Case 1:19-cv-00877 Document 1 Filed 03/27/19 Page 1 of 8

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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)
)
)
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Plaintiff, )
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v.
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U.S. DEPARTMENT OF JUSTICE,
)
950 Pennsylvania Avenue NW
)
Washington, DC 20530
)
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Defendant. )
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AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

Case No. 19-cv-877

COMPLAINT
1.

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

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

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

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

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

§ 1391(e).
4.

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

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

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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 uses 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 U.S. Department of Justice (DOJ) is a department of the executive

branch of the U.S. government headquartered in Washington, DC, and an agency of the federal
government within the meaning of 5 U.S.C. § 552(f)(1). The Office of Legal Counsel (OLC) is a
component of DOJ. DOJ has possession, custody, and control of the records that American
Oversight seeks.
STATEMENT OF FACTS
7.

On January 14, 2019, in the midst of DOJ’s lapse in federal appropriations, OLC

published a legal opinion reversing its 2011 position “that the prohibitions of the Wire Act in
18 U.S.C. § 1084(a) are limited to sports gambling.”
8.

American Oversight filed a series of FOIA requests seeking records to shed light

on whether and to what extent outside interests influenced OLC’s about-face on a published
opinion that was just seven years old.

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Outside Communications FOIA
9.

On January 16, 2019, American Oversight submitted a FOIA request to OLC

seeking access to the following records:
All
communications
regarding
the
interpretation
(or
reinterpretation) of the Wire Act or suggesting or requesting review
or reconsideration of OLC’s 2011 opinion regarding the Wire Act
prepared by or communicated with anyone outside of the federal
government (that is, where anyone outside the federal government
sent, received, or was copied on the communication).
For any responsive information contained in or attached to an email,
this request seeks the entire email chain—that is, the request
includes all prior and subsequent messages (whether incoming or
outgoing) reflected in the responsive correspondence for which any
party outside OLC is a recipient, sender, or is copied on the
correspondence, as well as any attachments thereto.
10.

American Oversight requested all responsive records from January 20, 2017, to

January 16, 2019.
11.

OLC assigned the Outside Communications FOIA tracking number FY19-70.
Forwarded Communications FOIA

12.

On January 16, 2019, American Oversight submitted a FOIA request to OLC

seeking access to the following records:
All records that reflect or contain any discussion regarding the
interpretation (or reinterpretation) of the Wire Act or a request for
or suggestion of any review or reconsideration of OLC’s 2011
opinion regarding the Wire Act prepared by or communicated with
anyone outside the federal government and forwarded by any
government official to OLC.
For any responsive information contained in or attached to an email,
this request seeks the entire email chain—that is, the request
includes all prior and subsequent messages (whether incoming or
outgoing) reflected in the responsive correspondence for which any
party outside OLC is a recipient, sender, or is copied on the
correspondence, as well as any attachments thereto.

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13.

American Oversight requested all responsive records from January 20, 2017, to

January 16, 2019.
14.

OLC assigned the Forwarded Communications FOIA tracking number FY19-071.
White House Communications FOIA

15.

On January 16, 2019, American Oversight submitted a FOIA request to OLC

seeking access to the following records:
All records reflecting communications with the White House
regarding the interpretation (or reinterpretation) of the Wire Act or
a request for or suggestion of any review or reconsideration of
OLC’s 2011 opinion regarding the Wire Act. This request seeks
both records where OLC is a party to, recipient of, sender of, or is
copied on communications with the White House, and records
reflecting communications between others and the White House that
are subsequently described or forwarded to OLC.
For any responsive information contained in or attached to an email,
this request seeks the entire email chain—that is, the request
includes all prior and subsequent messages (whether incoming or
outgoing) reflected in the responsive correspondence for which any
party outside OLC is a recipient, sender, or is copied on the
correspondence, as well as any attachments thereto.
16.

American Oversight requested all responsive records from January 20, 2017, to

January 16, 2019.
17.

OLC assigned the White House Communications FOIA tracking number FY19-

072.
Calendars FOIA
18.

On January 16, 2019, American Oversight submitted a FOIA request to OLC

seeking access to the following records:
All calendars or calendar entries for all political appointees* in OLC
for or reflecting any meeting with any person outside OLC relating
to the interpretation (or reinterpretation) of the Wire Act, including

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any calendars maintained on behalf of these individuals, from
January 20, 2017, to the date of this request.
For calendar entries created in Outlook or similar programs, the
documents should be produced in “memo” form to include all
invitees, any notes, and all attachments. Please do not limit your
search to Outlook calendars—we request the production of any
calendar—paper or electronic, whether on government-issued or
personal devices—used to track or coordinate how these individuals
allocate their time on agency business.
*“Political appointee” should be understood as any person who is a
Presidential Appointee with Senate Confirmation (PAS), a
Presidential Appointee (PA), a Non-career SES, any Schedule C
employees, or any persons hired under Temporary Non-career SES
Appointments, Limited Term SES Appointments, or Temporary
Transitional Schedule C Appointments.
19.

OLC assigned the Calendars FOIA tracking number FY19-73.
Exhaustion of Administrative Remedies

20.

As of the date of this complaint, DOJ has failed to (a) notify American Oversight

of any determination regarding its FOIA requests, including the scope of any responsive records
DOJ intends 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.
21.

Through DOJ’s 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
22.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.

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23.

American Oversight properly requested records within the possession, custody,

and control of DOJ.
24.

DOJ is an agency subject to FOIA, and it must therefore make reasonable efforts

to search for requested records.
25.

DOJ has failed to promptly review agency records for the purpose of locating

those records that are responsive to American Oversight’s FOIA requests.
26.

DOJ’s failure to conduct an adequate search for responsive records violates FOIA

and DOJ regulations.
27.

Plaintiff American Oversight is therefore entitled to injunctive and declaratory

relief requiring Defendant 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
28.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
29.

American Oversight properly requested records within the possession, custody,

and control of DOJ.
30.

DOJ is an agency subject to FOIA, and it must therefore release in response to a

FOIA request any non-exempt records and provide a lawful reason for withholding any
materials.
31.

DOJ is wrongfully withholding non-exempt agency records requested by

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

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32.

DOJ is 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.
33.

DOJ’s failure to provide all non-exempt responsive records violates FOIA and

DOJ regulations.
34.

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 Defendant to conduct a search or searches reasonably calculated to uncover all
records responsive to American Oversight’s FOIA requests;
(2) Order Defendant 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 Defendant 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
(5) Grant American Oversight such other relief as the Court deems just and proper.

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Dated: March 27, 2019

Respectfully submitted,
/s/ Cerissa Cafasso
Cerissa Cafasso
D.C. Bar No. 1011003
/s/ Daniel A. McGrath
Daniel A. McGrath
D.C. Bar No. 1531723
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-5244
cerissa.cafasso@americanoversight.org
daniel.mcgrath@americanoversight.org
Counsel for Plaintiff

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