Case 1:18-cv-02025 Document 1 Filed 08/29/18 Page 1 of 14

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
)
)
U.S. DEPARTMENT OF THE TREASURY
)
1500 Pennsylvania Avenue NW
)
Washington, DC 20220
)
)
U.S. DEPARTMENT OF STATE
)
2201 C Street NW
)
Washington, DC 20520
)
)
U.S. DEPARTMENT OF DEFENSE
)
1600 Pentagon 3E788
)
Washington, DC 20330-1600
)
)
U.S. DEPARTMENT OF HEALTH AND
)
HUMAN SERVICES
)
200 Independence Avenue SW
)
Washington, DC 20201
)
)
FEDERAL COMMUNICATIONS
)
COMMISSION
)
445 12th Street SW
)
Washington, DC 20554
)
)
and
)
)
CENTERS FOR MEDICARE AND
)
MEDICAID SERVICES
)
7500 Security Boulevard
)
Baltimore, MD 21244
)
Defendants. )
AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

1

Case No. 18-cv-2025

 Case 1:18-cv-02025 Document 1 Filed 08/29/18 Page 2 of 14

COMPLAINT
1.

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

Justice, the U.S. Department of the Treasury, the U.S. Department of State, the U.S. Department
of Defense, the U.S. Department of Health and Human Services, the Federal Communications
Commission, and the Centers for Medicare and Medicaid Services under the Freedom of
Information Act, 5 U.S.C. § 552 (FOIA), and the Declaratory Judgment Act, 28 U.S.C. §§ 2201
and 2202, seeking declaratory and injunctive relief to compel compliance with the requirements
of FOIA.
JURISDICTION AND VENUE
2.

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

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

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

§ 1391(e).
4.

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

of the FOIA, American Oversight is deemed to have exhausted its administrative remedies
pursuant to 5 U.S.C. § 552(a)(6)(C)(i) and is now entitled to judicial action enjoining the agency
from continuing to withhold agency records and ordering the production of agency records
improperly withheld.
PARTIES
5.

Plaintiff American Oversight is a nonpartisan, non-profit section 501(c)(3)

organization primarily engaged in disseminating information to the public. American Oversight
is committed to the promotion of transparency in government, the education of the public about
government activities, and ensuring the accountability of government officials. Through research

2

 Case 1:18-cv-02025 Document 1 Filed 08/29/18 Page 3 of 14

and FOIA requests, American Oversight uses the information it gathers, and its analysis of it, to
educate the public about the activities and operations of the federal government through reports,
published analyses, press releases, and other media. The organization is incorporated under the
laws of the District of Columbia.
6.

Defendant U.S. Department of 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 American Oversight seeks.
7.

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

executive branch of the U.S. government headquartered in Washington, DC, and an agency of
the federal government within the meaning of 5 U.S.C. § 552(f)(1). Treasury has possession,
custody, and control of the records that American Oversight seeks.
8.

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

branch of the U.S. government headquartered in Washington, DC, and an agency of the federal
government within the meaning of 5 U.S.C. § 552(f)(1). State has possession, custody, and
control of the records that American Oversight seeks.
9.

Defendant U.S. Department of Defense (DOD) is a department of the executive

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

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

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

3

 Case 1:18-cv-02025 Document 1 Filed 08/29/18 Page 4 of 14

agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1). HHS has
possession, custody, and control of the records that American Oversight seeks.
11.

Defendant the Federal Communications Commission (FCC) is an agency of the

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

Defendant the Centers for Medicare and Medicaid Services (CMS) is an agency

of the federal government within the meaning of 5 U.S.C. § 552(f)(1) headquartered in
Baltimore, MD. CMS has possession, custody, and control of the records that American
Oversight seeks.
STATEMENT OF FACTS
13.

On May 11, 2018, American Oversight submitted a FOIA request (the

“Cohen/Lewandowski Request”) to each of the defendant agencies seeking:
All records reflecting communications (including emails, email attachments, text
messages, messages on messaging platforms (such as Slack, GChat or Google
Hangouts, Lync, Skype, or WhatsApp), telephone call logs, calendar
invitations/entries, meeting notices, meeting agendas, informational material,
draft legislation, talking points, any handwritten or electronic notes taken during
any oral communications, summaries of any oral communications, or other
materials) between any political appointee1 at your agency and any of the
following:
•
•
•

Michael Cohen
Essential Consultants2
Corey Lewandowski

1

American Oversight further explained that “Political appointee” should be understood as any
person who is a Presidential Appointee with Senate Confirmation (PAS), a Presidential
Appointee (PA), a Non-career SES, any Schedule C employees, any career employee detailed to
the immediate office of the agency head since January 20, 2017, or any persons hired under
Temporary Non-career SES Appointments, Limited Term SES Appointments, Temporary
Transitional Schedule C Appointments, or an administratively determined appointment.
American Oversight also noted that the search for Essential Consultants should include stemmed
variations on the root “consult.”

4

 Case 1:18-cv-02025 Document 1 Filed 08/29/18 Page 5 of 14

•
•
•
•
•

Jason Osborne
Mike Rubino
Barry Bennett
Turnberry Solutions LLC
Avenue Strategies (avenuestrategies.com)

For calendar entries created in Outlook or similar programs, the documents
should be produced in “memo” form to include all invitees, any notes, and all
attachments. Please do not limit your search to Outlook calendars—we request
the production of any calendar—paper or electronic, whether on governmentissued or personal devices—used to track or coordinate how these agency
officials allocate their time on agency business.
The search should include the listed individuals and entities both as keyword
search terms and as entries in the to/from/cc/bcc fields of emails or calendar
entries/invitations.
American Oversight sought all records from January 20, 2017, through the date of the search.
14.

DOJ’s Office of Information Policy (OIP) sent American Oversight an email on

May 14, 2018 asking which offices American Oversight asked to search. American Oversight
replied on the same day asking OIP to search the Office of the Attorney General, the Office of
the Deputy Attorney General, and the Office of the Associate Attorney General. Also on May 14,
2018, OIP replied stating that it would process American Oversight’s request for those offices.
On June 20, 2018, OIP assigned the following tracking numbers to American Oversight’s
request: DOJ-2018-005000 (AG), DOJ-2018-005544 (DAG), DOJ-2018-00545 (ASG), and
DOJ-2018-005546 (OIP). On that same day, OIP also advised American Oversight that it was
invoking the ten-day extension for “unusual circumstances” provided by FOIA. As of the date of
this complaint, American Oversight has not received further communications from OIP
regarding this request.
15.

American Oversight also submitted its request directly to DOJ’s Antitrust

Division. As of the date of this complaint, the Antitrust Division has not acknowledged
American Oversight’s request or assigned a tracking number to it.

5

 Case 1:18-cv-02025 Document 1 Filed 08/29/18 Page 6 of 14

16.

Treasury assigned American Oversight’s request the tracking number 2018-05-

112. On May 17, 2018, Treasury sent a letter via email requesting that American Oversight
resubmit its request with the names of specific Treasury custodians instead of using “political
appointee” as a custodian. Treasury indicated that it would consider the request withdrawn if
American Oversight did not submit an amended request by June 28, 2018. On May 17, 2018,
American Oversight contested Treasury’s assertion that its request was too broad and stated that
the request as written provided information about custodians, dates, and subject matter sufficient
to allow identification of the records American Oversight seeks. American Oversight further
noted that it did not consent to Treasury treating its request as withdrawn and provided a
telephone number for Treasury to contact American Oversight to discuss any remaining
questions Treasury may have had regarding the request. On May 22, 2018, Treasury sent
American Oversight a letter indicating that it had initiated its search and that it was invoking the
ten-day extension for “unusual circumstances” provided for by FOIA. As of the date of this
complaint, American Oversight has not received further communications from Treasury
regarding this request.
17.

State assigned the request the tracking number F-2018-03701. As of the date of

this complaint, American Oversight had not received further communications from State
regarding this request.
18.

DOD assigned the request the tracking number 18-F-0982. On June 28, 2018,

DOD indicated that it would invoke the ten-day extension for “unusual circumstances” provided
for by FOIA. On June 21, 2018, DOD contacted American Oversight by telephone to ask
whether American Oversight would agree for DOD to limit its search to positions filled by
presidential appointment with Senate confirmation (“PAS appointees”). American Oversight

6

 Case 1:18-cv-02025 Document 1 Filed 08/29/18 Page 7 of 14

agreed that DOD should begin with PAS appointees and that DOD would provide American
Oversight with a list of other political appointees, from which American Oversight could identify
additional custodians to be included in the search. DOD memorialized this conversation and sent
the list of political appointees on June 21, 2018. On August 28, 2018, American Oversight
provided an additional list of custodians for review. As of the date of this complaint, American
Oversight had not received further communications from DOD regarding this request.
19.

HHS assigned the request the tracking number 2018-00985-FOIA-OS. On July 2,

2018, HHS sent an acknowledgement letter to American Oversight. On August 5, 2018, HHS
sent American Oversight a letter asserting that American Oversight’s request was too broad and
that HHS required American Oversight to provide full email addresses for individuals outside of
HHS in order for HHS to conduct a search. HHS further indicated that it would close the request
if American Oversight did not reply within 20 business days. On August 13, 2018, American
Oversight replied by email, indicating that email addresses were not necessary for the records
sought to be “reasonably described” and identifying several possible methods for conducting a
search without full email addresses. American Oversight also explained that it did not expect the
request was not overly burdensome, because it focused only on communications with a small
number of people and entities with whom American Oversight did not expect HHS officials to
have frequent cause to communicate. American Oversight further indicated that if HHS had run a
search and found that the volume for review was substantial, American Oversight would be
happy to review information regarding those results and to discuss options to facilitate review.
As of the date of this complaint, American Oversight has received no further communications
from HSS regarding this request.

7

 Case 1:18-cv-02025 Document 1 Filed 08/29/18 Page 8 of 14

20.

FCC assigned the request the tracking number FOIA 2018-657. On August 21,

2018, FCC requested clarification on the set of political appointees for whom American
Oversight sought records. American Oversight reiterated the categories of political appointees
identified in its request. As of the date of this complaint, American Oversight has received no
further communications from FCC regarding this request.
21.

CMS assigned the request the control number 051620187009. By letter dated May

21, 2018, CMS requested clarification from American Oversight. CMS’s letter indicated that it
would close the request if American Oversight did not reply within 15 business days. However,
this letter was not delivered to American Oversight until July 13, 2018. On July 27, 2018,
American Oversight replied by email, advising CMS of the delay in the letter’s delivery and
noting that the request contained information sufficient for CMS to identify records, including
positions occupied (political appointees), a timeframe, and search terms. On July 27, 2018, CMS
replied by email indicating that this message had been uploaded and noted in American
Oversight’s case. As of the date of this complaint, American Oversight has received no further
communications from CMS regarding this request.
22.

Also on May 11, 2018, American Oversight submitted a FOIA request (the

“Cohen/AT&T Request”) to FCC seeking records related to the request above. Specifically, this
request sought:
1) All records reflecting communications (including emails, email
attachments, text messages, messages on messaging platforms (such as
Slack, GChat or Google Hangouts, Lync, Skype, or WhatsApp), telephone
call logs, calendar invitations/entries, meeting notices, meeting
agendas, informational material, draft legislation, talking points, any
handwritten or electronic notes taken during any oral communications,
summaries of any oral communications, or other materials) between
anyone listed in column A below and anyone listed in column B below.

8

 Case 1:18-cv-02025 Document 1 Filed 08/29/18 Page 9 of 14

Column A
•
•
•

•

Column B
•
•

Chairman Ajit Pai
Chairmain Pai’s Chief of Staff
Matthew Berry
All staffers who accompanied
Chairman Pai on his February
2017 trip to Barcelona, Spain
or otherwise assisted in
preparing for that trip,
including, but not limited to,
Thomas Sullivan, Brendan
Carr, Rachael Bender and
Nicholas Degani and other
staffers involved in scheduling
and advance planning for the
trip
Any other political appointee
in the office of Chairman Pai

•
•
•
•

Michael Cohen
Any representative of
Essential Consultants LLC
Bob Quinn
John Stankey
Randall Stephenson
Any representative of AT&T

Please be sure to include records reflecting communications generated by
any communications device, including phones and laptop computers,
provided to FCC personnel on a temporary basis [footnote omitted] for
foreign travel.
Please provide all responsive records from January 1, 2017 to March 15,
2017.
2) All records reflecting communications (including emails, email
attachments, text messages, messages on messaging platforms (such as
Slack, GChat or Google Hangouts, Lync, Skype, or WhatsApp), telephone
call logs, calendar invitations/entries, meeting notices, meeting agendas,
informational material, draft legislation, talking points, any handwritten or
electronic notes taken during any oral communications, summaries of any
oral communications, or other materials) containing the search terms
below. We seek any responsive records for the following custodians:
1) Chairman Ajit Pai; 2) Chairman Pai’s Chief of Staff Matthew Berry;
and 3) all staffers who accompanied Chairman Pai on his February 2017
trip to Barcelona, Spain or assisted in planning for that trip, including, but
not limited to, Thomas Sullivan, Brendan Carr, Rachael Bender and
Nicholas Degani and other staffers involved in scheduling and advance
planning for the trip.
•
•

Bob
John
9

 Case 1:18-cv-02025 Document 1 Filed 08/29/18 Page 10 of 14

•
•
•
•
•
•
•
•
•
•
•
•
•

Randall
Michael
Quinn
Stankey
Stephenson
Cohen
AT&T
ATT
“Time Warner”
TW
Merge
Merger
Neri

Please be sure to include records reflecting communications generated by
any communications device, including phones and laptop computers,
provided to FCC personnel on a temporary basis for foreign travel.
Please provide all responsive records from February 26, 2017 to February
28, 2017.
23.

FCC assigned this request tracking number FCC-2018-000656. On May 21, 2018,

FCC called American Oversight to clarify the scope of the request. On May 30, 2018 FCC asked
whether American Oversight would agree to limit the scope of the search to FCC Chairman Pai’s
office and the FCC International Bureau, thereby excluding lower ranking FCC employees who
may have assisted in logistical preparation for Chairman Pai’s trip to Barcelona. American
Oversight agreed to this narrowing request. On July 18, 2018, an FCC representative called
American Oversight to ask if the emails of an FCC employee whose last name matched specified
search term could be excluded. American Oversight agreed to such an exclusion. On August 27,
2018, FCC called American Oversight to ask whether the request for two-and-a-half months of
records reflecting communications between AT&T representatives and political appointees and
specified staff members in Chairman Pai’s office could be narrowed. American Oversight did not
agree to further narrow this request, but American Oversight expressed its willingness to
consider narrowing after a search for the records was conducted. On August 28, 2018, American
10

 Case 1:18-cv-02025 Document 1 Filed 08/29/18 Page 11 of 14

Oversight agreed that FCC could reasonably limit part two of the Cohent/AT&T Request to
exclude records clearly unrelated to Chairman Pai’s communications and meetings with Michael
Cohen or AT&T representatives.
Exhaustion of Administrative Remedies
24.

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

Oversight of any determinations regarding its requests, including the scope of any responsive
records Defendants intend to produce or withhold and the reasons for any withholdings; or
(b) produce the requested records or demonstrate that the requested records are lawfully exempt
from production.
25.

Through Defendants’ failures to respond to American Oversight’s FOIA requests

within the time period required by law, American Oversight has constructively exhausted its
administrative remedies and seeks immediate judicial review.
COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Search for Records
26.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
27.

American Oversight properly requested records within the possession, custody,

and control of the Defendants.
28.

Defendants are agencies subject to FOIA and must therefore make reasonable

efforts to search for requested records.
29.

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

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

11

 Case 1:18-cv-02025 Document 1 Filed 08/29/18 Page 12 of 14

30.

Defendants failures to conduct adequate searches for responsive records violate

31.

Plaintiff American Oversight is therefore entitled to injunctive and declaratory

FOIA.

relief requiring Defendants to promptly make reasonable efforts to search for records responsive
to American Oversight’s FOIA requests.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Records
32.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
33.

American Oversight properly requested records within the possession, custody,

and control of the Defendants.
34.

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

a FOIA request any non-exempt records and provide a lawful reason for withholding any
materials.
35.

Defendants are wrongfully withholding non-exempt agency records requested by

American Oversight by failing to produce non-exempt records responsive to its FOIA requests.
36.

Defendants are wrongfully withholding non-exempt agency records requested by

American Oversight by failing to segregate exempt information in otherwise non-exempt records
responsive to American Oversight’s FOIA requests.
37.

Defendants’ failures to provide all non-exempt responsive records violate FOIA.

38.

Plaintiff American Oversight is therefore entitled to injunctive and declaratory

relief requiring Defendants to promptly produce all non-exempt records responsive to its FOIA

12

 Case 1:18-cv-02025 Document 1 Filed 08/29/18 Page 13 of 14

requests and provide indexes justifying the withholding of any responsive records withheld under
claim of exemption.
REQUESTED RELIEF
WHEREFORE, American Oversight respectfully requests the Court to:
(1) Order Defendants to conduct searches reasonably calculated to uncover all records
responsive to American Oversight’s FOIA requests identified in this Complaint;
(2) Order Defendants to produce, within twenty days of the Court’s order, by such other
date as the Court deems appropriate, any and all non-exempt records responsive to
American Oversight’s FOIA requests and indexes justifying the withholding of any
responsive records withheld under claim of exemption;
(3) Enjoin Defendants from continuing to withhold any and all non-exempt records
responsive to American Oversight’s FOIA request;
(4) Award American Oversight attorneys’ fees and other litigation costs reasonably
incurred in this action, pursuant to 5 U.S.C. § 552(a)(4)(E); and
(5) Grant American Oversight such other relief as the Court deems just and proper.
Dated: August 29, 2018

Respectfully submitted,
/s/ Elizabeth France
Elizabeth France
D.C. Bar No. 999851
Daniel A. McGrath
D.C. Bar No. 1531723
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 897-2465
beth.france@americanoversight.org
daniel.mcgrath@americanoversight.org
Counsel for Plaintiff

13

 Case Document 1 Filed 08/29/18 Page 14 of 14

14