Case 1:19-cv-10916 Document 1 Filed 04/23/19 Page 1 of 7

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

)
AMERICAN CIVIL LIBERTIES UNION OF )
MASSACHUSETTS, INC. and AMERICAN )
)
OVERSIGHT,
)
Plaintiffs,
)
)
)
v.
)
)
U.S. DEPARTMENT OF HOMELAND
SECURITY,
)
)
)
Defendant.
)

Civil Action No. _______________

COMPLAINT

COMPLAINT
1.

Plaintiffs American Civil Liberties Union of Massachusetts, Inc. and American

Oversight bring this action against the U.S. Department of Homeland Security 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 the FOIA, American Civil Liberties Union of Massachusetts, Inc. and American Oversight are
deemed to have exhausted their administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C)(i)

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and are now entitled to judicial action enjoining the agency from continuing to withhold agency
records and ordering the production of agency records improperly withheld.
PARTIES
5.

Plaintiff American Civil Liberties Union of Massachusetts, Inc. (ACLUM) is a

Massachusetts non-profit corporation with its principal place of business in Boston,
Massachusetts. ACLUM’s mission is to defend freedoms guaranteed in the Constitution and Bill
of Rights and to educate the public about civil liberties and civil rights. ACLUM is committed to
principles of transparency and accountability in government. Obtaining information about
government activity, analyzing that information, and widely publishing and disseminating it to
the press and the public is a critical and substantial component of the ACLUM’s work and one of
its primary activities.
6.

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.
7.

Defendant U.S. Department of Homeland Security (DHS) 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). DHS has possession,
custody, and control of the records that Plaintiffs seek.

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STATEMENT OF FACTS
8.

The Department of Homeland Security Appropriations Act for 2018, contained in

Division F of the Consolidated Appropriations Act of 2018, provides in Section 231 of Title II
that “[n]ot later than 180 days after the date of the enactment of this Act, the Secretary [of
Homeland Security] shall submit to the Committees on Appropriations of the Senate and the
House of Representatives a risk-based plan for improving security along the borders of the
United States, including the use of personnel, fencing, other forms of tactical infrastructure, and
technology,” and further including certain enumerated categories of information.
9.

According to a February 5, 2019 letter from the Congressional Hispanic Caucus

to the Department of Homeland Security Conference Committee, DHS submitted such a plan
(the “Border Security Plan”) to Congress on December 21, 2018.1
10.

On March 11, 2019, ACLUM and American Oversight submitted a FOIA request

to DHS requesting a copy of the Border Security Plan.
11.

Plaintiffs described the Border Security Plan in their FOIA request with reference

to the Department of Homeland Security Appropriations Act for 2018 as quoted in Paragraph 8
of this Complaint, as well as reference and citation to the February 5, 2019 letter from the
Congressional Hispanic Caucus described in Paragraph 9 of this Complaint.
12.

On March 19, 2019, DHS sent a letter acknowledging its receipt of this request.

DHS assigned the request tracking number 2019-HQFO-00486.

1

See Ltr. from Cong. Hispanic Caucus to Dep’t of Homeland Sec. Conference Comm. at 2,
Feb. 5, 2019, available at https://congressionalhispaniccaucuscastro.house.gov/sites/congressionalhispaniccaucus.house.gov/files/Letter%20to%20Conferees.p
df.
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13.

In its March 19, 2019 letter, DHS informed Plaintiffs that “[a]s [their] request

seeks documents that will require a thorough and wide-ranging search, DHS will invoke a 10day extension for your request pursuant to 6 C.F.R. Part 5 § 5.5(c).”
14.

Plaintiffs attempted to contact DHS by telephone and email to address their

disagreement with DHS’s determination that the request for a single document, described in
detail, would “require a thorough and wide-ranging search.”
15.

As of the date of this Complaint, DHS has not responded to Plaintiff’s

communications.
Exhaustion of Administrative Remedies
16.

As of the date of this complaint, DHS has failed to (a) notify either ACLUM or

American Oversight of any determination regarding their FOIA request, including the scope of
any responsive records DHS 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.
17.

Through DHS’s failure to respond to Plaintiffs’ FOIA request within the time

period required by law, ACLUM and American Oversight have constructively exhausted their
administrative remedies and seek immediate judicial review.
COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Search for Responsive Records
18.

Plaintiffs repeat the allegations in the foregoing paragraphs and incorporate them

as though fully set forth herein.
19.

Plaintiffs properly requested records within the possession, custody, and control

of DHS.

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20.

DHS is an agency subject to FOIA and must therefore make reasonable efforts to

search for requested records.
21.

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

those records that are responsive to Plaintiffs’ FOIA request.
22.

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

23.

Plaintiffs are therefore entitled to injunctive and declaratory relief requiring

FOIA.

Defendant to promptly make reasonable efforts to search for records responsive to Plaintiffs’
FOIA request.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
24.

Plaintiffs repeat the allegations in the foregoing paragraphs and incorporate them

as though fully set forth herein.
25.

Plaintiffs properly requested records within the possession, custody, and control

of DHS.
26.

DHS is an agency subject to FOIA and must therefore release in response to a

FOIA request any non-exempt records and provide a lawful reason for withholding any
materials.
27.

DHS is wrongfully withholding non-exempt agency records requested by

Plaintiffs by failing to produce non-exempt records responsive to their FOIA request.
28.

DHS is wrongfully withholding non-exempt agency records requested by

Plaintiffs by failing to segregate exempt information in otherwise non-exempt records responsive
to their FOIA request.

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29.

DHS’s failure to provide all non-exempt responsive records violates FOIA.

30.

Plaintiffs are therefore entitled to declaratory and injunctive relief requiring

Defendant to promptly produce all non-exempt records responsive to their respective FOIA
requests and provide indexes justifying the withholding of any responsive records withheld under
claim of exemption.
REQUESTED RELIEF
WHEREFORE, ACLUM and American Oversight respectfully request the Court to:
(1) Order Defendant to conduct a search or searches reasonably calculated to uncover all
records responsive to Plaintiffs’ FOIA request;
(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
Plaintiffs’ FOIA request 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 Plaintiffs’ FOIA request;
(4) Award Plaintiffs the costs of this proceeding, including reasonable attorneys’ fees and
other litigation costs reasonably incurred in this action, pursuant to 5 U.S.C. §
552(a)(4)(E); and
(5) Grant Plaintiffs such other relief as the Court deems just and proper.

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Dated: April 23, 2019

Respectfully submitted,
/s/ Daniel L. McFadden
Matthew R. Segal (BBO #654489)
Daniel L. McFadden (BBO #676612)
American Civil Liberties Union
Foundation of Massachusetts, Inc.
211 Congress Street
Boston, MA 02110
(617) 482-3170
msegal@aclum.org
dmcfadden@aclum.org
Counsel for Plaintiff American Civil Liberties
Union of Massachusetts, Inc.

/s/ Katherine M. Anthony
Katherine M. Anthony (BBO #685150)
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 897-3918
katherine.anthony@americanoversight.org
Counsel for Plaintiff American Oversight

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