Case 1:19-cv-00288 Document 1 Filed 02/05/19 Page 1 of 10

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
AMERICAN OVERSIGHT,
)
1030 15th Street NW, B255
)
Washington, DC 20005
)
)
Plaintiff, )
)
v.
)
)
U.S. GENERAL SERVICES
)
ADMINISTRATION,
)
1800 F Street NW
)
Washington, DC 20405
)
)
and
)
)
U.S. NATIONAL PARK SERVICE,
)
1849 C Street NW
)
Washington, DC 20240
)
)
Defendants. )
)

Case No. 19-cv-288

COMPLAINT
1.

Plaintiff American Oversight brings this action against the U.S. General Services

Administration and the U.S. National Park Service under the Freedom of Information Act,
5 U.S.C. § 552 (FOIA), and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, seeking
declaratory and injunctive relief to compel compliance with the requirements of FOIA.
JURISDICTION AND VENUE
2.

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

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

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

§ 1391(e).

1

 Case 1:19-cv-00288 Document 1 Filed 02/05/19 Page 2 of 10

4.

Because Defendants have failed to comply with the applicable time-limit

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

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

organization primarily engaged in disseminating information to the public. American Oversight
is committed to the promotion of transparency in government, the education of the public about
government activities, and ensuring the accountability of government officials. Through research
and FOIA requests, American Oversight will use the information gathered, and its analysis of it,
to educate the public about the activities and operations of the federal government through
reports, published analyses, press releases, and other media. The organization is incorporated
under the laws of the District of Columbia.
6.

Defendant the U.S. General Services Administration (GSA) is an agency of the

federal government within the meaning of 5 U.S.C. § 552(f)(1) headquartered in Washington,
DC. GSA has possession, custody, and control of the records that American Oversight seeks.
7.

Defendant the U.S. National Park Service (NPS) is a component of the

U.S. Department of the Interior (DOI)—an agency of the federal government within the meaning
of 5 U.S.C. § 552(f)(1)—and is headquartered in Washington, DC. NPS has possession, custody,
and control of the records that American Oversight seeks.
STATEMENT OF FACTS
8.

With President Trump and Congress at an impasse over the president’s requested

funding for a proposed wall along the U.S.-Mexico border, funding for several federal agencies,

2

 Case 1:19-cv-00288 Document 1 Filed 02/05/19 Page 3 of 10

including GSA, DOI, and NPS expired, causing those agencies to cease performing certain
functions on December 22, 2018.
9.

Among the suspended functions were servicing and maintenance of many national

parks, monuments, and other conservation and historical properties cared for by NPS. However,
according to January 2, 2019 news reports, one of those NPS sites, the Old Post Office Tower at
Trump International Hotel in Washington, DC, would reopen despite the lapse in appropriations,
through funding reportedly provided by GSA.
Agency Communications FOIAs
10.

On January 3, 2019, American Oversight submitted FOIA requests to GSA and

NPS seeking access to the following records:
All records reflecting communications (including emails, email
attachments, text messages, voicemails, voicemail transcripts,
messages on messaging platforms (such as Slack, GChat or Google
Hangouts, Lync, Skype, WhatsApp, Facebook messaging, Twitter
Direct Messages, or Signal), telephone call logs, calendar invitations,
calendar entries, meeting notices, meeting agendas, informational
material, draft legislation, talking points, any handwritten or
electronic notes taken during any oral communications, summaries of
any oral communications, or other materials) of [certain] agency
officials . . . concerning the operations of the Old Post Office Tower
during the partial federal government shutdown that commenced on
December 22, 2018[.]
11.

American Oversight requested that GSA provide records of the following agency

officials:
•

•

Political appointees in the following offices:
o Office of the Administrator
o Federal Acquisition Service
o Public Buildings Service
o Office of Communications and Marketing/Office of
Strategic Communications
o Office of the General Counsel
The Regional Administrator for GSA’s National Capitol Region

3

 Case 1:19-cv-00288 Document 1 Filed 02/05/19 Page 4 of 10

•

12.

Any GSA officials responsible for managing the lease agreement
between the U.S. Government and Trump Old Post Office LLC,1
and any supervisors of such GSA officials

American Oversight requested that NPS provide records of the following agency

officials:
•
•
13.

Any political appointees employed at NPS
Any NPS officials responsible for managing the Old Post Office
Tower site and their supervisors

In each request, American Oversight clarified that “‘[p]olitical appointee’ should

be understood as any person who is a Presidential Appointee with Senate Confirmation (PAS), a
Presidential Appointee (PA), a Non-career SES, any Schedule C employees, or any persons hired
under Temporary Non-career SES Appointments, Limited Term SES Appointments, or
Temporary Transitional Schedule C Appointments.”
14.

Each request further clarified that the request includes, but is not limited to,

communications with any person at the White House Office (including anyone with an email
address ending in @who.eop.gov).
15.

For each request, American Oversight requested all responsive records from

December 15, 2018, through the date the search is conducted.
Trump Organization Communications FOIAs
16.

On January 3, 2019, American Oversight submitted FOIA requests to GSA and

NPS seeking access to the following records:
All records reflecting communications (including emails, email
attachments, text messages, voicemails, voicemail transcripts,
messages on messaging platforms (such as Slack, GChat or Google
Hangouts, Lync, Skype, WhatsApp, Facebook messaging, Twitter
Direct Messages, or Signal), telephone call logs, calendar invitations,
1

American Oversight provided the following reference and hyperlink to the relevant lease
agreement: General Services Administration, Ground Lease, By and Between The United States
of America (as “Landlord”) and Trump Old Post Office LLC (as “Tenant”) (GS-LS-11-1307),
Aug. 5, 2013, www.gsa.gov/portal/content/305477.
4

 Case 1:19-cv-00288 Document 1 Filed 02/05/19 Page 5 of 10

calendar entries, meeting notices, meeting agendas, informational
material, draft legislation, talking points, any handwritten or
electronic notes taken during any oral communications, summaries of
any oral communications, or other materials) between or among
[certain] agency officials and anyone representing or employed by the
Trump Organization or its affiliates (including anyone communicating
from an email address ending with @trumporg.com, @trump.com,
@trumphotels.com, @ijkfamily.com)[.]
17.

American Oversight requested that GSA provide records of the following agency

officials:
•

•
•

18.

Political appointees in the following offices:
o Office of the Administrator
o Federal Acquisition Service
o Public Buildings Service
o Office of Communications and Marketing/Office of
Strategic Communications
o Office of the General Counsel
The Regional Administrator for GSA’s National Capitol Region
Any GSA officials responsible for managing the lease agreement
between the U.S. Government and Trump Old Post Office LLC,2
and any supervisors of such GSA officials

American Oversight requested that NPS provide records of the following agency

officials:
•
•
19.

Any political appointees employed at NPS
Any NPS officials responsible for managing the Old Post Office
Tower site and their supervisors

In each request, American Oversight clarified that “‘[p]olitical appointee’ should

be understood as any person who is a Presidential Appointee with Senate Confirmation (PAS), a
Presidential Appointee (PA), a Non-career SES, any Schedule C employees, or any persons hired
under Temporary Non-career SES Appointments, Limited Term SES Appointments, or
Temporary Transitional Schedule C Appointments.”

2

American Oversight again provided a reference and hyperlink to the relevant lease agreement.
5

 Case 1:19-cv-00288 Document 1 Filed 02/05/19 Page 6 of 10

20.

For each request, American Oversight requested all responsive records from

December 15, 2018, through the date the search is conducted.
Funding Records and Analysis FOIAs
21.

On January 3, 2019, American Oversight submitted FOIA requests to GSA and

NPS seeking access to the following records:
•

All records regarding the source of funds for the operations of the Old
Post Office Tower during the partial government shutdown that
commenced on December 22, 2018.

•

All records reflecting any legal analysis or determination regarding
the impact of the lapse of appropriations on the operations of the Old
Post Office Tower.

22.

For each request, American Oversight requested all responsive records from

December 15, 2018, through the date the search is conducted.
Subsequent Communications with GSA
23.

GSA assigned the Agency Communications FOIA tracking number GSA-2019-

24.

GSA assigned the Trump Organization Communications FOIA tracking number

00464.

GSA-2019-00465.
25.

GSA assigned the Funding Records and Analysis FOIA tracking number GSA-

2019-00466.
26.

By email dated January 10, 2019, GSA sought clarification regarding the Trump

Organization Communications FOIA. American Oversight responded with the requested
information the same day.
27.

American Oversight has received no further communications from GSA regarding

any of these FOIA requests.

6

 Case 1:19-cv-00288 Document 1 Filed 02/05/19 Page 7 of 10

Subsequent Communications with NPS
28.

On January 3, 2019, American Oversight received an automated email response

from NPS’s FOIA Office email address, indicating that American Oversight’s FOIA requests
had been successfully transmitted to that email address.
29.

By email dated January 28, 2019, NPS acknowledged receipt of American

Oversight’s FOIA requests, aggregating the three requests under a single tracking number NPS2019-00393.
30.

NPS also sought further information concerning American Oversight’s request for

a waiver of fees associated with the processing of the three FOIA requests. NPS stated that it did
not believe American Oversight had “provide[d] sufficient justification to qualify for a fee
waiver under the Department’s FOIA regulations (43 CFR 2.48),” and requested that American
Oversight provide further information “[t]o assist [NPS] in making a decision on your request for
a fee waiver.”
31.

American Oversight responded by email on January 29, 2019, providing a

detailed explanation of how the information provided in its requests satisfied the relevant
regulation, and also providing further information in support of its request for a fee waiver.
32.

American Oversight has received no further communications from NPS regarding

any of these FOIA requests.
Exhaustion of Administrative Remedies
33.

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

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

7

 Case 1:19-cv-00288 Document 1 Filed 02/05/19 Page 8 of 10

34.

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

within the time period required by law, American Oversight has constructively exhausted its
administrative remedies and seeks immediate judicial review.
COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Searches for Responsive Records
35.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
36.

American Oversight properly requested records within the possession, custody,

and control of Defendants.
37.

GSA and NPS are subject to FOIA, and they must therefore make reasonable

efforts to search for requested records.
38.

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

locating those records that are responsive to American Oversight’s FOIA requests.
39.

Defendants’ failure to conduct an adequate search for responsive records violates

FOIA and the agencies’ regulations.
40.

Plaintiff American Oversight is therefore entitled to injunctive and declaratory

relief requiring Defendants to promptly make reasonable efforts to search for records responsive
to American Oversight’s FOIA requests.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
41.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
42.

American Oversight properly requested records within the possession, custody,

and control of Defendants.

8

 Case 1:19-cv-00288 Document 1 Filed 02/05/19 Page 9 of 10

43.

GSA and NPS are subject to FOIA, and they must therefore release in response to

a FOIA request any non-exempt records and provide a lawful reason for withholding any
materials.
44.

Defendants are wrongfully withholding non-exempt agency records requested by

American Oversight by failing to produce non-exempt records responsive to its FOIA requests.
45.

Defendants are wrongfully withholding non-exempt agency records requested by

American Oversight by failing to segregate exempt information in otherwise non-exempt records
responsive to American Oversight’s FOIA requests.
46.

Defendants’ failure to provide all non-exempt responsive records violates FOIA

and the agencies’ regulations.
47.

Plaintiff American Oversight is therefore entitled to declaratory and injunctive

relief requiring Defendant 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, American Oversight respectfully requests the Court to:
(1) Order Defendants to conduct a search or searches reasonably calculated to uncover all
records responsive to American Oversight’s FOIA requests;
(2) 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 American Oversight’s FOIA requests and indexes justifying the withholding of any
responsive records withheld under claim of exemption;
(3) Enjoin Defendants from continuing to withhold any and all non-exempt records
responsive to American Oversight’s FOIA requests;

9

 Case 1:19-cv-00288 Document 1 Filed 02/05/19 Page 10 of 10

(4) Award American Oversight 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
(5) Grant American Oversight such other relief as the Court deems just and proper.

Dated: February 5, 2019

Respectfully submitted,
/s/ Cerissa Cafasso
Cerissa Cafasso
D.C. Bar No. 1011003
/s/ Katherine M. Anthony
Katherine M. Anthony
MA Bar No. 685150*
Pro hac vice motion to be submitted
/s/ John E. Bies
John E. Bies
D.C. Bar No. 483730
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 897-3918
cerissa.cafasso@americanoversight.org
katherine.anthony@americanoversight.org
john.bies@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 Plaintiff

10