Case 1:18-cv-02143-RDM Document 9 Filed 09/20/18 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) U.S. NATIONAL ARCHIVES AND RECORDS ) ADMINISTRATION, ) 8601 Adelphi Rd. ) College Park, MD 20740 ) ) U.S. CENTRAL INTELLIGENCE AGENCY ) Office of General Counsel ) 1000 Colonial Farm Rd. ) McLean, VA 22101 ) ) and ) ) U.S. DEPARTMENT OF JUSTICE ) 950 Pennsylvania Ave. NW ) Washington, DC 20530 ) ) Defendants. ) RICHARD BLUMENTHAL, PATRICK LEAHY, SHELDON WHITEHOUSE, MAZIE K. HIRONO, CORY A. BOOKER, and KAMALA D. HARRIS, Members of the United States Senate Committee on the Judiciary, Case No. 18-cv-2143 AMENDED COMPLAINT 1. Plaintiffs Richard Blumenthal, Patrick Leahy, Sheldon Whitehouse, Mazie K. Hirono, Cory A. Booker, and Kamala D. Harris bring this action against the U.S. National Archives and Records Administration, the U.S. Central Intelligence Agency, and 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. 1 Case 1:18-cv-02143-RDM Document 9 Filed 09/20/18 Page 2 of 16 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 the U.S. National Archives and Records Administration failed to respond to Plaintiffs' request for expedited processing, Plaintiffs are now entitled to judicial review of that claim under 5 U.S.C. ? 552(a)(6)(E)(iii). 5. Because Defendants have failed to comply with other applicable time-limit provisions of the FOIA, Plaintiffs are deemed to have constructively exhausted their administrative remedies pursuant to 5 U.S.C. ? 552(a)(6)(C)(i) and are now entitled to judicial action enjoining the agency from continuing to withhold agency records and ordering the production of agency records improperly withheld. PARTIES 6. Plaintiffs Richard Blumenthal, Patrick Leahy, Sheldon Whitehouse, Mazie K. Hirono, Cory A. Booker, and Kamala D. Harris are United States Senators and members of the Senate Committee on the Judiciary ("Judiciary Committee"). 7. Defendant U.S. National Archives and Records Administration (NARA) is an agency of the federal government within the meaning of 5 U.S.C. ? 552(f)(1). NARA has possession, custody, and control of the records that Plaintiffs seek. 8. Defendant U.S. Central Intelligence Agency (CIA) is an agency of the federal government within the meaning of 5 U.S.C. ? 552(f)(1). CIA has possession, custody, and control of the records that Plaintiffs seek. 2 Case 1:18-cv-02143-RDM Document 9 Filed 09/20/18 Page 3 of 16 9. Defendant U.S. Department of Justice (DOJ) is a department of the executive branch of the U.S. government headquartered in Washington, D.C., and an agency of the federal government within the meaning of 5 U.S.C. ? 552(f)(1). DOJ's components, the Office of Legal Counsel (OLC) and the Criminal Division (CRM), have possession, custody, and control of the records that Plaintiffs seek. STATEMENT OF FACTS NARA FOIA Request 10. On August 8, 2018, Plaintiffs and other members of the Judiciary Committee submitted a FOIA request to NARA, seeking records related to activities of Judge Brett Kavanaugh, who has been nominated to the U.S. Supreme Court, during the time that Judge Kavanaugh served in the administration of President George W. Bush (the "NARA FOIA Request"). 11. Specifically, the NARA FOIA Request sought: 1) Records from Mr. Kavanaugh's service as a Senior Associate Counsel to the President, including all records preserved in his staff files, and those records created by Mr. Kavanaugh that can readily be found in the files of other White House staff members, the White House Counsel's Office files, other White House offices' files, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Office of Records Management; 2) Records from Mr. Kavanaugh's service as Assistant to the President and Staff Secretary, including all records preserved in his staff files, and those records created by Mr. Kavanaugh that can readily be found in the files of other White House staff members, the White House Counsel's Office files, other White House offices' files, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Office of Records Management; 3) Records relating to Mr. Kavanaugh's nomination to the United States Court of Appeals for the District of Columbia Circuit; 4) All electronic mail to, from, carbon copying (cc'ing), or blind carbon copying (bcc'ing) Mr. Kavanaugh in his White House tenure, including any documents attached to such emails; 3 Case 1:18-cv-02143-RDM Document 9 Filed 09/20/18 Page 4 of 16 5) To the extent they are not included in response to categories (1) through (4), all records containing documents written by, edited by, prepared in whole or in part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. A copy of the NARA FOIA Request is attached hereto as Exhibit A and incorporated herein. 12. The NARA FOIA Request pointed out that "FOIA requires that agencies disclose records to Congress that it may otherwise legitimately withhold from the public," and that each member of Congress "is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator." Ex. A at 2. 13. The NARA FOIA also noted that "the Presidential Records Act requires that Presidential records of former Presidents be made available to Congress." Id. 14. The NARA FOIA Request further stated that the signatories to the request required the requested records "[i]n order to fulfill [their] constitutional duty to advise the President on the nomination of Mr. Kavanaugh . . . ." Id. at 2. 15. Plaintiffs requested expedited processing of the NARA FOIA Request pursuant to the FOIA statute and NARA regulations. See id. at 2-4. 16. The NARA FOIA Request relates to a matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence. See id. 17. On August 8, 2018, NARA acknowledged receipt of the NARA FOIA Request by 18. As of the date of this complaint, Plaintiffs have received no further email. communications from NARA regarding the NARA FOIA Request, including Plaintiffs' request for expedited processing. 4 Case 1:18-cv-02143-RDM Document 9 Filed 09/20/18 Page 5 of 16 Bush Library FOIA Request 19. On August 8, 2018, Plaintiffs and other members of the Judiciary Committee submitted a FOIA request to NARA's component, the George W. Bush Presidential Library and Museum (the "Bush Library"), seeking records related to activities of Judge Brett Kavanaugh, who has been nominated to the U.S. Supreme Court, during the time that Judge Kavanaugh served in the administration of President George W. Bush (the "Bush Library FOIA Request"). 20. Specifically, the Bush Library FOIA Request sought: 1) Records from Mr. Kavanaugh's service as a Senior Associate Counsel to the President, including all records preserved in his staff files, and those records created by Mr. Kavanaugh that can readily be found in the files of other White House staff members, the White House Counsel's Office files, other White House offices' files, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Office of Records Management; 2) Records from Mr. Kavanaugh's service as Assistant to the President and Staff Secretary, including all records preserved in his staff files, and those records created by Mr. Kavanaugh that can readily be found in the files of other White House staff members, the White House Counsel's Office files, other White House offices' files, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Office of Records Management; 3) Records relating to Mr. Kavanaugh's nomination to the United States Court of Appeals for the District of Columbia Circuit; 4) All electronic mail to, from, carbon copying (cc'ing), or blind carbon copying (bcc'ing) Mr. Kavanaugh in his White House tenure, including any documents attached to such emails; 5) To the extent they are not included in response to categories (1) through (4), all records containing documents written by, edited by, prepared in whole or in part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. A copy of the Bush Library FOIA Request is attached hereto as Exhibit B and incorporated herein. 5 Case 1:18-cv-02143-RDM Document 9 Filed 09/20/18 Page 6 of 16 21. The Bush Library FOIA Request pointed out that "FOIA requires that agencies disclose records to Congress that it may otherwise legitimately withhold from the public," and that each member of Congress "is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator." Ex. B at 2. 22. The Bush Library FOIA also noted that "the Presidential Records Act requires that Presidential records of former Presidents be made available to Congress." Id. 23. The Bush Library FOIA Request further stated that the signatories to the request required the requested records "[i]n order to fulfill [their] constitutional duty to advise the President on the nomination of Mr. Kavanaugh . . . ." Id. 24. Plaintiffs requested expedited processing of the Bush Library FOIA Request pursuant to the FOIA statute and NARA regulations. See id. at 2-4. 25. The Bush Library FOIA Request relates to a matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence. See id. 26. On August 9, 2018, the Bush Library acknowledged receipt of the Bush Library FOIA Request by email and an attached letter, and granted Plaintiffs' request for expedited processing. 27. The Bush Library's August 9, 2018 email noted that certain records potentially responsive to the request were available on its website, but the email and attached letter provided no further specific detail concerning when Plaintiffs' request would be fulfilled. 28. Following subsequent communications between Plaintiffs' representative and the Bush Library on August 10, 2018 concerning Plaintiffs' request for a waiver of fees associated 6 Case 1:18-cv-02143-RDM Document 9 Filed 09/20/18 Page 7 of 16 with the Bush Library FOIA Request, the Bush Library sent a revised acknowledgement letter, updating the portions regarding fees, but otherwise identical to the August 9, 2018 letter. 29. On September 12, 2018, the Bush Library sent an interim response, purporting to provide records in response to the component of the Bush Library FOIA Request related to Mr. Kavanaugh's nomination to the United States Court of Appeals for the District of Columbia Circuit. 30. Plaintiffs have received no response concerning the remaining categories of records sought in the Bush Library FOIA Request. 31. As of the date of this complaint, Plaintiffs have not received further communications from the Bush Library regarding the Bush Library FOIA Request. CIA FOIA Request 32. On August 8, 2018, Plaintiffs and other members of the Judiciary Committee submitted a FOIA request to CIA, seeking records related to activities of Judge Brett Kavanaugh, who has been nominated to the U.S. Supreme Court, during the time that Judge Kavanaugh served in the administration of President George W. Bush (the "CIA FOIA Request"). 33. Specifically, the CIA FOIA Request sought: 1) All records, including but not limited to emails, memoranda, print or other correspondence, notices, attachments, and directives addressed to, from, carbon copying (cc'ing), or blind carbon copying (bcc'ing) Mr. Kavanaugh. 2) All records, including but not limited to emails, memoranda, correspondence, notices and directives, discussing or mentioning Mr. Kavanaugh. 3) Records relating to Mr. Kavanaugh's nomination to the United States Court of Appeals for the District of Columbia Circuit. 4) To the extent they are not included in response to categories (1) through (3), all records containing documents written by, edited by, prepared in whole or in part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. 7 Case 1:18-cv-02143-RDM Document 9 Filed 09/20/18 Page 8 of 16 Kavanaugh by name, initials, or title, and documents received by or sent to him. A copy of the CIA FOIA Request is attached hereto as Exhibit C and incorporated herein. 34. The CIA FOIA Request pointed out that "FOIA requires that agencies disclose records to Congress that it may otherwise legitimately withhold from the public," and that each member of Congress "is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator." Ex. C at 2. 35. The CIA FOIA Request further stated that the signatories to the request required the requested records "[i]n order to fulfill [their] constitutional duty to advise the President on the nomination of Mr. Kavanaugh . . . ." Id. at 2. 36. On September 1, 2018, Plaintiffs received a letter from CIA dated August 17, 2018, acknowledging receipt of the CIA FOIA Request and assigning the request tracking number F-2018-02283. 37. As of the date of this complaint, Plaintiffs have not received further communications from CIA regarding the CIA FOIA Request. DOJ FOIA Requests 38. On August 8, 2018, Plaintiffs and other members of the Judiciary Committee submitted FOIA requests to components of DOJ--OLC and CRM--seeking records related to activities of Judge Brett Kavanaugh, who has been nominated to the U.S. Supreme Court, during the time that Judge Kavanaugh served in the administration of President George W. Bush (the "DOJ FOIA Requests"). 39. Specifically, each of the DOJ FOIA Requests sought: 1) All records, including but not limited to emails, memoranda, print or other correspondence, notices, attachments, and directives 8 Case 1:18-cv-02143-RDM Document 9 Filed 09/20/18 Page 9 of 16 addressed to, from, carbon copying (cc'ing), or blind carbon copying (bcc'ing) Mr. Kavanaugh. 2) All records, including but not limited to emails, memoranda, correspondence, notices and directives, discussing or mentioning Mr. Kavanaugh. 3) Records relating to Mr. Kavanaugh's nomination to the United States Court of Appeals for the District of Columbia Circuit. 4) To the extent they are not included in response to categories (1) through (3), all records containing documents written by, edited by, prepared in whole or in part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. Copies of the DOJ FOIA Requests are attached hereto as Exhibits D and E and incorporated herein. 40. Each of the DOJ FOIA Requests pointed out that "FOIA requires that agencies disclose records to Congress that it may otherwise legitimately withhold from the public," and that each member of Congress "is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator." Ex. D at 1-2; Ex. E at 1-2. 41. Each of the DOJ FOIA Requests further stated that the signatories to the request required the requested records "[i]n order to fulfill [their] constitutional duty to advise the President on the nomination of Mr. Kavanaugh . . . ." Ex. D at 2; Ex. E at 2. 42. Plaintiffs requested expedited processing of each of the DOJ FOIA Requests pursuant to the FOIA statute and DOJ regulations. Ex. D at 2-3; Ex. E at 2-3. 43. The DOJ FOIA Requests relate to a matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence. See Ex. D at 2-3; Ex. E at 2-3. 9 Case 1:18-cv-02143-RDM Document 9 Filed 09/20/18 Page 10 of 16 44. On August 17, 2018, DOJ's Office of Information Policy (OIP) sent a letter to Plaintiffs and other members of the Judiciary Committee on behalf of OLC and CRM, acknowledging that the FOIA requests had been received on August 8, 2018, and assigning them FOIA numbers FY-18-178 and CRM 300678252, respectively. 45. OIP's August 17, 2018 letter also granted Plaintiffs' requests for expedited processing of each of the DOJ FOIA Requests. 46. However, OIP's August 17, 2018 letter indicated that DOJ intended "to extend the time limit to respond to [Plaintiffs' FOIA] request beyond the ten additional days provided by the [FOIA] statute." 47. From approximately August 23, 2018 to September 4, 2018, Plaintiffs' representative engaged in email and telephone communications with DOJ in an attempt to work cooperatively with DOJ to prioritize the requested records and process Plaintiffs' FOIA requests as efficiently as possible. 48. Plaintiffs have not received further communications from DOJ regarding the DOJ FOIA Requests. 49. As of the date of this complaint, Plaintiffs have received no response from DOJ-- including specifically from OLC or CRM--making a determination regarding whether to grant or deny the requests or otherwise addressing the scope of the documents DOJ would produce or the exemptions it would claim with respect to any withheld documents. 50. As of the date of this complaint, Plaintiffs have received no records from DOJ in response to either of the DOJ FOIA Requests. 10 Case 1:18-cv-02143-RDM Document 9 Filed 09/20/18 Page 11 of 16 COUNT I Violation of FOIA, 5 U.S.C. ? 552 Failure to Grant Expedited Processing (as to NARA) 51. Plaintiffs repeat the allegations in the foregoing paragraphs and incorporate them as though fully set forth herein. 52. Plaintiffs properly requested records within the possession, custody, and control of NARA on an expedited basis. 53. NARA is an agency subject to FOIA, and it must process FOIA requests on an expedited basis pursuant to the requirements of FOIA and its regulations. 54. The records sought relate to a subject of heightened media interest implicating questions concerning the government's integrity. Therefore, Plaintiffs' FOIA request justified expedited processing under FOIA and NARA's regulations. 55. NARA failed to ensure that a determination of whether to provide expedited processing was made and notice of that determination was provided to Plaintiffs within ten days after the date of the FOIA requests. 56. NARA's failure to grant expedited processing of the FOIA requests violated FOIA and NARA regulations. 57. Plaintiffs are therefore entitled to declaratory and injunctive relief requiring NARA to grant expedited processing of the NARA FOIA Request. COUNT II Violation of FOIA, 5 U.S.C. ? 552 Failure to Conduct Adequate Search for Responsive Records (As to All Defendants) 58. Plaintiffs repeat the allegations in the foregoing paragraphs and incorporate them as though fully set forth herein. 11 Case 1:18-cv-02143-RDM Document 9 Filed 09/20/18 Page 12 of 16 59. Plaintiffs properly requested records within the possession, custody, and control of NARA, CIA, and DOJ. 60. NARA, CIA, and DOJ are agencies subject to FOIA and must therefore make reasonable efforts to search for requested records. 61. NARA has failed to promptly review agency records for the purpose of locating those records that are responsive to the NARA FOIA Request and to outstanding portions of the Bush Library FOIA Request. 62. CIA has failed to promptly review agency records for the purpose of locating those records that are responsive to the CIA FOIA Request. 63. DOJ has failed to promptly review agency records for the purpose of locating those records that are responsive to the DOJ FOIA Requests. 64. NARA's, CIA's, and DOJ's failure to conduct adequate searches for responsive records violates FOIA. 65. Plaintiffs are therefore entitled to injunctive and declaratory relief requiring Defendants to promptly make reasonable efforts to search for records responsive to Plaintiffs' FOIA requests. COUNT III Violation of FOIA, 5 U.S.C. ? 552 Wrongful Withholding of Non-Exempt Responsive Records (As to All Defendants) 66. Plaintiffs repeat the allegations in the foregoing paragraphs and incorporate them as though fully set forth herein. 67. Plaintiffs properly requested records within the possession, custody, and control of NARA, CIA, and DOJ. 12 Case 1:18-cv-02143-RDM Document 9 Filed 09/20/18 Page 13 of 16 68. NARA, CIA, and DOJ are agencies subject to FOIA and must therefore release in response to a FOIA requests any non-exempt records and provide a lawful reason for withholding any materials. 69. NARA is wrongfully withholding non-exempt agency records requested by Plaintiffs by failing to produce non-exempt records responsive to the NARA FOIA Request and to outstanding portions of the Bush Library FOIA Request. 70. NARA is wrongfully withholding non-exempt agency records requested by Plaintiffs by failing to segregate exempt information in otherwise non-exempt records responsive to the NARA FOIA Request and to outstanding portions of the Bush Library FOIA Request. 71. CIA is wrongfully withholding non-exempt agency records requested by Plaintiffs by failing to produce non-exempt records responsive to the CIA FOIA Request. 72. CIA is wrongfully withholding non-exempt agency records requested by Plaintiffs by failing to segregate exempt information in otherwise non-exempt records responsive to the CIA FOIA Request. 73. DOJ is wrongfully withholding non-exempt agency records requested by Plaintiffs by failing to produce non-exempt records responsive to each of the DOJ FOIA Requests. 74. DOJ is wrongfully withholding non-exempt agency records requested by Plaintiffs by failing to segregate exempt information in otherwise non-exempt records responsive to each of the DOJ FOIA Requests. 75. NARA's, CIA's, and DOJ's failure to provide all non-exempt responsive records violates FOIA. 13 Case 1:18-cv-02143-RDM Document 9 Filed 09/20/18 Page 14 of 16 76. Plaintiffs are therefore entitled to declaratory and injunctive relief requiring Defendants to promptly produce all non-exempt records responsive to its FOIA requests and provide indexes justifying the withholding of any responsive records withheld under claim of exemption. REQUESTED RELIEF WHEREFORE, Plaintiffs respectfully request the Court to: (1) Order NARA to expedite the processing of the NARA FOIA Request identified in this Complaint; (2) Order Defendants to conduct a search or searches reasonably calculated to uncover all records responsive to the FOIA requests identified in this Complaint; (3) Order Defendants to produce, within twenty days of the Court's order, or by such other date as the Court deems appropriate, any and all non-exempt records responsive to the FOIA requests identified in this Complaint and indexes justifying the withholding of any responsive records withheld under claim of exemption; (4) Enjoin Defendants from continuing to withhold any and all non-exempt records responsive to the FOIA requests identified in this Complaint; (5) Award Plaintiffs 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 Plaintiffs such other relief as the Court deems just and proper. 14 Case 1:18-cv-02143-RDM Document 9 Filed 09/20/18 Page 15 of 16 Dated: September 21, 2018 Respectfully submitted, /s/ Austin R. Evers Austin R. Evers D.C. Bar No. 1006999 /s/ Elizabeth France Elizabeth France D.C. Bar No. 999851 /s/ Katherine M. Anthony Katherine M. Anthony MA Bar No. 685150* Pro hac vice motion submitted AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 897-2465 austin.evers@americanoversight.org beth.france@americanoversight.org katherine.anthony@americanoversight.org *Member of the MA bar only; practicing in the District of Columbia under the supervision of members of the D.C. Bar while application for D.C. Bar membership is pending. 15 Case 1:18-cv-02143-RDM Document 9 Filed 09/20/18 Page 16 of 16 CERTIFICATE OF SERVICE I hereby certify that on September 21, 2018, I electronically filed a copy of the foregoing Amended Complaint, including exhibits thereto. Notice of this filing will be sent via email to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's CM/ECF System. I further certify that on September 21, 2018, I caused a copy of the foregoing Amended Complaint, including exhibits thereto, to be hand-delivered to Defendant U.S. Department of Justice at the following address: U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue NW Washington, DC 20530 Dated: September 21, 2018 Respectfully submitted, /s/ Austin R. Evers Austin R. Evers D.C. Bar No. 1006999 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 897-2465 austin.evers@americanoversight.org Counsel for Plaintiffs 16 Case 1:18-cv-02143-RDM Document 10 Filed 09/21/18 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) Plaintiffs, ) ) v. ) ) U.S. NATIONAL ARCHIVES AND RECORDS ) ADMINISTRATION et al., ) ) Defendants. ) RICHARD BLUMENTHAL et al., Case No. 18-cv-2143 PLAINTIFFS' MOTION AS TO DEFENDANT U.S. DEPARTMENT OF JUSTICE FOR A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION Pursuant to Federal Rule of Civil Procedure 65 and Local Rule 65.1, Plaintiffs respectfully move this Court to issue a temporary restraining order, or in the alternative, a preliminary injunction, enjoining Defendant the U.S. Department of Justice ("DOJ") from unlawfully impeding Plaintiffs' access to records that must be made available under the Freedom of Information Act, 5 U.S.C. ? 552 ("FOIA"). Plaintiffs' FOIA requests to DOJ seek records related to Supreme Court nominee Judge Brett Kavanaugh's past public service in the White House. Such records will allow Plaintiffs, members of the Senate Committee on the Judiciary, to fulfill their duties to properly scrutinize Judge Kavanaugh's record, inform the public about his background and qualifications, engage in an exchange of information and views with their constituents concerning Judge Kavanaugh's nomination, and participate in informed debate on his confirmation. Plaintiffs further seek injunctive relief ordering DOJ to search for and produce all documents responsive to Plaintiffs' FOIA requests by such date as the Court deems appropriate. Case 1:18-cv-02143-RDM Document 10 Filed 09/21/18 Page 2 of 4 The grounds for this motion are set forth in the accompanying Memorandum in Support of Plaintiff's Motion as to Defendant U.S. Department of Justice for a Temporary Restraining Order or Preliminary Injunction. Pursuant to Local Rule 65.1(a) and (d), Plaintiffs ask that the Court schedule a hearing on this motion at the Court's earliest convenience. Dated: September 21, 2018 Respectfully submitted, /s/ Austin R. Evers Austin R. Evers D.C. Bar No. 1006999 /s/ Elizabeth France Elizabeth France D.C. Bar No. 999851 /s/ Katherine M. Anthony Katherine M. Anthony MA Bar No. 685150* Pro hac vice motion submitted AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 897-2465 austin.evers@americanoversight.org beth.france@americanoversight.org katherine.anthony@americanoversight.org *Member of the MA bar only; practicing in the District of Columbia under the supervision of members of the D.C. Bar while application for D.C. Bar membership is pending. 2 Case 1:18-cv-02143-RDM Document 10 Filed 09/21/18 Page 3 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) Plaintiffs, ) ) v. ) ) U.S. NATIONAL ARCHIVES AND RECORDS ) ADMINISTRATION et al., ) ) Defendants. ) RICHARD BLUMENTHAL et al., Case No. 18-cv-2143 PROPOSED ORDER Upon consideration of Plaintiffs' Motion as to Defendant U.S. Department of Justice for a Temporary Restraining Order or Preliminary Injunction, Defendants' Response thereto, and the entire record, it is hereby ORDERED that Plaintiff's Motion for a Temporary Restraining Order or Preliminary Injunction is GRANTED; and it is further ORDERED that Defendant the U.S. Department of Justice shall process Plaintiffs' FOIA requests dated August 8, 2018; and it is further ORDERED that Defendant the U.S. Department of Justice shall produce all records responsive to Plaintiffs' FOIA requests dated August 8, 2018, within ___ days of the date of this order; and it is further SO ORDERED. Date: ________________________ ____________________________________ United States District Judge Case 1:18-cv-02143-RDM Document 10 Filed 09/21/18 Page 4 of 4 CERTIFICATE OF SERVICE I hereby certify that on September 21, 2018, I electronically filed a copy of the foregoing Motion as to Defendant U.S. Department of Justice for a Temporary Restraining Order or Preliminary Injunction. Notice of this filing will be sent via email to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's CM/ECF System. I further certify that on September 21, 2018, I caused a copy of the foregoing Motion as to Defendant U.S. Department of Justice for a Temporary Restraining Order or Preliminary Injunction, to be hand-delivered to Defendant U.S. Department of Justice at the following address: U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue NW Washington, DC 20530 Dated: September 21, 2018 Respectfully submitted, /s/ Austin R. Evers Austin R. Evers D.C. Bar No. 1006999 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 897-2465 austin.evers@americanoversight.org Counsel for Plaintiffs 2 Case 1:18-cv-02143-RDM Document 10-1 Filed 09/21/18 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) Plaintiffs, ) ) v. ) ) U.S. NATIONAL ARCHIVES AND RECORDS ) ADMINISTRATION et al., ) ) Defendants. ) RICHARD BLUMENTHAL et al., Case No. 18-2143 MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION AS TO DEFENDANT U.S. DEPARTMENT OF JUSTICE FOR A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION Case 1:18-cv-02143-RDM Document 10-1 Filed 09/21/18 Page 2 of 9 In August 2018, Plaintiffs, who are members of the Committee on the Judiciary of the United States Senate ("Judiciary Committee"), submitted Freedom of Information Act ("FOIA") requests to the U.S. Department of Justice ("DOJ"). These requests sought records relating to the career of Judge Brett Kavanaugh, who has been nominated to the United States Supreme Court and whose Senate confirmation hearings began on September 4, 2018 and concluded on September 7, 2018. For the reasons explained in Plaintiffs' Memorandum in Support of their Motion for a Temporary Restraining Order or Preliminary Injunction ("Plaintiffs' Memorandum" or Pls.' Mem.," ECF No. 2-1),1 the records Plaintiffs seek are essential for them and their colleagues in the Senate to fulfill their obligations with respect to considering and voting on Judge Kavanaugh's nomination and to inform the public regarding a pivotal lifetime appointment to the nation's highest court. See Pls.' Mem. at 1-2. Plaintiffs have endeavored to obtain the requested records through traditional Senate practices and procedures, but their colleagues in the Senate majority have refused to request key records directly relevant to Judge Kavanaugh's nomination. The resulting process has broken all norms and defied traditional practices leaving Plaintiffs with no option but to pursue the records through the rights afforded them by FOIA. DOJ has compounded the issue by making unfulfilled promises to work with Plaintiffs--both within and outside of the FOIA process--but failing to produce a single document, or even to make a determination as to whether to grant or deny Plaintiffs' requests or the scope of records it will produce. Plaintiffs urgently need a determination regarding the requested records in order to inform the public about Judge Kavanaugh, to engage in an exchange of information with their constituents, and to fulfill their Plaintiffs' Memorandum addressed FOIA requests submitted to the other Defendants named in this action, the National Archives and Records Administration, including its component the George W. Bush Presidential Library and Museum, and to the Central Intelligence Agency. 1 Case 1:18-cv-02143-RDM Document 10-1 Filed 09/21/18 Page 3 of 9 constitutional "advice and consent" duties. As a last resort to vindicate their rights to these records--on behalf of themselves and their constituents--Plaintiffs bring the present lawsuit and seek immediate injunctive relief. STATEMENT OF FACTS On August 8, 2018, Plaintiffs submitted identical FOIA requests to DOJ's components, the Office of Legal Counsel (OLC) and the Criminal Division (CRM), each seeking: (1) All records, including but not limited to emails, memoranda, print or other correspondence, notices, attachments, and directives addressed to, from, carbon copying (cc'ing), or blind carbon copying (bcc'ing) Mr. Kavanaugh. (2) All records, including but not limited to emails, memoranda, correspondence, notices, and directives, discussing or mentioning Mr. Kavanaugh. (3) Records relating to Mr. Kavanaugh's nomination to the United States Court of Appeals for the District of Columbia Circuit. (4) To the extent they are not included in response to categories (1) through (3), all record containing documents written by, edited by, prepared in whole or part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. Am. Compl. ?? 38-39; Ex.2 D at 1; Ex. E at 1; Declaration of Sam Simon in Support of Plaintiffs' Motion as to Defendant U.S. Department of Justice for a Temporary Restraining Order or Preliminary Injunction ("Sept. 21, 2018 Simon Decl.") ?? 6-7, 9. On August 16, 2018, Plaintiffs and other members of the Judiciary Committee each received a substantively identical letter from DOJ's Office of Legislative Affairs (OLA) noting that DOJ had received the DOJ FOIA Requests, but that OLA "routinely response on behalf of 2 Lettered exhibits referenced herein are attached to the Complaint. 2 Case 1:18-cv-02143-RDM Document 10-1 Filed 09/21/18 Page 4 of 9 [DOJ] to information requests from individual or groups of Members of Congress," and and offered "to work with [Plaintiffs] outside the FOIA process to respond to your legitimate requests as a Member of Congress[.]" Sept. 21, 2018 Simon Decl. ?? 10-11 & Ex. 2.3 On August 17, 2018, DOJ's Office of Information Policy (OIP) sent a letter to Plaintiffs and other members of the Judiciary Committee on behalf of OLC and CRM, acknowledging that the FOIA requests had been received on August 8, 2018, and assigning them FOIA numbers FY18-178 and CRM 300678252, respectively. Sept. 21, 2018 Simon Decl. ? 12 & Ex. 3.4 Subsequently, Plaintiffs' representative engaged in telephonic and email correspondence with OIP and OLA, accepting OLA's offer to respond to document requests prior to the hearing on Judge Kavanaugh's nomination, and in an effort to prioritize the records sought and enable DOJ and its components to process the FOIA requests as efficiently as possible. Sept. 21, 2018 Simon Decl. ?? 14-18. To that end, on August 27, 2018, Plaintiffs submitted a list of priority custodians to OIP and OLA to streamline and accelerate processing of the requests. Sept. 21, 2018 Simon Decl. ? 17 & Ex. 4. Plaintiffs have not received any determination from DOJ regarding whether it will grant or deny Plaintiffs' requests for records, and have yet to receive a single document from DOJ--or any indication of what documents they should expect to receive or when they will receive them. ARGUMENT For all the reasons explained in Plaintiffs' Memorandum, Plaintiffs and the public are entitled to injunctive relief to prevent DOJ from irreparably harming both Plaintiffs and the 3 Numbered exhibits referenced herein are attached to the Sept. 21, 2018 Simon Declaration. Although OIP's letter conceded that Plaintiffs were entitled to expedited processing of their request, it also stated that DOJ "need[ed] to extend the time limit to respond to your request beyond the ten additional days provided by the [FOIA] statute." Sept. 21, 2018 Simon Decl. ? 13 & Ex. 3 at 1. 4 3 Case 1:18-cv-02143-RDM Document 10-1 Filed 09/21/18 Page 5 of 9 public interest through their failure to make a determination on the requests as required by law and the resulting wrongful withholding of records. See Pls.' Mem. at 5-22. In entertaining a plaintiff's request for injunctive relief, a court must consider 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. CIA, 254 F.3d 300, 303 (D.C. Cir. 2001); Lofton v. District of Columbia, 7 F. Supp. 3d 117, 120 (D.D.C. 2013) (noting same factors apply to applications for temporary restraining orders and preliminary injunctions). Each factor weighs in favor of granting Plaintiffs the injunctive relief they seek. First, Plaintiffs will ultimately prevail in demonstrating their entitlement to a timely determination on their FOIA requests and prompt disclosure of any non-exempt responsive records. As explained in Plaintiffs' Memorandum, FOIA requires federal agencies to promptly produce records to any person who reasonably describes the records they seek in accordance with established procedures. 5 U.S.C. ? 552(a)(3)(A); see also 5 U.S.C. ? 552(a)(6)(A)(i); Pls.' Mem. at 12-13.5 At a minimum, an agency is required to indicate to a FOIA requester, within a maximum of thirty working days,6 "the scope of the documents it will produce and the For the same reasons set forth in Plaintiffs' Memorandum, the records Plaintiffs seek undoubtedly fall within the statutory category of agency records that an agency must produce under FOIA. See Pls.' Mem. at 13. In addition, Plaintiffs reasonably described the records sought and complied with all relevant procedures. See id. at 13-14; see also Exs. D-E. 5 FOIA generally requires that an agency respond to a FOIA request within twenty working days, but under certain circumstances, allows an agency to respond within thirty working days. See 5 U.S.C. ? 552(a)(6)(B)(i). For purposes of the present motion, Plaintiffs do not contest that DOJ met the requirements for extending its deadline to respond to Plaintiffs' FOIA requests by an additional ten days. See Sept. 21, 2018 Simon Decl. Ex. 3 at 1 (notifying Plaintiffs that DOJ "need[ed] to extend the time limit to respond to your request beyond the ten additional days provided by the [FOIA] statute."). 6 4 Case 1:18-cv-02143-RDM Document 10-1 Filed 09/21/18 Page 6 of 9 exemptions it will claim with respect to any withheld documents." Citizens for Responsibility and Ethics in Wash. v. Fed. Election Comm'n, 711 F.3d 180, 182-83 (D.C. Cir. 2013); 5 U.S.C. ? 552(a)(6)(A)(i); see also Pls.' Mem. at 12-13. That deadline has passed, and not only has DOJ failed to provide the statutorily required determination regarding whether it will grant or deny the requests, it has provided no information concerning when the requests will be processed, or the scope of the material to be produced, and has failed to provide a single page of responsive material, despite Plaintiffs' efforts to work with both OIP and OLA in addressing their requests. Sept. 21, 2018 Simon Decl. ?? 14-21. Second, for all the reasons set forth in Plaintiffs' Memorandum, Plaintiffs will be harmed irreparably if Defendants do not promptly process their requests, make the required determinations, and disclose any non-exempt responsive material, especially if further delays prevent disclosure of these records until after the Senate has voted on Judge Kavanaugh's nomination. See Pls.' Mem. at 14-19. Third, for all the reasons set forth in Plaintiffs' Memorandum, the requested relief will not burden others' interests, and in fact, the Senate, the public, and Defendants are aligned in their mutual strong interest in the disclosure and review of Judge Kavanaugh's record. See id. at 19-20. Indeed, DOJ has itself already recognized that Judge Kavanaugh's nomination demands review of his lengthy record and that that review will require allocation of additional resources. Deputy Attorney General Rod J. Rosenstein has contacted every United States Attorney across the country to ask that they make potentially hundreds of federal prosecutors available to assist with a prioritized review of government records pertaining to Judge Kavanaugh.7 Where the Katie Benner, Rosenstein Asks Prosecutors to Help With Kavanaugh Papers in Unusual Request, N.Y. Times, July 11, 2018, https://www.nytimes.com/2018/07/11/us/politics/rosensteinkavanaugh-document-review-prosecutors.html. 7 5 Case 1:18-cv-02143-RDM Document 10-1 Filed 09/21/18 Page 7 of 9 government has already conceded the extraordinary value of these and similar records and begun to marshal resources for their review, Plaintiffs' request for prompt processing and production would not meaningfully increase DOJ's burden. And fourth, for all the reasons set forth in Plaintiffs' Memorandum, a temporary restraining order or preliminary injunction to ensure that DOJ complies with its FOIA obligations and promptly discloses any non-exempt material responsive to Plaintiffs' FOIA requests is in the public interest. See Pls.' Mem. at 20-23. Because all four of the relevant factors weigh in Plaintiffs' favor, this Court should grant the requested injunctive relief compelling DOJ to process Plaintiff's requests and promptly produce non-exempt, responsive records. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court grant a temporary restraining order, or in the alternative, a preliminary injunction, requiring DOJ to promptly process Plaintiffs' FOIA requests, make the statutorily required determination regarding whether to grant or deny the requests, and promptly produce any non-exempt responsive records and an index justifying the withholding of any withheld records by such date as the Court deems appropriate. Dated: September 21, 2018 Respectfully submitted, /s/ Austin R. Evers Austin R. Evers D.C. Bar No. 1006999 Elizabeth France D.C. Bar No. 999851 Katherine M. Anthony MA Bar No. 685150* Pro hac vice motion submitted AMERICAN OVERSIGHT 6 Case 1:18-cv-02143-RDM Document 10-1 Filed 09/21/18 Page 8 of 9 1030 15th Street NW, B255 Washington, DC 20005 (202) 897-2465 austin.evers@americanoversight.org beth.france@americanoversight.org katherine.anthony@americanoversight.org *Member of the MA bar only; practicing in the District of Columbia under the supervision of members of the D.C. Bar while application for D.C. Bar membership is pending. Counsel for Plaintiffs 7 Case 1:18-cv-02143-RDM Document 10-1 Filed 09/21/18 Page 9 of 9 CERTIFICATE OF SERVICE I hereby certify that on September 21, 2018, I electronically filed a copy of the foregoing Memorandum in Support of Plaintiffs' Motion as to Defendant U.S. Department of Justice for a Temporary Restraining Order or Preliminary Injunction. Notice of this filing will be sent via email to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's CM/ECF System. I further certify that on September 21, 2018, I caused a copy of the foregoing Memorandum in Support of Plaintiffs' Motion as to Defendant U.S. Department of Justice for a Temporary Restraining Order or Preliminary Injunction, to be hand-delivered to Defendant U.S. Department of Justice at the following address: U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue NW Washington, DC 20530 Dated: September 21, 2018 Respectfully submitted, /s/ Austin R. Evers Austin R. Evers D.C. Bar No. 1006999 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 897-2465 austin.evers@americanoversight.org Counsel for Plaintiffs 8 Case Document 9-4 Filed 09/20/18 Page 1 of 6 Exhibit A Case Document 9-4 Filed 09/20/18 Page 2 of 6 ?anitrd germs ?rnatr WASHINGTON, DC 20510 August 8, 2018 Mr. Gary M. Stern General Counsel and Chief FOIA Of?cer National Archives and Records Administration 8601 Adelphi Road Room 31 10 College Park, Maryland 20740?6001 Dear Mr. Stern, Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the National Archives and Records Administration?s FOIA regulations, 3.6 C.F.R. 1250 et seq., we hereby request that you produce the following records involving Brett Kavanaugh during his time as an associate in the White House Counsel?s of?ce from January 2001 to July 2003 and as White House Staff Secretary from July 2003 to May 2006. Requested Records We request that the National Archives and Records Administration produce the following records: 1. Records from Mr. Kavanaugh?s service as a Senior Associate Counsel to the President, including all records preserved in his staff ?les, and those records created by Mr. Kavanaugh that can readily be found in the ?les of other White House staff members, the White House Counsel?s Of?ce ?les, other White House of?ces? ?les, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Of?ce of Records Management; 2. Records from Mr. Kavanaugh?s service as Assistant to the President and Staff Secretary, including all records preserved in his staff ?les, and those records created by Mr. Kavanaugh that can readily be found in the ?les of other White House staff members, the White House Counsel?s Of?ce ?les, other White House of?ces? ?les, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Of?ce of Records Management; 3. Records relating to Mr. Kavanaugh?s nomination to the United States Court of Appeals for the District of Columbia Circuit; 4. All electronic mail to, from, carbon copying (cc?ing), or blind carbon copying (bcc?ing) Mr. Kavanaugh in his White House tenure, including any documents attached to such emails; Case Document 9-4 Filed 09/20/18 Page 3 of 6 5. To the extent they are not included in response to categories (1) through (4), all records containing documents written by, edited by, prepared in whole or part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. As you know, the Presidential Records Act requires that Presidential records of former Presidents be made available to Congress. 44 U.S.C. Further, 1301A requires that agencies disclose records to Congress that it may otherwise legitimately withhold from the public. 5 U.S.C. 552(d). As the DC. Circuit has explained, ?all Members have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information,? and therefore ?it would be an inappropriate intrusion into the legislative sphere? for the court to decide that only Congress acting as a whole or only a committee or chairman ?shall be regarded as the of?cial voice of Congress.? Mm'phy v. Department of Army, 613 F.2d 1151, 1157 (DC. Cir. 1979). Indeed, the court in that case emphasized that each member of Congress ?participates in the law?making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator.? Id. In order to ful?ll our constitutional duty to advise the President on the nomination of Mr. Kavanaugh as members of the United States Senate, we need access to the records requested herein. Therefore, we expect that any withholdings that your agency might apply to an ordinary request will be waived when disclosing records in response to our request, pursuant to both 5 U.S.C. 552(d) and 44 U.S.C. If it is your position that any of the requested documents are exempted from disclosure requirements, we request that you provide a Vaughn index as required by Vaughn v. Rosen, 484 F. 2d 820 (DC. Cir. 1973); see also Roth v. US. Dept. ofJusfice, 642 F. 3d 1161, 1185 (DC. Cir. 2011) (?Under our case law, agencies invoking a FOIA exemption must provide a specific, detailed explanation of why the exemption applies to the withheld materials?). As you know, agencies are also required under FOIA to release ?any reasonably segregable portions? of documents that may be partially exempt and to then prepare ?an index relating any withheld portions to speci?c FOIA exemptions.? Lykim' v. US. Dept. QfJa-stice, 725 F.2d 1455, 1466 (DC. Cir. 1984). . - Where possible, please provide responsive material in electronic format by email at gov. Please send any responsive material being sent by mail to Richard Blurnenthal, 706 Hart Senate Office Building, Washington, DC. 20510. Request for-Expedited Processing Given the recent announcement regarding Mr. Kavanaugh?s nomination to the Supreme Court, we request expedited processing of this request pursuant to 5 U.S.C. and 36 C.F.R. In support of this request, we certify that, to the best of our knowledge and belief, it is true and correct that the records requested are required to address Case Document 9-4 Filed 09/20/18 Page 4 of 6 exceptional media interest involving possible questions about the government?s integrity that affect public con?dence. As you know, the Senate is in the process of examining Mr. Kavanaugh?s record as part of its constitutional duty to provide advice and consent on his nomination. The media has been covering the nomination process with vigor and concern over remarks made by the nominee of questionable veracity,l criticism that he is a ?highly conservative, partisan lawyer,?2 the fact that he was ?pre-vetted? by the Federalist Society, an extreme right-wing organization} and the troubling trail of dark money spenders supporting his nomination.4 Mr. Kavanaugh spent ?ve years as a high?ranking of?cial in the George W. Bush Administration and media outlets from around the country have expressed widespread and exceptional interest in the records pertaining to his time there, as the public is rightfully concerned about the professional background of a nominee for a lifetime appointment on the nation?s highest court.5 Various media outlets have also expressed particular concern about what role Mr. Kavanaugh played in the Bush Administration?s policies surrounding torture and detention as well as his misleading responses to Sen. Durbin?s and Sen. Leahy?s questions on that very topic during his con?rmation to the DC. Circuit." The consideration of a nominee to a lifetime appointment on the Supreme Court without the ability to fully assess his professional background, his honesty, and the extent of his involvement in the development of a torture policy directly implicates the public?s con?dence in government and the integrity of the White House, the Senate, and the Supreme Court. This widespread media interest highlights the threats to public con?dence in government posed by a Aaron Blake, Brett Kovanangh ?s First Claim as a Supreme Court Nominee Was Bizarre, THE WASHINGTON POST, July 10, 2018, 1 8/07/ 1 2 David G. Savage, Brett Kaiianaztgh, a Washington Veteran, is Trump 's Second Pick for the Supreme Court, LA. TIMES, July 9, 20 8, 80709- 3 Brian Dickerson, Why Trump Outsourced his Biggest Decision, DETROIT FREE PRESS, July 14, 2018, 14/ court-pick/782732002l. 4 In Supreme Court Battle, Secret Money Threatens Justice, USA TODAY, July 23, 2018, debates/799481002l; see also, Lydia Wheeler, Kavanaitgh Paper Chase Heats Up, T1113 HILL, July 14, 2018, -kavanaugh-paper-chase-heatsin (discussing the problems posed by Mr. Kavanaugh?s ?unusually paper trail?); Lisa Mascaro, The Problem of Karanaugh ?s Paper Trail, PRESS, July 21, 2018, 7c6e673 7f4. 5 Tony Mauro, Activists Want to See SCOTUS Nominee Brett Kavanangh ?s Documents?Now, THE NATIONAL LAW JOURNAL, July 16, 2018, 8/07/1 4lwhv-n'ump- 5 See, Amy Davidson Sorkin, What Brett Kavanaztgh Must be Asked About Torture, Guantanamo, and lt/[ass Surveillance, The New Yorker, July 24, 2018, Michael Kranish, Kavanoitgh ?s Role in Bush-era Torture Debate Not-r an Issue in his Supreme Court nomination, Chicago Tribune, July 18, 2018, Alex Seitz-Wald, Kavanangh Documents Could Ansr-rer Decade?Old Question of Whether He Misled Congress, NBC News, July 16, 2018, Case Document 9-4 Filed 09/20/18 Page 5 of 6 con?rmation process conducted in the dark. This request is therefore entitled to expedited processing pursuant to 36 C.F.R. We expect a decision regarding our request for expedited processing within 10 calendar days, as required by 36 C.F.R. Request for Fee Waiver Pursuant to 5 U.S.C. and 36 C.F.R. we request a waiver of all fees associated with processing this records request. Disclosure of the records we request is in the public interest because, for the reasons stated above, they are likely to contribute signi?cantly to public understanding of government operations and activities surrounding both Mr. Kavanaugh?s role in the Bush Administration and more broadly in the process of Mr. Kavanaugh?s con?rmation hearings. Disclosure of these records is in no way associated with any commercial interest of ours. Rather, we are requesting these documents to ful?ll our constitutional duties as Senators, which require us to have a full and complete understanding of Mr. Kavanaugh?s record, including his prior time in government. We are therefore entitled to a fee waiver. Conclusion We look forward to working with the National Archives and Records Administration to ensure the timely and exhaustive disclosure of all non-exempt records responsive to this request. If you have any questions about this request, please contact Sam Simon at If our request for a fee waiver is denied in part or in full, please contact us immediately upon making such a determination. Sincerely, If Waw?/ 51w RICHARD BLUMENTHAL UDIANNE FEINSTEIN United States Senate United States Senate 4:54 (Rages- PA RICK LEAHY WRD J. DURBIN United States Senate United States Senate Case Document 9-4 Filed 09/20/18 Page 6 of'? AW MDON WHITEHOUSE AMY United States Senate United States Senate 329; - CHRISTOPHER A. COONS MAZIE K. HIRONO United States Senate United States Senate CORY A. BOOKER UAMALA D. HARRIS United States Senate United States Senate Case Document 9-5 Filed 09/20/18 Page 1 of 6 Exhibit Case Document 9-5 Filed 09/20/18 Page 2 of 6 ?annel ?rms anatt WASHINGTON, DC 20510 August 8, 2018 FOIA Coordinator George W. Bush Presidential Library and Museum 2943 SMU Boulevard Dallas, Texas 75205 Dear FOIA Coordinator, Pursuant to the Freedom of Information Act (F OIA), 5 U.S.C. 552, and the National Archives and Records Administration?s FOIA regulations, 36 C.F.R. 1250 et seq., we hereby request that you produce the following records involving Brett Kavanaugh during his time as an associate in the White House Counsel?s of?ce from January 2001 to July 2003 and as White House Staff Secretary from July 2003 to May 2006. Requested Records We request that the George W. Bush Presidential Library and Museum produce the following records: 1. Records from Mr. Kavanaugh?s service as a Senior Associate Counsel to the President, including all records preserved in his staff ?les, and those records created by Mr. Kavanaugh that can readily be found in the ?les of other White House staff members, the White House Counsel?s Of?ce ?les, other White House of?ces? ?les, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Of?ce of Records Management; 2. Records from Mr. Kavanaugh?s service as Assistant to the President and Staff Secretary, including all records preserved in his staff files, and those records created. by Mr. Kavanaugh that can readily be found in the ?les of other White House staff members, the White House Counsel?s Of?ce ?les, other White House of?ces? ?les, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Of?ce of Records Management; 3. Records relating to Mr. Kavanaugh?s nomination to the United States Court of Appeals for the District of Columbia Circuit; 4. All electronic mail to, from, carbon copying (cc?ing), or blind carbon copying (bcc?ing) Mr. Kavanaugh in his White House tenure, including any documents attached to such emails; 5. To the extent they are not included in response to categories (1) through (4), all records containing documents written by, edited by, prepared in whole or part by, under the Case Document 9-5 Filed 09/20/18 Page 3 of 6 supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. As you know, the Presidential Records Act requires that Presidential records of former Presidents be made available to Congress. 44 U.S.C. Further, FOIA requires that agencies disclose records to Congress that it may otherwise legitimately withhold from the public. 5 U.S.C. 552(d). As the DC. Circuit has explained, ?all Members have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information,? and therefore ?it would be an inappropriate intrusion into the legislative sphere? for the court to decide that only Congress acting as a whole or only a committee or chairman ?shall be regarded as the of?cial voice of Congress.? Murphy v. Department of Army, 613 F.2d 1151, 1157 (DC. Cir. 1979). Indeed, the court in that case emphasized that each member of Congress ?participates in the law?making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator.? Id. In order to ful?ll our constitutional duty to advise the President on the nomination of Mr. Kavanaugh as members of the United States Senate, we need access to the records requested herein. Therefore, we expect that any withholdings that your agency might apply to an ordinary request will be waived when disclosing records in response to our request, pursuant to both 5 U.S.C. 552(d) and 44 U.S.C. If it is your position that any of the requested documents are exempted from disclosure requirements, we request that you provide a Vaughn index as required by Vaughn v. Rosen, 484 F. 2d 820 (DC. Cir. 1973); see also Roth v. US. Dept. ofJusTice, 642 F. 3d 1161, 1185 (DC. Cir. 201 1) (?Under our case law, agencies invoking a FOIA exemption must provide a speci?c, detailed explanation of why the exemption applies to the Withheld materials?). As you know, agencies are also required under FOIA to release ?any reasonably segregable portions? of documents that may be partially exempt and to then prepare ?an index relating any withheld portions to specific OIA exemptions.? Lykins v. US. Dept. of Justice, 725 P.2d 1455, 1466 (DC. Cir. 1984). Where possible, please provide responsive material in electronic format by email at gov. Please send any responsive material being sent by mail to Richard Blumenthal, 706 Hart Senate Office Building, Washington, DC. 20510. Request for Expedited Processigg Given the recent announcement regarding Mr. Kavanaugh?s nomination to the Supreme Court, we request expedited processing of this request pursuant to 5 U.S.C. and 36 CPR. In support of this request, we certify that, to the best of our knowledge and belief, it is true and correct that the records requested are required to address exceptional media interest involving possible questions about the government?s integrity that affect public confidence. Case Document 9-5 Filed 09/20/18 Page 4 of 6 As you know, the Senate is in the process of examining Mr. Kavanaugh?s record as part of its constitutional duty to provide advice and consent on his nomination. The media has been covering the nomination process with vigor and concern over remarks made by the nominee of questionable veracity,l criticism that he is a ?highly conservative, partisan lawyer,?2 the fact that he was ?pre?vetted? by the Federalist Society, an extreme right?wing organization,3 and the troubling trail of dark money spenders supporting his nomination.4 Mr. Kavanaugh spent ?ve years as a high-ranking of?cial in the George W. Bush Administration and media outlets from around the country have expressed widespread and exceptional interest in the records pertaining to his time there, as the public is rightfully concerned about the professional background of a nominee for a lifetime appointment on the nation?s highest court.5 Various media outlets have also expressed particular concern about what role Mr. Kavanaugh played in the Bush Administration?s policies surrounding torture and detention as well as his misleading responses to Sen. Durbin?s and Sen. Leahy?s questions on that very topic during his con?rmation to the DC. Circuit.6 The consideration of a nominee to a lifetime appointment on the Supreme Court without the ability to fully assess his professional background, his honesty, and the extent of his involvement in the development of a torture policy directly implicates the public?s con?dence in government and the integrity of the White House, the Senate, and the Supreme Court. This widespread media interest highlights the threats to public con?dence in government posed by a con?rmation process conducted in the dark. This request is therefore entitled to expedited processing pursuant to 36 C.F.R. Aaron Blake, Brett Kavanaugb ?s First Claim as a Supreme Court Nominee Was Bizarre, THE WASHINGTON POST, July 10, 2018, term=.6c3e9e8d4bSc. 2 David G. Savage, Brett Kavanaugb, a Washington Veteran, is Trump ?3 Second Pickfor the Supreme Court, LA. TIMES, July 9, 20 8, storylitml. 3 Brian Dickerson, Why Trump Outsourced his Biggest Decision, DETROIT FREE PRESS, July 14, 2018, 1 8/07/ I court-pick/782732002t. 4 In Supreme Court Battle, Secret Money Threatens Justice, USA TODAY, July 23, 2018, h_ttps usatodav.com/storv/oninion/20 ustice-editorials- debates/799481002/; see also, Lydia Wheeler, Kavanaagb Paper Chase Heats Up, THE HILL, July 14, 2018, (discussing the problems posed by Mr. Kavanaugh?s ?unusually paper trail?); Lisa Mascaro, The Problem of'Kavanaugh ?s Paper Trait, PRESS, July 21, 2018, 5 Tony Mauro, Activists Want to See SCOTUS Nominee Brett Kavanaugb ?s Documents?Now, THE NATIONAL LAW JOURNAL, July 16, 20 18, I 8/07/ See. e. 3., Amy Davidson Sorkin, What Brett Kavanaugh Must be Asked About Torture, Guantanamo, and Mass Surveitlance, The New Yorker, uly 24, 2018, Michael Kranish, Kavanaugh ?s Role in Bush-era Torture Debate Now an issue in his Supreme Court nomination, Chicago Tribune, July 18, 2018, ica gotribune 20180718-story.html; Alex Seitz-Wald, Kavanaugb Documents Couid Answer Decade?Old Question of Whether He Mister! Congress, NBC News, July 16, 2018, ether-he-misled?n89 1436. Case Document 9-5 Filed 09/20/18 Page 5 of 6 We expect a decision regarding our request for expedited processing within 10 calendar days, as required by 36 CPR. Request for Fee Waiver Pursuant to 5 U.S.C. and 36 C.F.R. we request a waiver of all fees associated with processing this records request. Disclosure of the records we request is in the public interest because, for the reasons stated above, they are likely to contribute signi?cantly to public understanding of government operations and activities surrounding both Mr. Kavanaugh?s role in the Bush Administration and more broadly in the process of Mr. Kavanaugh?s con?rmation hearings. Disclosure of these records is in no way associated with any commercial interest of ours. Rather, we are requesting these documents to fulfill our constitutional duties as Senators, which require us to have a full and complete understanding of Mr. Kavanaugh?s record, including his prior time in government. We are therefore entitled to a fee waiver. Conclusion We look forward to working with the George W. Bush Presidential Library and Museum to ensure the timely and exhaustive disclosure of all non?exempt records responsive to this request. If you have any questions about this request, please contact Sam Simon at If our request for a fee waiver is denied in part or in full, please contact us immediately upon making such a determination. Sincerely, ?fE, RICHARD BLUMENTHAL IANNE EINSTEIN United States Senate United States Senate 74% PATRICK LEAHY J. United States Senate United States Senate Case Document 9-5 Filed 09/20/18 Page 6 of 6 9xme 0N ITEHOUSE AMY KLQELJDHAR United States Senate United States Senate 3 I. 0 #55? CHRISTOPHER A. COONS MAZIE . HIRONO United States Senate United States Senate I CORY A. BOOKER D. HARRIS United States Senate United States Senate Case Document 9-6 Filed 09/20/18 Page 1 of 5 Exhibit Case Document 9-6 Filed 09/20/18 Page 2 of 5 ?ttnitrd ?aws a?etnatt WASHINGTON, DC 20510 August 8, 2018 MS. Allison Fong Information and Privacy Coordinator Central Intelligence Agency Washington, DC. 20505 Dear Ms. Fong, Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Central Intelligence Agency?s FOIA regulations, 32 C.F.R. 1900 et seq., we hereby request that you produce the following records involving Brett Kavanaugh during his time as an associate in the White House Counsel?s of?ce from January 2001 to July 2003 and as White House Staff Secretary from July 2003 to May 2006. Requested Records We request that the Central Intelligence Agency produce the following records: 1. All records, including but not limited to emails, memoranda, print 01' other correspondence, notices, attachments, and directives addressed to, from, carbon copying (cc?ing), or blind carbon copying (bcc?ing) Mr. Kavanaugh. 2. All records, including but not limited to emails, memoranda, correspondence, notices, and directives, discussing or mentioning Mr. Kavanaugh. 3. Records relating to Mr. Kavanaugh?s nomination to the United States Court of Appeals for the District of Columbia Circuit. 4. To the extent they are not included in response to categories (I) through (3), all records containing documents written by, edited by, prepared in whole or part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. FOIA requires that agencies disclose records to Congress that it may otherwise legitimately withhold from the public. 5 U.S.C. 552(d). As the DC. Circuit has explained, ?all Members have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information,? and therefore ?it would be an inappropriate intrusion into the legislative sphere? for the court to decide that only Congress acting as a whole or only a committee or chairman ?shall be regarded as the official voice of Congress.? Murphy v. Department QfArmy, 613 F.2d 1151, 1157 (DC. Cir. 1979). Indeed, the court in that case emphasized that each member of Congress ?participates in the law-making process; each has a voice and a vote in that process; Case Document 9-6 Filed 09/20/18 Page 3 of 5 and each is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator.? Id. In order to ful?ll our constitutional duty to advise the President on the nomination of Mr. Kavanaugh as members of the United States Senate, we need access to the records requested herein. Therefore, we expect that any withholdings that your agency might apply to an ordinary request will be waived when disclosing records in response to our request, pursuant to 5 U.S.C. 552(d). If it is your position that any of the requested documents are exempted from disclosure requirements, we request that you provide a Vaughn index as required by Vaughn v. Rosen, 484 F. 2d 820 (DC. Cir. 1973); see also Roth v. US. Dept. Qf'Jusrice, 642 F. 3d 1161, 1185 (DC. Cir. 2011) (?Under our case law, agencies invoking a FOIA exemption must provide a speci?c, detailed explanation of why the exemption applies to the withheld materials?). As you know, agencies are also required under FOIA to release ?any reasonably segregable portions? of documents that may be partially exempt and to then prepare ?an index relating any withheld portions to speci?c FOIA exemptions.? Lykins v. US. Dept. Qerrstice, 725 F.2d 1455, 1466 (DC. Cir. 1984). Where possible, please provide responsive material in electronic format by email at Sam_Simon@j udiciary-dem.senate. gov. Please send any responsive material being sent by mail to Richard Blumenthal,.706 Hart Senate Office Building, Washington, DC. 20510. Request for Fee Waiver Pursuant to 5 U.S.C. and 32 CPR. we request a waiver of all fees associated with processing this records request. Disclosure of the records we request is in the public interest because, for the reasons stated above, they are likely to contribute signi?cantly to public understanding of government operations and activities surrounding both Mr. Kavanaugh?s role in the Bush Administration and more broadly in the process of Mr. Kavanaugh?s con?rmation hearings. Disclosure of these records is in no way associated with any commercial interest of ours. Rather, we are requesting these documents to ful?ll our constitutional duties as Senators, which require us to have a full and complete understanding of Mr. Kavanaugh?s record, including his prior time in government. Disclosure of the requested records will substantially serve the public interest by directly contributing signi?cantly to the public understanding of the professional experience and record of Mr. Kavanaugh, who has been nominated to a lifetime appointment on the Supreme Court. As you know, the Senate is in the process of examining Mr. Kavanaugh?s record as part of its constitutional duty to provide advice and consent on his nomination. The media has been covering the nomination process with vigor and concern over remarks made by the nominee of Case Document 9-6 Filed 09/20/18 Page 4 of 5 questionable veracity,l criticism that he is a ?highly conservative, partisan lawyer,?2 the fact that he was ?pre-vetted? by the Federalist Society, an extreme right-wing organization,3 and the troubling trail of dark money spenders supporting his nomination.4 Mr. Kavanaugh spent ?ve years as a high-ranking of?cial in the George W. Bush Administration and media outlets from around the country have expressed widespread and exceptional interest in the records pertaining to his time there, as the public is rightfully concerned about the professional background of a nominee for a lifetime appointment on the nation?s highest court.5 Various media outlets have also expressed particular concern about what role Mr. Kavanaugh played in the Bush Administration?s policies surrounding torture and detention as well as his misleading responses to Sen. Durbin?s and Sen. Leahy?s questions on that very topic during his con?rmation to the DC. Circuit.6 The consideration of a nominee to a lifetime appointment on the Supreme Court without the ability to fully assess his professional background, his honesty, and the extent of his involvement in the development of a torture policy directly implicates the public?s con?dence in government and the integrity of the White House, the Senate, and the Supreme Court. This widespread media interest highlights the threats to public con?dence in government posed by a con?rmation process conducted in the dark. This request is therefore entitled to a fee waiver pursuant to 32 C.F.R. Aaron Blake, Brett Kmianaugh ?s First Claim as a Supreme Court Nominee Was Bizarre, THE WASHINGTON POST, July 10, 2018, term=.6cBe9e8d4bSc. 2 David G. Savage, Brett Kavanaugh, a Washington Veteran. is Trutnp ?s Second Pickfor the Supreme Court, LA. TIMES, July 9, 2018, 3 Brian Dickerson, Why Trump Outsourced his Biggest Decision, DETROIT FREE PRESS, July 14, 2018, court-pick/782732002l. 4 In Supreme Court Battle, Secret Money Threatens Justice, USA TODAY, July 23, 2018, debates/799481002/; see also, Lydia Wheeler, Kmtanaugh Paper Chase Heats Up, TIIE HILL, July 14, 2018, -kavana ugh-paper?chase-heats-up (discussing the problems posed by Mr. Kavanaugh?s ?unusually paper trail"); Lisa Mascaro, The Problem of Kavanaugh ?s Paper Trail, ASSOCIATED PRESS, July 21, 2018, 5 Tony Mauro, Activists Want to See SCOT US Nominee Brett Kavanaugh ?s Documents?Now, THE NATIONAL LAW JOURNAL, July 16, 2018, 8/07/14/why-trump- 6 See, e. g, Amy Davidson Sorkin, What Brett Kavanaugh Must be Asked About Torture, Guantanamo, and Mass Surveillance, The New Yorker, July 24, 2018, Michael Kranish, Kavanaugh ?s Role in Bush-era Torture Debate Now an Issue in his Supreme Court nomination, Chicago Tribune, July 18, 2018, 20180718?story.html; Alex Seitz-Wald, Kavanaugh Documents Could Answer Decade-Old Question of Whether He Misled Congress, NBC News, July 16, 2018, isled-n89 1436. Case Document 9-6 Filed 09/20/18 Page 5 of 5 Conclusion We look forward to working with the Central Intelligence Agency to ensure the timely and exhaustive disclosure of all non-exempt records responsive to this request. If you have any questions about this request, please contact Sam Simon at Sa1n_Simon@judiciary- dem.senate.g0v. If our request for a fee waiver is denied in part or in full, please contact us immediately upon making such a determination. Sincerely, 44.4. "If: I M9 RICHARD BLUMENTHAL IANNE FEINSTEIN United States Senate United States Senate 33gb.- - \Ct PA RICK LEAHY J. DURBIN United States Senate United States Senate ON ITEHOUSE AMY United States Senate United States Senate I CHRISTOPHER A. COONS MAZIE K. HIRONO United States Senate United States Senate I I A. BOOKER WMALA D. HARRIS United States Senate United States Senate Case Document 9-7 Filed 09/20/18 Page 1 of 6 Exhibit Case Document 9-7 Filed 09/20/18 Page 2 of 6 ?amed ?aws emu: WASHINGTON, DC 20510 August 8, 2018 Ms. Melissa Golden Lead Paralegal and FOIA Specialist Of?ce of Legal Counsel U.S. Department of Justice 950 Avenue, NW Room 5511 Washington, DC. 20530-0001 Dear Ms. Golden, Pursuant to the Freedom of Information Act (F 01A), 5 U.S.C. 552, and the Department of Justice?s FOIA regulations, 28 CPR. 16 et seq., we hereby request that you produce the following records involving Brett Kavanaugh during his time as an associate in the White House Counsel?s of?ce from January 2001 to July 2003 and as White House Staff Secretary from July 2003 to May 2006. Requested Records We request that the Of?ce of Legal Counsel produce the following records: 1. All records, including but not limited to emails, memoranda, print or other correspondence, notices, attachments, and directives addressed to, from, carbon copying (cc?ing), or blind carbon copying (bcc?ing) Mr. Kavanaugh. 2. All records, including but not limited to emails, memoranda, correspondence, notices, and directives, discussing or mentioning Mr. Kavanaugh. 3. Records relating to Mr. Kavanaugh?s nomination to the United States Court of Appeals for the District of Columbia Circuit. 4. To the extent they are not included in response to categories (1) through (3), all records containing documents written by, edited by, prepared in whole or part by, under the supervision of, 01' at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. FOIA requires that agencies disclose records to Congress that it may otherwise legitimately withhold. from the public. 5 U.S.C. 552(d). As the DC. Circuit has explained, ?all Members have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information,? and therefore ?it would be an inappropriate intrusion into the legislative sphere? for the court to decide that only Congress acting as a whole or only a committee or chairman Case Document 9-7 Filed 09/20/18 Page 3 of 6 ?shall be regarded as the of?cial voice of Congress.? Murphy v. Department ofArmy, 613 F.2d 1151, 157 (DC. Cir. 1979). Indeed, the court in that case emphasized that each member of Congress ?participates in the law?making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities ofa legislator.? Id. In order to ful?ll our constitutional duty to advise the President on the nomination of Mr. Kavanaugh as members of the United States Senate, we need access to the records requested herein. Therefore, we expect that any withholdings that your agency might apply to an ordinary request will be waived when disclosing records in response to our request, pursuant to 5 U.S.C. 552(d). If it is your position that any of the requested documents are exempted from disclosure requirements, we request that you provide a Vaughn index as required by Vaughn v. Rosea, 484 F. 2d 820 (DC. Cir. 1973); see also Roth v. US. Dept. QfJustt'ce, 642 F. 3d 1161, 1185 (DC. Cir. 2011) (?Under our case law, agencies invoking a FOIA exemption must provide a speci?c, detailed explanation of why the exemption applies to the withheld materials?). As you know, agencies are also required under FOIA to release ?any reasonably segregable portions? of documents that may be partially exempt and to then prepare ?an index relating any withheld portions to specific 01A exemptions.? Lykz'ns v. US. Dept. ofJastice, 725 F.2d 1455, 1466 (DC. Cir. 1984). Where possible, please provide responsive material in electronic format by email at gov. Please send any responsive material being sent by mail to Richard Blumenthal, 706 Hart Senate Of?ce Building, Washington, DC. 20510. Request for Expedited Processing Given the recent announcement regarding Mr. Kavanaugh?s nomination to the Supreme Court, we request expedited processing of this request pursuant to 5 U.S.C. and 28 C.F.R. In support of this request, we certify that, to the best of our knowledge and belief, it is true and correct that the records requested are required to address exceptional media interest involving possible questions about the government?s integrity that affect public confidence. As you know, the Senate is in the process of examining Mr. Kavanaugh?s record as part of its constitutional duty to provide advice and consent on his nomination. The media has been covering the nomination process with vigor and concern over remarks made by the nominee of questionable veracity,l criticism that he is a ?highly conservative, partisan lawyer,?2 the fact that Aaron Blake, Brett Kavanaagh ?s First Ctaim as a Supreme Court Nominee Was Bizarre, THE WASHINGTON POST, July 10, 2018, term=.6c3e908d4b50. 2 David G. Savage, Brett Kavanaztgh, a Washington Veteran, is '5 Second the Supreme Court, LA. TIMES, July 9, 2018, story" .html. Case Document 9-7 Filed 09/20/18 Page 4 of 6. he was ?pre-vetted? by the Federalist Society, an extreme right-wing organization,3 and the troubling trail of dark money spenders supporting his nomination.4 Mr. Kavanaugh spent ?ve years as a high?ranking of?cial in the George W. Bush Administration and media outlets from around the country have expressed widespread and exceptional interest in the records pertaining to his time there, as the public is rightfully concerned about the professional background of a nominee for a lifetime appointment on the nation?s highest court.5 Various media outlets have also expressed particular concern about what role M12. Kavanaugh played in the Bush Administration?s policies surrounding torture and detention as well as his misleading responses to Sen. Durbin?s and Sen. Leahy?s questions on that very topic during his con?rmation to the DC. Circuit.6 The consideration of a nominee to a lifetime appointment on the Supreme Court without the ability to fully assess his professional background, his honesty, and the extent of his involvement in the development of a torture policy directly implicates the public?s con?dence in government and the integrity of the White House, the Senate, and the Supreme Court. This widespread media interest highlights the threats to public con?dence in government posed by a con?rmation process conducted in the dark. This request is therefore entitled to expedited processing pursuant to 28 CPR. We expect a decision regarding our request for expedited processing within 10 calendar days, as required by 28 CFR. 165(c)(4). Request for Fee Waiver Pursuant to 5 U.S.C. and 28 C.F.R. we request a waiver of all fees associated with processing this records request. Disclosure of the records we request is in the public interest because, for the reasons stated above, they are likely to contribute signi?cantly to public understanding of government operations and activities surrounding both 3 Brian Dickerson, Why Trump Outsourced his Biggest Decision, DETROIT FREE PRESS, July 14, 2018, freep.comlstorylopin ion/colum court-pick/732732002l. 4 1n Supreme Court Battle, Secret Threatens Justice, USA TODAY, July 23, 2018, debates/799481002l; see also, Lydia Wheeler, Kavanaugh Paper Chase Heats Up, THE HILL, July 14, 2018, (discussing the problems posed by Mr. Kavanaugh?s ?unusually paper trail?); Lisa Mascaro, The Problem oj'Kavanaugh ?s Paper Trail, PRESS, July 21,2018, 5 Tony Mauro, Activists Want to See SCOTUS Nominee Brett Kavanaugh ?s Documents?Now, T1113 NATIONAL LAW JOURNAL, July 16, 2018, 6 See, e. g, Amy Davidson Sorkin, What Brett Kavanangh Must be Asked About Torture, Guantanamo, and Mass Surveillance, The New Yorker, July 24, 2018, Michael Kranish, Kavanaugh 's Role in Bush?era Torture Debate Now an Issue in his Supreme Court nomination, Chicago Tribune, July 18, 2018, Alex Seitz?Wald, Kavanaugh Documents Could Answer Decade?Old Question of Whether He Mister! Congress, NBC News, July 16, 2018, 89 1436. Case Document 9-7 Filed 09/20/18 Page 5 of 6 Mr. Kavanaugh?s role in the Bush Administration and more broadly in the process of Mr. Kavanaugh?s con?rmation hearings. Disclosure of these records is in no way associated with any commercial interest of ours. Rather, we are requesting these documents to ful?ll our constitutional duties as Senators, which require us to have a full and complete understanding of Mr. Kavanaugh?s record, including his prior time in government. We are therefore entitled to a fee waiver. Conclusion We look forward to working with the Of?ce of Legal Counsel to ensure the timely and exhaustive disclosure of all non-exempt records responsive to this request. If you have any questions about this request, please contact Sam Simon at Sam_Simon@judiciary- demsenate. gov. If our request for a fee waiver is denied in part or in please contact us immediately upon making such a determination. Sincerely, Mazda Meam RICHARD BLUMENTHAL MIANNE FEINSTEIN United States Senate United States Senate 7m HTRICK LEAHY Ric?mt'lit) J. DURBIN United States Senate United States Senate DON ITEHOUSE AMY HAR United States Senate United States enate ?41 . I CHRISTOPHER A. COONS MAZIE K. HIRONO United States Senate United States Senate Case Document 9-7 Filed 09/20/18 Page 6 of 6 EM A. BOOKER WALA D. HARRIS United States Senate United States Senate Case Document 9-8 Filed 09/20/18 Page 1 of 6 Exhibit Case Document 9-8 Filed 09/20/18 Page 2 of,6 ?nitzd 0%tatzs ?znatz WASHINGTON, DC 20510 August 8, 2018 Ms. Amanda Marchand Jones Chief, Unit Criminal Division US. Department of Justice Suite 1127, Keeney Building 950 Avenue, NW Washington, DC. 20530?0001 Dear Ms. Jones, Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Department of Justice?s FOIA regulations, 28 CPR. 16 et seq., we hereby request that you produce the following records involving Brett Kavanaugh during his time as an associate in the White House Counsel?s of?ce from January 2001 to July 2003 and as White House Staff Secretary from July 2003 to May 2006. Requested Records We request that the Criminal Division produce the following records: 1. All records, including but not limited to emails, memoranda, print or other correspondence, notices, attachments, and directives addressed to, from, carbon copying (cc?ing), or blind carbon copying (bcc?ing) Mr. Kavanaugh. 2. All records, including but not limited to emails, memoranda, correspondence, notices, and directives, discussing or mentioning Mr. Kavanaugh. 3. Records relating to Mr. Kavanaugh?s nomination to the United States Court of Appeals for the District of Columbia Circuit. 4. To the extent they are not included in response to categories (1) through (3), all records containing documents written by, edited by, prepared in whole or part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. FOIA requires that agencies disclose records to Congress that it may otherwise legitimately withhold from the public. 5 U.S.C. 552(d). As the DC. Circuit has explained, ?all Members have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information,? and therefore ?it would be an inappropriate intrusion into the legislative sphere? for the court to decide that only Congress acting as a whole or only a committee or chairman Case Document 9-8 Filed 09/20/18 Page 3 of 6 ?shall be regarded as the of?cial voice of Congress.? Murphy v. Department of Army, 613 F.2d 1151, 1157 (DC. Cir. 1979). Indeed, the court in that case emphasized that each member of Congress ?participates in the law-making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator.? Id. In order to ful?ll our constitutional duty to advise the President on the nomination of Mr. Kavanaugh as members of the United States Senate, we need access to the records requested herein. Therefore, we expect that any withholdings that your agency might apply to an ordinary request will be waived when disclosing records in response to our request, pursuant to 5 U.S.C. 5 52(d). If it is your position that any of the requested documents are exempted from disclosure requirements, we request that you provide a Vaughn index as required by Vaughn v. Rosen, 484 F. 2d 820 (DC. Cir. 1973); see also Roth v. US. Dept. ofJustice, 642 F. 3d 1161, 1185 (DC. Cir. 2011) (?Under our case law, agencies invoking a FOIA exemption must provide a speci?c, detailed explanation of why the exemption applies to the withheld materials?). As you know, agencies are also required under FOIA to release ?any reasonably segregable portions? of documents that may be partially exempt and to then prepare ?an index relating any withheld portions to speci?c FOIA exemptions.? Lykins v. US Dept. of Justice, 725 F.2d 1455, 1466 (DC. Cir. 1984). Where possible, please provide responsive material in electronic format by email at Please send any responsive material being sent by mail to Richard Blumenthal, 706 Hart Senate Of?ce Building, Washington, DC. 20510. Request for Expedited Processing Given the recent announcement regarding Mr. Kavanaugh?s nomination to the Supreme Court, we request expedited processing of this request pursuant to 5 U.S.C. and 28 C.F.R. In support of this request, we certify that, to the best of our knowledge and belief, it is true and correct that the records requested are required to address exceptional media interest involving possible questions about the government?s integrity that affect public con?dence. As you know, the Senate is in the process of examining Mr. Kavanaugh?s record as part of its constitutional duty to provide advice and consent on his nomination. The media has been covering the nomination process with vigor and concern over remarks made by the nominee of questionable veracity,l criticism that he is a ?highly conservative, partisan lawyer,?2 the fact that Aaron Blake, Brett Kavanaugh ?s First Claim as a Supreme Court Nominee Was Bizarre, THE WASHINGTON POST, July 10, 2018, term=.6c3e968d4b5c. 3 David G. Savage, Brett Kavanaugh, a Washington Veteran, is Trump?s Second Pick for the Supreme Court, L.A. TIMES, July 9, 2018, staying. Case Document 9-8 Filed 09/20/18 Page 4 of 6 he was ?pre?vetted? by the Federalist Society, an extreme right-wing organization,3 and the troubling trail of dark money spenders supporting his nomination.4 Mr. Kavanaugh spent ?ve years as a high-ranking of?cial in the George W. Bush Administration and media outlets from around the country have expressed widespread and exceptional interest in the records pertaining to his time there, as the public is rightfully concerned about the professional background of a nominee for a lifetime appointment on the nation?s highest court.5 Various media outlets have also expressed particular concern about what role Mr. Kavanaugh played in the Bush Administration?s policies surrounding torture and detention as well as his misleading responses to Sen. Durbin?s and Sen. Leahy?s questions on that very topic during his con?rmation to the DC. Circuit.6 The consideration of a nominee to a lifetime appointment on the Supreme Court without the ability to fully assess his professional background, his honesty, and the extent of his involvement in the development of a torture policy directly implicates the public?s con?dence in government and the integrity of the White House, the Senate, and the Supreme Court. This widespread media interest highlights the threats to public con?dence in government posed by a con?rmation process conducted in the dark. This request is therefore entitled to expedited processing pursuant to 28 C.F.R. We expect a decision regarding our request for expedited processing within 10 calendar days, as required by 28 C.F.R. Request for Fee Waiver Pursuant to U.S.C. and 28 C.F.R. we request a waiver of all fees associated with processing this records request. Disclosure of the records we request is in the public interest because, for the reasons stated above, they are likely to contribute signi?cantly to public understanding of government operations and activities surrounding both 3 Brian Dickerson, Why Trump Outsourced his Biggest Decision, DETROIT FREE PRESS, July 14, 2018, c0urt-pick/782732002/. 4 In Supreme Court Battle, Secret Money Threatens Justice, USA TODAY, July 23, 2018, debates/799481002/; see also, Lydia Wheeler, Kavanaugh Paper Chase Heats Up, THE HILL, July 14, 2018, (discussing the problems posed by Mr. Kavanaugh?s ?unusually paper trail?); Lisa Mascaro, The Problem of Kavanaugh ?s Paper Trail, ASSOCIATED PRESS, July 21, 2018, 5 Tony Mauro, Activists Want to See SC OTUS Nominee Brett Kavanaugh ?s Documents?Now, TIIE NATIONAL LAW JOURNAL, July 16, 2018, 6 See, e. Amy Davidson Sorkin, What Brett Kavanaugh Must be Asked About Torture, Guantanamo, and Mass Surveillance, The New Yorker, July 24, 2018, Michael Kranish, Kavanaugh ?s Role in Bush-era Torture Debate Now an Issue in his Supreme Court nomination, Chicago Tribune, July 18, 2018, @180718?st0?htm1; Alex Seitz-Wald, Kavanaugh Documents Could Answer Decade-Old Question of Whether He Misled Congress, NBC News, July 16, 2018, 1436. Case Document 9-8 Filed 09/20/18 Page 5 of 6 Mr. Kavanaugh?s role in the Bush Administration and more broadly in the process of Mr. Kavanaugh?s con?rmation hearings. Disclosure of these records is in no way associated with any commercial interest of ours. Rather, we are requesting these documents to ful?ll our constitutional duties as Senators, which require us to have a full and complete understanding of Mr. Kavanaugh?s record, including his prior time in government. We are therefore entitled to a fee waiver. Conclusion We look forward to working with the Criminal Division to ensure the timely and exhaustive disclosure of all non-exempt records responsive to this request. If you have any questions about this request, please contact Sam Simon at Sam_Simon@judiciary? dem.senate. gov. If our request for a fee waiver is denied in part or in full, please contact us immediately upon making such a determination. Sincerely, . ?404? Wm, RICHARD BLUMENTHAL JIANNE EIN STEIN United States Senate United States Senate United States Senate Amt?m PATRICK LEAHY United States Senate DON ITEHOUSE AMY United States Senate United States Senate .. . ?u wa CHRISTOPHER A. COONS MAZI . HIRONO United States Senate United States Senate Case Document 9-8 Filed 09/20/18 Page 6 of 6 1 RY A. BOOKER MALA D. HARRIS United States Senate United States Senate Case 1:18-cv-02143-RDM Document 10-2 Filed 09/21/18 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) Plaintiffs, ) ) v. ) ) U.S. NATIONAL ARCHIVES AND RECORDS ) ADMINISTRATION et al., ) ) Defendants. ) RICHARD BLUMENTHAL et al., Case No. 18-cv-2143 DECLARATION OF SAM SIMON I, SAM SIMON, hereby declare as follows: 1. I am employed by the Senate Committee on the Judiciary ("Judiciary Committee"), where I work as Chief Counsel to United States Senator Richard Blumenthal. I also serve as minority Chief Counsel to the Senate Subcommittee on Oversight, Agency Action, Federal Rights, and Federal Courts. 2. On July 9, 2018, President Donald Trump nominated Judge Brett Kavanaugh of the United States Court of Appeals for the District of Columbia Circuit to the United States Supreme Court. 3. In preparation for Judge Kavanaugh's confirmation hearings, which were held from September 4 through September 7, 2018, Plaintiffs and other members of the minority party on the Judiciary Committee sought records concerning Judge Kavanaugh's employment with the George W. Bush White House through traditional Senate practices and procedures. 4. However, Plaintiffs' colleagues in the Senate majority declined to seek all categories of documents relevant to Judge Kavanaugh's background and nomination that the minority members had requested be obtained in advance of the confirmation hearings. The Case 1:18-cv-02143-RDM Document 10-2 Filed 09/21/18 Page 2 of 6 refusal to include minority document requests regarding a nominee to the Supreme Court was unprecedented. See, e.g., Seung Min Kim, 'Unprecedented Partisan Interference:' Senate Escalates Bitter Fight Over Kavanaugh's Record, Wash. Post, July 31, 2018, https://www.washingtonpost.com/politics/senate-democrats-ask-archives-for-all-of-kavanaughsrecords-during-his-white-house-years/2018/07/31/065896a6-94cc-11e8-8ffb5de6d5e49ada_story.html?utm_term=.516786039b31. 5. Accordingly, the Senate minority members of the Judiciary Committee, including Plaintiffs, submitted requests under the Freedom of Information Act (FOIA) to obtain these relevant materials. At the time, Plaintiff Senator Blumenthal stated that the FOIA requests were a "last resort" to obtain documents he and his colleagues "need . . . to do our job." Press Release, Blumenthal & Senate Judiciary Committee Democrats File Freedom of Information Act Request to Compel Release of Kavanaugh Documents, Richard Blumenthal, United States Senator for Connecticut, Aug. 8, 2018, https://www.blumenthal.senate.gov/newsroom/press/release/blumenthal-and-senate-judiciarycommittee-democrats-file-freedom-of-information-act-request-to-compel-release-of-kavanaughdocuments. A true and correct copy of this Press Release is attached hereto as Exhibit 1. 6. On August 8, 2018, on behalf of Plaintiffs and other members of the Judiciary Committee, I submitted identical FOIA requests to components of DOJ for records related to Judge Kavanaugh (the "DOJ FOIA Requests"). 7. Specifically, the DOJ FOIA Requests were submitted to the Office of Legal Counsel (OLC) and the Criminal Division (CRM). 8. The DOJ FOIA Requests included requests for expedited processing pursuant to the FOIA statute and DOJ regulations. 2 Case 1:18-cv-02143-RDM Document 10-2 Filed 09/21/18 Page 3 of 6 9. True and correct copies of the DOJ FOIA Requests are attached to the Amended Complaint filed in this action as Exhibits D and E, respectively. 10. On August 16, 2018, Plaintiffs and other members of the Judiciary Committee each received a substantively identical letter from DOJ's Office of Legislative Affairs (OLA) noting that DOJ had received the DOJ FOIA Requests, but that OLA was "sending this letter to propose a more efficient alternative that we believe will satisfy your request[s]." A true and correct copy of a representative sample of OLA's letter is attached hereto as Exhibit 2. 11. OLA's August 16, 2018 letter noted that OLA "routinely responds on behalf of [DOJ] to information requests from individual or groups of Members of Congress" and offered "to work with [Plaintiffs] outside the FOIA process to respond to your legitimate requests as a Member of Congress[.]" Ex. 2 at 2. 12. On August 17, 2018, DOJ's Office of Information Policy (OIP) sent a letter to Plaintiffs and other members of the Judiciary Committee on behalf of OLC and CRM, acknowledging that the FOIA requests had been received on August 8, 2018, and assigning them FOIA numbers FY-18-178 and CRM 300678252, respectively. A true and correct copy of OIP's August 10, 2018 letter is attached hereto as Exhibit 3. 13. Though OIP's letter granted Plaintiffs' request for expedited processing of the requests, the letter also informed Plaintiffs that DOJ "need[ed] to extend the time limit to respond to your request beyond the ten additional days provided by the [FOIA] statute." Ex. 3 at 1. 14. I engaged in a series of telephone calls and emails with OIP and OLA on behalf of Plaintiffs and other members of the Senate Judiciary Committee from approximately August 23, 3 Case 1:18-cv-02143-RDM Document 10-2 Filed 09/21/18 Page 4 of 6 2018 to August 27, 2018, during which I accepted OLA's offer to respond to document requests prior to the upcoming hearing on Judge Kavanaugh's nomination. 15. I also conveyed that Plaintiffs and their colleagues were willing to work cooperatively with OIP and OLA to prioritize the records sought and in an effort to enable DOJ's components to process the DOJ FOIA Requests as efficiently as possible. 16. At all times during these communications, I asked OIP and OLA to ensure each was aware of suggestions from Plaintiffs and their colleagues concerning how to prioritize and focus the requests to streamline and accelerate production. 17. To that end, on August 27, 2018, on behalf of Plaintiffs and their colleagues, I emailed a list of priority custodians to DOJ to streamline and accelerate processing of the requests. A true and correct copy of the August 27, 2018 email is attached hereto as Exhibit 4. 18. I exchanged emails and phone calls with OIP between August 27, 2018 and September 4, 2018. 19. Plaintiffs have received no further communications from OIP, OLA, or any other components of DOJ concerning the records they requested from DOJ. 20. Plaintiffs have received no records from DOJ in response to the DOJ FOIA Requests. 21. Notwithstanding the August 16, 2018 letter committing to assist Plaintiffs and their colleagues, OLA provided no documents in response to the DOJ FOIA Requests, or otherwise responsive to the requests Plaintiffs' colleagues in the Senate majority refused to make, either before the hearings on Judge Kavanaugh's nomination or since. 4 Case 1:18-cv-02143-RDM Document 10-2 Filed 09/21/18 Page 5 of 6 22. Pursuant to 28 U.S.C. ? 1746, I declare under penalty of perjury that the foregoing is true and correct. Dated: September 21, 2018 ___________________________________ Sam Simon 5 Case 1:18-cv-02143-RDM Document 10-2 Filed 09/21/18 Page 6 of 6 CERTIFICATE OF SERVICE I hereby certify that on September 21, 2018, I electronically filed a copy of the foregoing Declaration of Sam Simon in Support of Plaintiffs' Motion as to Defendant U.S. Department of Justice for a Temporary Restraining Order or Preliminary Injunction, including exhibits thereto. Notice of this filing will be sent via email to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's CM/ECF System. I further certify that on September 21, 2018, I caused a copy of the foregoing Declaration of Sam Simon in Support of Plaintiffs' Motion as to Defendant U.S. Department of Justice for a Temporary Restraining Order or Preliminary Injunction, including exhibits thereto, to be handdelivered to Defendant U.S. Department of Justice at the following address: U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue NW Washington, DC 20530 Dated: September 21, 2018 Respectfully submitted, /s/ Austin R. Evers Austin R. Evers D.C. Bar No. 1006999 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 897-2465 austin.evers@americanoversight.org Counsel for Plaintiffs Case Document 10-3 Filed 09/21/18 Page 1 of 5 Exhibit 1 9/20/2018 Blumenthal & Senate Judiciary Committee DemocratsDocument File Freedom of 10-3 Information Act Request to Compel Release Case 1:18-cv-02143-RDM Filed 09/21/18 Pageof2Kavanaugh of 5 Documents | Press R... Blumenthal & Senate Judiciary Committee Democrats File Freedom of Information Act Request to Compel Release of Kavanaugh Documents Wednesday, August 8, 2018 [WASHINGTON, DC] - In the absence of action by Senate Judiciary Committee Republicans to seek the full scope of documents necessary to properly consider Supreme Court nominee Judge Brett Kavanaugh, U.S. Senator Richard Blumenthal (D-CT) and every Democratic member of the Senate Judiciary Committee filed several Freedom of Information Act (FOIA) requests today to compel the release of all records involving Brett Kavanaugh during his time as an associate in the White House Counsel's office and as White House Staff Secretary. The requests were submitted to the National Archives, the Department of Justice, the Department of Homeland Security, and the Central Intelligence Agency. In addition to Blumenthal, the FOIA requests were submitted by U.S. Senator Dianne Feinstein (D-CA), Ranking Member of the Senate Judiciary Committee, and U.S. Senators Patrick Leahy (D-VT), Dick Durbin (D-IL), Sheldon Whitehouse (D-RI), Amy Klobuchar (D-MN), Chris Coons (D-DE), Mazie K. Hirono (D-HI), Cory A. Booker (D-NJ), and Kamala Harris (D-CA). "This extraordinary step is a last resort-- unprecedented and unfortunate but necessary to fully and fairly review Judge Kavanaugh's nomination. I regret that Chairman Grassley has left us with no other choice. We need these documents to do our job. They reflect and reveal a critical period in Judge Kavanaugh's professional background that we have a constitutional duty to assess. Chairman Grassley's actions bar access to information that is our obligation and right to review," Blumenthal said. "Never before has the minority party been forced to use the Freedom of Information Act to access vital information about a Supreme Court nominee. But there is too much at stake to accept anything less than a complete picture of Judge Kavanaugh's background." "While I remain hopeful the Archivist will reverse course and provide the documents we've requested, I'm joining this additional request for documents under the Freedom of Information Act because it may be the only way to get the records we need to fully vet Brett Kavanaugh's nomination," said Feinstein. "It's unacceptable for the Senate to consider someone for the Supreme Court without reviewing that individual's full record. If the Trump administration and Bush lawyers have access to all Kavanaugh documents, the Senate and the American people should as well." "I have been here for 19 Supreme Court nominations. Yet I've never seen the Senate forced to rely on FOIA to fulfill its constitutional duty of providing advice and informed consent to a President's nominee. But Senate Republicans' shortsighted decision to turn a blind eye on three controversial and formative years of Judge Kavanaugh's career leaves us no choice. The American people deserve to know the unvarnished truth about a nominee who, if confirmed, will shape their lives for a generation or longer. Transparency shouldn't be a partisan issue," Leahy said. "But if Senate Republicans insist on keeping the American people in the dark about Judge Kavanaugh, it falls upon Democratic senators to use every tool at our disposal, including FOIA, to shine a light on his record." "The American people expect the Senate Judiciary Committee to carefully review Judge Kavanaugh's complete record before considering approving him for a lifetime appointment to the highest court in the nation," said Durbin. "The refusal by Senate Republicans to even follow their own rules on disclosure of critical documents reflecting Judge Kavanaugh's views, character, and temperament raises serious questions about concealment. The people of this nation deserve honesty and transparency in filling this historic vacancy on the Supreme Court, and that is what our request today is aiming to accomplish." "When Democratic senators have to resort to a government transparency statute to get the information needed to carry out our constitutional advice-and-consent duties, it means that Republican senators really don't want Americans to see what's in Kavanaugh's files," said Whitehouse. "As he proved with his brazen blockade of President Obama's nominee, Merrick Garland, Senator McConnell will trash the rulebook to get his guy on the court." "The next member of the Supreme Court will make decisions that will affect the lives of people across the country, potentially determining whether health insurers can deny coverage to people who are sick or have a pre-existing condition and whether women's rights are protected," said Klobuchar. "The American people deserve to have all the facts, and that means the Senate must be able to thoroughly review his record and have the full range of documents available to examine." "No Senator should vote on a Supreme Court nominee without reviewing his or her full record. This should not be a partisan issue," said Coons. "I'm disappointed that Republicans are standing in the way of basic transparency about a nominee for a lifetime position on our highest court. There is no good reason for it, and it undermines our institutions." "Chairman Grassley's shameful, partisan decision to keep us from examining Brett Kavanaugh's full record leaves us with no alternative but to make a Freedom of Information Act request for the release of the same types of materials that were released for past nominees. The U.S. Senate and the American people deserve to see what Judge Kavanaugh wrote and said about important policy matters, including torture, health care, reproductive rights, environmental regulation, workers' rights, and more while he served as George W. Bush's right hand man," said Hirono. "As members of the Senate's Judiciary Committee, we have a constitutional duty to provide the American public with a full understanding of Judge Kavanaugh's background, judicial philosophy, and fitness to serve on our nation's highest court," Booker said. "That means full and transparent access to all of his records from his time in the Bush White House, not simply the ones that have been cherry picked by Republican operatives. This has been standard operating procedure for all https://www.blumenthal.senate.gov/newsroom/press/release/blumenthal-and-senate-judiciary-committee-democrats-file-freedom-of-information-act-request-to-compe... 1/4 9/20/2018 Supreme Court nominations. Judge Kavanaugh has said himself how formative his time as White House staff secretary was Blumenthal & Senate Judiciary Committee DemocratsDocument File Freedom of 10-3 Information Act Request to Compel Release Case 1:18-cv-02143-RDM Filed 09/21/18 Pageof3Kavanaugh of 5 Documents | Press R... - it logically follows that records from that time should be part of the public record. Anything less is pure partisan obstruction." In a break with long-held norms, Chairman Grassley struck a deal to allow Republican lawyers to pre-screen Kavanaugh's White House documents. Chairman Grassley then sent a severely limited request to the National Archives for a small portion of Kavanaugh's documents and refused to request documents that would shed light on Kavanaugh's entire record as a White House operative. Not only did Republicans on the Judiciary Committee refuse to request a single document from Kavanaugh's tenure as White House Staff Secretary, they also narrowed the scope of the request for documents from his tenure in the White House Counsel's office. Finally, when Democrats sent their own request, Republicans worked to block access by encouraging the National Archives to ignore the inquiry. The text of the Senators' FOIA request to the National Archives is copied below. Similar requests were sent to the George W. Bush Presidential Library and Museum; the Department of Justice's Office of Legal Counsel, National Security Division, and Criminal Division; the Department of Homeland Security's Office of Intelligence and Analysis, National Protection and Programs Directorate, and Office of Civil Rights and Civil Liberties; and the Central Intelligence Agency. August 8, 2018 Mr. Gary M. Stern General Counsel and Chief FOIA Officer National Archives and Records Administration 8601 Adelphi Road Room 3110 College Park, Maryland 20740-6001 Dear Mr. Stern, Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. ? 552, and the National Archives and Records Administration's FOIA regulations, 36 C.F.R. ?? 1250 et seq., we hereby request that you produce the following records involving Brett Kavanaugh during his time as an associate in the White House Counsel's office from January 2001 to July 2003 and as White House Staff Secretary from July 2003 to May 2006. Requested Records We request that the National Archives and Records Administration produce the following records: 1. Records from Mr. Kavanaugh's service as a Senior Associate Counsel to the President, including all records preserved in his staff files, and those records created by Mr. Kavanaugh that can readily be found in the files of other White House staff members, the White House Counsel's Office files, other White House offices' files, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Office of Records Management; 2. Records from Mr. Kavanaugh's service as Assistant to the President and Staff Secretary, including all records preserved in his staff files, and those records created by Mr. Kavanaugh that can readily be found in the files of other White House staff members, the White House Counsel's Office files, other White House offices' files, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Office of Records Management; 3. Records relating to Mr. Kavanaugh's nomination to the United States Court of Appeals for the District of Columbia Circuit; 4. All electronic mail to, from, carbon copying (cc'ing), or blind carbon copying (bcc'ing) Mr. Kavanaugh in his White House tenure, including any documents attached to such emails; 5. To the extent they are not included in response to categories (1) through (4), all records containing documents written by, edited by, prepared in whole or part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. As you know, the Presidential Records Act requires that Presidential records of former Presidents be made available to Congress. 44 U.S.C. ? 2205(2)(C). Further, FOIA requires that agencies disclose records to Congress that it may otherwise legitimately withhold from the public. 5 U.S.C. ? 552(d). As the D.C. Circuit has explained, "all Members have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information," and therefore "it would be an inappropriate intrusion into the legislative sphere" for the court to decide that only Congress acting as a whole or only a committee or chairman "shall be regarded as the official voice of Congress." Murphy v. Department of Army, 613 F.2d 1151, 1157 (D.C. Cir. 1979). Indeed, the court in that case emphasized that each member of Congress "participates in the law-making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator." Id. In order to fulfill our constitutional duty to advise the President on the nomination of Mr. Kavanaugh as members of the United States Senate, we need access to the records requested herein. Therefore, we expect that any withholdings that your agency might apply to an ordinary request will be waived when disclosing records in response to our request, pursuant to both 5 U.S.C. ? 552(d) and 44 U.S.C. ? 2205(2)(C). If it is your position that any of the requested documents are exempted from disclosure requirements, we request that you provide a Vaughn index as required by Vaughn v. Rosen, 484 F. 2d 820 (D.C. Cir. 1973); see also Roth v. U.S. Dept. of Justice, 642 F. 3d 1161, 1185 (D.C. Cir. 2011) ("Under our case law, agencies invoking a FOIA exemption must provide a specific, detailed explanation of why the exemption applies to the withheld materials."). As you know, agencies are also required under FOIA to release "any reasonably segregable portions" of documents that may be partially exempt and to then prepare "an index relating any withheld portions to specific FOIA exemptions." Lykins v. U.S. Dept. of Justice, 725 F.2d 1455, 1466 (D.C. Cir. 1984). https://www.blumenthal.senate.gov/newsroom/press/release/blumenthal-and-senate-judiciary-committee-democrats-file-freedom-of-information-act-request-to-compe... 2/4 possible, please provide responsive inDocument electronic format by email at Request Sam_Simon@judiciary-dem.senate.gov 9/20/2018 WhereBlumenthal & Senate Judiciary Committeematerial Democrats File Freedom of 10-3 Information Act to Compel Release Case 1:18-cv-02143-RDM Filed 09/21/18 Pageof4Kavanaugh of 5 Documents | Press R... (mailto:Sam_Simon@judiciary-dem.senate.gov). Please send any responsive material being sent by mail to Richard Blumenthal, 706 Hart Senate Office Building, Washington, D.C. 20510. Request for Expedited Processing Given the recent announcement regarding Mr. Kavanaugh's nomination to the Supreme Court, we request expedited processing of this request pursuant to 5 U.S.C. ? 552(a)(6)(E)(ii)(I) and 36 C.F.R. ? 1250.28(a)(4). In support of this request, we certify that, to the best of our knowledge and belief, it is true and correct that the records requested are required to address exceptional media interest involving possible questions about the government's integrity that affect public confidence. As you know, the Senate is in the process of examining Mr. Kavanaugh's record as part of its constitutional duty to provide advice and consent on his nomination. The media has been covering the nomination process with vigor and concern over remarks made by the nominee of questionable veracity,[1] criticism that he is a "highly conservative, partisan lawyer,"[2] the fact that he was 'pre-vetted' by the Federalist Society, an extreme right-wing organization,[3] and the troubling trail of dark money spenders supporting his nomination.[4] Mr. Kavanaugh spent five years as a high-ranking official in the George W. Bush Administration and media outlets from around the country have expressed widespread and exceptional interest in the records pertaining to his time there, as the public is rightfully concerned about the professional background of a nominee for a lifetime appointment on the nation's highest court.[5] Various media outlets have also expressed particular concern about what role Mr. Kavanaugh played in the Bush Administration's policies surrounding torture and detention as well as his misleading responses to Sen. Durbin's and Sen. Leahy's questions on that very topic during his confirmation to the D.C. Circuit.[6] The consideration of a nominee to a lifetime appointment on the Supreme Court without the ability to fully assess his professional background, his honesty, and the extent of his involvement in the development of a torture policy directly implicates the public's confidence in government and the integrity of the White House, the Senate, and the Supreme Court. This widespread media interest highlights the threats to public confidence in government posed by a confirmation process conducted in the dark. This request is therefore entitled to expedited processing pursuant to 36 C.F.R. ? 1250.28(a)(4). We expect a decision regarding our request for expedited processing within 10 calendar days, as required by 36 C.F.R. ? 1250.28(d). Request for Fee Waiver Pursuant to 5 U.S.C. ? 552(a)(4)(A)(iii) and 36 C.F.R. ? 1250.56(a)(1)-(2), we request a waiver of all fees associated with processing this records request. Disclosure of the records we request is in the public interest because, for the reasons stated above, they are likely to contribute significantly to public understanding of government operations and activities surrounding both Mr. Kavanaugh's role in the Bush Administration and more broadly in the process of Mr. Kavanaugh's confirmation hearings. Disclosure of these records is in no way associated with any commercial interest of ours. Rather, we are requesting these documents to fulfill our constitutional duties as Senators, which require us to have a full and complete understanding of Mr. Kavanaugh's record, including his prior time in government. We are therefore entitled to a fee waiver. Conclusion We look forward to working with the National Archives and Records Administration to ensure the timely and exhaustive disclosure of all nonexempt records responsive to this request. If you have any questions about this request, please contact Sam Simon at Sam_Simon@judiciarydem.senate.gov (mailto:Sam_Simon@judiciary-dem.senate.gov). If our request for a fee waiver is denied in part or in full, please contact us immediately upon making such a determination. [1] Aaron Blake, Brett Kavanaugh's First Claim as a Supreme Court Nominee Was Bizarre, The Washington Post, July 10, 2018, https://www.washingtonpost.com/news/the-fix/wp/2018/07/10/brett-kavanaughs-first-claim-as-a-supreme-court-nominee-was-bizarre/? utm_term=.6c3e9e8d4b5c (https://www.washingtonpost.com/news/the-fix/wp/2018/07/10/brett-kavanaughs-first-claim-as-a-supremecourt-nominee-was-bizarre/?utm_term=.6c3e9e8d4b5c). [2] David G. Savage, Brett Kavanaugh, a Washington Veteran, is Trump's Second Pick for the Supreme Court, L.A. Times, July 9, 2018, http://www.latimes.com/politics/la-na-pol-brett-kavanaugh-supreme-court-20180709-story.html (http://www.latimes.com/politics/la-na-polbrett-kavanaugh-supreme-court-20180709-story.html). [3] Brian Dickerson, Why Trump Outsourced his Biggest Decision, Detroit Free Press, July 14, 2018, https://www.freep.com/story/opinion/columnists/brian-dickerson/2018/07/14/why-trump-outsourced-his-supreme-court-pick/782732002/ (https://www.freep.com/story/opinion/columnists/brian-dickerson/2018/07/14/why-trump-outsourced-his-supreme-courtpick/782732002/). [4] In Supreme Court Battle, Secret Money Threatens Justice, USA Today, July 23, 2018, https://www.usatoday.com/story/opinion/2018/07/23/supreme-court-battle-secret-money-threatens-justice-editorials-debates/799481002/ (https://www.usatoday.com/story/opinion/2018/07/23/supreme-court-battle-secret-money-threatens-justice-editorialsdebates/799481002/); see also, Lydia Wheeler, Kavanaugh Paper Chase Heats Up, The Hill, July 14, 2018, http://thehill.com/regulation/court-battles/396961-kavanaugh-paper-chase-heats-up (http://thehill.com/regulation/court-battles/396961kavanaugh-paper-chase-heats-up) (discussing the problems posed by Mr. Kavanaugh's "unusually lengthy paper trail"); Lisa Mascaro, The Problem of Kavanaugh's Lengthy Paper Trail, Associated Press, July 21, 2018, https://www.apnews.com/fed6b6f0ebdb448b9ee4237c6e6737f4 (https://www.apnews.com/fed6b6f0ebdb448b9ee4237c6e6737f4). [5] Tony Mauro, Activists Want to See SCOTUS Nominee Brett Kavanaugh's Documents--Now, The National Law Journal, July 16, 2018, https://www.freep.com/story/opinion/columnists/brian-dickerson/2018/07/14/why-trump-outsourced-his-supreme-court-pick/782732002/ (https://www.freep.com/story/opinion/columnists/brian-dickerson/2018/07/14/why-trump-outsourced-his-supreme-courthttps://www.blumenthal.senate.gov/newsroom/press/release/blumenthal-and-senate-judiciary-committee-democrats-file-freedom-of-information-act-request-to-compe... 3/4 pick/782732002/). Amy&Davidson Sorkin, What Brett Kavanaugh Must be Asked About Torture, Guantanamo, and Mass Surveillance, New 9/20/2018 [6] See, e.g., Blumenthal Senate Judiciary Committee DemocratsDocument File Freedom of 10-3 Information Act Request to Compel Release | Press R... Case 1:18-cv-02143-RDM Filed 09/21/18 Pageof5Kavanaugh of 5 DocumentsThe Yorker, July 24, 2018, https://www.newyorker.com/news/daily-comment/what-brett-kavanaugh-must-be-asked-about-torture-guantanamoand-mass-surveillance (https://www.newyorker.com/news/daily-comment/what-brett-kavanaugh-must-be-asked-about-torture-guantanamoand-mass-surveillance); Michael Kranish, Kavanaugh's Role in Bush-era Torture Debate Now an Issue in his Supreme Court nomination, Chicago Tribune, July 18, 2018, http://www.chicagotribune.com/news/nationworld/politics/ct-brett-kavanaugh-supreme-court-bush-torture20180718-story.html (http://www.chicagotribune.com/news/nationworld/politics/ct-brett-kavanaugh-supreme-court-bush-torture-20180718story.html); Alex Seitz-Wald, Kavanaugh Documents Could Answer Decade-Old Question of Whether He Misled Congress, NBC News, July 16, 2018, https://www.nbcnews.com/politics/supreme-court/kavanaugh-documents-could-answer-decade-old-question-whether-he-misledn891436 (https://www.nbcnews.com/politics/supreme-court/kavanaugh-documents-could-answer-decade-old-question-whether-he-misledn891436). https://www.blumenthal.senate.gov/newsroom/press/release/blumenthal-and-senate-judiciary-committee-democrats-file-freedom-of-information-act-request-to-compe... 4/4 Case Document 10-4 Filed 09/21/18 Page 1 of 3 Exhibit 2 Case Document 10-4 Filed 09/21/18 Page 2 of 3 US. Department of Justice Of?ce of Legislative Affairs O?ce ofrhe Assistant Attorney Genemf Washington. D. C. 20530 AUG 1 5 2018 The Honorable Richard Blumenthal Member Committee on the Judiciary United States Senate Washington, DC 20510 Dear Senator Blumenthal: This follows receipt by several components of the Department of Justice (Department) of record requests made by you pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552. The requests, dated August 8, 2018, concern United States Circuit Judge Brett Kavanaugh, who has been nominated to serve as Associate Justice of the Supreme Court of the United States. The Department is preparing its formal acknowledgement of your requests; however, we are sending this letter to propose a more ef?cient alternative that we believe will satisfy your request and the requests of the other Senators, all minority members of the Senate Judiciary Committee, who joined in your requests. The Department is sending identical letters to each of them. The breadth and unlimited scope of materials sought via the FOIA requests is extraordinary. Separate requests have been made by you to the Department?s National Security Division, Criminal Division, and Office of Legal Counsel. Among other records, you seek from each component ?[a]ll records, including but not limited to emails, memoranda, print or other correspondence, notices, attachments directives addressed to, from, carbon copying (cc?ing) or blind carbon copying (bcc?ing) Mr. Kavanaugh,? ?discussing or mentioning Mr. Kavanaugh,? or ?referencing Mr. Kavanaugh by name, initials, or The requests seek all such records for a combined period of ?ve years and five months running from January 200] to May 2006. No limiting factor is placed on the records requests such as subject matter, custodian, or other indication of possible relevance to the Senate Judiciary Committee?s consideration of the Supreme Court nomination. Responding to such unlimited requests could require collecting and searching vast numbers of documents from multiple custodians in multiple components for a period of over five years?a collection that would likely encompass a voluminous number of records. Case Document 10-4 Filed 09/21/18 Page 3 of 3 The Honorable Richard Blumenthal Page Two As you know, the Department?s Office of Legislative Affairs (OLA) routinely responds on behalf of the Department to information requests from individual or groups of Members of Congress. Like prior Administrations, we believe that responding to such inquiries is important to the Department?s cooperative and productive relationship with Congress. By working with individual or groups of Members, we regularly are able to focus and ful?ll information requests in a manner that is both mutually agreeable and ef?cient. As such, OLA seeks to work with you outside the FOIA process to respond to your legitimate requests as a Member of Congress for information in a manner consistent with the Department?s significant law enforcement, national security, litigation, and other responsibilities. By contrast, FOIA processing involves a series of statutory and regulatory procedures that can be time-consuming and complex, even when expedited processing is granted, and especially considering the breadth of your records requests and the number of FOIA requests from members of the public that the Department is currently processing. If you agree to proceed with OLA in lieu of pursuing your requests through FOIA, OLA is prepared to work with you and your colleagues directly to address this matter and discuss potential search terms, subject matters, custodians of records, alternatives for accessing records, or other information that may permit the Department to respond to your records requests in as timely a manner as possible. You or your staff should feel free to contact OLA Chief of Staff and Counselor Mary Blanche Hankey to discuss this matter further. hen E. Boyd Assistant Attorney General Case Document 10-5 Filed 09/21/18 Page 1 of 3 Exhibit 3 Case 1:18-cv-02143-RDM Document 10-5 Filed 09/21/18 Page 2 of 3 U.S. Department of Justice Office of Information Policy Suite 11050 1425 New York Avenue, NW Washington, DC 20530-0001 Telephone: (202) 514-3642 August 17, 2018 United States Senate Washington, D.C. 20510 Via email: Sam_Simon@judiciary.senate.gov Re: CRM 300678252 (Criminal Division) FY18-178 (Office of Legal Counsel) FOIA/PA #18-275(National Security Division) Dear Senators Blumenthal, Feinstein, Leahy, Durbin, Whitehouse, Klobuchar, Coons, Hirono, Booker, and Harris: This is to acknowledge your Freedom of Information Act (FOIA) requests dated August 8, 2018, and received the same day by the Department's Office of Legal Counsel, Criminal Division, and National Security Division, in which you requested a wide range of records concerning Judge Brett Kavanaugh from January 2001 to May 2006. This response is made on behalf of those three components. You have requested expedited processing of your requests. The Department has previously granted expedited processing in response to another request for records on Judge Kavanaugh, and therefore, we will afford such treatment for these requests as well. We have not yet made a decision on your request for a fee waiver. We will do so after we determine whether fees will be assessed for these requests. Although your requests have been granted expedited processing, the records you seek will involve the need to search for and examine voluminous records, the need to search in offices that are separate from the offices processing your requests, and the need to conduct consultations with other offices. See 28 C.F.R. ? 16.4(c)(1) (2018). Accordingly, your requests fall within "unusual circumstances." See 5 U.S.C. 552 ? (a)(6)(B)(i)-(iii) (2012 & Supp. V 2017). Because of these unusual circumstances, we need to extend the time limit to respond to your request beyond the ten additional days provided by the statute. In an effort to speed up our process, you may wish to narrow the scope of your requests to limit the number of potentially responsive records. If you have any questions or wish to discuss reformulation or an alternative time frame for the processing of your requests, you may contact me by telephone at the above number or via e-mail. The FOIA also requires me to inform you that you may contact our FOIA Public Liaison or the Office of Government Information Services at the National Archives and Records Administration. Case 1:18-cv-02143-RDM Document 10-5 Filed 09/21/18 Page 3 of 3 -2While your requests are in our expedited processing tracks, the time needed to process them will necessarily depend on the complexity of the records searches and on the volume and complexity of the records located. I will be happy to discuss these requests with you so that we can prioritize the records you are seeking and find the most efficient way forward. Sincerely, Melanie Ann Pustay Director Case Document 10-6 Filed 09/21/18 Page 1 of 2 Exhibit 4 Case 1:18-cv-02143-RDM Document 10-6 Filed 09/21/18 Page 2 of 2 From: Subject: Date: To: Cc: Simon, Sam (Judiciary-Dem) Sam_Simon@judiciary-dem.senate.gov FOIA Prioritization August 27, 2018 at 9:11 AM Talebian, Bobak (OIP) Bobak.Talebian@usdoj.gov, Pustay, Melanie A (OIP) Melanie.A.Pustay@usdoj.gov Hankey, Mary Blanche (OLA) Mary.Blanche.Hankey2@usdoj.gov Dear Director Pustay (and Mr. Bobak), Thank you for discussing our document requests last Friday. As discussed, I am enclosing a list of priority custodians to streamline and accelerate our requests for documents. We selected these individuals based on our research; however, if DOJ is or becomes aware that we omitted individuals who corresponded with Judge Kavanaugh in significant volume or substance, we expect you to inform us expeditiously. We request copies of any communications, or documents reflecting communications, between these individuals and Judge Kavanaugh. If we identify any other items or individuals to prioritize, we will send that information to you as soon as possible to expedite matters. Our goal is to receive documents as quickly as possible to enable the Senate to fulfill its constitutional responsibility to vet Judge Kavanaugh. Accordingly, should the volume or substance of the material we have prioritized prove to be an obstacle, we stand ready to work with you to facilitate a prompt resolution. As you replied to our FOIA requests on behalf of all DOJ components, I assume we do not need to separately convey this information to individual DOJ components, but please correct me if I am wrong. I am copying Mary Blanche Hankey on this message to ensure the DOJ OLA has the benefit of our proposed prioritization. Mary Blanche, if, in addition to debriefing with your FOIA colleagues and reviewing the attached document, it would be helpful to discuss our prioritization directly with you, please let me know and we will arrange a time to speak. Many thanks, Sam Sam Simon Chief Counsel Senator Richard Blumenthal, Ranking Member Subcommittee on Oversight, Agency Action, Federal Rights, and Federal Courts Senate Judiciary Committee Narrowing Specifi...J.docx Case 1:18-cv-02143 Document 1 Filed 09/17/18 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) U.S. NATIONAL ARCHIVES AND RECORDS ) ADMINISTRATION, ) 8601 Adelphi Rd. ) College Park, MD 20740 ) ) and ) ) U.S. CENTRAL INTELLIGENCE AGENCY ) Office of General Counsel ) 1000 Colonial Farm Rd. ) McLean, VA 22101 ) ) Defendants. ) ) RICHARD BLUMENTHAL, PATRICK LEAHY, SHELDON WHITEHOUSE, MAZIE K. HIRONO, CORY A. BOOKER, and KAMALA D. HARRIS, Members of the United States Senate Committee on the Judiciary, Case No. 18-cv-2143 COMPLAINT 1. Plaintiffs Richard Blumenthal, Patrick Leahy, Sheldon Whitehouse, Mazie K. Hirono, Cory A. Booker, and Kamala D. Harris bring this action against the U.S. National Archives and Records Administration and the U.S. Central Intelligence Agency 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. 1 Case 1:18-cv-02143 Document 1 Filed 09/17/18 Page 2 of 12 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 the U.S. National Archives and Records Administration failed to respond to Plaintiffs’ request for expedited processing, Plaintiffs are now entitled to judicial review of that claim under 5 U.S.C. § 552(a)(6)(E)(iii). 5. Because Defendants have failed to comply with other applicable time-limit provisions of the FOIA, Plaintiffs are deemed to have constructively exhausted their administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C)(i) and are now entitled to judicial action enjoining the agency from continuing to withhold agency records and ordering the production of agency records improperly withheld. PARTIES 6. Plaintiffs Richard Blumenthal, Patrick Leahy, Sheldon Whitehouse, Mazie K. Hirono, Cory A. Booker, and Kamala D. Harris are United States Senators and members of the Senate Committee on the Judiciary (“Judiciary Committee”). 7. Defendant U.S. National Archives and Records Administration (NARA) is an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1). NARA has possession, custody, and control of the records that Plaintiffs seek. 8. Defendant U.S. Central Intelligence Agency (CIA) is an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1). CIA has possession, custody, and control of the records that Plaintiffs seek. 2 Case 1:18-cv-02143 Document 1 Filed 09/17/18 Page 3 of 12 STATEMENT OF FACTS NARA FOIA Request 9. On August 8, 2018, Plaintiffs and other members of the Judiciary Committee submitted a FOIA request to NARA, seeking records related to activities of Judge Brett Kavanaugh, who has been nominated to the U.S. Supreme Court, during the time that Judge Kavanaugh served in the administration of President George W. Bush (the “NARA FOIA Request”). 10. Specifically, the NARA FOIA Request sought: 1) Records from Mr. Kavanaugh’s service as a Senior Associate Counsel to the President, including all records preserved in his staff files, and those records created by Mr. Kavanaugh that can readily be found in the files of other White House staff members, the White House Counsel’s Office files, other White House offices’ files, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Office of Records Management; 2) Records from Mr. Kavanaugh’s service as Assistant to the President and Staff Secretary, including all records preserved in his staff files, and those records created by Mr. Kavanaugh that can readily be found in the files of other White House staff members, the White House Counsel’s Office files, other White House offices’ files, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Office of Records Management; 3) Records relating to Mr. Kavanaugh’s nomination to the United States Court of Appeals for the District of Columbia Circuit; 4) All electronic mail to, from, carbon copying (cc’ing), or blind carbon copying (bcc’ing) Mr. Kavanaugh in his White House tenure, including any documents attached to such emails; 5) To the extent they are not included in response to categories (1) through (4), all records containing documents written by, edited by, prepared in whole or in part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. A copy of the NARA FOIA Request is attached hereto as Exhibit A and incorporated herein. 3 Case 1:18-cv-02143 Document 1 Filed 09/17/18 Page 4 of 12 11. The NARA FOIA Request pointed out that “FOIA requires that agencies disclose records to Congress that it may otherwise legitimately withhold from the public,” and that each member of Congress “is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator.” Ex. A at 2. 12. The NARA FOIA also noted that “the Presidential Records Act requires that Presidential records of former Presidents be made available to Congress.” Id. 13. The NARA FOIA Request further stated that the signatories to the request required the requested records “[i]n order to fulfill [their] constitutional duty to advise the President on the nomination of Mr. Kavanaugh . . . .” Id. at 2. 14. Plaintiffs requested expedited processing of the NARA FOIA Request pursuant to the FOIA statute and NARA regulations. See id. at 2–4. 15. The NARA FOIA Request relates to a matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence. See id. 16. On August 8, 2018, NARA acknowledged receipt of the NARA FOIA Request by 17. As of the date of this complaint, Plaintiffs have received no further email. communications from NARA regarding the NARA FOIA Request, including Plaintiffs’ request for expedited processing. Bush Library FOIA Request 18. On August 8, 2018, Plaintiffs and other members of the Judiciary Committee submitted a FOIA request to NARA’s component, the George W. Bush Presidential Library and Museum (the “Bush Library”), seeking records related to activities of Judge Brett Kavanaugh, 4 Case 1:18-cv-02143 Document 1 Filed 09/17/18 Page 5 of 12 who has been nominated to the U.S. Supreme Court, during the time that Judge Kavanaugh served in the administration of President George W. Bush (the “Bush Library FOIA Request”). 19. Specifically, the Bush Library FOIA Request sought: 1) Records from Mr. Kavanaugh’s service as a Senior Associate Counsel to the President, including all records preserved in his staff files, and those records created by Mr. Kavanaugh that can readily be found in the files of other White House staff members, the White House Counsel’s Office files, other White House offices’ files, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Office of Records Management; 2) Records from Mr. Kavanaugh’s service as Assistant to the President and Staff Secretary, including all records preserved in his staff files, and those records created by Mr. Kavanaugh that can readily be found in the files of other White House staff members, the White House Counsel’s Office files, other White House offices’ files, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Office of Records Management; 3) Records relating to Mr. Kavanaugh’s nomination to the United States Court of Appeals for the District of Columbia Circuit; 4) All electronic mail to, from, carbon copying (cc’ing), or blind carbon copying (bcc’ing) Mr. Kavanaugh in his White House tenure, including any documents attached to such emails; 5) To the extent they are not included in response to categories (1) through (4), all records containing documents written by, edited by, prepared in whole or in part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. A copy of the Bush Library FOIA Request is attached hereto as Exhibit B and incorporated herein. 20. The Bush Library FOIA Request pointed out that “FOIA requires that agencies disclose records to Congress that it may otherwise legitimately withhold from the public,” and that each member of Congress “is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator.” Ex. B at 2. 5 Case 1:18-cv-02143 Document 1 Filed 09/17/18 Page 6 of 12 21. The Bush Library FOIA also noted that “the Presidential Records Act requires that Presidential records of former Presidents be made available to Congress.” Id. 22. The Bush Library FOIA Request further stated that the signatories to the request required the requested records “[i]n order to fulfill [their] constitutional duty to advise the President on the nomination of Mr. Kavanaugh . . . .” Id. 23. Plaintiffs requested expedited processing of the Bush Library FOIA Request pursuant to the FOIA statute and NARA regulations. See id. at 2–4. 24. The Bush Library FOIA Request relates to a matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence. See id. 25. On August 9, 2018, the Bush Library acknowledged receipt of the Bush Library FOIA Request by email and an attached letter, and granted Plaintiffs’ request for expedited processing. 26. The Bush Library’s August 9, 2018 email noted that certain records potentially responsive to the request were available on its website, but the email and attached letter provided no further specific detail concerning when Plaintiffs’ request would be fulfilled. 27. Following subsequent communications between Plaintiffs’ representative and the Bush Library on August 10, 2018 concerning Plaintiffs’ request for a waiver of fees associated with the Bush Library FOIA Request, the Bush Library sent a revised acknowledgement letter, updating the portions regarding fees, but otherwise identical to the August 9, 2018 letter. 28. On September 12, 2018, the Bush Library sent an interim response, purporting to provide records in response to the component of the Bush Library FOIA Request related to Mr. 6 Case 1:18-cv-02143 Document 1 Filed 09/17/18 Page 7 of 12 Kavanaugh’s nomination to the United States Court of Appeals for the District of Columbia Circuit. 29. Plaintiffs have received no response concerning the remaining categories of records sought in the Bush Library FOIA Request. 30. As of the date of this complaint, Plaintiffs have not received further communications from the Bush Library regarding the Bush Library FOIA Request. CIA FOIA Request 31. On August 8, 2018, Plaintiffs and other members of the Judiciary Committee submitted a FOIA request to CIA, seeking records related to activities of Judge Brett Kavanaugh, who has been nominated to the U.S. Supreme Court, during the time that Judge Kavanaugh served in the administration of President George W. Bush (the “CIA FOIA Request”). 32. Specifically, the CIA FOIA Request sought: 1) All records, including but not limited to emails, memoranda, print or other correspondence, notices, attachments, and directives addressed to, from, carbon copying (cc’ing), or blind carbon copying (bcc’ing) Mr. Kavanaugh. 2) All records, including but not limited to emails, memoranda, correspondence, notices and directives, discussing or mentioning Mr. Kavanaugh. 3) Records relating to Mr. Kavanaugh’s nomination to the United States Court of Appeals for the District of Columbia Circuit. 4) To the extent they are not included in response to categories (1) through (3), all records containing documents written by, edited by, prepared in whole or in part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. A copy of the CIA FOIA Request is attached hereto as Exhibit C and incorporated herein. 33. The CIA FOIA Request pointed out that “FOIA requires that agencies disclose records to Congress that it may otherwise legitimately withhold from the public,” and that each 7 Case 1:18-cv-02143 Document 1 Filed 09/17/18 Page 8 of 12 member of Congress “is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator.” Ex. C at 2. 34. The CIA FOIA Request further stated that the signatories to the request required the requested records “[i]n order to fulfill [their] constitutional duty to advise the President on the nomination of Mr. Kavanaugh . . . .” Id. at 2. 35. On September 1, 2018, Plaintiffs received a letter from CIA dated August 17, 2018, acknowledging receipt of the CIA FOIA Request and assigning the request tracking number F-2018-02283. 36. As of the date of this complaint, Plaintiffs have not received further communications from CIA regarding the CIA FOIA Request. COUNT I Violation of FOIA, 5 U.S.C. § 552 Failure to Grant Expedited Processing (as to NARA) 37. Plaintiffs repeat the allegations in the foregoing paragraphs and incorporate them as though fully set forth herein. 38. Plaintiffs properly requested records within the possession, custody, and control of NARA on an expedited basis. 39. NARA is an agency subject to FOIA, and it must process FOIA requests on an expedited basis pursuant to the requirements of FOIA and its regulations. 40. The records sought relate to a subject of heightened media interest implicating questions concerning the government’s integrity. Therefore, Plaintiffs’ FOIA request justified expedited processing under FOIA and NARA’s regulations. 8 Case 1:18-cv-02143 Document 1 Filed 09/17/18 Page 9 of 12 41. NARA failed to ensure that a determination of whether to provide expedited processing was made and notice of that determination was provided to Plaintiffs within ten days after the date of the FOIA requests. 42. NARA’s failure to grant expedited processing of the FOIA requests violated FOIA and NARA regulations. 43. Plaintiffs are therefore entitled to declaratory and injunctive relief requiring NARA to grant expedited processing of the NARA FOIA Request. COUNT II Violation of FOIA, 5 U.S.C. § 552 Failure to Conduct Adequate Search for Responsive Records (As to All Defendants) 44. Plaintiffs repeat the allegations in the foregoing paragraphs and incorporate them as though fully set forth herein. 45. Plaintiffs properly requested records within the possession, custody, and control of NARA and CIA. 46. NARA and CIA are agencies subject to FOIA and must therefore make reasonable efforts to search for requested records. 47. NARA has failed to promptly review agency records for the purpose of locating those records that are responsive to the NARA FOIA Request and to outstanding portions of the Bush Library FOIA Request. 48. CIA has failed to promptly review agency records for the purpose of locating those records that are responsive to the CIA FOIA Request 49. NARA’s and CIA’s failure to conduct adequate searches for responsive records violates FOIA. 9 Case 1:18-cv-02143 Document 1 Filed 09/17/18 Page 10 of 12 50. Plaintiffs are therefore entitled to injunctive and declaratory relief requiring Defendants to promptly make reasonable efforts to search for records responsive to Plaintiffs’ FOIA requests. COUNT III Violation of FOIA, 5 U.S.C. § 552 Wrongful Withholding of Non-Exempt Responsive Records (As to All Defendants) 51. Plaintiffs repeat the allegations in the foregoing paragraphs and incorporate them as though fully set forth herein. 52. Plaintiffs properly requested records within the possession, custody, and control of NARA and CIA. 53. NARA and CIA are agencies subject to FOIA and must therefore release in response to a FOIA requests any non-exempt records and provide a lawful reason for withholding any materials. 54. NARA is wrongfully withholding non-exempt agency records requested by Plaintiffs by failing to produce non-exempt records responsive to the NARA FOIA Request and to outstanding portions of the Bush Library FOIA Request. 55. NARA is wrongfully withholding non-exempt agency records requested by Plaintiffs by failing to segregate exempt information in otherwise non-exempt records responsive to the NARA FOIA Request and to outstanding portions of the Bush Library FOIA Request. 56. CIA is wrongfully withholding non-exempt agency records requested by Plaintiffs by failing to produce non-exempt records responsive to the CIA FOIA Request. 57. CIA is wrongfully withholding non-exempt agency records requested by Plaintiffs by failing to segregate exempt information in otherwise non-exempt records responsive to the CIA FOIA Request. 10 Case 1:18-cv-02143 Document 1 Filed 09/17/18 Page 11 of 12 58. NARA’s and CIA’s failure to provide all non-exempt responsive records violates 59. Plaintiffs are therefore entitled to declaratory and injunctive relief requiring FOIA. Defendants to promptly produce all non-exempt records responsive to its FOIA requests and provide indexes justifying the withholding of any responsive records withheld under claim of exemption. REQUESTED RELIEF WHEREFORE, Plaintiffs respectfully request the Court to: (1) Order NARA to expedite the processing of the NARA FOIA Request identified in this Complaint; (2) Order Defendants to conduct a search or searches reasonably calculated to uncover all records responsive to the FOIA requests identified in this Complaint; (3) Order Defendants to produce, within twenty days of the Court’s order, or by such other date as the Court deems appropriate, any and all non-exempt records responsive to the FOIA requests identified in this Complaint and indexes justifying the withholding of any responsive records withheld under claim of exemption; (4) Enjoin Defendants from continuing to withhold any and all non-exempt records responsive to the FOIA requests identified in this Complaint; (5) Award Plaintiffs 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 Plaintiffs such other relief as the Court deems just and proper. 11 Case 1:18-cv-02143 Document 1 Filed 09/17/18 Page 12 of 12 Dated: September 17, 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 /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) 897-2465 beth.france@americanoversight.org john.bies@americanoversight.org katherine.anthony@americanoversight.org *Member of the MA bar only; practicing in the District of Columbia under the supervision of members of the D.C. Bar while application for D.C. Bar membership is pending. 12 Case 1:18-cv-02143 Document 1-6 Filed 09/17/18 Page 1 of 6 Exhibit A Case 1: 18- cv-02143 Document 1- 6 Filed 09/17/18 Page 2 of 6 13mm] germs $rnarr WASHINGTON, DC 20510 August 8, 2018 Mr. Gary M. Stern General Counsel and Chief FOIA Of?cer National Archives and Records Administration 8601 Adelphi Road Room 31 10 College Park, Maryland 20740?6001 Dear Mr. Stern, Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the National Archives and Records Administration?s FOIA regulations, 3.6 C.F.R. 1250 et seq., we hereby request that you produce the following records involving Brett Kavanaugh during his time as an associate in the White House Counsel?s of?ce from January 2001 to July 2003 and as White House Staff Secretary from July 2003 to May 2006. Requested Records We request that the National Archives and Records Administration produce the following records: 1. Records from Mr. Kavanaugh?s service as a Senior Associate Counsel to the President, including all records preserved in his staff ?les, and those records created by Mr. Kavanaugh that can readily be found in the ?les of other White House staff members, the White House Counsel?s Of?ce ?les, other White House of?ces? ?les, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Of?ce of Records Management; 2. Records from Mr. Kavanaugh?s service as Assistant to the President and Staff Secretary, including all records preserved in his staff ?les, and those records created by Mr. Kavanaugh that can readily be found in the ?les of other White House staff members, the White House Counsel?s Of?ce ?les, other White House of?ces? ?les, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Of?ce of Records Management; 3. Records relating to Mr. Kavanaugh?s nomination to the United States Court of Appeals for the District of Columbia Circuit; 4. All electronic mail to, from, carbon copying (cc?ing), or blind carbon copying (bcc?ing) Mr. Kavanaugh in his White House tenure, including any documents attached to such emails; Case 1:18-cv-02143 Document 1-6 Filed 09/17/18 Page 3 of 6 5. To the extent they are not included in response to categories (1) through (4), all records containing documents written by, edited by, prepared in whole or part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. As you know, the Presidential Records Act requires that Presidential records of former Presidents be made available to Congress. 44 U.S.C. Further, 1301A requires that agencies disclose records to Congress that it may otherwise legitimately withhold from the public. 5 U.S.C. 552(d). As the DC. Circuit has explained, ?all Members have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information,? and therefore ?it would be an inappropriate intrusion into the legislative sphere? for the court to decide that only Congress acting as a whole or only a committee or chairman ?shall be regarded as the of?cial voice of Congress.? Murphy v. Department QfArmy, 613 F.2d 1151, 1157 (DC. Cir. 1979). Indeed, the court in that case emphasized that each member of Congress ?participates in the law?making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator.? Id. In order to ful?ll our constitutional duty to advise the President on the nomination of Mr. Kavanaugh as members of the United States Senate, we need access to the records requested herein. Therefore, we expect that any withholdings that your agency might apply to an ordinary request will be waived when disclosing records in response to our request, pursuant to both 5 U.S.C. 552(d) and 44 U.S.C. If it is your position that any of the requested documents are exempted from disclosure requirements, we request that you provide a Vaughn index as required by Vaughn v. Rosen, 484 F. 2d 820 (DC. Cir. 1973); see also Roth v. US. Dept. ofJusfice, 642 F. 3d 1161, 1185 (DC. Cir. 2011) (?Under our case law, agencies invoking a FOIA exemption must provide a specific, detailed explanation of why the exemption applies to the withheld materials?). As you know, agencies are also required under 01A to release ?any reasonably segregable portions? of documents that may be partially exempt and to then prepare ?an index relating any withheld portions to speci?c FOIA exemptions.? Lykim' v. US. Dept. of Justice, 725 F.2d 1455, 1466 (DC. Cir. 1984). . - Where possible, please provide responsive material in electronic format by email at gov. Please send any responsive material being sent by mail to Richard Blumenthal, 706 Hart Senate Office Building, Washington, DC. 20510. Request for-Expedited Processing Given the recent announcement regarding Mr. Kavanaugh?s nomination to the Supreme Court, we request expedited processing of this request pursuant to 5 U.S.C. and 36 C.F.R. In support of this request, we certify that, to the best of our knowledge and belief, it is true and correct that the records requested are required to address Case 1:18-cv-02143 Document 1-6 Filed 09/17/18 Page 4 of 6 exceptional media interest involving possible questions about the government?s integrity that affect public con?dence. As you know, the Senate is in the process of examining Mr. Kavanaugh?s record as part of its constitutional duty to provide advice and consent on his nomination. The media has been covering the nomination process with vigor and concern over remarks made by the nominee of questionable veracity,l criticism that he is a ?highly conservative, partisan lawyer,?2 the fact that he was ?pre-vetted? by the Federalist Society, an extreme right-wing organization} and the troubling trail of dark money spenders supporting his nomination.4 Mr. Kavanaugh spent ?ve years as a high?ranking of?cial in the George W. Bush Administration and media outlets from around the country have expressed widespread and exceptional interest in the records pertaining to his time there, as the public is rightfully concerned about the professional background of a nominee for a lifetime appointment on the nation?s highest court.5 Various media outlets have also expressed particular concern about what role Mr. Kavanaugh played in the Bush Administration?s policies surrounding torture and detention as well as his misleading responses to Sen. Durbin?s and Sen. Leahy?s questions on that very topic during his con?rmation to the DC. Circuit." The consideration of a nominee to a lifetime appointment on the Supreme Court without the ability to fully assess his professional background, his honesty, and the extent of his involvement in the development of a torture policy directly implicates the public?s con?dence in government and the integrity of the White House, the Senate, and the Supreme Court. This widespread media interest highlights the threats to public con?dence in government posed by a Aaron Blake, Brett Kavanaugh ?s First Claim as a Supreme Court Nominee Was Bizarre, THE WASHINGTON POST, July 10, 2018, 1 8/07/ 1 2 David G. Savage, Brett Kaiianaugh, a Washington Veteran, is Trump 's Second Pick for the Supreme Court, LA. TIMES, July 9, 20 8, 80709- story.html. 3 Brian Dickerson, Why Trump Outsourced his Biggest Decision, DETROIT FREE PRESS, July 14, 2018, 14/ cortIt-pick/782732002l. 4 In Supreme Court Battle, Secret Money Threatens Justice, USA TODAY, July 23, 2018, debates/799481002l; see also, Lydia Wheeler, Karianaugh Paper Chase Heats Up, T1113 HILL, July 14, 2018, -kavanaugh-paper-chase-heatsin (discussing the problems posed by Mr. Kavanaugh?s ?unusually paper trail?); Lisa Mascaro, The Problem of Kavanaugh ?s Paper Trail, PRESS, July 21, 2018, 7c6e673 7f4. 5 Tony Mauro, Activists Want to See SCOTUS Nominee Brett Kavanaugh ?s Documents?Now, THE NATIONAL LAW JOURNAL, July 16, 2018, 5 See, Amy Davidson Sorkin, What Brett Kavanaugh Must be Asked About Torture, Guantanamo, and ll/[ass Surveillance, The New Yorker, July 24, 2018, Michael Kranish, Kavanangh ?s Role in Bush-era Torture Debate Not-r an issue in his Supreme Court nomination, Chicago Tribune, July 18, 2018, Alex Seitz-Wald, Kavanangh Documents Could Ansr-rer Decade?Old Question of Whether He Misleci Congress, NBC News, July 16, 2018, Case 1:18-cv-02143 Document 1-6 Filed 09/17/18 Page 5 of 6 con?rmation process conducted in the dark. This request is therefore entitled to expedited processing pursuant to 36 C.F.R. We expect a decision regarding our request for expedited processing within 10 calendar days, as required by 36 C.F.R. Request for Fee Waiver Pursuant to 5 U.S.C. and 36 C.F.R. we request a waiver of all fees associated with processing this records request. Disclosure of the records we request is in the public interest because, for the reasons stated above, they are likely to contribute signi?cantly to public understanding of government operations and activities surrounding both Mr. Kavanaugh?s role in the Bush Administration and more broadly in the process of Mr. Kavanaugh?s con?rmation hearings. Disclosure of these records is in no way associated with any commercial interest of ours. Rather, we are requesting these documents to ful?ll our constitutional duties as Senators, which require us to have a full and complete understanding of Mr. Kavanaugh?s record, including his prior time in government. We are therefore entitled to a fee waiver. Conclusion We look forward to working with the National Archives and Records Administration to ensure the timely and exhaustive disclosure of all non-exempt records responsive to this request. If you have any questions about this request, please contact Sam Simon at If our request for a fee waiver is denied in part or in full, please contact us immediately upon making such a determination. Sincerely, 75:: if?. 9 RICHARD BLUMENTHAL UDIANNE FEINSTEIN United States Senate United States Senate 4:2 .. PA RICK LEAHY WRD J. United States Senate United States Senate Case 1:18-cv-02143 Document 1-6 Filed 09/17/18 Page 6 of6 AW MDON WHITEHOUSE AMY KLQBEHAR United States Senate United States Senate - CHRISTOPHER A. COONS MAZIE K. HIRONO United States Senate United States Senate I CORY A. BOOKER UAMALA D. HARRIS United States Senate United States Senate Case 1:18-cv-02143 Document 1-7 Filed 09/17/18 Page 1 of 6 Exhibit Case 1:18-cv-02143 Document 1-7 Filed 09/17/18 Page 2 of 6 ??nitrd ?rms anew WASHINGTON, DC 20510 August 8, 2018 FOIA Coordinator George W. Bush Presidential Library and Museum 2943 SMU Boulevard Dallas, Texas 75205 Dear FOIA Coordinator, Pursuant to the Freedom of Information Act (F OIA), 5 U.S.C. 552, and the National Archives and Records Administration?s OIA regulations, 36 C.F.R. 1250 et seq., we hereby request that you produce the following records involving Brett Kavanaugh during his time as an associate in the White House Counsel?s of?ce from January 2001 to July 2003 and as White House Staff Secretary from July 2003 to May 2006. Requested Records We request that the George W. Bush Presidential Library and Museum produce the following records: 1. Records from Mr. Kavanaugh?s service as a Senior Associate Counsel to the President, including all records preserved in his staff ?les, and those records created by Mr. Kavanaugh that can readily be found in the ?les of other White House staff members, the White House Counsel?s Of?ce ?les, other White House of?ces? ?les, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Of?ce of Records Management; 2. Records from Mr. Kavanaugh?s service as Assistant to the President and Staff Secretary, including all records preserved in his staff files, and those records created. by Mr. Kavanaugh that can readily be found in the ?les of other White House staff members, the White House Counsel?s Of?ce ?les, other White House of?ces? ?les, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Of?ce of Records Management; 3. Records relating to Mr. Kavanaugh?s nomination to the United States Court of Appeals for the District of Columbia Circuit; 4. All electronic mail to, from, carbon copying (cc?ing), or blind carbon copying (bcc?ing) Mr. Kavanaugh in his White House tenure, including any documents attached to such emails; 5. To the extent they are not included in response to categories (1) through (4), all records containing documents written by, edited by, prepared in whole or part by, under the Case 1:18-cv-02143 Document 1-7 Filed 09/17/18 Page 3 of 6 supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. As you know, the Presidential Records Act requires that Presidential records of former Presidents be made available to Congress. 44 U.S.C. Further, FOIA requires that agencies disclose records to Congress that it may otherwise legitimately withhold from the public. 5 U.S.C. 552(d). As the D.C. Circuit has explained, ?all Members have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information,? and therefore ?it would be an inappropriate intrusion into the legislative sphere? for the court to decide that only Congress acting as a whole or only a committee or chairman ?shall be regarded as the of?cial voice of Congress.? Murphy v. Department of Army, 613 F.2d 1151, 1157 (D.C. Cir. 1979). Indeed, the court in that case emphasized that each member of Congress ?participates in the law?making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator.? Id. In order to ful?ll our constitutional duty to advise the President on the nomination of Mr. Kavanaugh as members of the United States Senate, we need access to the records requested herein. Therefore, we expect that any withholdings that your agency might apply to an ordinary request will be waived when disclosing records in response to our request, pursuant to both 5 U.S.C. 552(d) and 44 U.S.C. If it is your position that any of the requested documents are exempted from disclosure requirements, we request that you provide a Vaughn index as required by Vaughn v. Rosen, 484 F. 2d 820 (D.C. Cir. 1973); see also Roth v. US. Dept. ofJumce, 642 F. 3d 1161, 1185 (D.C. Cir. 201 1) (?Under our case law, agencies invoking a FOIA exemption must provide a speci?c, detailed explanation of why the exemption applies to the withheld materials?). As you know, agencies are also required under FOIA to release ?any reasonably segregable portions? of documents that may be partially exempt and to then prepare ?an index relating any withheld portions to specific 01A exemptions.? Lykins v. US. Dept. ofJusrice, 725 F.2d 1455, 1466 (D.C. Cir. 1984). Where possible, please provide responsive material in electronic format by email at gov. Please send any responsive material being sent by mail to Richard Blumenthal, 706 Hart Senate Office Building, Washington, D.C. 20510. Request for Expedited Processing Given the recent announcement regarding Mr. Kavanaugh?s nomination to the Supreme Court, we request expedited processing of this request pursuant to 5 U.S.C. and 36 CPR. In support of this request, we certify that, to the best of our knowledge and belief, it is true and correct that the records requested are required to address exceptional media interest involving possible questions about the government?s integrity that affect public confidence. Case 1:18-cv-02143 Document 1-7 Filed 09/17/18 Page 4 of 6 As you know, the Senate is in the process of examining Mr. Kavanaugh?s record as part of its constitutional duty to provide advice and consent on his nomination. The media has been covering the nomination process with vigor and concern over remarks made by the nominee of questionable veracity,l criticism that he is a ?highly conservative, partisan lawyer,?2 the fact that he was ?pre?vetted? by the Federalist Society, an extreme right?wing organization,3 and the troubling trail of dark money spenders supporting his nomination.4 Mr. Kavanaugh spent ?ve years as a high-ranking of?cial in the George W. Bush Administration and media outlets from around the country have expressed widespread and exceptional interest in the records pertaining to his time there, as the public is rightfully concerned about the professional background of a nominee for a lifetime appointment on the nation?s highest court.5 Various media outlets have also expressed particular concern about what role Mr. Kavanaugh played in the Bush Administration?s policies surrounding torture and detention as well as his misleading responses to Sen. Durbin?s and Sen. Leahy?s questions on that very topic during his con?rmation to the DC. Circuit.6 The consideration of a nominee to a lifetime appointment on the Supreme Court without the ability to fully assess his professional background, his honesty, and the extent of his involvement in the development of a torture policy directly implicates the public?s con?dence in government and the integrity of the White House, the Senate, and the Supreme Court. This widespread media interest highlights the threats to public con?dence in government posed by a con?rmation process conducted in the dark. This request is therefore entitled to expedited processing pursuant to 36 C.F.R. Aaron Blake, Brett Kavanaugh ?s First Claim as a Supreme Court Nominee Was Bizarre, THE WASHINGTON POST, July 10, 2018, term=.6c3e9e8d4bSc. 2 David G. Savage, Brett Kavanaugh, a Washington Veteran, is Trump ?3 Second Pickfor the Supreme Court, L.A. July 9, 20 8, 80709- 3 Brian Dickerson, Why Trump Outsourced his Biggest Decision, DETROIT FREE PRESS, July 14, 2018, 1 8/07/ I court-pickl782732002l. 4 In Supreme Court Battle, Secret Money Threatens Justice, USA TODAY, July 23, 2018, h_ttps usatodav.coIn/storv/opinion/20 ustice-editorials- debates/799481002l; see also, Lydia Wheeler, Kavanaugh Paper Chase Heats Up, THE HILL, July 14, 2018, (discussing the problems posed by Mr. Kavanaugh?s ?unusually paper trail?); Lisa Mascaro, The Problem of'Kavanaugh ?s Paper Trail, PRESS, July 21, 2018, 5 Tony Mauro, Activists Want to See SCOTUS Nominee Brett Kavanaugh ?s Documents?Now, THE NATIONAL LAW JOURNAL, July 16, 20 18, I 8/07/ See. e. 3., Amy Davidson Sorkin, What Brett Kavanaugh Must be Asked About Torture, Guantanamo, and Mass Surveillance, The New Yorker, uly 24, 2018, Michael Kranish, Kavanaugh ?s Role in Bush-era Torture Debate Now an Issue in his Supreme Court nomination, Chicago Tribune, July 18, 2018, ica gotribune 20180718-story.html; Alex Seitz-Wald, Kavanaugh Documents Could Answer Decade?Old Question of Whether He Mislerl Congress, NBC News, July I6, 2018, ether-he-misled?n89 1436. Case 1:18-cv-02143 Document 1-7 Filed 09/17/18 Page 5 of 6 We expect a decision regarding our request for expedited processing within 10 calendar days, as required by 36 CPR. Request for Fee Waiver Pursuant to 5 U.S.C. and 36 C.F.R. we request a waiver of all fees associated with processing this records request. Disclosure of the records we request is in the public interest because, for the reasons stated above, they are likely to contribute signi?cantly to public understanding of government operations and activities surrounding both Mr. Kavanaugh?s role in the Bush Administration and more broadly in the process of Mr. Kavanaugh?s con?rmation hearings. Disclosure of these records is in no way associated with any commercial interest of ours. Rather, we are requesting these documents to fulfill our constitutional duties as Senators, which require us to have a full and complete understanding of Mr. Kavanaugh?s record, including his prior time in government. We are therefore entitled to a fee waiver. Conclusion We look forward to working with the George W. Bush Presidential Library and Museum to ensure the timely and exhaustive disclosure of all non?exempt records responsive to this request. If you have any questions about this request, please contact Sam Simon at If our request for a fee waiver is denied in part or in full, please contact us immediately upon making such a determination. Sincerely, i4?. I M5 RICHARD BLUMENTHAL JIANNE EINSTEIN United States Senate United States Senate 7% 2% :9?wa PATRICK LEAHY RJCTIKRD United States Senate United States SenateIN Case 1:18-cv-02143 Document 1-7 Filed 09/17/18 Page 6 of 6 0N ITEHOUSE AMY KLQELJDHAR United States Senate United States Senate 5 I. 0 #55? CHRISTOPHER A. COONS MAZIE . HIRONO United States Senate United States Senate I CORY A. BOOKER D. HARRIS United States Senate United States Senate Case 1:18-cv-02143 Document 1-8 Filed 09/17/18 Page 1 of 5 Exhibit Case 1:18-cv-02143 Document 1-8 Filed 09/17/18 Page 2 of 5 ?ttlnitrd genus 0%rnatr WASHINGTON, DC 20510 August 8, 2018 MS. Allison Fong Information and Privacy Coordinator Central Intelligence Agency Washington, DC. 20505 Dear Ms. Fong, Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Central Intelligence Agency?s FOIA regulations, 32 C.F.R. 1900 et seq., we hereby request that you produce the following records involving Brett Kavanaugh during his time as an associate in the White House Counsel?s of?ce from January 2001 to July 2003 and as White House Staff Secretary from July 2003 to May 2006. Requested Records We request that the Central Intelligence Agency produce the following records: 1. All records, including but not limited to emails, memoranda, print 01' other correspondence, notices, attachments, and directives addressed to, from, carbon copying (cc?ing), or blind carbon copying (bcc?ing) Mr. Kavanaugh. 2. All records, including but not limited to emails, memoranda, correspondence, notices, and directives, discussing or mentionng Mr. Kavanaugh. 3. Records relating to Mr. Kavanaugh?s nomination to the United States Court of Appeals for the District of Columbia Circuit. 4. To the extent they are not included in response to categories (1) through (3), all records containing documents written by, edited by, prepared in whole or part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. FOIA requires that agencies disclose records to Congress that it may otherwise legitimately withhold from the public. 5 U.S.C. 552(d). As the DC. Circuit has explained, ?all Members have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information,? and therefore ?it would be an inappropriate intrusion into the legislative sphere? for the court to decide that only Congress acting as a whole or only a committee or chairman ?shall be regarded as the of?cial voice of Congress.? Murphy v. Department QfArmy, 613 F.2d 1151, 1157 (DC. Cir. 1979). Indeed, the court in that case emphasized that each member of Congress ?participates in the law-making process; each has a voice and a vote in that process; Case 1:18-cv-02143 Document 1-8 Filed 09/17/18 Page 3 of 5 and each is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator.? Id. In order to ful?ll our constitutional duty to advise the President on the nomination of Mr. Kavanaugh as members of the United States Senate, we need access to the records requested herein. Therefore, we expect that any withholdings that your agency might apply to an ordinary request will be waived when disclosing records in response to our request, pursuant to 5 U.S.C. 552(d). If it is your position that any of the requested documents are exempted from disclosure requirements, we request that you provide a Vaughn index as required by Vaughn v. Rosen, 484 F. 2d 820 (DC. Cir. 1973); see also Roth v. US. Dept. Qf'Justice, 642 F. 3d 1161, 1185 (DC. Cir. 2011) (?Under our case law, agencies invoking a FOIA exemption must provide a speci?c, detailed explanation of why the exemption applies to the withheld materials?). As you know, agencies are also required under FOIA to release ?any reasonably segregable portions? of documents that may be partially exempt and to then prepare ?an index relating any withheld portions to speci?c FOIA exemptions.? Lykins v. US. Dept. Qerrstice, 725 F.2d 1455, 1466 (DC. Cir. 1984). Where possible, please provide responsive material in electronic format by email at Sam_Simon@j udiciary-demsenate. gov. Please send any responsive material being sent by mail to Richard Blumenthal,.706 Hart Senate Office Building, Washington, DC. 20510. Request for Fee Waiver Pursuant to 5 U.S.C. and 32 CPR. we request a waiver of all fees associated with processing this records request. Disclosure of the records we request is in the public interest because, for the reasons stated above, they are likely to contribute signi?cantly to public understanding of government operations and activities surrounding both Mr. Kavanaugh?s role in the Bush Administration and more broadly in the process of Mr. Kavanaugh?s con?rmation hearings. Disclosure of these records is in no way associated with any commercial interest of ours. Rather, we are requesting these documents to ful?ll our constitutional duties as Senators, which require us to have a full and complete understanding of Mr. Kavanaugh?s record, including his prior time in government. Disclosure of the requested records will substantially serve the public interest by directly contributing signi?cantly to the public understanding of the professional experience and record of Mr. Kavanaugh, who has been nominated to a lifetime appointment on the Supreme Court. As you know, the Senate is in the process of examining Mr. Kavanaugh?s record as part of its constitutional duty to provide advice and consent on his nomination. The media has been covering the nomination process with vigor and concern over remarks made by the nominee of Case 1:18-cv-02143 Document 1-8 Filed 09/17/18 Page 4 of 5 questionable veracity,l criticism that he is a ?highly conservative, partisan lawyer,?2 the fact that he was ?pre-vetted? by the Federalist Society, an extreme right-wing organization,3 and the troubling trail of dark money spenders supporting his nomination.4 Mr. Kavanaugh spent ?ve years as a high-ranking of?cial in the George W. Bush Administration and media outlets from around the country have expressed widespread and exceptional interest in the records pertaining to his time there, as the public is rightfully concerned about the professional background of a nominee for a lifetime appointment on the nation?s highest court.5 Various media outlets have also expressed particular concern about what role Mr. Kavanaugh played in the Bush Administration?s policies surrounding torture and detention as well as his misleading responses to Sen. Durbin?s and Sen. Leahy?s questions on that very topic during his con?rmation to the DC. Circuit.6 The consideration of a nominee to a lifetime appointment on the Supreme Court without the ability to fully assess his professional background, his honesty, and the extent of his involvement in the development of a torture policy directly implicates the public?s con?dence in government and the integrity of the White House, the Senate, and the Supreme Court. This widespread media interest highlights the threats to public confidence in government posed by a con?rmation process conducted in the dark. This request is therefore entitled to a fee waiver pursuant to 32 C.F.R. Aaron Blake, Brett Kmianaugh ?s First Claim as a Supreme Court Nominee Was Bizarre, THE WASHINGTON POST, July 10, 2018, term=.6cBe9e8d4bSc. 2 David G. Savage, Brett Kavanaugh, a Washington Veteran. is ?s Second Pickfor the Supreme Court, LA. TIMES, July 9, 2018, 1 80709- 3 Brian Dickerson, Why Trump Outsourced his Biggest Decision, DETROIT FREE PRESS, July 14, 2018, 1 8/07/ 14/ court-pick/782732002l. 4 In Supreme Court Battle, Secret Money Threatens Justice, USA TODAY, July 23, 2018, debates/799481002/; see also, Lydia Wheeler, Kmtanaugh Paper Chase Heats Up, TIIE HILL, July 14, 2018, -kavana ugh-paper?chase-heats-up (discussing the problems posed by Mr. Kavanaugh?s ?unusually paper trail"); Lisa Mascaro, The Problem of Kavanaugh 's Paper Trail, ASSOCIATED PRESS, July 21, 2018, 5 Tony Mauro, Activists Want to See SCOT US Nominee Brett Kavanauglt ?s Documents?Now, THE NATIONAL LAW JOURNAL, July 16, 2018, 8/07/14/why-trump- 6 See, e. g, Amy Davidson Sorkin, What Brett Kavanaugh Must be Asked About Torture, Guantanamo, and Mass Surveillance, The New Yorker, July 24, 2018, Michael Kranish, Kmtanaugh ?s Role in Bush-era Torture Debate Now an Issue in his Supreme Court nomination, Chicago Tribune, July 18, 2018, 20180718?story.html; Alex Seitz-Wald, Kauanaugh Doczmients Could Answer Decade-Old Question of Whether He Misled Congress, NBC News, July 16, 2018, isled-n89 1436. Case 1:18-cv-02143 Document 1-8 Filed 09/17/18 Page 5 of 5 Conclusion We look forward to working with the Central Intelligence Agency to ensure the timely and exhaustive disclosure of all non-exempt records responsive to this request. If you have any questions about this request, please contact Sam Simon at Sa1n_Simon@judiciary- dem.senate.gov. If our request for a fee waiver is denied in part or in full, please contact us immediately upon making such a determination. Sincerely, d4?. ?If: 1 4M5 RICHARD BLUMENTHAL IANNE FEINSTEIN United States Senate United States Senate \cc PA RICK LEAHY J. DURBIN United States Senate United States Senate AWL ON ITEHOUSE AMY United States Senate United States Senate CHRISTOPHER A. COONS MAZIE K. HIRONO United States Senate United States Senate I I A. BOOKER WMALA D. HARRIS United States Senate United States Senate Case 1:18-cv-02143 Document 2 Filed 09/17/18 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) Plaintiffs, ) ) v. ) ) U.S. NATIONAL ARCHIVES AND RECORDS ) ADMINISTRATION et al., ) ) Defendants. ) RICHARD BLUMENTHAL et al., Case No. 18-cv-2143 PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION Pursuant to Federal Rule of Civil Procedure 65 and Local Rule 65.1, Plaintiffs respectfully move this Court to issue a temporary restraining order, or in the alternative, a preliminary injunction, enjoining Defendants the U.S. National Archives and Records Administration (“NARA”) and the U.S. Central Intelligence Agency (“CIA”) from unlawfully impeding Plaintiffs’ access to records that must be made available under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”). Plaintiffs seek injunctive relief ordering Defendant NARA to expedite the processing of Plaintiffs’ pending FOIA request. Plaintiffs’ requests seek records related to Supreme Court nominee Judge Brett Kavanaugh’s past public service in the White House. Such records will allow Plaintiffs, members of the Senate Committee on the Judiciary, to fulfill their duties to properly scrutinize Judge Kavanaugh’s record, inform the public about his background and qualifications, engage in an exchange of information and views with their constituents concerning Judge Kavanaugh’s nomination, and participate in informed debate on his confirmation. Plaintiffs further seek injunctive relief ordering Defendants to search Case 1:18-cv-02143 Document 2 Filed 09/17/18 Page 2 of 5 for and produce all documents responsive to Plaintiffs’ FOIA requests by such date as the Court deems appropriate. The grounds for this motion are set forth in the accompanying Memorandum in Support of Plaintiff’s Motion for a Temporary Restraining Order or Preliminary Injunction. Pursuant to Local Rule 65.1(a) and (d), Plaintiffs ask that the Court schedule a hearing on this motion at the Court’s earliest convenience. Dated: September 17, 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) 897-2465 beth.france@americanoversight.org john.bies@americanoversight.org austin.evers@americanoversight.org Counsel for Plaintiffs 2 Case 1:18-cv-02143 Document 2 Filed 09/17/18 Page 3 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) Plaintiffs, ) ) v. ) ) U.S. NATIONAL ARCHIVES AND RECORDS ) ADMINISTRATION et al., ) ) Defendants. ) RICHARD BLUMENTHAL et al., Case No. 18-cv-2143 PROPOSED ORDER Upon consideration of Plaintiffs’ Motion for a Temporary Restraining Order or Preliminary Injunction, Defendants’ Response thereto, and the entire record, it is hereby ORDERED that Plaintiff’s Motion for a Temporary Restraining Order or Preliminary Injunction is GRANTED; and it is further ORDERED that Defendant U.S. National Archives and Records Administration shall expedite the processing of Plaintiffs’ FOIA request dated August 8, 2018; and it is further ORDERED that Defendants the U.S. National Archives and Records Administration and the U.S. Central Intelligence Agency shall process Plaintiffs’ FOIA requests dated August 8, 2018; and it is further ORDERED that Defendants the U.S. National Archives and Records Administration and the U.S. Central Intelligence Agency shall produce all records responsive to Plaintiffs’ FOIA requests dated August 8, 2018, within ___ days of the date of this order; and it is further SO ORDERED. Case 1:18-cv-02143 Document 2 Filed 09/17/18 Page 4 of 5 Date: ________________________ ____________________________________ United States District Judge 2 Case 1:18-cv-02143 Document 2 Filed 09/17/18 Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that on September 17, 2018, I caused a copy of the foregoing Memorandum in Support of Plaintiff’s Motion for a Temporary Restraining Order Preliminary Injunction, including notice that the application was made at approximately 12:15 PM, along with copies of the Complaint and exhibits thereto, to be hand-delivered to defendants at the following addresses: U.S. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION 8601 Adelphi Rd. College Park, MD 20740 U.S. CENTRAL INTELLIGENCE AGENCY Office of General Counsel 1000 Colonial Farm Rd. McLean, VA 22101 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: September 17, 2018 /s/ Elizabeth France Elizabeth France D.C. Bar No. 999851 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 897-2465 beth.france@americanoversight.org Counsel for Plaintiffs Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 1 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) Plaintiffs, ) ) v. ) ) U.S. NATIONAL ARCHIVES AND RECORDS ) ADMINISTRATION et al., ) ) Defendants. ) RICHARD BLUMENTHAL et al., Case No. 18-2143 MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 2 of 29 TABLE OF CONTENTS STATEMENT OF FACTS.......................................................................................................... 2 ARGUMENT.............................................................................................................................. 5 I. THIS COURT HAS JURISDICTION TO GRANT THE REQUESTED RELIEF. .......... 8 II. PLAINTIFFS ARE ENTITLED TO A TEMPORARY RESTRAINING ORDER, OR IN THE ALTERNATIVE, A PRELIMINARY INJUNCTION. ............................................ 9 A. Plaintiffs are Likely to Succeed on the Merits. ............................................................. 9 1. Plaintiffs Are Entitled to Expedited Processing of Their Request to NARA Because the Records Sought Pertain to a Matter That Raises Questions About the Government’s Integrity that Affect Public Confidence. ............................................ 10 2. Plaintiffs Are Entitled to Prompt Processing of the Requested Records. ................... 12 B. Plaintiffs Will Be Irreparably Harmed Absent the Requested Relief. .......................... 14 C. The Requested Relief Will Not Burden Others’ Interests. .......................................... 19 D. The Public Interest Favors the Requested Relief. ....................................................... 20 CONCLUSION......................................................................................................................... 23 i Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 3 of 29 TABLE OF AUTHORITIES CASES ACLU v. Dep’t of Justice, 321 F. Supp. 2d 24 (D.D.C. 2004) ......................................................................................... 11 Aguilera v. FBI, 941 F. Supp. 144 (D.D.C. 1996) ............................................................................................ 18 Al-Fayed v. C.I.A., 254 F.3d 300 (D.C. Cir. 2001) ............................................................................................. 8, 9 Calderon v. U.S. Dep’t of Ag., 236 F. Supp. 3d 96 (D.D.C. 2017) ......................................................................................... 18 Citizens for Responsibility and Ethics in Wash. v. Fed. Election Comm’n, 711 F.3d 180 (D.C. Cir. 2013) ............................................................................................... 12 Cleaver v. Kelley, 427 F. Supp. 80 (D.D.C. 1976) .............................................................................................. 18 Ctr. to Prevent Handgun Violence v. U.S. Dep’t of the Treasury, 49 F. Supp. 2d 3 (D.D.C. 1999) ............................................................................................. 21 Dunlap v. Presidential Advisory Comm’n on Election Integrity, 286 F. Supp. 3d 96 (D.D.C. 2017) ......................................................................................... 18 Elec. Frontier Found. v. Office of the Dir. of Nat’l Intelligence, 542 F. Supp. 2d 1181 (N.D. Cal. 2008) ................................................................................. 17 * Elec. Privacy Info. Ctr. v. U.S. Dep’t of Justice (“EPIC”), 416 F. Supp. 2d 30 (D.D.C. 2006) ....................................................................... 10, 15, 18, 20 Jacksonville Port Auth. v. Adams, 556 F.2d 52 (D.C. Cir. 1977)................................................................................................. 20 Judicial Watch v. U.S. Secret Service, 726 F.3d 208 (D.C. Cir. 2013) ............................................................................................... 17 Leadership Conf. on Civil Rights v. Gonzales, 404 F. Supp. 2d 246 (D.D.C. 2005) ....................................................................................... 18 Lofton v. District of Columbia, 7 F. Supp. 3d 117 (D.D.C. 2013) ............................................................................................. 9 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) ........................................................................................................ 16, 21 ii Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 4 of 29 N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) .............................................................................................................. 18 Oglesby v. Dep’t of Army, 920 F.2d 57 (D.C. Cir. 1990)................................................................................................... 9 Payne Enters., Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) ......................................................................................... 14, 18 Sai v. Transp. Sec. Admin., 54 F. Supp. 3d 5, 10-11 (D.D.C. 2014) ........................................... 19 Serono Labs., Inc. v. Shalala, 158 F.3d 1313 (D.C. Cir. 1998) ............................................................................................... 9 U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) .............................................................................................................. 21 U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989) .............................................................................................................. 13 *Wash. Post v. Dep’t of Homeland Sec., 459 F. Supp. 2d 61 (D.D.C. 2006) .................................................................. 15, 16, 17, 18, 21 CONSTITUTIONAL PROVISIONS U.S. Const. art II, § 2 ................................................................................................................ 15 STATUTES & REGULATIONS 44 U.S.C. § 2201....................................................................................................................... 13 5 U.S.C. § 552 .......................................................................................................8, 9, 10, 12, 13 36 C.F.R. § 1250.28 .................................................................................................. 4, 10, 11, 12 OTHER AUTHORITIES Brian Bennett, How Brett Kavanaugh Could Change the Supreme Court—and America, Time, July 12, 2018, http://time.com/5336621/brett-kavanaugh-supreme-court/ .............................. 17 David A. Graham, How Kavanaugh’s Last Confirmation Hearing Could Haunt Him, The Atlantic, July 17, 2018, https://www.theatlantic.com/politics/archive/2018/07/howkavanaughs-last-confirmation-hearing-could-haunt-him/565304/ ........................................ 6-7 iii Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 5 of 29 Jennifer Rubin, The Senate Must Prevent Kavanaugh’s Nomination from Corrupting the Supreme Court, Wash. Post, July 30, 2018, https://www.washingtonpost.com/blogs/rightturn/wp/2018/07/30/the-senate-must-prevent-kavanaughs-nomination-from-corrupting-thesupreme-court/?utm_term=.8a1e391a074f............................................................................... 6 Jordain Carney, Grassley Requests Some But Not All of Kavanaugh Papers at Bush White House, The Hill (July 27, 2018, 6:57 PM), http://thehill.com/blogs/floor-action/senate/399296grassley-request-some-but-not-all-of-kavanaugh-papers-at-bush-white ................................... 6 Katie Benner, Rosenstein Asks Prosecutors to Help With Kavanaugh Papers in Unusual Request, N.Y. Times, July 11, 2018, https://www.nytimes.com/2018/07/11/us/politics/rosensteinkavanaugh-document-review-prosecutors.html...................................................................... 19 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-brett-kavanaugh-would-change-the-supreme-court/ ....................................................... 17 Seung Min Kim, Kavanaugh Hearing for Supreme Court Seat to Be Held in September, Wash. Post, Aug.10, 2018, https://www.washingtonpost.com/politics/kavanaugh-hearing-forsupreme-court-seat-to-be-held-in-september/2018/08/10/f66cbea8-9cd6-11e8-b55e5002300ef004_story.html?utm_term=.b42ea55668a0 ............................................................. 5 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............. 17 What Are Republicans Hiding About Brett Kavanaugh, The New Republic, July 31, 2018, https://newrepublic.com/article/150301/republicans-hiding-brett-kavanaugh ......................... 22 iv Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 6 of 29 In August 2018, Plaintiffs, who are members of the Committee on the Judiciary of the United States Senate (“Judiciary Committee”), submitted Freedom of Information Act (“FOIA”) requests to the National Archives and Records Administration (“NARA”), including the George W. Bush Presidential Library and Museum (“Bush Library”), and to the Central Intelligence Agency (“CIA”). These requests sought records relating to the career of Judge Brett Kavanaugh, who has been nominated to the United States Supreme Court and whose Senate confirmation hearings began on September 4, 2018 and concluded on September 7, 2018. The records Plaintiffs seek are essential for them to inform the public about Judge Kavanaugh, to engage in an exchange of information and views with those constituents regarding the nomination, and for them and their colleagues in the Senate to fulfill their constitutional “advice and consent” duties. Disclosure of these records is also critical to inform the public regarding a pivotal lifetime appointment to the nation’s highest court. Plaintiffs attempted to obtain these records through traditional Senate practices and procedures, but their colleagues in the Senate majority declined to seek whole categories of documents directly relevant to Judge Kavanaugh’s nomination. The resulting process has broken all norms and defied past practices, leaving Plaintiffs in the extraordinary and unprecedented position of relying on their rights under FOIA as a last resort. That is why Plaintiffs must vindicate their rights to these records—on behalf of themselves and their constituents—through this litigation. Judge Kavanaugh brings to his nomination a lengthy career demanding thorough public scrutiny, and materials that reveal the non-public record of his activities before his appointment to the federal bench hold high value for ensuring the public is appropriately informed. His nomination has provoked extensive media interest, and the circumstances surrounding his selection and the Senate’s accelerated consideration of his nomination raise questions affecting Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 7 of 29 the public’s confidence in the integrity of the executive branch that appointed him, the Senate whose majority party is racing to confirm him, and the highest court to which he could be appointed without the robust scrutiny due nominees seeking to serve in the position. Defendants’ failures to meet their FOIA obligations threatens to deprive the Senate and the public it represents of the information necessary to ensure that Judge Kavanaugh’s potential appointment receives rigorous, informed debate. Given these concerns and the rapidly approaching confirmation proceedings, Plaintiffs seek to compel Defendants to comply with their obligations under FOIA to make a determination regarding Plaintiffs’ FOIA requests as required by the statute, and to promptly produce responsive, non-exempt material. Plaintiffs also seek to compel NARA to process their request on an expedited basis. Both the Constitution and tradition entitle Plaintiffs to the records they seek, and where their efforts to obtain them through customary practices have failed, these Senators now seek these records through the rights FOIA affords them and every citizen. The issues presented in this case are not complicated political questions but simple and straightforward applications of the FOIA statute, though the harm Plaintiffs would suffer from being denied their rights under FOIA both encompass and transcend those of the typical FOIA plaintiff. The Senate and the American public have a brief opportunity to sift the record of Judge Kavanaugh’s public career before the Senate is expected to make an effectively irreversible decision that would shape the federal judiciary for decades, and the individual Senators have a unique platform to probe and publicize Judge Kavanaugh’s record. Plaintiffs seek immediate injunctive relief to protect their vital constitutional interests and the interests of the public they serve. STATEMENT OF FACTS On August 8, 2018, Plaintiffs submitted identical FOIA requests to NARA and the Bush Library, each seeking: 2 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 8 of 29 1) Records from Mr. Kavanaugh’s service as a Senior Associate Counsel to the President, including all records preserved in his staff files, and those records created by Mr. Kavanaugh that can readily be found in the files of other White House staff members, the White House Counsel’s Office files, other White House offices’ files, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Office of Records Management; 2) Records from Mr. Kavanaugh’s service as Assistant to the President and Staff Secretary, including all records preserved in his staff files, and those records created by Mr. Kavanaugh that can readily be found in the files of other White House staff members, the White House Counsel’s Office files, other White House offices’ files, and the Subject Matter Files maintained by the Staff Secretary and/or the White House Office of Records Management; 3) Records relating to Mr. Kavanaugh’s nomination to the United States Court of Appeals for the District of Columbia Circuit; 4) All electronic mail to, from, carbon copying (cc’ing), or blind carbon copying (bcc’ing) Mr. Kavanaugh in his White House tenure, including any documents attached to such emails; 5) To the extent they are not included in response to categories (1) through (4), all records containing documents written by, edited by, prepared in whole or in part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. Compl. ¶¶ 9-10, 18-19, ECF No. 1; Ex.1 A at 1-2; Ex. B at 1-2; Declaration of Sam Simon (“Simon Decl.”) ¶¶ 6, 8, 12, 14. Also on August 8, 2018, Plaintiffs submitted a similar FOIA request to CIA. This request sought: (1) 1 All records, including but not limited to emails, memoranda, print or other correspondence, notices, attachments, and directives addressed to, from, carbon copying (cc'ing), or blind carbon copying (bcc'ing) Mr. Kavanaugh. Lettered exhibits referenced herein are attached to the Complaint. 3 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 9 of 29 (2) All records, including but not limited to emails, memoranda, correspondence, notices, and directives, discussing or mentioning Mr. Kavanaugh. (3) Records relating to Mr. Kavanaugh's nomination to the United States Court of Appeals for the District of Columbia Circuit. (4) To the extent they are not included in response to categories (1) through (3), all record containing documents written by, edited by, prepared in whole or part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. Compl. ¶¶ 31-32; Ex. C at 1; Simon Decl. ¶¶ 20-21. With regard to the request to NARA, Plaintiffs also sought expedited processing of their request, on the basis that it involves a “matter of widespread and exceptional media interest in which there exist possible questions that affect public confidence in the Government’s integrity.” 36 C.F.R. § 1250.28(a)(4). Plaintiffs cited several points in support of their request for expedition. For example, they noted that the media “has been covering the nomination process with vigor” and observed that the media has noted concerns over certain of Judge Kavanaugh’s remarks of “questionable veracity;” criticism of Judge Kavanaugh’s reputation as a “highly conservative, partisan lawyer;” the role of the right-wing Federalist Society in “pre-vett[ing]” Judge Kavanaugh for this nomination; extensive support for Judge Kavanaugh from “dark money” sources; Judge Kavanaugh’s various roles in the George W. Bush Administration, including his involvement in policies surrounding torture and detention; and misleading statements Judge Kavanaugh made during his D.C. Circuit confirmation proceedings regarding his service in the Bush Administration. Ex. A at 2-3. Plaintiffs also noted that the unprecedented speed and opacity with which the White House and the Senate majority leadership are handling such a crucial nomination—which risks depriving the public and the Senate of the opportunity to 4 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 10 of 29 fully consider Judge Kavanaugh’s records and the concerns described above—poses a threat to public confidence in the integrity of all three branches of the federal government. Id. at 3-4. On August 8, 2018, NARA acknowledged receipt of Plaintiff’s request by email. Simon Decl. ¶ 9 & Ex. 1. As of the date of this filing, Plaintiffs have received no further communications from NARA (apart from the Bush Library communications noted below) regarding their FOIA request. Simon Decl. ¶ 10. On August 9, 2018, the Bush Library acknowledged receipt of Plaintiff’s request, assigned it the tracking number 2018-0263-F, and granted Plaintiffs’ request for expedited processing. Simon Decl. ¶ 15 & Ex.2 2. On September 12, 2018, the Bush Library provided a response concerning the portion of the portion of Plaintiff’s request seeking records related to Judge Kavanaugh’s nomination to the United States Court of Appeals for the District of Columbia Circuit. Simon Decl. ¶ 18 & Ex. 4. This response did not address the other portions of Plaintiff’s request. See id. By letter dated August 17, 2018, CIA acknowledged receipt of Plaintiff’s request, assigned it the tracking number F-2018-02283. Simon Decl. ¶ 22 & Ex. 5. 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 rapidly pursued his confirmation, holding hearings beginning on September 4, 2018 and ending on September 7, 2018.3 Plaintiffs’ FOIA requests seek records concerning Judge Kavanaugh’s past public service, 2 Numbered exhibits referenced herein are attached to the Simon Declaration. See, e.g., Seung Min Kim, Kavanaugh Hearing for Supreme Court Seat to Be Held in September, Wash. Post, Aug.10, 2018, https://www.washingtonpost.com/politics/kavanaughhearing-for-supreme-court-seat-to-be-held-in-september/2018/08/10/f66cbea8-9cd6-11e8-b55e5002300ef004_story.html?utm_term=.b42ea55668a0. 3 5 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 11 of 29 which are highly relevant to the evaluation of his nomination, including each senator’s engagement with constituents on this issues and each senator’s deliberations regarding how to vote on the nomination. 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. Yet Senator Grassley, the Chairman of the Judiciary Committee on which Plaintiffs serve, has declined to request Judge Kavanaugh’s full record, conspicuously omitting records concerning Judge Kavanaugh’s time as Staff Secretary to President George W. Bush.4 However, as Plaintiff Senator Whitehouse has pointed out, “Judge Kavanaugh said himself his time as President Bush’s Staff Secretary was ‘in many ways among the most instructive’ for his career as a judge.”5 Certainly, to the extent any records from this time period reflect the role played by Judge Kavanaugh—and his views and advice to President Bush—on any number of important and contentious issues, they are highly relevant to the confirmation process. Examples include any records reflecting Judge Kavanaugh’s role or participation on issues such as the rights and treatment of enemy combatants, the use of torture, and indefinite detentions at a facility in Guantanamo Bay, Cuba, as well as a questionable warrantless-wiretapping program.6 Jordain Carney, Grassley Requests Some But Not All of Kavanaugh Papers at Bush White House, The Hill (July 27, 2018, 6:57 PM), http://thehill.com/blogs/floor-action/senate/399296grassley-request-some-but-not-all-of-kavanaugh-papers-at-bush-white. 4 See Jennifer Rubin, The Senate Must Prevent Kavanaugh’s Nomination from Corrupting the Supreme Court, Wash. Post, July 30, 2018, https://www.washingtonpost.com/blogs/rightturn/wp/2018/07/30/the-senate-must-prevent-kavanaughs-nomination-from-corrupting-thesupreme-court/?utm_term=.8a1e391a074f. 5 Several members of the Senate have expressed concerns that Judge Kavanaugh provided misleading, or even false, answers on these topics at his confirmation hearings for his current seat on the U.S. Court of Appeals for the D.C. Circuit. See, e.g., David A. Graham, How Kavanaugh’s Last Confirmation Hearing Could Haunt Him, The Atlantic, July 17, 2018, 6 6 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 12 of 29 Given the exigency of this nomination, the widespread media interest in it, the impact that a lifetime appointee will have on American jurisprudence, and the clear questions of government integrity involved both in Judge Kavanaugh’s past government service and in the Senate’s and the White House’s handling of his nomination, Plaintiffs have an urgent need for the records they have requested. Facing a careening confirmation process, Plaintiff Senators now ask the Court to enjoin Defendants from irreparably harming both Plaintiffs and the public interest through their failure to make a determination on the requests as required by law and the resulting wrongful withholding of records. Plaintiffs further ask the Court to enjoin NARA from irreparably harming both Plaintiffs and the public interest by wrongfully failing to process Plaintiffs’ request on an expedited basis. Plaintiffs meet the requirements for a temporary restraining order, or in the alternative, preliminary injunctive relief. Indeed, if informing the public regarding an imminent lifetime appointment to the Supreme Court and ensuring that the public is able to meaningfully participate in a vital public debate and that senators are able to execute their constitutional duty to provide informed, sound advice and consent with regard to that appointment fail to qualify for such relief, it is hard to imagine what would. Plaintiffs are likely to succeed in establishing that they are entitled to a determination regarding the records they have requested and that they are entitled to expedited processing of their request to NARA. Moreover, anything less than immediate relief requiring Defendants to process Plaintiffs’ FOIA requests, make the statutorilyrequired determination, and promptly produce the requested records would irreparably harm Plaintiffs’ ability to obtain and use the requested records to inform the public debate, engage https://www.theatlantic.com/politics/archive/2018/07/how-kavanaughs-last-confirmationhearing-could-haunt-him/565304/. 7 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 13 of 29 with their constituents, and perform their constitutional responsibilities. The requested injunction would not harm Defendants’ interests or the interests of the general public; in fact, promptly processing these requests is entirely consistent with their obligations under FOIA and would bolster the public interest, both by dramatically enhancing the public’s ability to evaluate a nominee for the Supreme Court; to participate in public debate in an informed manner and to convey opinions to their senators; and to empower their senators to represent them accurately in the confirmation process and by affirming the integrity of the Senate through robust and transparent vetting of a critical lifetime appointment. Because all four of the relevant factors weigh in Plaintiffs’ favor, this Court should grant the requested injunctive relief compelling Defendants to process Plaintiff’s requests and promptly produce non-exempt, responsive records and compelling NARA to do so on an expedited 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). That review explicitly extends to an agency’s denial or inaction on a request for expedited processing: FOIA states that “[a]gency action to deny or affirm denial of a request for expedited processing pursuant to this subparagraph, and failure by an agency to respond in a timely manner to such a request shall be subject to judicial review under paragraph (4).” 5 U.S.C. § 552(a)(6)(E)(iii); see also Al-Fayed v. CIA, 254 F.3d 300, 308 (D.C. Cir. 2001) (“a district court must review de novo an agency’s denial of a request for expedition under FOIA”). When an agency fails to comply with the applicable time-limit provisions in the 8 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 14 of 29 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); 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). Plaintiffs have therefore exhausted all applicable administrative remedies, and this claim is ripe for adjudication. II. PLAINTIFFS ARE ENTITLED TO A TEMPORARY RESTRAINING ORDER, OR IN THE ALTERNATIVE, 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, 254 F.3d at 303; Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998); see also Lofton v. District of Columbia, 7 F. Supp. 3d 117, 120 (D.D.C. 2013) (“In determining whether to issue a temporary restraining order, the Court must apply the same standard that is applied to preliminary injunctions.”). Consideration of these factors here demonstrates Plaintiffs’ entitlement to injunctive relief. A. Plaintiffs are Likely to Succeed on the Merits. FOIA provides clear statutory directives to agencies in responding to FOIA requests, and those requirements have been violated by Defendants in this case. Consequently, there can be little doubt that Plaintiffs will ultimately prevail in demonstrating their entitlement to expedited processing and to a timely determination on their FOIA requests and prompt disclosure of any non-exempt responsive records. 9 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 15 of 29 1. Plaintiffs Are Entitled to Expedited Processing of Their Request to NARA Because the Records Sought Pertain to a Matter That Raises Questions About the Government’s Integrity that Affect Public Confidence. There is no dispute that Plaintiffs are entitled to expedited processing of their FOIA request to NARA. Even NARA, by way of its component, the Bush Library, has admitted as much, by granting expedited processing of Plaintiffs’ FOIA request to the Bush Library. See Simon Decl. ¶ 15 & Ex. 2. And yet NARA has improperly failed to grant expedited processing of Plaintiffs’ FOIA request. See Simon Decl. ¶ 10. The FOIA statute provides that “[e]ach agency shall promulgate regulations . . . providing for expedited processing of requests for records (I) in cases in which the [requester] demonstrates a compelling need; and (II) in other cases determined by the agency.” 5 U.S.C. § 552(a)(6)(E)(i)(I)-(II). In its implementing regulations, NARA provides four reasons to grant expedited processing, including when a request involves “[a] matter of widespread and exceptional media interest in which there exist possible questions that affect public confidence in the government’s integrity.” 36 C.F.R. § 1250.28(a)(4). Had NARA properly reviewed and evaluated Plaintiffs’ request, it would have granted expedition. There can be little doubt that the first requirement of section 1250.28(a)(4), that the records requested relate to “[a] matter of widespread and exceptional media interest,” applies in this case. From Justice Kennedy’s retirement and speculation as to his replacement to Judge Kavanaugh’s nomination to widespread controversy surrounding access to documents in preparation for his confirmation hearings, Judge Kavanaugh’s prospects as a Supreme Court Justice have been a regular part of the daily news cycle for months. See Elec. Privacy Info. Ctr. v. U.S. Dep’t of Justice (“EPIC”), 416 F. Supp. 2d 30, 34, 40-41 (D.D.C. 2006) (finding there was “great public and media attention” in the relevant matter in case where plaintiff noted that 10 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 16 of 29 “hundreds of local and national media organizations reported on this matter throughout the United States this morning”); see also, e.g., Ex. A at 3-4. As Plaintiffs noted in their FOIA request to NARA, “[t]he media has been covering the nomination process with vigor and concern over” Judge Kavanaugh’s background, participation in controversial activities during his tenure in the George W. Bush Administration, potentially false statements he has made in the past, and the circumstances of his nomination and confirmation proceedings. Id. at 3. The second requirement of section 1250.28(a)(4), that the matter in question may “affect public confidence in the government’s integrity,” clearly applies, as well. As Plaintiffs described in their FOIA request, the media’s attention to Judge Kavanaugh’s nomination has focused not just on his potential appointment to the highest court in the country, an historic event in and of itself, but on significant questions surrounding his record, service, and character, as well as the considerable controversy surrounding the nature of his nomination. Ex. A at 3. For instance, the media has focused on false and misleading statements Judge Kavanaugh has made, regarding his nomination itself, and more concerningly, his role in the Bush Administration’s torture and detention and warrantless-wiretapping programs. Id. at 3 & n.6. Another troubling subject of media reporting has been the circumstances of Judge Kavanaugh’s nomination, including that he was reportedly pre-vetted by the conservative Federalist Society, and the dark money campaign to support his nomination. Id. at 3. Such questions concerning a Supreme Court nominee’s professional background and honesty; his possible participation in controversial government programs of questionable legality; and the reliability of his nomination process itself, surely qualify as questions that affect public confidence in the government’s integrity. Cf. ACLU v. Dep’t of Justice, 321 F. Supp. 2d 24, 32 (D.D.C. 2004) (expedited processing warranted where media attention was focused on 11 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 17 of 29 potential civil liberties abuses implicating questions of government’s integrity). Indeed, the integrity of each branch of government is implicated, from the White House where Judge Kavanaugh served, to the one that nominated him through questionable procedures, to the Senate that may vote on his confirmation without the benefit of his full record, to the Supreme Court to which he may be appointed without adequate scrutiny. See Ex. A at 3. There is therefore a strong likelihood that Plaintiffs will succeed in establishing that NARA should have granted Plaintiffs’ request for expedited processing under 36 C.F.R. § 1250.28(a)(4). 2. Plaintiffs Are Entitled to Prompt Processing of the Requested Records. As a clear matter of established law, Plaintiffs are entitled to the swift processing of their FOIA requests, a timely determination by the agencies on whether they will grant or deny the requests, and the prompt production of any non-exempt responsive records. FOIA clearly and unambiguously provides that federal agencies 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); see also 5 U.S.C. § 552(a)(6)(A)(i). Moreover, FOIA requires that agencies disclose records to Congress that might otherwise be withheld from the public. 5 U.S.C. § 552(d). As an initial matter, Defendants have clearly not satisfied FOIA’s requirement that they comply “promptly” with Plaintiffs’ requests. Once Plaintiffs submitted their FOIA requests to Defendants, Plaintiffs were entitled to a determination by each 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 12 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 18 of 29 documents it will produce and the exemptions it will claim with respect to any withheld documents.”). That deadline has passed, and Defendants have yet to provide the statutorily required detail concerning when the requests will be processed, or the scope of the material to be produced. Compl. ¶¶ 17, 29-30, 36; Simon Decl. ¶¶ 10, 19, 23. Indeed, Defendants have yet to produce any responsive records to Plaintiffs, aside from the materials provided by the Bush Library to only one out of five portions of Plaintiffs’ Bush Library FOIA request. Simon Decl. ¶¶ 11, 19, 24.7 Furthermore, the material Plaintiffs seek—agency correspondence with or about Judge Kavanaugh, records maintained by the agencies concerning Judge Kavanaugh or his appellate court nomination, and documents maintained by the agencies to which Judge Kavanaugh contributed—undoubtedly comprise materials 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); Exs. A-C.8 In addition, each request “reasonably described” the records sought (specifying the timeframe for the request The Bush Library had also notified Plaintiffs of certain documents previously posted to the Bush Library’s website in response to a separate FOIA request, but provided no detail as to the scope of the records available or their responsiveness to Plaintiffs’ specific FOIA requests. Simon Decl. ¶ 16 & Ex. 2. 7 To the extent Defendants consider any records responsive to Plaintiffs’ requests to be governed by the Presidential Records Act (“PRA”), 44 U.S.C. § 2201 et seq., such records should nevertheless “be administered in accordance with [FOIA]” and made available to Plaintiff Senators, see id. §§ 2201(a), 2201(b)(2)(A), (c)(1) (presidential records are subject to FOIA five years after archivist receives them absent affirmative restrictions imposed by President); id. § 2205(2)(B) (restricted records “shall be made available” to Congress and its committees); cf. 5 U.S.C. § 552(d). At a minimum, Plaintiffs are entitled to Defendants’ prompt determination on the applicability of the PRA and existence of any restrictions. See Tax Analysts, 492 U.S. at 142 n.3 (noting it is the agency’s burden to establish “that the materials sought are not ‘agency records’ or have not been ‘improperly’ ‘withheld’”). 8 13 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 19 of 29 and describing categories of documents sought) and complied with all necessary procedures. See Exs. A-C. Plaintiffs are therefore more than likely to succeed in establishing their entitlement to a determination regarding the requested records and prompt production of any non-exempt responsive records. Plaintiffs will ultimately prevail in demonstrating their entitlement to expedited processing, a timely determination, and prompt disclosure of any non-exempt records responsive to their FOIA requests. FOIA provides clear statutory directives to agencies in responding to FOIA requests, and Defendants have violated them. In the meantime, Plaintiffs urgently needs Defendants to fulfill their obligations. Judge Kavanaugh’s confirmation hearings have concluded. A vote on his nomination is imminent. Time is of the essence. B. Plaintiffs Will Be Irreparably Harmed Absent the Requested Relief. Plaintiffs will be harmed irreparably if Defendants do not promptly process their requests, make the required determinations, and disclose any non-exempt responsive material, especially if further delays prevent disclosure of these records until after the Senate has voted on Judge Kavanaugh’s nomination. Only a temporary restraining order or preliminary injunctive relief can address this urgent need and the specter of irretrievably losing Plaintiff Senators’ rights under FOIA and their opportunity to marshal all information necessary to inform their constituents and the general public, as well as to fulfill their constitutional duty. 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. Only accelerated review by this Court can ensure that Plaintiffs’ requests are properly processed, preserving the opportunity for Plaintiffs to obtain requested records while their value to Plaintiffs and to the public remains high. As this Court has 14 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 20 of 29 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 v. Dep’t of Homeland Sec., 459 F. Supp. 2d 61, 66 (D.D.C. 2006); see also EPIC, 416 F. Supp. 2d at 40-41 (“[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)). Failure to expedite processing of the requests will irreparably harm the ability of Plaintiff Senators—and of their colleagues—to use the requested information to inform the public and to contribute to a robust public debate—including a dialogue with their own constituents—and to conduct a conscientious review of Judge Kavanaugh’s record and its implications for the future of the United States Supreme Court prior to casting a vote. Delay in processing the request will irreparably harm the ability of Plaintiffs and the public to obtain information in time to inform the public discussion of Judge Kavanaugh’s record and its implications for the future of the United States Supreme Court. Losing the ability to review Judge Kavanaugh’s record and to draw upon a thorough public debate would also hamper Plaintiffs in their constitutional duty to provide advice and consent to the president in connection with appointments of Supreme Court justices. U.S. Const. art II, § 2. The records Plaintiffs seek possess unique value while Judge Kavanaugh’s nomination is pending and is a subject of widespread public debate, and that value will deteriorate when the Senate makes its decision on Judge Kavanaugh’s nomination and the public debate ends. Plaintiff Senators also have a vested interest in the vigorous give-and-take between them and their constituents. Our system of representative democracy depends upon an informed 15 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 21 of 29 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.”). A healthy confirmation process requires public access to relevant information, which constituents regularly use to form opinions about nominees and convey those opinions to their senators and to inform their votes in congressional elections. Members of the public cannot reliably fulfill their role or meaningfully participate in the process without adequate information on which to base their opinions, and this deficit impairs senators’ ability to represent their constituents faithfully in Washington. In light of the Senate Majority Leader’s announced commitment to fast-track a decision on Judge Kavanaugh’s nomination, Court intervention to ensure prompt disclosure is necessary to ensure that senators and the public have the information they need to participate in an informed discourse—now—about his legal career and qualifications for a lifetime appointment to the nation’s highest court. Only such intervention will empower the Senate to discharge its constitutional responsibility in a manner that preserves public confidence and inform the public to the extent demanded by our democracy. 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 16 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 22 of 29 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 majority rushing to confirm Judge Kavanaugh 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 fundamental constitutional questions for decades.10 The window for Plaintiff Senators to help educate the public regarding this nomination and to ensure that their own conduct with regard to it draws upon the feedback of their constituents will be open only briefly, and it is imperative that Plaintiffs receive the records they seek 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 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 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-brett-kavanaugh-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/brett-kavanaugh-supreme-court/. 10 17 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 23 of 29 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 injunctive relief 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”); Leadership Conf. on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 260 (D.D.C. 2005) (finding urgency requirement for expedition satisfied based on “upcoming expiration of the special provisions of the Voting Rights Act in 2007”); 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. 18 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 24 of 29 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, Plaintiff Senators’ ability to enhance the public’s understanding of the qualifications of the nominee to the Supreme Court, to engage in a giveand-take with their constituents regarding the nomination, and their ability to exercise their constitutional obligations based on a complete picture of the nominee’s background and their constituents’ wishes will be irreparably harmed if Defendants are not required to process Plaintiffs’ requests promptly and disclose any non-exempt responsive records—and, in the case of NARA, to expedite that process. Plaintiffs seek judicial intervention to ensure Defendants will comply with their obligations. C. The Requested Relief Will Not Burden Others’ Interests. The Senate, the public, and Defendants are aligned in their mutual strong interest in the disclosure and review of Judge Kavanaugh’s record. Defendants themselves cannot claim to be harmed by an order compelling them to comply with their statutory obligations. Indeed, the government generally has already recognized that Judge Kavanaugh’s nomination demands review of his lengthy record and that that review will require allocation of additional resources.11 Where the government has already conceded the extraordinary value of these and similar records See, e.g., Katie Benner, Rosenstein Asks Prosecutors to Help With Kavanaugh Papers in Unusual Request, N.Y. Times, July 11, 2018, https://www.nytimes.com/2018/07/11/us/politics/rosenstein-kavanaugh-document-reviewprosecutors.html. 11 19 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 25 of 29 and marshalled resources for their review, Plaintiffs’ request for expedited processing and production would not meaningfully increase its burden. Nor would granting Plaintiffs 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 Plaintiffs have done, and as the Bush Library has agreed they have done. See Ex. A at 2–4; Ex. B at 2–4; Decl. ¶ 15 & Ex. 2. The urgency is no less real for the records sought from NARA or from CIA.12 Thus, an order from this Court that Defendants promptly process Plaintiffs’ requests, make a determination as required by law, and provide any non-exempt responsive records on an accelerated schedule set by this Court will not harm the interests of the nonmoving party or any other entity. D. The Public Interest Favors the Requested Relief. A temporary restraining order or preliminary injunction is indispensable to protect the public’s essential interests in government transparency and its opportunity for informed and meaningful participation in the Senate confirmation process. 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. CIA’s regulations do not include the basis for expedited processing on which Plaintiffs relied in their applications to other agencies, and Plaintiffs did not request expedite processing from CIA. Nonetheless, the time-sensitivity of Plaintffs’ need for these records is the same, and demands an accelerated production schedule. 12 20 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 26 of 29 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). 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 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 21 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 27 of 29 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 has only one opportunity to assess his fitness for this august position and to convey its views and concerns to the senators entrusted with weighing his nomination. A temporary restraining order or preliminary injunction ensuring timely processing and disclosure of records reflecting Judge Kavanaugh’s record of government service maximizes the public’s ability to avail itself of that opportunity. Moreover, questions about Judge Kavanaugh’s background, the process by which he was selected for nomination, and the unorthodox manner in which Senate leadership has fast-tracked confirmation proceedings and obstructed a full review of Judge Kavanaugh’s record all raise substantial concerns about the integrity of all three branches of government: the Executive Branch that has advanced his nomination, the Legislative Branch that risks abdicating its responsibility in favor of political expediency, and the Supreme Court, which could be tainted by a truncated, partisan confirmation that leaves essential questions unanswered.13 The public has a See, e.g., What Are Republicans Hiding About Brett Kavanaugh, The New Republic, July 31, 2018, https://newrepublic.com/article/150301/republicans-hiding-brett-kavanaugh. 13 22 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 28 of 29 vested interest in ensuring that the Senate and the American citizenry obtain all information necessary for the confirmation process to unfold in an open, transparent, fair, and non-partisan manner that preserves public confidence and reassures the public of its government’s integrity. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court grant a temporary restraining order, or in the alternative, a preliminary injunction, requiring Defendants to process their FOIA requests 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. Dated: September 17, 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) 897-2465 beth.france@americanoversight.org john.bies@americanoversight.org austin.evers@americanoversight.org Counsel for Plaintiffs 23 Case 1:18-cv-02143 Document 2-1 Filed 09/17/18 Page 29 of 29 CERTIFICATE OF SERVICE I hereby certify that on September 17, 2018, I caused a copy of the foregoing Memorandum in Support of Plaintiff’s Motion for a Temporary Restraining Order Preliminary Injunction, including notice that the application was made at 12:15 PM, along with copies of the Complaint and exhibits thereto, to be hand-delivered to defendants at the following addresses: U.S. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION 8601 Adelphi Rd. College Park, MD 20740 U.S. CENTRAL INTELLIGENCE AGENCY Office of General Counsel 1000 Colonial Farm Rd. McLean, VA 22101 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) 897-2465 beth.france@americanoversight.org Dated: September 17, 2018 Counsel for Plaintiffs 24 Case 1:18-cv-02143 Document 2-2 Filed 09/17/18 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) Plaintiffs, ) ) v. ) ) U.S. NATIONAL ARCHIVES AND RECORDS ) ADMINISTRATION et al., ) ) Defendants. ) RICHARD BLUMENTHAL et al., Case No. 18-cv-2143 DECLARATION OF SAM SIMON I, SAM SIMON, hereby declare as follows: 1. I am employed by the Senate Committee on the Judiciary (“Judiciary Committee”), where I work as Chief Counsel to United States Senator Richard Blumenthal. I also serve as minority Chief Counsel to the Senate Subcommittee on Oversight, Agency Action, Federal Rights, and Federal Courts. 2. On July 9, 2018, President Donald Trump nominated Judge Brett Kavanaugh of the United States Court of Appeals for the District of Columbia Circuit to the United States Supreme Court. 3. In preparation for Judge Kavanaugh’s confirmation hearings, which were held from September 4 through September 7, 2018, Plaintiffs and other members of the minority party on the Judiciary Committee sought records concerning Judge Kavanaugh’s employment with the George W. Bush White House through traditional Senate practices and procedures. 4. However, Plaintiffs’ colleagues in the Senate majority declined to seek all categories of documents relevant to Judge Kavanaugh’s background and nomination that the minority members had requested be obtained in advance of the confirmation hearings. Case 1:18-cv-02143 Document 2-2 Filed 09/17/18 Page 2 of 5 5. Accordingly, the Senate minority members of the Judiciary Committee, including Plaintiffs, submitted requests under the Freedom of Information Act (FOIA) to obtain these relevant materials. Plaintiffs’ FOIA Request to the National Archives and Records Administration 6. On August 8, 2018, on behalf of Plaintiffs and other members of the Judiciary Committee, I submitted a FOIA request to the U.S. National Archives and Records Administration (NARA) (the “NARA FOIA Request”) for records related to Judge Kavanaugh. 7. The NARA FOIA Request included a request for expedited processing pursuant to the FOIA statute and NARA regulations. 8. A true and correct copy of the NARA FOIA Request is attached to the Complaint filed in this action as Exhibit A. 9. By email dated August 8, 2018, NARA acknowledged receipt of the NARA FOIA Request. A true and correct copy of the August 8, 2018 email is attached hereto as Exhibit 1. 10. Plaintiffs have received no further communications from NARA concerning the NARA FOIA Request, including Plaintiffs’ request for expedited processing. 11. Plaintiffs have received no records from NARA in response to the NARA FOIA Request. Plaintiffs’ FOIA Request to the George W. Bush Presidential Library and Museum 12. On August 8, 2018, on behalf of Plaintiffs and other members of the Judiciary Committee, I submitted a FOIA request to NARA’s component, the George W. Bush Presidential Library and Museum (the Bush Library) (the “Bush Library FOIA Request”). 13. The Bush Library FOIA Request included a request for expedited processing pursuant to the FOIA statute and NARA regulations. 2 Case 1:18-cv-02143 Document 2-2 Filed 09/17/18 Page 3 of 5 14. A true and correct copy of the Bush Library FOIA Request is attached to the Complaint filed in this action as Exhibit B. 15. On August 9, 2018, the Bush Library acknowledged receipt of the Bush Library FOIA Request and granted Plaintiffs’ request for expedited processing. A true and correct copy of the August 9, 2018 email and attachment from the Bush Library acknowledging the request are attached hereto as Exhibit 2. 16. In its August 9, 2018 email, the Bush Library informed me that certain records potentially responsive to the Bush Library FOIA Request were available on its website, but provided no detail concerning the contents of those documents. 17. On August 10, 2018, I exchanged email correspondence with the Bush Library concerning fees associated with the Bush Library FOIA Request. A true and correct copy of this correspondence is attached hereto as Exhibit 3. 18. On September 12, 2018, the Bush Library provided a response concerning one portion of the Bush Library FOIA Request that sought records related to Judge Kavanaugh’s nomination to the United States Court of Appeals for the District of Columbia Circuit. This response did not address the other four categories of records related to Judge Kavanaugh sought by the Bush Library FOIA Request. A true and correct copy of the September 12, 2018 partial response to the Bush Library FOIA Request is attached hereto as Exhibit 4. 19. Aside from the general reference in the August 9, 2018 email to documents available on the Bush Library website, Plaintiffs have received no records from the Bush Library in response to the remaining four categories of records sought in the Bush Library FOIA Request. 3 Case 1:18-cv-02143 Document 2-2 Filed 09/17/18 Page 4 of 5 Plaintiffs’ FOIA Request to the U.S. Central Intelligence Agency 20. On August 8, 2018, on behalf of Plaintiffs and other members of the Judiciary Committee, I submitted a FOIA request to the U.S. Central Intelligence Agency (CIA) (the “CIA FOIA Request”) for records related to Judge Kavanaugh. 21. A true and correct copy of the CIA FOIA Request is attached to the Complaint filed in this action as Exhibit C. 22. By letter dated August 17, 2018, CIA acknowledged receipt of the CIA FOIA Request. A true and correct copy of the August 17, 2018 letter from CIA acknowledging the request is attached hereto as Exhibit 5. 23. Plaintiffs have received no further communications from CIA concerning the CIA FOIA Request. 24. Plaintiffs have received no records from CIA in response to the CIA FOIA Request. 25. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Dated: September 17, 2018 ___________________________________ Sam Simon 4 Case 1:18-cv-02143 Document 2-2 Filed 09/17/18 Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that on September 17, 2018, I caused a copy of the foregoing Declaration of Sam Simon in Support of Plaintiffs’ Motion for a Temporary Restraining Order or Preliminary Injunction, including exhibits thereto, to be hand-delivered to defendants at the following addresses: U.S. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION 8601 Adelphi Rd. College Park, MD 20740 U.S. CENTRAL INTELLIGENCE AGENCY Office of General Counsel 1000 Colonial Farm Rd. McLean, VA 22101 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: September 17, 2018 Respectfully submitted, /s/ Elizabeth France Elizabeth France D.C. Bar No. 999851 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 897-2465 beth.france@americanoversight.org Counsel for Plaintiffs Case 1:18-cv-02143 Document 2-3 Filed 09/17/18 Page 1 of 3 Exhibit 1 Case 1:18-cv-02143 Document 2-3 Filed 09/17/18 Page 2 of 3 From: Subject: Date: To: Simon, Sam (Judiciary-Dem) Sam_Simon@judiciary-dem.senate.gov RE: FOIA Request for Records on Brett Kavanaugh August 8, 2018 at 5:39 PM GaryM Stern garym.stern@nara.gov Thanks for confirming. From: GaryM Stern [mailto:garym.stern@nara.gov] Sent: Wednesday, August 08, 2018 5:31 PM To: Simon, Sam (Judiciary-Dem) Subject: Re: FOIA Request for Records on Brett Kavanaugh Received (as well as the one sent to the George W. Bush Presidential Library). Thanks, Gary Gary M. Stern General Counsel National Archives and Records Administration 8601 Adelphi Road College Park, MD 20740 301-837-3026 (office) 301-837-0293 (fax) garym.stern@nara.gov On Wed, Aug 8, 2018 at 4:32 PM, Simon, Sam (Judiciary-Dem) wrote: Gary M. Stern FOIA Officer National Archives and Records Administration 8601 Adelphi Road Room 3110 College Park, Maryland 20740-6001 Submitted via email General Counsel and Chief Case 1:18-cv-02143 Document 2-3 Filed 09/17/18 Page 3 of 3 Submitted via email April 8, 2018 Dear Mr. Stern, The attached document constitutes the official record of a Freedom of Information Act request submitted on behalf of Senators Blumenthal, Feinstein, Leahy, Durbin, Whitehouse, Klobuchar, Coons, Hirono, Booker, and Harris. As detailed in the attachment, I ask that any fees associated with the request be waived. In addition, I ask that the request be expedited. I would prefer to receive this information electronically via email at Sam_Simon@judiciary-dem.senate.gov. If that is not possible, please send all records to: Richard Blumenthal 706 Hart Senate Office Building Washington, D.C. 20510 If possible, please reply to this email to confirm receipt for my records. Further, please feel free to contact me at 202-224-2823 should you have any questions or need additional information from me. Thank you for your attention to this request. Sincerely, Sam Sam Simon Chief Counsel Senator Richard Blumenthal, Ranking Member Subcommittee on Oversight, Agency Action, Federal Rights, and Federal Courts Senate Judiciary Committee Case 1:18-cv-02143 Document 2-4 Filed 09/17/18 Page 1 of 5 Exhibit 2 Case 1:18-cv-02143 Document 2-4 Filed 09/17/18 Page 2 of 5 From: Subject: Date: To: Cc: GWBush Library GWBush.Library@nara.gov Re: FOIA Request for Records on Brett Kavanaugh August 9, 2018 at 12:26 PM GWBush Library GWBush.Library@nara.gov gwbush.library@nara.gov, Simon, Sam (Judiciary-Dem) Sam_Simon@judiciary-dem.senate.gov, Joseph Scanlon joseph.scanlon@nara.gov Dear Mr. Simon, Thank you for contacting the George W. Bush Presidential Library and Museum. Please see the attached information concerning your FOIA request. Processed records related to Brett Kavanaugh are available on our website at https://www.georgewbushlibrary.smu.edu/Research/Digital-Library/BrettMKavanaughRecords. Please continue to check our website for updates. Additional information regarding records related to Brett Kavanaugh can be found at https://www.archives.gov/news/topics/kavanaugh-records. If I may be of further assistance, please do not hesitate to contact me. Sincerely, Malisa Culpepper FOIA Coordinator On Wednesday, August 8, 2018 at 3:38:56 PM UTC-5, Simon, Sam (Judiciary-Dem) wrote: FOIA Coordinator Bush Presidential Library and Museum George W. 2943 SMU Boulevard Dallas, Texas 75205 Submitted via email April 8, 2018 Dear FOIA Coordinator, The attached document constitutes the official record of a Freedom of Information Act request submitted on behalf of Senators Blumenthal, Feinstein, Leahy, Durbin, Whitehouse, Klobuchar, Coons, Hirono, Booker, and Harris. As detailed in the attachment, I ask that any fees associated with the request be waived. In addition, I ask that the request be expedited. I would prefer to receive this information electronically via email at Sam_Simon@judiciary-dem.senate.gov. If that is not possible, please send all records to: Richard Blumenthal 706 Hart Senate Office Building Washington, D.C. 20510 If possible, please reply to this email to confirm receipt for my records. Further, please feel free to contact me at 202-224-2823 should you have any questions or need additional information from me. Thank you for your attention to this request. Sincerely, Case 1:18-cv-02143 Document 2-4 Filed 09/17/18 Page 3 of 5 Sam Sam Simon Chief Counsel Senator Richard Blumenthal, Ranking Member Subcommittee on Oversight, Agency Action, Federal Rights, and Federal Courts Senate Judiciary Committee 2018-0263F.pdf Case 1:18-cv-02143 Document 2-4 Filed 09/17/18 Page 4 of 5 George W Bush Presidential Library and Museum 2943 SMU Boulevard Dallas, Texas 75205 August 9, 2018 Richard Blumenthal 706 Hart Senate Office Building Washington, DC 20510 Dear Senator Blumenthal: This letter is in response to your Freedom of Information Act (FOIA) request dated August 8, 2018 for access to George W. Bush Presidential records pertaining to Judge Kavanaugh. Your request was received by the George W. Bush Library on August 8, 2018. FOIA requests for Bush Presidential records are processed and reviewed for access under provisions of the 1978 Presidential Records Act, as amended (PRA) (44 U.S.C. §§ 2201-2209), which incorporates the Freedom of Information Act (5 U.S.C. § 552) in substantial part. This request has been piggy-backed onto a FOIA request previously submitted for similar records. The National Archives has expedited the processing of these requests and the staff of the George W. Bush Library is currently processing these materials. FOIA requests are processed and reviewed for access under provisions of the PRA and FOIA and are subject to the provisions of NARA regulations at 36 C.F.R. § 1270.46, which require that we notify the representatives of the former President and the incumbent President prior to the release Qf any Presidential records. Also, it should be noted that documents processed in response to your request may be closed in whole or part in compliance with applicable PRA restrictions and FOIA exemptions. When processing is complete and the notification period has passed, we will inform you of the availability of the requested records. At that point, you may request copies of these records at a reproduction fee of $0.80 per page, or you can choose to view these documents in the research room of the George W. Bush Library where a selfservice copier is available for the price of $0.25 a page. With respect to your expedition request, the National Archives and Records Administration (NARA) has promulgated regulations providing for expedited processing of requests if the requester demonstrates a compelling need (as defined in statute) or in any case the agency deems appropriate under its regulations. NARA's regulations are published at 36 C.F.R. § 1250.28. The requester must demonstrate that the records sought are necessary for one of the following reasons: 1. A reasonable expectation of an imminent threat to an individual's life or physical safety; 2. A reasonable expectation of an imminent loss of a substantial due process right; 3. An urgent need to inform the public about an actual or alleged Federal Government activity (this criterion applies only to those requests made by a person primarily engaged in disseminating information to the public); or 4. A matter of widespread and exceptional media interest in which there exist possible questions that affect public confidence in the Government's integrity. We consider your request for records related to Judge Kavanaugh's service in the George W. Bush Administration to meet the requirements for expedited processing. If you have any questions regarding the status of your FOIA request, please contact me directly at 214-346-1557. If you have any questions or concerns about NARA's handling of this expedited request, please feel free to A Presidential Library Administered by the National Archives and Records Administration Case 1:18-cv-02143 Document 2-4 Filed 09/17/18 Page 5 of 5 contact NARA's FOIA Officer Joe Scanlon at (301) 837-0583. Your case log number is 2018-0263-F. Please have this number accessible for reference during any future contact concerning this FOIA request. If you consider this response to be a denial of your FOIA request, you may appeal by writing to the Deputy Archivist of the United States, (ATTN: FOIA Appeal Staff), Room 4200, National Archives and Records Administration, 8601 Adelphi Road, College Park, Maryland 20740-6001. You should explain why you believe this response does not meet the requirements of the FOIA. Both the letter and the envelope should be clearly marked "FOIA Appeal." To be considered timely, your appeal must be postmarked or electronically submitted within 90 calendar days from the date of this letter. If you would like to discuss our response before filing an appeal to attempt to resolve your dispute without going through the appeals process, you may contact our FOIA Public Liaison John Laster for assistance at: Presidential Materials Division, National Archives and Records Administration, 700 Pennsylvania Avenue, NW, Room G-7, Washington, DC 20408-0001; email at libraries.foia.liaison@nara.gov; telephone at 202-357-5200; or facsimile at 202-357-5941. If you are unable to resolve your FOIA dispute through our FOIA Public Liaison, the Office of Government Information Services (OGIS), the Federal FOIA Ombudsman's office, offers mediation services to help resolve disputes between FOIA requesters and Federal agencies. The contact information for OGIS is: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road - OGIS, College Park, MD 20740-6001; email at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769. Sincerely, ~~~ Supervisory Archivist George W. Bush Library and Museum cc: Joe Scanlon FOIA Officer, National Archives and Records Administration A Presidential Library Administered by the National Archives and Records Administration Case 1:18-cv-02143 Document 2-5 Filed 09/17/18 Page 1 of 5 Exhibit 3 Case 1:18-cv-02143 Document 2-5 Filed 09/17/18 Page 2 of 5 From: Subject: Date: To: Cc: GWBush Library GWBush.Library@nara.gov Re: FOIA Request for Records on Brett Kavanaugh August 10, 2018 at 2:34 PM GWBush Library GWBush.Library@nara.gov joseph.scanlon@nara.gov, shannon.jarrett@nara.gov, Simon, Sam (Judiciary-Dem) Sam_Simon@judiciary-dem.senate.gov, GaryM Stern garym.stern@nara.gov Dear Mr. Simon, Please see the attached updated letter regarding this FOIA request, which supersedes our original letter. If I may be of further assistance, please do not hesitate to contact me. Sincerely, Malisa Culpepper FOIA Coordinator On Friday, August 10, 2018 at 8:57:02 AM UTC-5, Simon, Sam (Judiciary-Dem) wrote: Based on my conversation just now with Ms. Jarrett, it is my understanding that we will not be charged fees for these documents. Thanks so much for confirming. Please let me know as soon as you can if I have that wrong. Best, Sam From: GWBush Library [mailto:GWBush.Library@nara.gov] Sent: Thursday, August 09, 2018 12:24 PM To: GWBush Library Cc: gwbush.library@nara.gov; Simon, Sam (Judiciary-Dem) ; Joseph Scanlon Subject: Re: FOIA Request for Records on Brett Kavanaugh Dear Mr. Simon, Thank you for contacting the George W. Bush Presidential Library and Museum. Please see the attached information concerning your FOIA request. Processed records related to Brett Kavanaugh are available on our website at https://www.georgewbushlibrary.smu.edu/ Research/Digital-Library/BrettMKavanaughRecords. Please continue to check our website for updates. Additional information regarding records related to Brett Kavanaugh can be found at https://www.archives.gov/news/topics/kavanaugh-records. If I may be of further assistance, please do not hesitate to contact me. Sincerely, Malisa Culpepper FOIA Coordinator On Wednesday, August 8, 2018 at 3:38:56 PM UTC-5, Simon, Sam (Judiciary-Dem) wrote: FOIA Coordinator Bush Presidential Library and Museum George W. 2943 SMU Boulevard Dallas, Texas 75205 Case 1:18-cv-02143 Document 2-5 Filed 09/17/18 Page 3 of 5 Submitted via email April 8, 2018 Dear FOIA Coordinator, The attached document constitutes the official record of a Freedom of Information Act request submitted on behalf of Senators Blumenthal, Feinstein, Leahy, Durbin, Whitehouse, Klobuchar, Coons, Hirono, Booker, and Harris. As detailed in the attachment, I ask that any fees associated with the request be waived. In addition, I ask that the request be expedited. I would prefer to receive this information electronically via email at Sam_Simon@judiciary-dem.senate.gov. If that is not possible, please send all records to: Richard Blumenthal 706 Hart Senate Office Building Washington, D.C. 20510 If possible, please reply to this email to confirm receipt for my records. Further, please feel free to contact me at 202-224-2823 should you have any questions or need additional information from me. Thank you for your attention to this request. Sincerely, Sam Sam Simon Chief Counsel Senator Richard Blumenthal, Ranking Member Subcommittee on Oversight, Agency Action, Federal Rights, and Federal Courts Senate Judiciary Committee 2018-0263F.pdf Case 1:18-cv-02143 Document 2-5 Filed 09/17/18 Page 4 of 5 George W. Bush Presidential Library and Museum 2943 SMU Boulevard Dallas, Texas 75205 August 10, 2018 Richard Blumenthal 706 Hart Senate Office Building Washington, DC 20510 Dear Senator Blumenthal: This letter is in response to your Freedom oflnformation Act (FOIA) request dated August 8, 2018 for access to George W. Bush Presidential records pertaining to Judge Kavanaugh.' Your request was received by the George W. Bush Library on August 8, 2018. FOIA requests for Bush Presidential records are processed and reviewed for access under provisions of the 1978 Presidential Records Act, as amended (PRA) (44 U.S.C. §§ 2201-2209), which incorporates the Freedom oflnformation Act (5 U.S.C. § 552) in substantial part. This request has been piggy-backed onto a FOIA request previously submitted for similar records. The National Archives has expedited the processing of these requests and the staff of the George W. Bush Library is currently processing these materials. FOIA requests are processed and reviewed for access under provisions of the PRA and FOIA and are subject to the provisions of NARA regulations at 36 C.F.R. § 1270.46, which require that we notify the representatives of the former President and the incumbent President prior to the release of any Presidential records. Also, it should be noted that documents processed in response to your request may be closed in whole or part in compliance with applicable PRA restrictions and FOIA exemptions. When processing is complete and the notification period has passed, we will inform you of the availability of the requested records. Due to the high public interest in these requests, we will be posting responsive records on our website as they become available; accordingly, no fees are required. With respect to your expedition request, the National Archives and Records Administration (NARA) has promulgated regulations providing for expedited processing of requests if the requester demonstrates a compelling need (as defined in statute) or in any case the agency deems appropriate under its regulations. NARA's regulations are published at 36 C.F.R. § 1250.28. The requester must demonstrate that the records sought are necessary for one of the following reasons: 1. A reasonable expectation of an imminent threat to an individual's life or physical safety; 2. A reasonable expectation of an imminent loss of a substantial due process right; 3. An urgent need to inform the public about an actual or alleged Federal Government activity (this criterion applies only to those requests made by a person primarily engaged in disseminating information to the public); or 4. A matter of widespread and exceptional media interest in which there exist possible questions that affect public confidence in the Government's integrity. We consider your request for records related to Judge Kavanaugh's service in the George W. Bush Administration to meet the requirements for expedited processing. 1 This letter supersedes my letter of August 9, 2018. A Presidential Library Administered by the National Archives and Records Administration Case 1:18-cv-02143 Document 2-5 Filed 09/17/18 Page 5 of 5 If you have any questions regarding the status of your FOIA request, please contact me directly at 214-346-1557. If you have any questions or concerns about NARA's handling of this expedited request, please feel free to contact NARA's FOIA Officer Joe Scanlon at (301) 837-0583. Your case log number is 2018-0263-F. Please have this number accessible for reference during any future contact concerning this FOIA request. If you consider this response to be a denial of your FOIA request, you may appeal by writing to the Deputy Archivist of the United States, (ATTN: FOIA Appeal Staff), Room 4200, National Archives and Records Administration, 8601 Adelphi Road, College Park, Maryland 20740-6001. You should explain why you believe this response does not meet the requirements of the FOIA. Both the letter and the envelope should be clearly marked "FOIA Appeal." To be considered timely, your appeal must be postmarked or electronically submitted within 90 calendar days from the date of this letter. If you would like to discuss our response before filing an appeal to attempt to resolve your dispute without going through the appeals process, you may contact our FOIA Public Liaison John Laster for assistance at: Presidential Materials Division, National Archives and Records Administration, 700 Pennsylvania Avenue, NW, Room G-7, Washington, DC 20408-0001; email at libraries.foia.liaison@nara.gov; telephone at 202-357-5200; or facsimile at 202-357-5941. If you are unable to resolve your FOIA dispute through our FOIA Public Liaison, the Office of Government Information Services (OGIS), the Federal FOIA Ombudsman's office, offers mediation services to help resolve disputes between FOIA requesters and Federal agencies. The contact information for OGIS is: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, MD 20740-6001; email at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769. Sincerely, ~~f}\~ Supervisory Archivist George W. Bush Library and Museum cc: Joe Scanlon FOIA Officer, National Archives and Records Administration A Presidential Library Administered by the National Archives and Records Administration Case 1:18-cv-02143 Document 2-6 Filed 09/17/18 Page 1 of 3 Exhibit 4 Case 1:18-cv-02143 Document 2-6 Filed 09/17/18 Page 2 of 3 George W Bush Presidential Library and Museum 2943 SMU Boulevard Dallas, Texas 75205 September 12, 2018 Richard Blumenthal 706 Hart Senate Office Building Washington, DC 20510 Dear Senator Blumenthal: This letter is in further response to your Freedom of Information Act (FOIA) request dated August 8, 2018 for access to George W. Bush Presidential records pertaining to Judge Kavanaugh. FOIA requests for Bush Presidential records are processed and reviewed for access under provisions of the 1978 Presidential Records Act, as amended (PRA) (44 U.S.C. §§ 2201-2209), which incorporates the Freedom of Information Act (5 U.S.C. § 552) in substantial part. We have completed processing approximately 3,826 pages of Bush Presidential records related to the nomination and appointment of Brett Kavanaugh as judge on the U.S. Court of Appeals for the District of Columbia Circuit. Of this total, 392 pages have been exempted from release in whole or part in compliance with the restrictions of the PRA and applicable FOIA exemptions, which specify what material may be released to the public. The 392 pages restricted from access, in whole or in part, are listed along with the exemption categories below. Some pages may be restricted under more than one category. P2-62 pages PS - 282 pages P6/(b)(6) - 216 pages PRM-6 pages A list of the PRA restrictions and FOIA exemptions, as well as a copy of the finding aid that describes the processed material is attached. At this time, you have the right to file an administrative appeal of any George W. Bush Presidential records responsive to your FOIA request that have been withheld under a restriction category of the PRA, 44 U.S.C. §2204(a). The appeal must be submitted in writing to the Director, George W. Bush Library and Museum, 2943 SMU Boulevard, Dallas, TX 75205. You should also include a copy of your original request and our denial. Both your appeal letter and the envelope should be clearly marked "PRA/FOIA Appeal." You have 35 calendar days from the date of this letter to file your appeal. Since these are Presidential records administered in accordance with 44 U.S.C. §§2201-2209, NARA must notify the former and incumbent Presidents prior to the release of any information in response to this appeal. Once an appeal determination is made and the notification period has passed, we will contact you. If you would like to discuss our response before filing an appeal to attempt to resolve your dispute without going through the appeals process, you may contact our FOIA Public Liaison John Laster for assistance at: Presidential Materials Division, National Archives and Records Administration, 700 Pennsylvania Avenue, NW, Room G-7, Washington, DC 20408-0001; email at libraries.foia.liaison@nara.gov; telephone at 202-357-5200; or facsimile at 202-357-5941. If you are unable to resolve your FOIA dispute through our FOIA Public Liaison, the Office of Government Information Services (OGIS), the Federal FOIA Ombudsman's office, offers mediation services to help resolve A Presidential Library Administered by the National Archives and Records Administration Case 1:18-cv-02143 Document 2-6 Filed 09/17/18 Page 3 of 3 disputes between FOIA requesters and Federal agencies. The contact information for OGIS is: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road - OGIS, College Park, MD 20740-6001; email at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769. The remaining pages are open for research. Due to the high public interest in these requests, responsive records are posted on our website as they become available; accordingly, no fees are required. If you wish to order copies or need any further assistance, please contact our staff at 214-346-1557 or gwbush.library@nara.gov. Your FOIA case log number is 2018-0263-F. Please have this number accessible for reference during any future contact concerning this case. Sincerely, ~ SHANNON JARRETT Supervisory Archivist George W. Bush Library and Museum SJ: MAC A Presidential Library Administered by the National Archives and Records Administration Case 1:18-cv-02143 Document 2-7 Filed 09/17/18 Page 1 of 2 Exhibit 5 Case 1:18-cv-02143 Document 2-7 Filed 09/17/18 Page 2 of 2 Central Intelligence Agency Washington. no. 20505 August 2018 The Honorable Richard Blumenthal United States Senate 706 Hart Senate Of?ce Building Washington, DC 20510 Reference: F-2018-02233 Dear Senator Blumenthal: This acknowledges the receipt of your 8 August 20] 8 Freedom of Information Act request for the following records involving Brett Kavanaugh during his time as an associate in the White House Counsel?s office from January 2001 to July 2003 and as White House Staff Secretary from July 2003 to May 2006: 1. All records, including but not limited to emails, memoranda, print or other correspondence, notices, attachments, and directives addressed to, from, carbon copying (cc?ing), or blind carbon copying (bcc?ing) Mr. Kavanaugh. 2. All records, including but not limited to emails, memoranda, correspondence, notices, and directives, discussng or mentioning Mr. Kavanaugh. 3. Records relating to Mr. Kavanaugh?s nomination to the United States Court of Appeals for the District of Columbia Circuit. 4. To the extent they are not included in response to categories (I) through (3), all records containing documents written by, edited by, prepared in whole or part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him. Our officers will review your request and will advise you should they encounter any problems or if they cannot begin the search without additional information. We will search for records covering the date range as described in your request. We have assigned your request the reference number above. Please use this number when corresponding so that we can identify it easily. In accordance with our regulations, as a matter of administrative discretion, the Agency has waived the fees for this request. Sincerely, Allison Fong Information and Privacy Coordinator