Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 1 of 33 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW; THE PROTECT DEMOCRACY PROJECT, INC., Plaintiffs, v. U.S. DEPARTMENT OF JUSTICE; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. GENERAL SERVICES ADMINISTRATION; OFFICE OF MANAGEMENT AND BUDGET; U.S. SOCIAL SECURITY ADMINISTRATION, Case No. 1:17-cv-06335-AKH Hon. Alvin K. Hellerstein Defendants. PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO COMPEL DEFENDANTS TO PRODUCE DOCUMENTS JENNER & BLOCK LLP 919 Third Avenue New York, NY 10022 (212) 891-1600 BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW 161 Avenue of the Americas New York, New York 10013 (646) 292-8335 THE PROTECT DEMOCRACY PROJECT, INC. 2020 Pennsylvania Ave., NW #163 Washington, DC 20006 (202) 599-0466 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 2 of 33 TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................. i TABLE OF AUTHORITIES ......................................................................................................... iii PRELIMINARY STATEMENT .................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 A. President Trump’s Advisory Commission on Election Integrity. ..................... 2 B. Plaintiffs’ FOIA Requests ................................................................................. 6 C. Litigation ........................................................................................................... 8 D. Disputed Production Issues ............................................................................... 9 LEGAL STANDARD ................................................................................................................... 14 ARGUMENT ................................................................................................................................ 16 I. DHS Should Complete Production of Responsive Documents by January 31, 2019......................................................................................................16 II. Defendants Should Conduct a Reasonable Search for Responsive Records...........20 A. The Court Should Direct Defendants to Employ Search Terms Reasonably Calculated to Produce Responsive Records. ............................... 21 B. The Court Should Direct Defendants To Search Private Email Accounts. .... 22 C. The Court Should Direct Defendants To Conduct a Search Through the Date of Search. .......................................................................................... 24 D. Defendants Should Complete Production of Additional Documents by January 31, 2019. ....................................................................................... 25 CONCLUSION ............................................................................................................................. 26 DECLARATION TAB Declaration of Carl N. Wedoff................................................................................................... Decl EXHIBITS TO DECLARATION OF CARL N. WEDOFF TAB ICE Subpoena on N.C. Bd. of Elections ..........................................................................................1 i Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 3 of 33 Plaintiffs’ May 15, 2017 FOIA Request to DOJ..............................................................................2 Plaintiffs’ May 17, 2017 FOIA Request to DHS .............................................................................3 Plaintiffs’ May 17, 2017 FOIA Request to GSA .............................................................................4 Plaintiffs’ May 17, 2017 FOIA Request to OMB ............................................................................5 Plaintiffs’ July 25, 2017 FOIA Request to DOJ ..............................................................................6 Plaintiffs’ July 25, 2017 FOIA Request to DHS..............................................................................7 Plaintiffs’ July 25, 2017 FOIA Request to GSA..............................................................................8 Plaintiffs’ July 25, 2017 FOIA Request to OMB ............................................................................9 Brennan Center’s October 18, 2017 FOIA Request to SSA ..........................................................10 Brennan Center’s October 19, 2017 FOIA Request to DOJ ..........................................................11 Plaintiffs’ January 8, 2018 FOIA Request to DHS ........................................................................12 DHS’s January 12, 2018 Letter to Plaintiffs ..................................................................................13 Plaintiffs’ January 19, 2018 Letter to DHS ...................................................................................14 DHS’s February 12, 2018 Letter to Plaintiffs ...............................................................................15 October 4, 2017 Email of AUSA C. Lee to J. Creelan ..................................................................16 October 10, 2017 Email of AUSA C. Lee to J. Creelan ................................................................17 October 23, 2017 Email of J. Creelan to AUSA C. Lee ................................................................18 October 23, 2017 Email of AUSA C. Lee to J. Creelan ................................................................19 November 7, 2017 Email of AUSA C. Lee to C. Wedoff .............................................................20 SSA Document Production ............................................................................................................21 July 5, 2017 Email of C. McCormick to J. Gore (Private Email) ..................................................22 September 5, 2017 Email of C. McCormick to J. Gore (Private Email) .......................................23 February 14, 2017 Email of J. Adams to M. Riordan (Private Email) ..........................................24 July 10, 2017 Email of J. Adams to M. Riordan (Private Email) ..................................................25 ii Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 4 of 33 TABLE OF AUTHORITIES Page(s) CASES ACLU v. DOD, 339 F. Supp. 2d 501 (S.D.N.Y. 2004)..........................................................................15, 16, 18 Carney v. DOJ, 19 F.3d 807 (2d Cir. 1994).......................................................................................................15 Coffey v. Bureau of Land Mgmt., 249 F. Supp. 3d 488 (D.D.C. 2017) .........................................................................................21 Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145 (D.C. Cir. 2016) .................................................................................................23 EPA v. Mink, 410 U.S. 73 (1973) ...................................................................................................................14 EPIC v. DOJ, 416 F. Supp. 2d 35 (D.D.C. 2006) .....................................................................................15, 16 Ferguson v. Dep’t of Educ., No. 09 Civ. 10057, 2011 WL 4089880 (S.D.N.Y. Sept. 13, 2011) .............................20, 24, 25 Fox News Network, LLC v. Dep’t of Treasury, 739 F. Supp. 2d 515 (S.D.N.Y. 2010)......................................................................................22 Immigrant Def. Project v. ICE, 208 F. Supp. 3d 520 (S.D.N.Y. 2016)......................................................................................22 Judicial Watch, Inc. v. Dep’t of State, 681 F. App’x 2 (D.C. Cir. 2017) ..............................................................................................23 Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) .................................................................................................................23 Lacks v. Fahmi, 623 F.2d 254 (2d Cir. 1980).....................................................................................................15 Landmark Legal Found. v. EPA, 959 F. Supp. 2d 175 (D.D.C. 2013) ...................................................................................23, 24 Nat’l Council of La Raza v. DOJ, 411 F.3d 350 (2d Cir. 2005).....................................................................................................14 iii Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 5 of 33 Nat’l Day Laborer Org. Network v. ICE, 877 F. Supp. 2d 87 (S.D.N.Y. 2012)..................................................................................15, 20 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) .................................................................................................................14 Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976) .................................................................................................19 Payne Enters. v. United States, 837 F.2d 486 (D.C. Cir. 1988) .................................................................................................16 Protect Democracy v. DOD, 263 F. Supp. 3d 293 (D.D.C. 2017) .........................................................................................18 Public Citizen v. Dep’t of State, 276 F.3d 634 (D.C. Cir. 2002) .................................................................................................24 Pulliam v. EPA, 292 F. Supp. 3d 255 (D.D.C. 2018) .........................................................................................21 Ross v. Reno, 1996 WL 612457 (E.D.N.Y. Aug. 13, 1996) ...........................................................................19 Schweihs v. FBI, 933 F. Supp. 719 (N.D. Ill. 1996) ............................................................................................19 Truitt v. Dep’t of State, 897 F.2d 540 (D.C. Cir. 1990) .................................................................................................15 United States v. Story Cty., Iowa, 28 F. Supp. 3d 861 (S.D. Iowa 2014) ......................................................................................23 Washington Post v. DHS, 459 F. Supp. 2d 61 (D.D.C. 2006) ...........................................................................................19 STATUTES 5 U.S.C. § 552(a)(3)(C) .................................................................................................................15 5 U.S.C. § 552(a)(4)(B) ...........................................................................................................15, 16 5 U.S.C. § 552(a)(6)(A)(I) .............................................................................................................16 5 U.S.C. § 552(a)(6)(C)(i) .............................................................................................................16 5 U.S.C. § 552(a)(6)(E)................................................................................................................7, 8 5 U.S.C. § 552(a)(6)(E)(i)(I) .........................................................................................................17 iv Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 6 of 33 5 U.S.C. § 552(a)(6)(E)(iii)............................................................................................................16 5 U.S.C. § 552(a)(6)(E)(v)(II) .......................................................................................................17 Federal Records Act, 44 U.S.C. §§ 2901 2911 ........................................................................ 22-23 OTHER AUTHORITIES 6 C.F.R. § 5.5(3) ............................................................................................................................17 20 C.F.R. § 402.180 .........................................................................................................................7 28 C.F.R. § 16.5(e)(1)(ii), (iv) .........................................................................................................8 Brennan Center for Justice, In the News, http://www.brennancenter.org/news (last visited Oct. 26, 2018) ...............................................................................................................18 Bryan Lowry & Hunter Woodall, Is Kobach a private citizen on Trump commission? Question will test transparency law, K.C. STAR, Sept. 17, 2017, https://www.kansascity.com/news/politics-government/ article173996136.htm ....................13 Exec. Order 13,820, 83 Fed. Reg. 869 (Jan. 8, 2018) ..................................................................4, 9 Exec. Order 13799, 82 Fed. Reg. 22389 (May 11, 2017) ....................................................2, 3, 4, 9 DOJ Guide to the Freedom of Information Act, https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/proceduralrequirements.pdf (last visited Oct. 25, 2018) ...........................................................................24 Donald J. Trump (@realDonaldTrump), Twitter (October 20, 2018, 5:36 PM), https://twitter.com/realDonaldTrump/status/1053807130120200192. ......................................6 Seung Min Kim & Felicia Sonmez, Trump and ‘Beautiful Ted’ Cruz embrace at Texas rally, WASHINGTON POST, Oct. 22, 2018, available at https://wapo.st/2q7a2To .............................................................................................................6 Tal Kopan, ICE, Justice subpoena voter records from North Carolina, CNN, Sept. 5, 2018, https://www.cnn.com/2018/09/05/politics/ice-subpoena-voterrecords/index.html .....................................................................................................................5 v Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 7 of 33 PRELIMINARY STATEMENT Fourteen months ago, Plaintiffs Brennan Center for Justice at New York University School of Law (“Brennan Center”) and The Protect Democracy Project, Inc. (“Protect Democracy”) filed this Freedom of Information Act (“FOIA”) lawsuit to compel Defendants to disclose records regarding the Presidential Advisory Commission on Election Integrity (“Commission”). The Commission’s mission and activities represented a threat to the backbone of democracy: the right of every eligible citizen to make their voice heard through voting. The Commission was created to suppress voting, and its actions immediately and demonstrably discouraged and decreased voter engagement. When faced with that criticism, the President disbanded the Commission, stating it was to avoid “endless legal battles at taxpayer expense.” But instead of curtailing these activities, the Commission’s leadership boasted that it would migrate its work to another agency, the Department of Homeland Security (“DHS”). Through their FOIA requests, Plaintiffs seek to understand the Commission’s formation, operation, dissolution, and the extent to which Defendants and other government entities have assumed the Commission’s activities. Defendants’ long-delayed and deficient responses to the requests violate FOIA’s text and Congress’s intent. Agencies must conduct searches reasonably calculated to uncover all relevant documents and produce those documents promptly. Defendants have done neither. The response by DHS to Plaintiff’s January 2018 FOIA request—the core of this lawsuit—is particularly glaring. DHS claims it is entitled to two-and-a-half years to respond, despite Plaintiffs’ agreement to narrow the request at DHS’s insistence and a relatively modest number of search results (approximately 10,000 pages in all). The remaining Defendants refuse to modify overly narrow search terms and rigid search protocols. Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 8 of 33 Faced with anything less than an Order of this Court, Defendants will continue to treat compliance with FOIA’s statutory obligations as merely optional. Plaintiffs respectfully request the Court direct Defendants to conduct a reasonable search of their records as set forth herein and complete all productions to Plaintiffs no later than January 31, 2019. BACKGROUND A. President Trump’s Advisory Commission on Election Integrity. On May 11, 2017, President Donald J. Trump established a “Presidential Advisory Commission on Election Integrity,” ostensibly to “promote fair and honest Federal elections.” Exec. Order 13799, 82 Fed. Reg. 22389 (May 11, 2017) (“Executive Order”). According to the Executive Order, the Commission “stud[ied] the registration and voting processes used in Federal elections.” Id. § 3. The Executive Order directed the Commission to submit a report to the President identifying “those laws, rules, policies, activities, strategies, and practices” that either “enhance” or “undermine” “the American people’s confidence in the integrity of the voting process used in Federal elections,” and “those vulnerabilities in voting systems and practices used for Federal elections that could lead to improper voter registrations and improper voting, including fraudulent voter registrations and fraudulent voting.” Id. § 3(a)−(c). The Commission was chaired by Vice President Mike Pence, and its vice chair was Kansas Secretary of State Kris Kobach. In public statements leading up to the creation of the Commission, President Trump suggested that the Commission’s purpose would be to substantiate the President’s conviction, not founded on any credible evidence, that voter fraud is rampant in U.S. elections. Suppl. Compl. (Dkt. 53) ¶ 15. Plaintiffs believe the Commission was also created to justify new legal barriers 2 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 9 of 33 to voting, id. ¶ 16, a belief that could be confirmed or disproven with an adequate production of documents from Defendants. 1 In June 2017, Mr. Kobach sent letters, under the purported authority of Vice Chair of the Commission, to chief state election officials requesting, among other things, that they submit “publicly-available voter roll data”—including but not limited to voters’ names, dates of birth, political party registration, partial social security numbers, felony convictions, and military status. Id. ¶ 17. Mr. Kobach stated that “any documents that are submitted to the full Commission will also be made available to the public,” although Mr. Kobach later represented that this statement applied only to “narrative responses” submitted by states to the Commission. Id. ¶ 18. The Commission published to the general public comments and feedback it had received at a Commission email address without redacting commenters’ names or, in many instances, other personal information, including email addresses. Id. ¶ 22. The Commission’s actions had an immediate chilling effect on voter registration. For example, nearly 4,000 people in Colorado canceled their voter registrations after the Commission’s requests for state voter data. Id. ¶ 21. Over 1,715 Florida voters cancelled their voter registrations in the twenty-day period after the request for state voter roll data, a 117 percent increase in cancellations over the same period in the prior year. Id. Multiple election 1 Plaintiffs are both not-for-profit organizations who actively seek to inform the public on issues relating to voting rights, government oversight, and election administration. Plaintiff Brennan Center is at the center of the fight to protect the right to vote for every eligible citizen; it is actively involved in voting rights litigation, regularly provides testimony and comments to Congress regarding proposed laws and regulations, and writes and publishes articles and makes appearances in a wide variety of media outlets. Plaintiff Protect Democracy seeks to inform public understanding of operations and activities of the government that could erode the rules, practices, and freedoms that underpin our ability as a self-governing people to hold our leaders accountable, including, most crucially, the right to vote. 3 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 10 of 33 officials said that the volume of registration cancellations in response to Mr. Kobach’s requests was unprecedented. Id. The Commission’s first meeting was held in July 2017. President Trump attended and spoke. He stressed that “voter fraud,” including “[a]ny form of illegal or fraudulent voting, whether by non-citizens or the deceased,” was something that his administration “can’t let . . . happen.” Id. ¶ 19. President Trump also suggested that states that are unwilling to share the voter roll information requested by Mr. Kobach are “worried about” having “something” to hide. Id. On January 3, 2018, President Trump signed an Executive Order terminating the Commission. See Exec. Order 13,820, 83 Fed. Reg. 869 (Jan. 8, 2018). In an official statement announcing the executive order, the White House stated that President Trump had directed DHS to review the Commission’s initial findings and determine the next course of action, citing a desire to avoid engaging in “endless legal battles” as a primary motivating factor behind the decision to dissolve the Commission. Suppl. Compl. ¶ 23. In comments to the media shortly after the decision to dissolve the Commission was announced, Mr. Kobach declared that he would continue working with DHS and the White House as “investigations continue within the executive branch.” Id. ¶ 24. Mr. Kobach specifically noted that political appointees overseeing Immigration and Customs Enforcement (“ICE”), a component of DHS, would take over the Commission’s work. Id. He characterized the decision to disband the Commission as a “tactical shift where the mission of the [C]ommission is being handed off to [DHS]” and an “option play” to permit the Commission’s work to continue without the need to respond to litigation. Id. 4 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 11 of 33 DHS subsequently distanced itself from the White House statement and Mr. Kobach’s characterizations, at least with respect to the transfer of Commission records and data to DHS. See Dkt. 41 at 2. Defendants’ counsel went further, telling the Court that “the former Commission’s work has decisively come to an end.” Id. Although the government has failed to provide Plaintiffs with any documents on this subject, ICE and DHS appear to have picked up precisely where the Commission left off. On August 24, 2018, the U.S. Attorney’s Office for the Eastern District of North Carolina issued a press release on having charged nineteen individuals with crimes relating to non-citizen voting during the 2016 election. 2 On August 31, 2018, the U.S. Attorney’s Office subpoenaed the State Board of Elections and Ethics Enforcement and 44 counties in North Carolina, seeking voter records and ballots to be turned over to ICE by September 25, 2018. A copy of the subpoena served on the State Board is attached as Exhibit 1 to the simultaneously filed Declaration of Carl N. Wedoff in Support of Plaintiffs’ Motion to Compel Defendants to Produce Documents (“Wedoff Decl.”). The State Board of Election determined that the response would be over 20 million pages. On September 6, 2018, federal authorities gave counties until January 2019 to respond to their records requests. The State Board of Elections and Ethics Enforcement voted for the North Carolina Attorney General’s Office to quash the subpoenas on September 7, 2018. The same day, members of Congress sent a letter to Inspectors General from the U.S. Department of Justice (“DOJ”) and DHS to commence an investigation into the subpoenas. 3 While the outcome of DOJ and ICE’s massive, unprecedented request for voter records remains 2 Tal Kopan, ICE, Justice subpoena voter records from North Carolina, CNN, Sept. 5, 2018, https://www.cnn.com/2018/09/05/politics/ice-subpoena-voter-records/index.html. 3 Id. 5 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 12 of 33 uncertain, the Commission’s work appears to have accelerated under ICE, precisely as Mr. Kobach anticipated. On October 20, 2018, President Trump reinforced the conclusion that federal agencies have assumed the Commission’s activities, tweeting, “All levels of government and Law Enforcement are watching carefully for VOTER FRAUD, including during EARLY VOTING. Cheat at your own peril. Violators will be subject to maximum penalties, both civil and criminal!” 4 And at an October 22, 2018 rally in Houston, Texas, President Trump remarked, “We’ve got so many people voting illegally in this country, it’s a disgrace.” 5 To date, despite FOIA requests in this case regarding the continuation of the Commission’s work through other federal agencies, the circumstances surrounding the Commission’s dissolution and the nature of federal law enforcement’s assumption of the Commission’s objectives remain shrouded in secrecy. Neither the President nor any executive branch official has publicly released a legal analysis, memorandum, or any written record of how the Commission and/or DHS identified or will identify practices that enhance or undermine confidence in federal elections or investigate vulnerabilities in voting systems used for federal elections. And neither the White House nor DHS have offered any cogent explanation for the conflicting government statements regarding the Commission’s dissolution and transfer of operations to DHS. B. Plaintiffs’ FOIA Requests Defendants DOJ, DHS, U.S. General Services Administration (“GSA”), U.S. Office of Management and Budget (“OMB”), and U.S. Social Security Administration (“SSA”) possess 4 Donald J. Trump (@realDonaldTrump), Twitter (October 20, 2018, 5:36 PM), https:// twitter.com/realDonaldTrump/status/1053807130120200192. 5 Seung Min Kim & Felicia Sonmez, Trump and ‘Beautiful Ted’ Cruz embrace at Texas rally, WASHINGTON POST, Oct. 22, 2018, available at https://wapo.st/2q7a2To. 6 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 13 of 33 documents related to the Commission, likely including documents related to the reasons for forming the Commission, the goals and mission of the Commission, the Commission’s intended activities, the Commission’s dissolution, and the government’s efforts to continue the Commission’s mandate through other agencies. • In May 2017 and July 2017, prior to commencement of this suit, Plaintiffs submitted a total of eight FOIA requests (the “Initial Requests”) to Defendants DOJ, DHS, GSA, and OMB. See Wedoff Decl., Exs. 2−9. 6 The Initial Requests sought documents and communications regarding the formation of the Commission, its goals and mission, and its intended activities. 7 • On October 18, 2017, Plaintiff Brennan Center submitted a FOIA request to Defendant SSA (the “SSA Request”) seeking, among other things, information on the Commission’s use of SSA resources to carry out its activities. Wedoff Decl., Ex. 10. 8 6 Plaintiffs’ May 15, 2017 request to DOJ is attached to the Wedoff Declaration as Exhibit 2; Plaintiffs’ May 17, 2017 request to DHS is attached as Exhibit 3; Plaintiffs’ May 17, 2017 request to GSA is attached as Exhibit 4; Plaintiffs’ May 17, 2017 request to OMB is attached as Exhibit 5; Plaintiffs’ July 25, 2017 request to DOJ is attached as Exhibit 6; Plaintiffs’ July 25, 2017 request to DHS is attached as Exhibit 7; Plaintiffs’ July 25, 2017 request to GSA is attached as Exhibit 8; and Plaintiffs’ July 25, 2017 request to OMB is attached as Exhibit 9. 7 Each of the Initial Requests included a request for expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E) and the respective agency regulation. Suppl. Compl. ¶¶ 36, 42, 53, 58, 69, 78, 88, and 92. The Defendants acknowledged receipt of the Initial Requests and approved some, but not all, of Plaintiffs’ requests for expedited processing. Suppl. Compl. ¶¶ 38, 39, 44, 55, 60, 61, 71, 80, 90, 94, 103, 113, and 122. DOJ’s Office of Information Policy (“DOJ-OIP”), DOJ’s Office of Legal Counsel (“DOJ-OLC”), and DOJ’s Civil Rights Division (“DOJ-CRT”) provided separate responses on behalf of DOJ. 8 Plaintiff Brennan Center requested expedited processing of the SSA Request pursuant to 5 U.S.C. § 552(a)(6)(E) and 20 C.F.R. § 402.180. Suppl. Compl. ¶ 101. On October 24, 2017, Defendant SSA acknowledged receipt of the SSA Request and denied Plaintiff Brennan Center’s request for expedited processing. Id. ¶ 103. On February 2, 2018, SSA produced three pages of heavily redacted emails, evidently from a single email chain, which it claimed fully satisfied its production obligations. Id. ¶ 106. On February 15, 2018, Plaintiff Brennan Center sent a letter to SSA appealing the sufficiency of the production. Id. ¶ 107. On March 26, 2018, SSA denied Plaintiff Brennan Center’s appeal. Id. ¶ 108. 7 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 14 of 33 • On October 19, 2017, Plaintiff Brennan Center submitted an additional FOIA request to DOJ (the “Supplemental DOJ Request”). Wedoff Decl., Ex. 11. The Supplemental DOJ Request seeks certain emails to or from the Heritage Foundation and Commission members Hans von Spakovsky and J. Christian Adams. 9 • On January 8, 2018, Plaintiffs submitted a supplemental FOIA request to DHS Wedoff Decl. Ex., 12. The Supplemental DHS Request seeks, among other things, records concerning the government’s decision to terminate the Commission and transfer Commission operations to DHS. 10 C. Litigation On August 21, 2017, Plaintiffs commenced this suit against Defendants DOJ, DHS, and OMB after those Defendants failed to respond to the Initial Requests in the statutorily required timeframe. Compl. (Dkt. 1). 9 Plaintiff Brennan Center requested expedited processing of the Supplemental DOJ Request pursuant to 5 U.S.C. § 552(a)(6)(E) and 28 C.F.R. § 16.5(e)(1)(ii), (iv). Suppl. Compl. ¶ 111. On October 26, 2017, DOJ-OIP acknowledged receipt of the request and denied Plaintiff Brennan Center’s request for expedited processing. Suppl. Compl. ¶ 113. 10 On January 10, 2018, DHS responded with a letter, indicating the January 8, 2018 request was “too broad in scope or did not specifically identify the records which you are seeking,” and requested Plaintiffs “resubmit [the] request containing a reasonable description of the records.” Wedoff Decl., Ex. 13. On January 19, 2018, Plaintiffs submitted a letter, a copy of which is attached to the Wedoff Declaration as Exhibit 14, with additional information concerning its request, including search terms designed to identify responsive records and DHS components likely to possess responsive records (together with the January 8, 2018 request, the “Supplemental DHS Request”). Plaintiffs sought expedited processing of the Supplemental DHS Request. By letter dated February 12, 2018, a copy of which is attached to the Wedoff Declaration as Exhibit 15, DHS acknowledged receipt of the Supplemental DHS Request and denied Plaintiffs’ request for expedited processing. DHS offered two grounds for denying expedited processing: (i) that Plaintiffs “fail to establish a particular urgency to inform the public about government activity beyond the public’s right to know about government activity generally,” and (ii) that Plaintiffs “have not shown that [they] have the ability to educate the public beyond the Brennan Center for Justice’s limited constituency.” Id. 8 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 15 of 33 On September 11, 2017, Plaintiffs filed an Amended Complaint adding GSA after GSA failed to respond to Plaintiffs’ administrative appeal of GSA’s response to Plaintiff’s May 17, 2017 request in the statutorily required timeframe. Am. Compl. (Dkt. 12). On December 7, 2017, after DHS refused to modify its production schedule in response to the Initial Requests, Plaintiffs moved for a preliminary injunction directing DHS to complete production of responsive documents by February 28, 2018. Letter Mot. for Prelim. Inj. (Dkt. 33). While the motion was under submission, President Trump issued the Executive Order disbanding the Commission. See 83 Fed. Reg. 869. On January 31, 2018, Judge Forrest issued an Opinion and Order denying Plaintiffs preliminary injunction motion, relying principally on the Commission’s dissolution. Opinion and Order (Dkt. 42) at 5−6. Defendants completed responses to the Initial Requests in July 2018, albeit using insufficient search terms and search protocols that consequently did not provide Plaintiffs with the statutorily mandated documents. On May 7, 2018, Plaintiffs filed its Supplemental Complaint, which added Defendant SSA and sought to compel production of documents in response to the SSA Request, Supplemental DOJ Request, and Supplemental DHS Request. On October 12, 2018, the Court held an off-the-record conference with counsel for the Parties. The same day, the Court entered an Order directing Plaintiffs to “file any motions on document production issues by October 19, 2018.” Dkt. 70. 11 D. Disputed Production Issues The undisputed focus of this lawsuit is now the Supplemental DHS Request. Although Plaintiffs have made this priority clear to Defendants, and despite the plain urgency and intense public interest in understanding the Commission’s dissolution and how DHS and ICE are 11 At the request of Defendants, the Court extended the briefing schedule by Order dated October 18, 2018. Dkt. 72. 9 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 16 of 33 carrying out the Commission’s objectives, DHS’s glacial pace falls short of FOIA’s requirements. Defendants’ search terms and search protocols also fail FOIA’s mandates. 12 While the remaining Defendants claim to have completed production of responsive documents, their insistence on inadequate, inflexible search terms and parameters renders their productions incomplete. 13 i. DHS’s Proposed April 2020 Production Date DHS’s rolling response to the Supplemental DHS Request—which Plaintiffs submitted over ten months ago—is barely underway. DHS has informed Plaintiffs it conducted a search which yielded approximately 10,000 pages of results, for which it anticipates reviewing approximately 500 pages per month and completing production in April 2020. See Wedoff Decl. ¶ 4. This proposed timeline would deprive plaintiffs any realistic ability to analyze the documents, for the Court to rule on summary judgment, and for Plaintiffs to communicate the information from the documents to the public in advance of the 2020 election. Yet, despite repeated protestations by Plaintiffs, DHS has refused to accelerate the production schedule. ii. Defendants’ Inadequate Search Terms and Search Protocols The Parties have discussed Defendants’ search protocols at length. 12 As indicated in Defendants’ October 17, 2018 letter to the Court, Dkt. 71, Plaintiffs do not consider FOIA exemptions, exclusions, and other withholdings to be “production issues” for purposes of the Court’s October 12, 2018 Order. Plaintiffs reserve all rights to challenge Defendants’ withholdings in this case and any other violations of FOIA not directly related to production of documents, including but not limited to Defendants’ good faith in responding to the requests. 13 Plaintiffs do not challenge the timing, search terms, or search protocols used by DOJ in response to the Supplemental DOJ Request. Plaintiffs reserve all rights to challenge the sufficiency of DOJ’s applications of exemptions, exclusions, and any other withholdings in DOJ’s response to the Supplemental DOJ Request. 10 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 17 of 33 On October 4, 2017, Defendants’ counsel sent an email to Plaintiffs’ counsel addressing GSA’s search protocols. Wedoff Decl., Ex. 16. • GSA searched the terms “Presidential Advisory Commission on Election Integrity,” “Election Integrity,” “PACEI,” “PCEI,” “July 19,” “Election Integrity Commission,” “Meeting,” “voter data,” “reimbursable agreement,” “travel,” “PACEI,” and “PCEI.” GSA agreed to search for documents through the date of search and to investigate whether any of its custodians used personal e-mail accounts to conduct official GSA business. On October 10, 2017, Defendants’ counsel sent another email to Plaintiffs’ counsel with information concerning DHS’s, DOJ’s, and OMB’s search and production in response to the Initial Requests. Wedoff Decl., Ex. 17. • DHS limited its search to “Presidential Advisory Commission on Election Integrity,” “Election Commission,” and (“Commission” and “Voter Fraud”). It refused to search private emails and used an October 2, 2017 cut-off date. • DOJ-CRT searched for “Presidential Advisory Commission,” “Presidential Advisory Commission on Election Integrity,” “PACEI,” “Election Integrity,” and unspecified “queries intended to capture uses of the term ‘Commission’ or ‘task force’ in reference to voter fraud or voting systems.” It refused to search private emails and used a July 25, 2017 cut-off date. • DOJ-OIP searched for ““Election Integrity,” “voter fraud,” “voting system,” and the names of members of the Commission,” “citizenship status,” “voter registration list,” “voter file data,” “voter roll data,” (“detail” and “commission”), (“assignment” and “commission”), and the names of the programs and databases specified in Plaintiffs’ July 11 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 18 of 33 25, 2017 request to DOJ. DOJ-OIP refused to search private emails and used a September 16, 2017 cut-off date. • DOJ-OLC did not specify its search terms, but indicated it intended to capture “such phrases such as ‘election integrity’ or ‘election commission’ or ‘voter fraud’ or ‘election fraud,’ and variations of such phrases, as well as the names of members of the Commission.” DOJ-OLC refused to search private emails and used an August 4, 2017 date cut-off. • OMB used the search terms “election commission” or “PACEI” or “election integrity commission.” It refused to search private emails and used a July 31, 2017 cut-off date. On October 23, 2017, Plaintiffs’ counsel sent an email to Defendants’ counsel stating their disagreement with the proposed search parameters for the Initial Requests. Wedoff Decl., Ex. 18. In order to identify relevant records, Plaintiffs suggested a series of specific search parameters to properly capture records of the Commission, its members, and the order that created it. Plaintiffs requested that the agencies utilize date-of-search cut-off dates in their searches if they were not already doing so. Plaintiffs also asked Defendants to search agency personnel’s private emails. Defendants DOJ, DHS, GSA, and OMB refused to modify any of their search terms or parameters. See Wedoff Decl., Ex. 19 (10/23/2017 Email of C. Lee to J. Creelan rejecting “overbroad search terms” and “cumbersome searches”); Wedoff Decl., Ex. 20 (11/07/2017 Email of C. Lee to C. Wedoff stating that “any attempt to modify the defendant agencies’ search parameters at this juncture will require substantial additional search time and delay the agencies’ processing work”). 12 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 19 of 33 Defendant SSA has provided no information regarding the search criteria used for its response to the SSA Request, but the paucity of SSA’s production—three thoroughly redacted pages of a single email chain despite public comments suggesting the Commission heavily relied on SSA data—suggests the search was not reasonable. See Wedoff Decl., Ex. 21 DHS has provided no information regarding the search parameters for its response to the Supplemental DHS Request. Although Plaintiffs requested specific search terms in the Supplemental DHS Request, it is unclear if DHS used these terms in its search, the date range of its search, or whether it is searching agency personnel’s private emails. Plaintiffs are aware that Defendants’ personnel use private email to conduct agency business. Between May and September 2017, Acting Assistant Attorney General John Gore used a G-mail account for a months-long e-mail correspondence with Republican activist Chris Cleveland concerning claims of widespread illegal voting in Chicago and bringing these claims to the Commission’s attention. Gore forwarded two variations of this email chain to Commission member Christy McCormick (using her AOL email account) on July 5, 2017 and September 5, 2017, respectively, 14 before Gore ultimately forwarded the email chain to his official DOJ email address. Wedoff Decl., Exs. 22−23. In the July 5, 2017 email, Ms. McCormick indicated to Mr. Gore that she had been “reading the stories/conspiracy theories about . . . the Commission’s letter going out to the States . . . and am amused at the speculation and conclusions in them. Hopefully between DOJ and the Commission we can clean up the voter rolls.” Wedoff Decl., Ex. 22. On at least two occasions, Commission member J. Christian 14 It has been reported that other Commission members, including Mr. Kobach, used private email to conduct official Commission business. See Bryan Lowry & Hunter Woodall, Is Kobach a private citizen on Trump commission? Question will test transparency law, K.C. STAR, Sept. 17, 2017, https://www.kansascity.com/news/politics-government/ article173996136.html. 13 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 20 of 33 Adams sent emails to DOJ trial attorney Maureen Riordan at her Comcast email address. Wedoff Decl., Exs. 24-25. On February 14, 2017, Mr. Adams forwarded an op-ed he had authored for The Hill, adding that “centralizing election control in Washington, D.C. is a very bad idea” because it “always helps the Left.” Wedoff Decl., Ex. 24. On July 10, 2017, Mr. Adams forwarded Ms. Riordan an “[a]wesome” brief he had filed in the Eastern District of Virginia involving access to state election records. See Wedoff Decl., Ex. 25. Ms. Riordan later forwarded both emails to her official DOJ email account. Wedoff Decl., Exs. 24-25. Only because Mr. Gore and Ms. Riordan forwarded these emails to their official DOJ accounts were they identified in Defendants’ searches—the full extent of private email use by Defendants’ personnel is unknown. LEGAL STANDARD The fundamental 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.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). FOIA, which reflects a policy choice of enhancing disclosure, “seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands.” EPA v. Mink, 410 U.S. 73, 80 (1973); see also Nat’l Council of La Raza v. DOJ, 411 F.3d 350, 355 (2d Cir. 2005) (“FOIA was enacted in order to ‘promote honest and open government and to assure the existence of an informed citizenry [in order] to hold the governors accountable to the governed.’” (quoting Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999))). To those ends, “a court operates with broad discretion when fashioning 14 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 21 of 33 equitable relief” in a FOIA action. Lacks v. Fahmi, 623 F.2d 254, 256 (2d Cir. 1980) (citation omitted). Consistent with this policy of disclosure, FOIA requires an agency to respond timely to a FOIA request. Agencies must “promptly . . . produce requested documents, or . . . justif[y] why the documents may be exempt from production.” ACLU v. DOD, 339 F. Supp. 2d 501, 503 (S.D.N.Y. 2004). District courts have jurisdiction to enjoin an agency from withholding records and to order the production of any records improperly withheld. 5 U.S.C. § 552(a)(4)(B); see also EPIC v. DOJ, 416 F. Supp. 2d 35, 36 (D.D.C. 2006) (“[U]nreasonable delays in disclosing non-exempt documents violate the intent and purpose of the FOIA, and the courts have a duty to prevent [such] abuses.” (second alteration in original) (internal quotations and citation omitted)). “It is the duty of the court to uphold FOIA by striking a proper balance between plaintiffs’ right to receive information on government activity in a timely manner and the government’s” competing concerns. ACLU v. DOD, 339 F. Supp. 2d at 504. An agency must also “make reasonable efforts to search for the records . . . .” 5 U.S.C. § 552(a)(3)(C). FOIA “requires that agencies conduct a search ‘reasonably calculated to uncover all relevant documents,’ not ‘most’ relevant documents.” Nat’l Day Laborer Org. Network v. ICE, 877 F. Supp. 2d 87, 102 (S.D.N.Y. 2012) (emphasis in original) (citations omitted). “[I]f challenged, [the agency] must demonstrate ‘beyond material doubt’ that the search was reasonable.” Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990); see also Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994) (noting “the defending agency has the burden”). 15 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 22 of 33 ARGUMENT I. DHS SHOULD COMPLETE PRODUCTION 2019. OF RESPONSIVE DOCUMENTS BY JANUARY 31, DHS denied Plaintiffs’ request for expedited processing, and after the filing of Plaintiffs’ supplemental complaint, indicated it would review documents responsive to the Supplemental DHS Request at a dilatory pace of 500 pages per month and would not complete production until the spring of 2020. Wedoff Decl. ¶ 4. DHS’s proposed production schedule—approximately 11 pages of review per day from the date of the request—thumbs its nose at the text and spirit of FOIA. Courts have jurisdiction in FOIA when documents have been improperly withheld, which includes illegal delay. 5 U.S.C. § 552(a)(4)(B); ACLU v. DOD, 339 F. Supp. 2d at 503. “The FOIA imposes no limits on courts’ equitable powers in enforcing its terms” and “unreasonable delays in disclosing non-exempt documents violate the intent and purpose of the FOIA, and the courts have a duty to prevent [such] abuses.” Payne Enters. v. United States, 837 F.2d 486, 494 (D.C.Cir.1988) (quotation omitted). Absent exceptional circumstances, FOIA requests must be processed within 20 working days. 5 U.S.C. § 552(a)(6)(A)(I). For urgent requests, FOIA allows for expedited processing, requiring production “as soon as practicable.” Id.§ 552(a)(6)(E)(iii). Although no time limit on processing was identified, the urgency of these requests merits processing more quickly than the 20-day timeline. EPIC v. DOJ, 416 F. Supp. 2d at 37. Expedited processing of the Supplemental DHS Request is warranted, and Plaintiffs urge the Court to direct DHS to respond “as soon as practicable,” see 5 U.S.C. § 552(a)(6)(E)(iii), and make the documents “promptly available,” see id. § 552(a)(6)(C)(i), no later than January 31, 2019. 16 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 23 of 33 DHS improperly denied Plaintiffs’ request for expedited processing of the Supplemental DHS Request. Under FOIA, expedited processing must be granted to requesters who demonstrate a “compelling need.” Id. § 552(a)(6)(E)(i)(I). Plaintiffs demonstrate a “compelling need” because they are “primarily engaged in disseminating information,” and, given the widespread efforts by federal, state, and local governments to curtail voting rights and President Trump’s unsubstantiated allegations of massive voter fraud, there is “an urgency to inform the public concerning actual or alleged Federal Government activity.” Id. § 552(a)(6)(E)(v)(II); accord 6 C.F.R. § 5.5(3). Nevertheless, DHS denied expedited processing of Plaintiffs’ request, positing (i) that Plaintiffs “fail to establish a particular urgency to inform the public about government activity beyond the public’s right to know about government activity generally,” Wedoff Decl., Ex. 15, and (ii) that Plaintiffs “have not shown that [they] have the ability to educate the public beyond the Brennan Center for Justice’s limited constituency.” Id. Both contentions lack merit. First, the Supplemental DHS Request is urgent. Any ongoing activities designed to affect elections deserve quick exposure, particularly in light of the soon-approaching 2018 midterm elections and 2020 presidential election. At the time of Plaintiffs’ Supplemental DHS Request, the President had disbanded the Commission, and per an official White House statement, had delegated its responsibilities, without oversight or transparency, to DHS. Mr. Kobach, former Vice Chair of the Commission, stated openly that transferring of the Commission’s responsibilities to DHS was intended, in part, to avoid the need to respond to litigation. Suppl. Compl. ¶ 24. Mr. Kobach also specified that Trump political appointees overseeing ICE, a component of DHS, would take over the Commission’s work. Id. ICE, whose focus is immigration, has pursued wide-ranging and intrusive investigations into state-level 17 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 24 of 33 voting behavior. This interference with voting rights—the cornerstone of a functioning democracy—without any public oversight is precisely the type of government action FOIA was designed to illuminate. Therefore, there is a “particular urgency to inform the public about government activity beyond the public’s right to know about government activity generally.” Second, Plaintiffs regularly disseminate information on issues involving voting rights to the public. Plaintiff Brennan Center has been cited on voting rights issues by The New York Times, NBC News, the Associated Press, Politico, the Boston Globe, NPR, Al Jazeera, the Christian Science Monitor, Business Insider, the Atlantic, Mother Jones, and other media outlets. 15 The Brennan Center has promptly shared with the public new information about the Commission and the integrity of federal elections, and intends to disseminate information obtained from its FOIA requests to the public. And as the District Court for the District of Columbia “easily” determined in recent litigation, Protect Democracy is “primarily engaged in disseminating information.” Protect Democracy v. DOD, 263 F. Supp. 3d 293, 298 (D.D.C. 2017). DHS’s conclusion is, at best, misinformed. Plaintiffs’ constituency is not limited. Coupled with the implicit urgency of the request, DHS erred in denying expedited processing. Even without expedited processing, DHS’s production timeline is untimely, and it offers no reasonable explanation for requiring over two years to process one straightforward request. When Congress amended FOIA in 1974, it “evinced an increasing concern over the timeliness of disclosure, recognizing that delay in complying with FOIA requests may be ‘tantamount to denial.’” ACLU v. DOD, 339 F. Supp. at 504 (quoting H. Rep. No. 876, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Admin. News, 6267, 6271). While Plaintiffs’ complaints and briefing have identified numerous concerns and justifications for ensuring a timely request, 15 See generally Brennan Center for Justice, In the News, http://www.brennancenter.org/news (last visited Oct. 26, 2018). 18 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 25 of 33 DHS has identified no valid justifications for its proposed production timeline. Courts regularly grant requests from plaintiffs requiring delinquent agencies to process requests in a reasonable amount of time, particularly where, as here, there is a significant public interest in the records at issue. See, e.g., Washington Post v. DHS, 459 F. Supp. 2d 61, 64 (D.D.C. 2006) (finding irreparable harm in a preliminary injunction analysis because the request was predicated on a matter of national debate and an impending election). This Court should do the same. DHS’s sole justification for this extensive delay is that they are too busy to process all of their FOIA requests. A sudden uptick in FOIA requests that is unusual or unanticipated may constitute an “exceptional circumstance” to justify delay, but only in the short term. See Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 617-18 (D.C. Cir. 1976) (Leventhal, J. concurring) (finding that only an “entirely unforeseen and unforeseeable” backlog may qualify as an “exceptional circumstance[]”); cf. Schweihs v. FBI, 933 F.Supp. 719, 722 (N.D. Ill. 1996) (granting FBI more time to respond to FOIA request where FBI had made repeated requests for additional funding, had streamlined its procedures to reduce delays, and instituted additional training for personnel to process its backlog). DHS has not established that the FOIA backlog they face is sudden or unexpected, and DHS has been stalling Plaintiffs with this argument since the initial requests in May 2017. Agencies may not simply refuse to dedicate sufficient resources in the face of a steady increase in requests, or the exceptional circumstances exception would swallow the rule. See Ross v. Reno, 1996 WL 612457, at *5 (E.D.N.Y. Aug. 13, 1996) (“An agency. . . would meet its burden of demonstrating ‘exceptional circumstances’ whenever it [could] show a backlog of requests . . . . Since it appears that [the agency] always has a huge backlog, the exception would, in effect, become the norm.”). In fact, the Defendant 19 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 26 of 33 agencies in this case have long been on notice that this excuse is inadequate, and have failed to justify their delay. As this Court warned last year: [T]he executive branch can’t withdraw resources from the agency which under the legislative branch has stated that these materials are to be produced. In other words, it ends up being a de facto impediment to the process where the executive branch says, well, we are resource constrained and therefore, we can’t fulfill what the legislature has told us we have to do. See Tr. of 11/27/27 Conf. (Dkt. 29) at 18:5−11. Defendants have made no showing why they are unable to comply with the law. Accordingly, Plaintiffs respectfully ask this Court to order DHS to complete its response to the Supplemental DHS Request by January 31, 2019. II. DEFENDANTS SHOULD CONDUCT A REASONABLE SEARCH FOR RESPONSIVE RECORDS. Defendants have not met their burden to show that their searches for records were “reasonably calculated to uncover all relevant documents” responsive to Plaintiffs’ requests. Nat’l Day Laborer, 877 F. Supp. 2d at 102 (emphasis in original). First, Plaintiffs have repeatedly requested that Defendants use a reasonable list of search terms calculated to retrieve all records relevant to the Commission and its activities, and have been willing to negotiate with Defendants on this front. Yet Defendants have refused to modify their inadequate and overly narrow search terms in any fashion. Second, all Defendants other than GSA have refused to even consider any search of private email accounts of staff or committee members, despite evidence that responsive records will likely be found there. Third, Defendants have refused to conduct searches through the date of the search itself, as required by law. See Ferguson v. Dep’t of Educ., No. 09 Civ. 10057, 2011 WL 4089880, at *10−12 (S.D.N.Y. Sept. 13, 2011) (ordering agency to conduct search for records until date-of-search cut-off dates). Except for GSA, Defendants have used improper cut-off dates, some as early as the date of Plaintiffs’ requests. 20 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 27 of 33 A. The Court Should Direct Defendants to Employ Search Terms Reasonably Calculated to Produce Responsive Records. In creating a search reasonably calculated to produce all responsive documents, agencies are not given boundless discretion to create search terms. See Coffey v. Bureau of Land Mgmt., 249 F. Supp. 3d 488, 498 (D.D.C. 2017). Plaintiffs have requested a simple, specific list of search terms, yet Defendants have largely confined their searches to, essentially, the bare titles of the Commission. For example, OMB searched only “election commission,” “PACEI,” and “election integrity commission.” Wedoff Decl., Ex. 16. It seems impossible that all documents relevant to Plaintiffs’ requests—i.e., to the activities and decisions of the Commission, the transfer of responsibilities to DHS, or the continued action on so-called election integrity— would be communications or documents that mention the Commission. Further, DHS, the agency that likely has the largest number of responsive documents, searched only for documents containing (i) “Presidential Advisory Commission on Election Integrity,” (ii) “Election Commission,” or (iii) both “Commission” and “Voter Fraud.” Id. DHS has refused to include even the names of Commission members in its searches. See Coffey, 249 F. Supp. at 498–99 (finding that a Plaintiff’s proposal to use “search terms based on the names and email addresses” of relevant personnel was “eminently reasonable”). At bottom, the agencies’ searches reflect a fundamental disregard for the scope of Plaintiffs’ FOIA requests: “to adequately inform the public and to monitor the Commission” tasked with studying all 50 states’ voting systems and reporting on issues including, among others, “fraudulent voter registrations and fraudulent voting.” Wedoff Decl., Ex. 12 at 1, 6. Even where the government searched the terms mentioned in a FOIA request, courts have found searches insufficient where they “did not understand the scope of plaintiff’s request.” Pulliam v. EPA, 292 F. Supp. 3d 255, 270−74 (D.D.C. 2018). 21 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 28 of 33 Not only have Defendants failed to conduct a reasonable search, but they have also shirked their obligation to explain why. When agencies fail to search terms specified by a plaintiff, the agency must “provide[] an explanation as to why the search term was not used . . . such as, the futility of a term to narrow the field of documents, or an office’s failure to use the term in question in its records or recordkeeping.” Immigrant Def. Project v. ICE, 208 F. Supp. 3d 520, 528 (S.D.N.Y. 2016). For example, a court found the Treasury Department’s Office of Financial Stability’s refusal to search the term “TARP” reasonable because Congress created that office specifically to implement and manage the Troubled Asset Relief Program (“TARP”), and therefore the court agreed that all of the agency’s “documents [] presumably relate to TARP.” Fox News Network, LLC v. Dep’t of Treasury, 739 F. Supp. 2d 515, 535 (S.D.N.Y. 2010). However, Defendants have provided no valid explanation here—only stating that conducting a reasonable search would impose a burden. This is not a valid explanation, much less one sufficient to justify the blatant refusal to search over a dozen specific and relevant terms closely tethered to the Commission and its overall work. Therefore, this Court should direct Defendants to use the search terms provided by Plaintiffs, or such other terms as this Court deems reasonably calculated to retrieve all responsive records. B. The Court Should Direct Defendants To Search Private Email Accounts. All Defendants other than GSA have refused to search private email accounts of agency employees, see Wedoff Decl., Exs. 16, 18, despite evidence in the limited number of relevant documents already produced that indicate some members were using their personal email accounts to conduct agency business. This refusal violates Defendants’ obligations under FOIA. FOIA only requires that agencies turn over requested records in their possession or control; it does not create an independent obligation to create or retain documents. However, the Federal Records Act (“FRA”), 44 U.S.C. §§ 2901−2911, does require agencies to create records, 22 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 29 of 33 which are then subject to disclosure under FOIA. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980). Under the FRA and the Records Disposal Act, 44 U.S.C. § 3314, agencies are required to retain adequate documentation of agency policies and procedures. See Kissinger, 445 U.S. at 147. All communications involving agency business, including private email, are subject to the FRA, regardless whether they are within the direct control of the agency (i.e. in government email database). See, e.g. United States v. Story Cty., Iowa, 28 F. Supp. 3d 861, 872 (S.D. Iowa 2014) (holding that emails sent or received by a county sheriff while acting in his capacity as a board member of a federal agency were federal records under the FRA, despite the fact that the emails originated from his county email account). This includes private email, because agencies cannot “deprive the citizens of their right to know what [a] department is up to by the simple expedient of maintaining [] departmental emails on an account in another domain.” Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 150 (D.C. Cir. 2016). If Defendants’ employees were using their personal email accounts to conduct agency business, either while under the direct heading of the Commission, or on subsequent voter fraud activities in other departments, those records are federal records under FRA, and subject to search and release under FOIA. See Competitive Enter. Inst., 827 F.3d at 147 (“FOIA itself . . . establishes the relevant private right” to enforce the FRA.) Because there is evidence this did in fact occur, see Wedoff Decl., Exs. 22−25, Defendants cannot claim to have conducted searches reasonably calculated to reveal all relevant records without also searching these individuals’ private accounts. Defendants’ refusal to search such accounts “suggests an unreasonable and bad faith reading of [Plaintiffs’] FOIA request.” Landmark Legal Found. v. EPA, 959 F. Supp. 2d 175, 184 (D.D.C. 2013); cf. Judicial Watch, Inc. v. Dep’t of State, 681 F. App’x 2, 4 (D.C. Cir. 23 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 30 of 33 2017) (finding an agency’s search adequate where the agency “searched seven records systems . . . and employed search terms . . . reasonably calculated to discover any records discussing or listing State officials who used private email addresses”). Plaintiffs request the Court to compel Defendants to search any and all personal email accounts of employees that are likely to contain responsive documents to Plaintiffs’ requests, including but not limited to John Gore’s Gmail account and Maureen Riordan’s Comcast account. In the event this Court is not sufficiently convinced that searches of agency employee’s personal email accounts are warranted under the current record, this Court should order limited discovery into the extent to which personal email accounts were used to conduct relevant agency business. See Landmark Legal Found., 959 F. Supp. 2d at 184 (holding that the “possibility that unsearched personal email accounts may have been used for official business raises the possibility that leaders in the [agency] may have purposefully attempted to skirt disclosure under the FOIA” and justified discovery). C. The Court Should Direct Defendants To Conduct a Search Through the Date of Search. Defendants should conduct a search for records through the date each Defendant conducted its search. Agencies should utilize a date-of-search cutoff date absent a “compelling justification” for an earlier cutoff. Public Citizen v. Dep’t of State, 276 F.3d 634, 644 (D.C. Cir. 2002) (favoring “date-of-search cut-off”); see also Ferguson, 2011 WL 4089880, at *10−11 (holding that a date-of-search cut-off for FOIA requests is “especially appropriate when an agency has a backlog of FOIA requests”). This is the regular practice of the executive branch. See DOJ Guide to the Freedom of Information Act, 16 54 & n.194 (“[A] cut-off date that is based 16 Available at: https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/proceduralrequirements.pdf (last visited Oct. 25, 2018). 24 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 31 of 33 on the date the agency conducts its search, ‘results in a much fuller search and disclosure’ . . . .” (citation omitted)). Defendants have not offered any “compelling justification” for their decision to limit the date range of their searches, and thus, have “failed to meet [their] burden of establishing the reasonableness of that aspect of its search.” Ferguson, 2011 WL 4089880, at *11. In fact, they have offered no justification at all. Because the Commission’s activities were ongoing at the time each agency conducted its search, records responsive to each of the requests were likely created through the date each agency conducted its search. The fact that correcting the improper search dates will likely produce additional responsive documents does not constitute an unreasonable burden on the agencies—it is a necessary step to comply with FOIA’s mandate of searching for all responsive documents. Since Plaintiffs raised the issue over a year ago, see Wedoff Decl., Ex. 18, Defendants could have timely adjusted the dates and completed production of additional responsive documents by now. Therefore, Plaintiffs respectfully ask this Court to order Defendants to use a cut-off date of the dates of the searches. D. Defendants Should Complete Production of Additional Documents by January 31, 2019. Finally, Plaintiffs request the Court order Defendants make a prompt production using the search terms and search protocols set forth herein. Defendants will likely argue that, due to its insistence on insufficient search terms and protocols, it is now too burdensome to produce additional documents on anything other than the sluggish pace they have employed to date. It has already been over fifteen months since Plaintiffs filed the Initial Requests, and over a year since Defendants rebuffed Plaintiffs’ good faith efforts to tailor the search protocols. DHS, especially, having taken up the charge of the Commission’s work to avoid litigation burdens, cannot shirk its obligations under FOIA. Lest the Government be rewarded for its indifference to 25 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 32 of 33 FOIA’s requirements, Plaintiffs respectfully request the Court order a prompt and thorough review using the requested search parameters and complete any additional production no later than January 31, 2019. CONCLUSION For the reasons set forth herein, Plaintiff respectfully requests the Court to enter an Order directing Defendants to (i) produce to Plaintiffs all responsive records no later than January 31, 2019; (ii) conduct searches of private emails of agency personnel, or in the alternative, allow limited discovery on agency personnel’s use of private email for agency business; (iii) use the search terms set forth in this Motion; and (iv) search for records through the date each agency conducted its search. 26 Case 1:17-cv-06335-AKH Document 76 Filed 10/26/18 Page 33 of 33 Dated: October 26, 2018 New York, New York Respectfully submitted, /s/ Jeremy M. Creelan Jeremy M. Creelan David W. Sussman Carl N. Wedoff Katherine A. Rosoff JENNER & BLOCK LLP 919 Third Avenue New York, NY 10022 (212) 891-1600 jcreelan@jenner.com dsussman@jenner.com cwedoff@jenner.com krosoff@jenner.com Wendy R. Weiser BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW 161 Avenue of the Americas New York, New York 10013 (646) 292-8335 weiserw@brennan.law.nyu.edu Laurence Schwartztol Allison F. Murphy (pro hac vice forthcoming) THE PROTECT DEMOCRACY PROJECT, INC. 2020 Pennsylvania Ave., NW #163 Washington, DC 20006 (202) 599-0466 larry.schwartztol@protectdemocracy.org allison.murphy@protectdemocracy.org Counsel for Plaintiffs 27