seeking records related to Judge Kavanaugh’s past public service working for Independent Counsel Kenneth Starr during the investigation of President Bill Clinton, including drafting portions of the report that led to the president’s impeachment. A true and correct copy of Fix the Court’s April 4, 2018 FOIA request is attached hereto as Exhibit A. 11. Fix the Court considers this information vital to its mission to contribute information and analysis to the public discourse concerning Supreme Court nominations and the Court in general. 12. Fix the Court sought information concerning Judge Kavanaugh’s background in April 2018, so that Fix the Court would have relevant data available to share with the public if Judge Kavanaugh was in fact nominated. 13. Specifically, Fix the Court requested copies of “complaints, correspondence and any performance reviews or reprimands involving Brett Kavanaugh during his time in the Office 3 Case 1:18-cv-01621-TSC Document 4-2 Filed 07/16/18 Page 4 of 7 of Independent Counsel from Jan. 1, 1994, to Dec. 31, 1998,” noting that such records “should include, but [not be] limited to: • Complaints regarding Mr. Kavanaugh received from within the OIC [Office of Independent Counsel] Department of Justice or from members of the public; • Digital (e-mail), print or other correspondence and attachments involving Mr. Kavanaugh, including instances where he is merely carbon copied (CC’d); • Performance reviews of Mr. Kavanaugh and [his] service with the OIC or Department of Justice; and • Warnings or reprimands issued regarding Mr. Kavanaugh and [his] service with the OIC or Department of Justice.” Ex. A at 1. 14. On April 20, 2018, Robert Reed, a NARA Archivist, emailed Fix the Court a list of boxes in NARA’s possession containing records related to Judge Kavanaugh, and asked that Fix the Court review NARA’s file manifests to identify more specific files potentially responsive to its request. A true and correct copy of this email message and subsequent email correspondence between Robert Reed and myself is attached hereto as Exhibit B. 15. Fix the Court replied to Mr. Reed’s email on the same day, identifying eight full boxes and specified items within eleven additional boxes for NARA to review and produce if responsive to Fix the Court’s FOIA request. Ex. B at 3. 16. Fix the Court requested a status update from Mr. Reed on May 14, 2018. Mr. Reed responded on May 22, 2018, asking a follow-up question concerning Fix the Court’s request, to which Fix the Court responded within an hour. Id. at 2. 4 Case 1:18-cv-01621-TSC Document 4-2 Filed 07/16/18 Page 5 of 7 17. On May 30, 2018, Mr. Reed provided NARA’s preliminary assessment regarding Fix the Court’s FOIA request, detailing further reviews NARA would have to perform with respect to the boxes and items identified by Fix the Court, as well as timeframes for each category of review. Id. at 1-2. 18. Specifically, Mr. Reed indicated that one set of items identified by Fix the Court was small enough that he believed NARA could process it in six months. A second set of items identified by Fix the Court would take approximately 22 months to process. Finally, Mr. Reed stated that the bulk of the remaining items would be assigned to NARA’s second-tier processing queue, which was experiencing such a backlog that NARA “[was] currently processing requests received in February 2013.” I took this to mean that the items assigned to the second-tier processing queue could take over five years to process. Id. at 2. 19. With respect to two remaining items identified in Fix the Court’s April 20, 2018 email as potentially responsive, Mr. Reed informed Fix the Court that one item had been determined to be nonresponsive, and that the other item did not exist. I discovered that Fix the Court had misidentified the latter item, and provided corrected information to Mr. Reed in subsequent email correspondence on June 8, 2012. Id. at 1-2. 20. On June 12, 2018, Mr. Reed provided an initial response letter to Fix the Court’s FOIA request, a true and correct copy of which is attached hereto as Exhibit C. 21. This response confirmed the anticipated processing times listed in Mr. Reed’s May 30, 2018 email. Other than stating that the corrected item Fix the Court had noted in its June 8, 2018 email (as described in paragraph 19 of this Declaration) had been determined to be nonresponsive, Mr. Reed’s June 12, 2018 letter provided no new information concerning the 5 Case 1:18-cv-01621-TSC Document 4-2 Filed 07/16/18 Page 6 of 7 scope of records to be produced in response to Fix the Court’s FOIA request, or the timing of potential production of records. Ex. C. 22. As of the date of this Declaration, Fix the Court has received no further information from NARA concerning the scope of records to be produced in response to its request, nor has Fix the Court received a single document in response to its request. Judge Kavanaugh’s Nomination and Subsequent Events 23. On July 9, 2018, President Trump nominated Judge Kavanaugh to the U.S. Supreme Court. 24. In light of this announcement, Fix the Court’s need for a determination on its FOIA request to NARA is all the more urgent. Fix the Court considers it essential that as much information as possible is available for public consumption prior to Judge Kavanaugh’s confirmation hearings, in the interest of a fully informed confirmation process. 25. As Senate Republicans have indicated they will proceed with the process as soon as possible, Fix the Court believes that time is of the essence with respect to the records it has requested from NARA. 26. Therefore, on July 12, 2018, Fix the Court submitted a request for expedited processing of its FOIA request to NARA. Ex. B at 1. 27. NARA responded the same day, granting the request. A true and correct copy of an email from Rebecca Calcagno, NARA Supervisory Archivist, granting Fix the Court’s request for expedited processing, is attached hereto as Exhibit D. 28. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Dated: July 16, 2018 ___________________________________ Gabe Roth 6 Case 1:18-cv-01621-TSC Document 4-2 Filed 07/16/18 Page 7 of 7 CERTIFICATE OF SERVICE I hereby certify that on July 16, 2018, I caused a copy of the foregoing Declaration of Gabe Roth in Support of Plaintiff’s Motion for a Preliminary Injunction to be hand-delivered to defendant at the following address: U.S. National Archives and Records Administration 8601 Adelphi Road College Park, MD 20740 In addition, a courtesy copy has been delivered to: Jessie K. Liu U.S. Attorney for the District of Columbia 555 4th Street NW Washington, DC 20530 Dated: July 16, 2018 Respectfully submitted, /s/ Elizabeth France Elizabeth France D.C. Bar No. 999851 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 869-5244 beth.france@americanoversight.org Counsel for Plaintiff Fix the Court Case Document 4-3 Filed 07/16/18 Page 1 of 3 Exhibit A Case 1:18-cv-01621-TSC Document 4-3 Filed 07/16/18 Page 2 of 3 From: Subject: Date: To: Gabe Roth gabe@fixthecourt.com Fwd: FOIA for Starr Report documents (2 of 2) July 3, 2018 at 10:27 AM Katherine Anthony katherine.anthony@americanoversight.org, to: Gabe Roth gabe@fixthecourt.com, cc: Beth France beth.france@americanoversight.org, John Bies john.bies@americanoversight.org, Austin Evers austin.evers@americanoversight.org Redacted - Attorney-Client Privileged ---------- Forwarded message ---------From: Gabe Roth Date: Wed, Apr 4, 2018 at 2:41 PM Subject: FOIA for Starr Report documents (2 of 2) To: specialaccess_foia@nara.gov Gabe Roth Fix the Court 121 St. John’s Pl. Brooklyn, N.Y., 11217 Special Access and FOIA Staff, Room 5500 National Archives and Records Administration 8601 Adelphi Rd. College Park, Md., 20740 Dear Records Request Officer: April 4, 2018 Pursuant to the Freedom of Information Act, I request access to and copies of all complaints, correspondence and any performance reviews or reprimands involving Brett Kavanaugh during his time in the Office of Independent Counsel from Jan. 1, 1994, to Dec. 31, 1998. This should include, but is not limited to: • Complaints regarding Mr. Kavanaugh received from within the OIC Department of Justice or from members of the public; • Digital (e-mail), print or other correspondence and attachments involving Mr. Kavanaugh, including instances where he is merely carbon copied (CC’d); • Performance reviews of Mr. Kavanaugh and her service with the OIC or Department of Justice; and • Warnings or reprimands issued regarding Mr. Kavanaugh and her service with the OIC or Department of Justice. For reference, Mr. Kavanaugh served as an associate independent counsel in the Office of Independent Counsel Kenneth Starr from 1994 to 1997 and again for a period in 1998. If there are costs associated with this request, please let me know, and I can submit payment promptly. If possible, I would prefer to receive this information electronically via e-mail at gabe@fixthecourt.com. If records must be sent by mail, please send to: Gabe Roth Fix the Court 121 St. John’s Pl. Brooklyn, NY 11217 If you have questions or need additional information from me, please feel free to call me at 202-7804990. If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the act. Thank you for your assistance. Sincerely, Gabe Roth Case 1:18-cv-01621-TSC Document 4-3 Filed 07/16/18 Page 3 of 3 Gabe Roth Executive Director Fix the Court Case Document 4-4 Filed 07/16/18 Page 1 of 4 Exhibit Case 1:18-cv-01621-TSC Document 4-4 Filed 07/16/18 Page 2 of 4 From: Subject: Date: To: Bcc: Gabe Roth gabe@fixthecourt.com Re: FOIA #56806 July 12, 2018 at 1:08 PM Robert Reed robert.reed@nara.gov, Clinton.library@nara.gov, Specialaccess_foia@nara.gov katherine.anthony@americanoversight.org Dear Rob, Given the recent announcement regarding Mr. Kavanaugh’s nomination to the Supreme Court, pursuant to 5 U.S.C. § 552(a)(6)(E)(i) and 36 C.F.R. § 1250.28(a)(3), Fix the Court requests that NARA expedite the processing of this request. I hereby certify that, to the best of my knowledge and belief, the information requested is urgently needed in order to inform the public concerning actual or alleged government activity. As you know, on July 9 President Trump announced that he has nominated Mr. Kavanaugh to the Supreme Court, and Senate Majority Leader Mitch McConnell had previously stated that the Senate will act quickly to confirm the President’s nominee. The American public has a substantial and urgent need to have access to public records concerning Mr. Kavanaugh’s public service record to inform its understanding of the impending confirmation hearings. I further certify that Fix the Court is primarily engaged in disseminating information to the public. Fix the Court advocates for reforms to the federal judiciary that would make the third branch more transparent and accountable. We seek information and public records as part of our process and use those materials to educate the American about the court and its current and potential justices, sharing information with the media, issuing press releases, reports, and research. As just one example, Fix the Court recently shared financial disclosure reports it obtained for Mr. Kavanaugh and other potential nominees to the Supreme Court appearing on the President’s short list (see NEW: Financial Disclosure Reports of the Supreme Court Finalists, Fix the Court, July 6, 2018, https://fixthecourt.com/ 2018/07/fdshortlisters/). Accordingly, Fix the Court’s request satisfies the criteria for expedition. Please inform me whether NARA will comply with my request for expedited processing within 10 calendar days, as required by 5 U.S.C. § 552(a)(6)(E)(ii)(I) and 36 C.F.R. § 1250.28(d). Thank you, Gabe ------------Gabe Roth Fix the Court 202-780-4990 On Tue, Jun 12, 2018 at 12:49 PM, Gabe Roth wrote: Thank you! Much appreciated. On Tue, Jun 12, 2018 at 12:45 PM, Robert Reed wrote: Hi Gabe, My initial response to your request for OIC files relating to Brett Kavanaugh is attached. Rob Robert Reed Archivist Special Access and FOIA Branch National Archives at College Park 301-837-1651 www.archives.gov/research/foia/ On Fri, Jun 8, 2018 at 12:24 PM, Gabe Roth wrote: Yes, sorry - I meant box 1556, item no. 22, not box 1156. Thank you for catching that. In terms of reducing the scope of work, I do not wish to do so at this time, but as you imply in the fifth paragraph below, I would like to receive the files as they become available, if possible, instead of waiting until the entire request has been completed. Many thanks. On Wed, May 30, 2018 at 2:45 PM, Robert Reed wrote: Gabe, I've conducted a preliminary assessment of the boxes and folders cited in your e-mails of April 20. I'll send a formal response Case 1:18-cv-01621-TSC Document 4-4 Filed 07/16/18 Page 3 of 4 that provides appeal rights within the next week. This is just to give you an idea of the outlook for your request at this point. The combined volume of DC boxes 140, 141, 142, 143, 144, 145, 366 and 503 is estimated at roughly 20,000 pages that requires a line-by-line review. This portion of your request will be assigned to our second-tier processing queue. We are currently processing second-tier requests received in February 2013. DC boxes 108 (item 2) and 1151 (item 1) will be assigned to our first tier processing queue. The current backlog for first-tier is about 22 months. DC box 1156 (item 22) -- There is no item 22 for this box. Did you mean item 2? (Appeals Case, J. McDougal) DC boxes 103 (item 3), 425 ( item 23), 1785 (item 9), 1788 (item 3), 1791 (item 5), 1796 (item 2) and LR box 337 (item 4) are relatively small and could be reviewed within the next six months, without being assigned to one of our regular processing queues. LR box 60 (item no. 13) is deemed unresponsive because it refers to Kavanaugh's, a Little Rock clothing store, and not to OIC attorney Brett Kavanaugh. Please let me know if you'd like to reduce the scope of your request. This office is committed to working with you to provide access to records that are relevant to your request in as timely a manner as possible. Sincerely, Rob Robert Reed Archivist Special Access and FOIA Branch National Archives at College Park 301-837-1651 www.archives.gov/research/foia/ On Tue, May 22, 2018 at 12:38 PM, Gabe Roth wrote: Hi, Rob, Welcome back, and thanks for the question. I would like everything in the boxes or partial boxes that I indicated on April 20; I think the initial phasing of "complaints, reprimands, or performance reviews," plus the other bullet (i.e., "copies of all digital correspondence") was simply shorthand for that - or longhand, in this case. Best, Gabe On Tue, May 22, 2018 at 12:00 PM, Robert Reed wrote: Hi Gabe, I just returned from vacation today, but I'll try to get back to your request this week. Just to be clear, are you only interested in copies of complaints, reprimands, or performance reviews of Kavanaugh and Colloton, or are you interested in all of the boxes and folders specified in your e-mails of April 20, regardless of the contents? Which material is deemed responsive based on how your request is framed will determine placement within our processing queues and time required to fulfill your request. Rob Robert Reed Archivist Special Access and FOIA Branch National Archives at College Park 301-837-1651 www.archives.gov/research/foia/ On Mon, May 14, 2018 at 10:51 AM, Gabe Roth wrote: Hi, Robert, I'm writing to see if you have any updates on my Kavanaugh and Colloton FOIAs in terms of when you think the contents in the boxes I identified will be ready for copying and sending and/or scanning and uploading. If you are able to release the files in smaller segments over time, I would be amenable to that. Thank you, Case 1:18-cv-01621-TSC Document 4-4 Filed 07/16/18 Page 4 of 4 a you, Gabe On Fri, Apr 20, 2018 at 10:37 AM, Gabe Roth wrote: My apologies - I hit "send" too soon. To be clear, the numbers I referenced in the 10:33 a.m. e-mail today were for D.C. boxes. In terms of Little Rock boxes, I am interested in the partial contents of boxes 60 (item no. 13) and 337 (no. 4). Thank you. On Fri, Apr 20, 2018 at 10:33 AM, Gabe Roth wrote: Hi, Robert, Thank you for the thorough response. For the time being, I want to focus on FOIA case no. 56806. I am interested in the entire contents of the following boxes: 140, 141, 142, 143, 144, 145, 366 and 503. And I am interested in partial contents of the following boxes: 103 (item no. 3), 108 (no. 2), 425 (no. 23), 1151 (no. 1), 1156 (no. 22), 1785 (no. 9), 1788 (no. 3), 1791 (no. 5), 1796 (no. 2). Feel free to give me a call at 312-545-8556 if there are any issues with this request, and please let me know how long it will take to fill it. I will be applying for a cost waiver since Fix the Court has nonprofit status. Thanks again, Gabe On Fri, Apr 20, 2018 at 9:00 AM, Robert Reed wrote: Mr. Roth, I am writing in response to your Freedom of Information Act requests of April 4, 2018 for records of Independent Counsel Kenneth W. Starr relating to attorneys Steven Colloton and Brett Kavanuagh. Your requests were received in this office on April 6, 2018 and assigned FOIA case tracking numbers 56805 (Colloton) and 56806 (Kavanaugh). I encourage you to review the finding aids for OIC’s District of Columbia and Little Rock offices, available at the following URL: https://www.archives.gov/research/investigations/starr Steven Colloton's attorney files are found in DC boxes 87-88 and 362-364 and LR boxes 201, 335-336, and 711-714. Brett Kavanaugh's attorney files are found in DC boxes 140-145, 366, and 503. If you identify folder titles from the file manifests that are relevant to your subjects of interest, our office will examine those files and determine their responsiveness. We are committed to working with you in order to perfect your request and provide access to all responsive records. Please contact me directly at robert.reed@nara.gov and reference FOIA case tracking numbers 56805 and 56806. If you are not satisfied with my action on this request and would like the opportunity to discuss my response, you may contact our FOIA Public Liaison for assistance: Accessioned Executive Branch Records – Washington, DC Area FOIA Requester Service Center: 301-837-3190 FOIA Public Liaison: Martha Wagner Murphy 8601 Adelphi Road, Room 5500 College Park, MD 20740-6001 Telephone: 301-837-3270 e-mail: dc.foia.liaison@nara.gov Sincerely, Robert Reed Archivist Special Access and FOIA Branch National Archives at College Park 301-837-1651 www.archives.gov/research/foia/ Case Document 4-5 Filed 07/16/18 Page 1 of 4 Exhibit Case 1:18-cv-01621-TSC Document 4-5 Filed 07/16/18 Page 2 of 4 June 12, 2018 Gabe Roth 121 St. John’s Place Brooklyn, New York 11217 Dear Mr. Roth, I am writing in further response to your Freedom of Information Act request of April 4, 2018 for records in the custody of the National Archives and Records Administration. Your request for information relating to Brett Kavanaugh in the Records of Independent Counsel Kenneth W. Starr was received in this office on April 6, 2018 and assigned FOIA case tracking number 56806. Based on our initial consultation and your review of the finding aids for OIC’s District of Columbia and Little Rock offices, you have requested access to the following records: DC boxes 140, 141, 142, 143, 144, 145, 366, 503 (all items). DC box 103 (item 3: Kavanaugh) DC box 108 (item 2: Kavanaugh Material re WHCO Subpoena Compliance) DC box 425 (item 23: Kavanaugh Memos) DC box 1151 (item 1: Colloton-Kavanaugh 8/7/96 Memorandum) DC box 1556 (item 22: 172 -- 2/2/00 -- 478 -- Kavanaugh Clothiers – Documents Retained DC box 1785 (item 9: Kavanaugh, Brett) DC box 1788 (item 3: Brett Kavanaugh) DC box 1791 (item 5: Kavanaugh, Brett) DC box 1796 (item 2: Kavanaugh, Brett) LR box 60 (item 13: Subpoena 478 Kavanaugh Clothing) LR box 337 (item 4: Indictment/Impeachment Kavanaugh Research) These records require screening for categories of information exempted from disclosure under the terms of Freedom of Information Act, prior to public release. I have determined that the following items represents a relatively small amount of material and can be reviewed in the next six months, without being formally assigned to one of our regular processing queues: DC boxes 103 (item 3), 425 (item 23), 1785 (item 9), 1788 (item 3), 1791 (item 5), 1796 (item 2) and LR box 337 (item 4). DC box 1556 (item 22) and LR box 60 (item 13) are deemed unresponsive because both files relate to Kavanaugh’s, a Little Rock clothing store where the Hubbell’s had an account. There is no material in either file pertinent to your interest in Brett Kavanaugh. 1 Case 1:18-cv-01621-TSC Document 4-5 Filed 07/16/18 Page 3 of 4 Requests for files with a volume of 500 pages or less are assigned to our first-tier processing queue. Taking into consideration our existing backlog, the estimated time required to complete the processing of your request is approximately 22 months from the date of this letter. DC boxes 108 (item 2) and 1151 (item 1) have a combined volume of less than 500 pages and will be placed in our first-tier queue. Requests for files with a volume exceeding 500 pages are assigned to our second-tier processing queue. To give you an indication of our current backlog, we are currently processing requests received in February 2013. The combined volume of the Brett Kavanaugh Attorney Work Files, comprised of DC boxes 140-145, 366, and 503, is estimated at 20,000 pages. This portion of your request will be assigned to our second-tier queue. To notify this office of a change in your contact information or to track the status of your request, please telephone 301-837-3190 or e-mail specialaccess_foia@nara.gov. If you have specific questions regarding the subject of your request, please contact me directly at 301-837-1651 or robert.reed@nara.gov. If you are not satisfied with my action on this request, you have the right to file an administrative appeal within ninety (90) calendar days from the date of this letter. Appeals must be in writing and may be delivered by regular U.S. mail or by e-mail. By filing an appeal, you preserve your rights under the Freedom of Information Act and present the deciding agency with an opportunity to review your request and reconsider its decision. If you submit your appeal by regular mail, it should be addressed to the Deputy Archivist of the United States (ND), National Archives and Records Administration, 8601 Adelphi Road, Room 4200, College Park, Maryland 20740-6001. Both the letter and envelope should be clearly marked “FOIA Appeal.” If you submit your appeal by e-mail, please send it to foia@nara.gov, addressed to the Deputy Archivist, with the words “FOIA Appeal” in the subject line. Please be certain to explain why you believe this response does not meet the requirements of the Freedom of Information Act. All communications concerning this request should reference FOIA case tracking number 56806. If you would like the opportunity to discuss my response and attempt to resolve your dispute without initiating the appeals process, you may contact our FOIA Public Liaison for assistance: Accessioned Executive Branch Records – Washington, DC Area FOIA Requester Service Center: 301-837-3190 FOIA Public Liaison: Martha Wagner Murphy 8601 Adelphi Road, Room 5500 College Park, MD 20740-6001 Telephone: 301-837-3270 E-mail: dc.foia.liaison@nara.gov If you are unable to resolve your dispute through our Public Liaison, the Office of Government Information Services (OGIS) is the federal FOIA ombudsman. OGIS offers mediation services to 2 Case 1:18-cv-01621-TSC Document 4-5 Filed 07/16/18 Page 4 of 4 help resolve disputes between FOIA requesters and federal agencies. You may contact OGIS at the following address: Office of Government Information Services (OGIS) National Archives and Records Administration 8601 Adelphi Road, Room 2510 College Park, MD 20740-6001 ogis@nara.gov 202-741-5770 1-877-684-6448 Sincerely, ROBERT REED Archivist Special Access and FOIA Branch 3 Case Document 4-6 Filed 07/16/18 Page 1 of 3 Exhibit Case 1:18-cv-01621-TSC Document 4-6 Filed 07/16/18 Page 2 of 3 From: Subject: Date: To: Gabe Roth gabe@fixthecourt.com Fwd: Request to Expedite FOIA case 56806 July 12, 2018 at 3:37 PM Beth France beth.france@americanoversight.org, Katherine Anthony katherine.anthony@americanoversight.org Redacted - Attorney-Client Privileged ---------- Forwarded message ---------From: Rebecca Calcagno Date: Thu, Jul 12, 2018 at 3:11 PM Subject: Request to Expedite FOIA case 56806 To: gabe@fixthecourt.com Cc: Robert Reed Dear Mr. Roth: I am writing in response to your request to expedite your Freedom of Information Act request for records on Brett Kavanaugh (FOIA case tracking number 56806). In accordance with 36 CFR 1250.28, the National Archives and Records Administration may, at its discretion, expedite the review of records requested under the Freedom of Information Act and move a request to the head of a FOIA processing queue, if the requester meets one of the following criteria: A reasonable expectation of an imminent threat to an individual’s life or physical safety; A reasonable expectation of an imminent loss of a substantial due process right; or An urgent need to inform the public about an actual or alleged Federal Government activity (this applies only to those requests made by persons primarily engaged in disseminating information to the public); or The subject is of widespread and exceptional media interest and the information sought involves possible questions about the government’s integrity that affect public confidence. You requested expedited processing on the basis of an urgent need to inform the public about an actual or alleged Federal Government activity, citing Mr. Kavanaugh's nomination to the Supreme Court as justification for urgency. Your request is granted. Processing of the records you requested is underway. Once review of the records has been complete, a member of our staff will contact you and provide you with information on how you may access the reviewed material. Sincerely, Rebecca Calcagno ---------- Forwarded message ---------From: Gabe Roth Date: Thu, Jul 12, 2018 at 1:08 PM Subject: Re: FOIA #56806 To: Robert Reed , Clinton.library@nara.gov, Specialaccess_foia@nara.gov Dear Rob, Given the recent announcement regarding Mr. Kavanaugh’s nomination to the Supreme Court, pursuant to 5 U.S.C. § 552(a)(6)(E)(i) and 36 C.F.R. § 1250.28(a)(3), Fix the Court requests that NARA expedite the processing of this request. I hereby certify that, to the best of my knowledge and belief, the information requested is urgently needed in order to inform the public concerning actual or alleged government activity. As you know, on July 9 President Trump announced that he has nominated Mr. Kavanaugh to the Supreme Court, and Senate Majority Leader Mitch McConnell had previously stated that the Senate will act quickly to Case 1:18-cv-01621-TSC Document 4-6 Filed 07/16/18 Page 3 of 3 confirm the President’s nominee. The American public has a substantial and urgent need to have access to public records concerning Mr. Kavanaugh’s public service record to inform its understanding of the impending confirmation hearings. I further certify that Fix the Court is primarily engaged in disseminating information to the public. Fix the Court advocates for reforms to the federal judiciary that would make the third branch more transparent and accountable. We seek information and public records as part of our process and use those materials to educate the American about the court and its current and potential justices, sharing information with the media, issuing press releases, reports, and research. As just one example, Fix the Court recently shared financial disclosure reports it obtained for Mr. Kavanaugh and other potential nominees to the Supreme Court appearing on the President’s short list (see NEW: Financial Disclosure Reports of the Supreme Court Finalists, Fix the Court, July 6, 2018, https://fixthecourt.com/ 2018/07/fdshortlisters/). Accordingly, Fix the Court’s request satisfies the criteria for expedition. Please inform me whether NARA will comply with my request for expedited processing within 10 calendar days, as required by 5 U.S.C. § 552(a)(6)(E)(ii)(I) and 36 C.F.R. § 1250.28(d). Thank you, Gabe -Rebecca Calcagno, Ph.D., M.L.S. Supervisory Archivist Special Access and FOIA Branch (RD-F) National Archives at College Park Phone: (301) 837-2986 www.archives.gov/research/foia/