Case 1:19-cv-00774 Document 1 Filed 03/20/19 Page 1 of 13

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
AMERICAN OVERSIGHT,
)
1030 15th Street NW, B255
)
Washington, DC 20005
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF JUSTICE,
)
950 Pennsylvania Avenue NW
)
Washington, DC 20530
)
)
U.S. DEPARTMENT OF STATE
)
2201 C Street NW
)
Washington, DC 20520
)
)
U.S. DEPARTMENT OF HEALTH
)
AND HUMAN SERVICES,
)
200 Independence Avenue SW
)
Washington, DC 20201
)
)
ADMINISTRATION FOR CHILDREN
)
AND FAMILIES
)
330 C Street SW
)
Washington, DC 20201
)
)
U.S. DEPARTMENT OF
)
HOMELAND SECURITY,
)
245 Murray Lane SW
)
Washington, DC 20528
)
)
U.S. CUSTOMS AND
)
BORDER PROTECTION,
)
1300 Pennsylvania Avenue NW
)
Washington, DC 20229
)
)
U.S. IMMIGRATION AND CUSTOMS
)
ENFORCEMENT
)
500 12th Street SW
)
Washington, DC 20536-5009
)
)
)
)
)

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Case No. 19-cv-774

 Case 1:19-cv-00774 Document 1 Filed 03/20/19 Page 2 of 13

U.S. CITIZENSHIP AND IMMIGRATION
SERVICES,
20 Massachusetts Avenue NW
Washington, DC 20529

)
)
)
)
)
Defendants. )
)
COMPLAINT

1.

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

Justice, the U.S. Department of State, the U.S. Department of Health and Human Services and its
component the Administration for Children and Families, the U.S. Department of Homeland
Security and its components U.S. Customs and Border Protection, U.S. Immigration and
Customs Enforcement, and the U.S. Citizenship and Immigration Services under the Freedom of
Information Act, 5 U.S.C. § 552 (FOIA), and the Declaratory Judgment Act, 28 U.S.C. §§ 2201
and 2202, seeking declaratory and injunctive relief to compel compliance with the requirements
of FOIA.
JURISDICTION AND VENUE
2.

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

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

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

§ 1391(e).
4.

Because 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.

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

Defendant the U.S. Department of Justice (DOJ) is an agency of the federal

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

Defendant the U.S. Department of State (State) is an agency of the federal

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

Defendant the U.S. Department of Health and Human Services (HHS) is an

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

Defendant the Administration for Children and Families (ACF) is a component of

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

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10.

Defendant the U.S. Department of Homeland Security (DHS) is an agency of the

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

Defendant U.S. Customs and Border Protection (CBP) is a component of DHS—

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

Defendant U.S. Immigration and Customs Enforcement (ICE) is a component of

DHS—an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1)—and is
headquartered in Washington, DC. CBP has possession, custody, and control of the records that
American Oversight seeks.
13.

Defendant U.S. Citizenship and Immigration Services (USCIS) is a component of

DHS—an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1)—and is
headquartered in Washington, DC. USCIS has possession, custody, and control of the records
that American Oversight seeks.
STATEMENT OF FACTS
14.

In August and November 2018, American Oversight submitted a number of FOIA

requests related to White House adviser Stephen Miller and his former executive assistant,
McLaurine Klingler, to shed light on Mr. Miller’s activities on behalf of the current
administration.
Miller Communications FOIAs
15.

On August 29, 2018, American Oversight submitted FOIA requests to DOJ, State,

HHS, ACF, DHS, CBP, ICE, and USCIS, seeking access to the following records:
1. All records reflecting communications (including emails, email
attachments, voicemail transcripts, text messages, messages on

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messaging platforms (such as Slack, GChat or Google Hangouts,
Lync, Skype, WhatsApp, Signal, or Twitter Direct Messages),
telephone call logs, calendar invitations/entries, meeting notices,
meeting agendas, informational material, talking points, any
handwritten or electronic notes taken during any oral
communications, summaries of any oral communications, or
other materials) with or about Stephen Miller, including but not
limited to communications containing the name “Stephen
Miller” or email communications sent or forwarded to, received
from, copying, or blind copying stephen.miller@who.eop.gov
or s.miller@who.eop.gov.
2. All records reflecting communications (including emails, email
attachments, voicemail transcripts, text messages, messages on
messaging platforms (such as Slack, GChat or Google Hangouts,
Lync, Skype, WhatsApp, Signal, or Twitter Direct Messages),
telephone call logs, calendar invitations/entries, meeting notices,
meeting agendas, informational material, talking points, any
handwritten or electronic notes taken during any oral
communications, summaries of any oral communications, or
other materials) with or referencing the phone number “(202)
881-8641.”
3. All call logs showing incoming or outgoing calls to or from the
phone number “(202) 881-8641.”
16.

For each request, American Oversight requested all responsive records from

November 9, 2016, to the date the search is conducted.
17.

American Oversight requested that each Defendant provide records of specified

agency officials.
18.

A true and correct copy of the Miller Communications FOIA submitted to DOJ is

attached hereto as Exhibit A and incorporated herein.
19.

A true and correct copy of the Miller Communications FOIA submitted to State is

attached hereto as Exhibit B and incorporated herein.
20.

A true and correct copy of the Miller Communications FOIA submitted to HHS

and ACF is attached hereto as Exhibit C and incorporated herein.

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21.

A true and correct copy of the Miller Communications FOIA submitted to DHS is

attached hereto as Exhibit D and incorporated herein.
22.

A true and correct copy of the Miller Communications FOIA submitted to CBP is

attached hereto as Exhibit E and incorporated herein.
23.

A true and correct copy of the Miller Communications FOIA submitted to ICE is

attached hereto as Exhibit F and incorporated herein.
24.

A true and correct copy of the Miller Communications FOIA submitted to USCIS

is attached hereto as Exhibit G and incorporated herein.
25.

DOJ assigned the Miller Communications FOIA tracking number DOJ-2018-

007927, for records sought from the Office of the Attorney General.
26.

DOJ also assigned the Miller Communications FOIA tracking number DOJ-2018-

008184, for records sought from the Office of the Deputy Attorney General.
27.

DOJ also provided a third tracking number for the request insofar as it sought

records from DOJ’s Office of Information Policy, but that request was subsequently closed, and
is not a subject of this complaint.
28.

As of the date of this complaint, American Oversight has received no further

communications from DOJ regarding the Miller Communications FOIA.
29.

On August 30, 2018, State notified American Oversight that the email attachment

containing the Miller Communications FOIA could not be opened and requested that the request
be resubmitted. American Oversight resubmitted the request the same day.
30.

By telephone conversations and email exchanges between September 27, 2018,

and November 6, 2018, American Oversight conferred with State concerning the scope of the
Miller Communications FOIA, ultimately agreeing that State would process the following
records in response to the request:

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All records in the custody of the State Department’s Office of the
Secretary, Office of the Deputy Secretary, and Bureau of Consular
Affairs that mention White House Adviser Stephen Miller in any of
the following variations: ‘Stephen Miller,’ ‘Stephen.Miller,’
‘S.Miller,’ ‘stephenmiller,’ or ‘Stephen_Miller.’ Also all such
records that note the following variations of what we believe was
Stephen Miller’s private phone, including ‘(202) 881-8641,’ ‘202881-8641,’ ‘202.881.8641,’ and ‘2028818641.’ Time frame for this
request is November 9, 2016 to the present. Excluded are press
summaries and releases already in the public domain.
31.

By letter dated February 15, 2019, State formally acknowledged American

Oversight’s request, assigning it FOIA tracking number F-2018-06639.
32.

As of the date of this complaint, American Oversight has received no further

communications from State regarding the Miller Communications FOIA.
33.

On August 30, 2018, ACF notified American Oversight that the email attachment

containing the Miller Communications FOIA could not be opened and requested that the request
be resubmitted.
34.

American Oversight resubmitted the request the same day to both HHS and ACF.

ACF acknowledged receipt of the resubmitted request, confirming the attachment could be
opened.
35.

As of the date of this complaint, American Oversight has received no further

communications from HHS or ACF regarding the Miller Communications FOIA.
36.

DHS assigned the Miller Communications FOIA tracking number 2018-HQFO-

37.

On August 30, 2018, American Oversight and DHS discussed by telephone the

01431.

scope of the Miller Communications FOIA and came to an agreement as to appropriate search
terms for processing the request. DHS also agreed to determine its ability to provide telephone
call logs in response to the request. On the same day, American Oversight sent an email
memorializing its understanding of the agreement reached during this telephone call.

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38.

On September 4, 2018, DHS confirmed receipt of American Oversight’s August

30, 2018 email.
39.

As of the date of this complaint, American Oversight has received no further

communications from DHS regarding the Miller Communications FOIA.
40.

CBP assigned the Miller Communications FOIA tracking number CBP-OIT-

2018-083574 and sent an automated acknowledgment message by email on August 30, 2018.
41.

As of the date of this complaint, American Oversight has received no further

communications from CBP regarding the Miller Communications FOIA.
42.

On September 14, 2018, ICE notified American Oversight that the email

attachment containing the Miller Communications FOIA could not be opened and requested that
the request be resubmitted. American Oversight resubmitted the request the same day.
43.

On September 17, 2018, ICE acknowledged receipt of the Miller Communications

FOIA and assigned it FOIA tracking number 2018-ICFO-62041.
44.

On September 25, 2018, ICE informed American Oversight that it had identified

no records responsive to the Miller Communications FOIA.
45.

American Oversight timely submitted an administrative appeal on October 4,

46.

ICE acknowledged receipt of the appeal on October 12, 2018.

47.

On November 7, 2018, ICE notified American Oversight that it had “determined

2018.

that new search(es) or, modifications to the existing search(es), could be made” and that it was
“therefore remanding [the] appeal to the ICE FOIA Office for processing and re-tasking to the
appropriate agency/offices to obtain any responsive documents.”
48.

As of the date of this complaint, American Oversight has received no further

communications from ICE regarding the Miller Communications FOIA.

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49.

USCIS assigned the Miller Communications FOIA tracking number

NRC2018134214.
50.

As of the date of this complaint, American Oversight has received no further

communications from USCIS regarding the Miller Communications FOIA.
Klingler Communications FOIAs
51.

On November 1, 2018, American Oversight submitted FOIA requests to DHS,

CBP, ICE, and USCIS seeking access to the following records:
All records reflecting communications (including emails, email
attachments, calendar invitations/entries) between the custodians
listed below and McLaurine Klingler, Executive Assistant in the
White House Office within the Executive Office of the President.
52.

For each request, American Oversight requested all responsive records from

January 20, 2017, through February 18, 2018.
53.

American Oversight requested that DHS, CBP, ICE, and USCIS provide records

of specified agency officials.
54.

A true and correct copy of the Klingler Communications FOIA submitted to DHS

is attached hereto as Exhibit H and incorporated herein.
55.

A true and correct copy of the Klingler Communications FOIA submitted to CBP

is attached hereto as Exhibit I and incorporated herein.
56.

A true and correct copy of the Klingler Communications FOIA submitted to ICE

is attached hereto as Exhibit J and incorporated herein.
57.

A true and correct copy of the Klingler Communications FOIA submitted to

USCIS is attached hereto as Exhibit K and incorporated herein.
58.

From November 2, 2018, through November 5, 2018, American Oversight

provided clarification and additional information concerning the Klingler Communications FOIA
to DHS by email.

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59.

On November 5, 2018, DHS sent a formal acknowledgment of the Klinger

Communications FOIA, assigning it tracking number 2019-HQFO-00132.
60.

As of the date of this complaint, American Oversight has received no further

communications from DHS regarding the Klingler Communications FOIA.
61.

CBP assigned the Klingler Communications FOIA tracking number CBP-OIT-

2019-008211.
62.

As of the date of this complaint, American Oversight has received no further

communications from CBP regarding the Klingler Communications FOIA.
63.

On November 14, 2018, ICE acknowledged receipt of the Klingler

Communications FOIA and assigned it FOIA tracking number 2019-ICFO-21036.
64.

As of the date of this complaint, American Oversight has received no further

communications from ICE regarding the Klingler Communications FOIA.
65.

American Oversight has received no communications from USCIS concerning the

Klinger Communications FOIA.
Exhaustion of Administrative Remedies
66.

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.
67.

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.

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COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Searches for Responsive Records
68.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
69.

American Oversight properly requested records within the possession, custody,

and control of Defendants.
70.

Defendants are subject to FOIA, and they must therefore make reasonable efforts

to search for requested records.
71.

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

locating those records that are responsive to American Oversight’s FOIA requests.
72.

Defendants’ failure to conduct adequate searches for responsive records violates

FOIA and the agencies’ regulations.
73.

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
74.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
75.

American Oversight properly requested records within the possession, custody,

and control of Defendants.
76.

Defendants 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.

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77.

Defendants are wrongfully withholding non-exempt agency records requested by

American Oversight by failing to produce non-exempt records responsive to its FOIA requests.
78.

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.
79.

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

and the agencies’ regulations.
80.

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;
(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

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

Dated: March 20, 2019

Respectfully submitted,
/s/ Sara Kaiser Creighton
Sara Kaiser Creighton
D.C. Bar No. 1002367
/s/ John E. Bies
John E. Bies
D.C. Bar No. 483730
/s/ Katherine M. Anthony
Katherine M. Anthony
MA Bar No. 685150*
Pro hac vice motion to be submitted
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 897-3918
sara.creighton@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

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