Case 1:18-cv-01841 Document 1 Filed 08/07/18 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
)
)
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF JUSTICE,
)
950 Pennsylvania Avenue NW
)
Washington, DC 20530
)
)
Defendant. )
)
BRENNAN CENTER FOR JUSTICE
AT NEW YORK UNIVERSITY
SCHOOL OF LAW,
120 Broadway
Suite 1750
New York, NY 10271

Case No. 18-cv-1841

COMPLAINT
1.

Plaintiff Brennan Center for Justice at New York University School of Law

(“Brennan Center”) brings this action against the U.S. Department of Justice 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).

1

 Case 1:18-cv-01841 Document 1 Filed 08/07/18 Page 2 of 10

4.

The Brennan Center timely appealed Defendant’s adverse determination on its

request pursuant to 5 U.S.C. § 552(a)(6)(A)(i)(III)(aa). Defendant failed to respond to the
Brennan Center’s appeal within twenty working days, as required by 5 U.S.C. § 552(a)(6)(A)(ii),
and the Brennan Center has therefore properly exhausted all administrative remedies.
PARTIES
5.

Plaintiff Brennan Center is a not-for-profit, nonpartisan law and policy institute

that seeks to improve the nation’s systems of democracy and justice. The Brennan Center works
to eliminate barriers to full political participation, to ensure that voting is free, fair, and
accessible for all Americans. The Brennan Center and its staff regularly conduct empirical,
qualitative, historic, and legal research on voting and election practices in the United States. The
Brennan Center has published multiple comprehensive reports on voter list maintenance
practices in the last decade. The Brennan Center has also litigated numerous cases involving
voter purge practices and other voting rights matters. The Brennan Center advocates for policies
to protect the right to vote and prevent manipulation of election rules with policymakers and in
the public media. The Brennan Center maintains offices in New York City and in Washington,
DC.
6.

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 the records that the Brennan Center seeks.
STATEMENT OF FACTS
7.

On July 20, 2017, the Brennan Center submitted a FOIA request to DOJ’s Civil

Rights Division seeking records related to a letter sent on June 28, 2017, by the Chief of DOJ’s

2

 Case 1:18-cv-01841 Document 1 Filed 08/07/18 Page 3 of 10

Voting Section to state election officials (“NVRA FOIA”). A copy of the NVRA FOIA is
attached hereto as Exhibit A and incorporated herein.
8.

The Brennan Center described the June 28, 2017 letter (“Letter”) as follows:
On June 28, 2017, T. Christian Herren, Jr., the Chief of the
Department of Justice’s Voting Section, sent a letter to all
states covered by the National Voting Registration Act
(“NVRA”). In this letter (“the Letter”), the Department of
Justice “request[ed] information regarding the State’s
procedures for compliance with the statewide voter
registration list maintenance provisions of the National
Voter Registration Act, 52 U.S.C. § 20501 et seq. and the
Help America Vote Act (“HAVA”), 52 U.S.C. § 20901 et
seq.

See Exhibit A at 1.
9.

The Brennan Center’s NVRA FOIA sought the following records related to the

Letter:
1) All documents the Department of Justice (“DOJ” or
“Department”) received or receives from state or local
election officials in response to the Letter.
2) All communications and documents, including but not
limited to emails and memoranda, between any DOJ officer,
employee, or agent, or any White House liaison to the
Department, and any other person, including but not limited
to any officer, employee, or agent of the White House or the
Presidential Advisory Commission on Election Integrity
concerning the Letter.
See id. at 2.
10.

The Brennan Center requested expedited processing of the NVRA FOIA pursuant

to the FOIA statute and DOJ’s regulations. See id. at 3–4.
11.

The Brennan Center is primarily engaged in disseminating information, within the

meaning of the FOIA statute and DOJ’s regulations. The NVRA FOIA relates to a matter of
urgent public interest about an actual or alleged federal government activity. See id. at 3–5.
3

 Case 1:18-cv-01841 Document 1 Filed 08/07/18 Page 4 of 10

12.

The NVRA FOIA also relates to a matter of widespread and exceptional media

interest. This matter raises possible questions about the government’s integrity, which affect
public confidence. See id. at 4.
13.

The Brennan Center also requested a fee waiver with respect to the NVRA FOIA

pursuant to the FOIA statute and DOJ’s regulations. See id. at 4–6.
14.

On July 24, 2017, DOJ acknowledged receipt of the NVRA FOIA and assigned it

the FOIA tracking number FOIA/PA No. 17-00362-F.
15.

DOJ failed to make a decision as to the Brennan Center’s requests for expedited

processing and for a fee waiver.
16.

The Brennan Center followed up with DOJ by telephone several times in

November 2017 and December 2017 concerning the NVRA FOIA, but did not receive a
substantive response.
17.

On or about March 16, 2018, the Brennan Center again called DOJ seeking an

update concerning the NVRA FOIA. DOJ stated that it needed to speak with the U.S. Attorney’s
Office for the Southern District of New York, which was handling litigation concerning a
separate FOIA request previously submitted to DOJ by the Brennan Center (“SDNY FOIA”).
18.

The Brennan Center called DOJ on March 19, 2018, to follow up once more

concerning the NVRA FOIA request. During the conversation, DOJ inquired as to the difference
between the SDNY FOIA and the second portion of the NVRA FOIA.
19.

In an email to DOJ dated March 19, 2018, the Brennan Center described the

distinctions between the two FOIA requests and explained that the NVRA FOIA was broader in
scope than the SDNY FOIA. DOJ responded, acknowledging the explanation, and stating that
DOJ “will respond to the [NVRA FOIA] within the next few days.”

4

 Case 1:18-cv-01841 Document 1 Filed 08/07/18 Page 5 of 10

20.

By letter dated March 20, 2018, DOJ responded to the NVRA FOIA. A copy of

the March 20, 2018 response and production cover letter is attached hereto as Exhibit B and
incorporated herein.
21.

In its response, DOJ denied in full the first portion of the NVRA FOIA, stating

that the records the Brennan Center sought are protected from disclosure pursuant to FOIA
Exemption 7(A). DOJ also indicated that certain, unspecified information within such records is
protected from disclosure pursuant to FOIA Exemptions 5 and 6. See Exhibit B at 1.
22.

In response to the second portion of the NVRA FOIA, DOJ produced 407 pages

with certain information redacted, purportedly pursuant to FOIA Exemptions 5 and 6. DOJ stated
that it had withheld in full four additional pages pursuant to FOIA Exemption 7(A), and that
certain, unspecified information within those four pages was also exempt from disclosure
pursuant to FOIA Exemption 5. See id. at 1–2.
23.

The Brennan Center timely filed an appeal with DOJ concerning DOJ’s final

determination, objecting to: (a) the improperly limited scope of DOJ’s search for and production
of responsive records; (b) DOJ’s categorical invocation of FOIA Exemption 7(A) without
identifying any pending or anticipated law enforcement proceedings or explaining how
disclosure of the requested records could interfere with such proceedings; and (c) the propriety of
certain of DOJ’s FOIA Exemption 5 and 6 redactions. A copy of the Brennan Center’s appeal,
dated May 15, 2018, is attached hereto as Exhibit C and incorporated herein.
24.

DOJ has not made a determination with respect to the Brennan Center’s appeal.

5

 Case 1:18-cv-01841 Document 1 Filed 08/07/18 Page 6 of 10

Exhaustion of Administrative Remedies
25.

Through DOJ’s failure to respond to the Brennan Center’s request for expedited

processing within the time period required by law, the Brennan Center has exhausted its
administrative remedies as to that issue and seeks immediate judicial review.
26.

Through DOJ’s failure to make a determination regarding the Brennan Center’s

appeal within the time period required by law, the Brennan Center 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
27.

The Brennan Center repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
28.

The Brennan Center properly requested records within the possession, custody,

and control of DOJ.
29.

DOJ is an agency subject to FOIA, and it must therefore make reasonable efforts

to search for requested records.
30.

DOJ has failed to promptly review agency records for the purpose of locating

those records that are responsive to the NVRA FOIA.
31.

DOJ’s failure to conduct an adequate search for responsive records violates FOIA.

32.

Plaintiff Brennan Center is therefore entitled to injunctive and declaratory relief

requiring Defendant to promptly make reasonable efforts to search for records responsive to the
NVRA FOIA.

6

 Case 1:18-cv-01841 Document 1 Filed 08/07/18 Page 7 of 10

COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
33.

The Brennan Center repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
34.

The Brennan Center properly requested records within the possession, custody,

and control of DOJ.
35.

DOJ is an agency subject to FOIA, and it must therefore release in response to a

FOIA request any non-exempt records and provide a lawful reason for withholding any
materials.
36.

DOJ is wrongfully withholding non-exempt agency records requested by the

Brennan Center by failing to produce non-exempt records responsive to the NVRA FOIA.
37.

DOJ is wrongfully withholding non-exempt agency records requested by the

Brennan Center by failing to segregate exempt information in otherwise non-exempt records
responsive to the NVRA FOIA.
38.

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

39.

Plaintiff Brennan Center is therefore entitled to declaratory and injunctive relief

requiring Defendant to promptly produce all non-exempt records responsive to the NVRA FOIA
and provide indexes justifying the withholding of any responsive records withheld under claim
of exemption.
COUNT III
Violation of FOIA, 5 U.S.C. § 552
Failure to Grant Expedited Processing
40.

The Brennan Center repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.

7

 Case 1:18-cv-01841 Document 1 Filed 08/07/18 Page 8 of 10

41.

The Brennan Center properly requested records within the possession, custody,

and control of DOJ on an expedited basis.
42.

DOJ is an agency subject to FOIA, and it must process FOIA requests on an

expedited basis pursuant to the requirements of FOIA and DOJ’s regulations.
43.

The records sought relate to an activity of the federal government about which

there is an urgent need to inform the public, and the Brennan Center is primarily engaged in
disseminating information to the public. Therefore, the NVRA FOIA justified expedited
processing under FOIA and DOJ’s regulations.
44.

The records sought also relate to a subject of heightened media interest

implicating questions concerning the government’s integrity. Therefore, the NVRA FOIA
justified expedited processing under FOIA and DOJ’s regulations.
45.

DOJ failed to ensure that a determination of whether to provide expedited

processing was made and that notice of that determination was provided to the Brennan Center
within ten days after the date of the NVRA FOIA.
46.

DOJ’s failure to grant expedited processing of the NVRA FOIA violated FOIA

and DOJ’s regulations.
47.

Plaintiff Brennan Center is therefore entitled to declaratory and injunctive relief

requiring DOJ to grant expedited processing of the NVRA FOIA.
REQUESTED RELIEF
WHEREFORE, the Brennan Center respectfully requests the Court to:
(1) Order Defendant to expedite the processing of the Brennan Center’s NVRA FOIA
identified in this Complaint;

8

 Case 1:18-cv-01841 Document 1 Filed 08/07/18 Page 9 of 10

(2) Order Defendant to conduct a search or searches reasonably calculated to uncover all
records responsive to the Brennan Center’s NVRA FOIA;
(3) Order Defendant 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 the
Brennan Center’s NVRA FOIA and indexes justifying the withholding of any
responsive records withheld under claim of exemption;
(4) Enjoin Defendant from continuing to withhold any and all non-exempt records
responsive to the Brennan Center’s NVRA FOIA;
(5) Award the Brennan Center 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
(6) Grant the Brennan Center such other relief as the Court deems just and proper.

Dated: August 7, 2018

Respectfully submitted,
/s/ Austin Evers
Austin Evers
D.C. Bar No. 1006999
/s/ Katherine M. Anthony
Katherine M. Anthony
MA Bar No. 685150*
Pro hac vice motion to be submitted
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 897-3918
austin.evers@americanoversight.org
katherine.anthony@americanoversight.org
*Member of the MA bar only; practicing in
the District of Columbia under the
9

 Case 1:18-cv-01841 Document 1 Filed 08/07/18 Page 10 of 10

supervision of members of the D.C. Bar while
application for D.C. Bar membership is
pending.
/s/ Maximillian Feldman
Maximillian Feldman
NY Bar No. 5237276
Pro hac vice motion to be submitted
/s/ Jonathan Brater
Jonathan Brater
NY Bar No. 5014899
Pro hac vice motion to be submitted
BRENNAN CENTER FOR JUSTICE
at New York University School of Law
120 Broadway
Suite 1750
New York, NY 10271
(646) 292-8310
feldmanm@brennan.law.nyu.edu
braterj@brennan.law.nyu.edu
Counsel for Plaintiff
Brennan Center for Justice
at New York University School of Law

10