Case 1:19-cv-01752 Document 1 Filed 06/17/19 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

v.
U.S. DEPARTMENT OF
TRANSPORTATION,
1200 New Jersey Avenue SE
Washington, DC 20590

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Plaintiff, )
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Defendant. )
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Case No. 19-cv-1752

COMPLAINT
1.

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

Transportation 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 the U.S. Department of Transportation has failed to comply

with the applicable time-limit provisions of FOIA, American Oversight is deemed to have
constructively exhausted its administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C)(i) and

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

organization primarily engaged in disseminating information to the public. American Oversight
is committed to promoting transparency in government, educating 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 Transportation (DOT) 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). DOT has possession,
custody, and control of the records that American Oversight seeks.
STATEMENT OF FACTS
DOT Officials’ Calendars Request
7.

On October 17, 2018, American Oversight submitted a FOIA request to DOT,

bearing internal tracking number DOT-18-0673, regarding calendars for certain DOT officials.
8.

American Oversight’s FOIA request to DOT specifically sought the following

records:
All calendars or calendar entries for any of the following
individuals, including any calendars maintained on behalf of these
individuals (e.g., by an administrative assistant) for the date ranges
provided below. If no date range is specified, please provide all
responsive records from the date each custodian joined DOT
through the date the search is conducted:

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•
•
•
•
•
•
9.

Elaine Chao (April 1, 2018, through the date of the search)
Jeff Rosen (April 1, 2018, through the date of the search)
Geoff Burr (April 1, 2018, through the date of the search)
Doug Simon
Tamara Somerville
Allison Moore

DOT acknowledged receiving American Oversight’s FOIA request and assigned

the request FOIA tracking number 2019-30.
10.

American Oversight has not received any further communication from DOT

regarding this FOIA request.
J. Todd Inman Calendar Request
11.

On January 19, 2019, American Oversight submitted a FOIA request to DOT,

bearing internal tracking number DOT-19-0024, regarding calendars for current Chief of Staff
and former political aide J. Todd Inman.
12.

American Oversight’s FOIA request to DOT specifically sought the following

records:
All calendars or calendar entries for J. Todd Inman—including any
calendars maintained on his behalf (e.g., by an administrative
assistant)—from January 20, 2017, through the date the search is
conducted.
13.

DOT acknowledged receiving American Oversight’s FOIA request and assigned

the request FOIA tracking number 2019-105.
14.

American Oversight has not received any further communication from DOT

regarding this FOIA request.
McConnell-Chao Communications Request
15.

On April 29, 2019, American Oversight submitted a FOIA request to DOT,

bearing internal tracking number DOT-19-0554, regarding communications between the offices
of Secretary Elaine Chao and Senator Mitch McConnell.

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16.

American Oversight’s FOIA request to DOT specifically sought the following

records:
1. All records reflecting communications (including emails, email
attachments, text messages, telephone call logs, calendar
invitations/entries, meeting notices, meeting agendas, informational
material, draft legislation, talking points, or other materials)
between (a) anyone in the Immediate Office of the Secretary (S-1),
including Secretary Chao, and (b) Senator Mitch McConnell or
anyone who works for Mr. McConnell, including anyone whose
email ends in @mcconnell.senate.gov.
2. All records reflecting communications (including emails, email
attachments, text messages, telephone call logs, calendar
invitations/entries, meeting notices, meeting agendas, informational
material, draft legislation, talking points, or other materials)
between (a) anyone in the Office of the Under Secretary of
Transportation for Policy (S-3) and (b) Senator Mitch McConnell or
anyone who works for Mr. McConnell, including anyone whose
email ends in @mcconnell.senate.gov.
3. All records reflecting communications (including emails, email
attachments, text messages, telephone call logs, calendar
invitations/entries, meeting notices, meeting agendas, informational
material, draft legislation, talking points, or other materials)
between (a) anyone in the Office of Governmental Affairs (OST-I)
and (b) Senator Mitch McConnell or anyone who works for Mr.
McConnell, including anyone whose email ends in
@mcconnell.senate.gov.
The request sought all responsive records from August 7, 2018, to the date the search was
conducted.
17.

DOT acknowledged receiving American Oversight’s FOIA request and assigned

the request FOIA tracking number 2019-245.
18.

American Oversight has not received any further communication from DOT

regarding this FOIA request.
Exhaustion of Administrative Remedies
19.

As of the date of this Complaint, DOT has failed to (a) notify American Oversight

of a final determination regarding American Oversight’s FOIA requests, including the scope of

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any responsive records DOT 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.
20.

Through Defendant’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
21.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
22.

American Oversight properly requested records within the possession, custody,

and control of Defendant.
23.

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

search for requested records.
24.

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

those records that are responsive to American Oversight’s FOIA requests.
25.

DOT’s failure to conduct adequate searches for responsive records violates FOIA.

26.

Plaintiff American Oversight is therefore entitled to declaratory and injunctive

relief requiring DOT 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 Records
27.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.

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28.

American Oversight properly requested records within the possession, custody,

and control of Defendant.
29.

DOT 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.
30.

DOT is wrongfully withholding non-exempt agency records requested by

American Oversight by failing to produce records responsive to its FOIA requests.
31.

DOT 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.
32.

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

33.

Plaintiff American Oversight is therefore entitled to declaratory and injunctive

relief requiring DOT to promptly produce all non-exempt records responsive to its FOIA
requests and provide an index 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, by such date as the Court deems appropriate, any and all
non-exempt records responsive to American Oversight’s FOIA requests and an index
justifying the withholding of any responsive records withheld under claim of
exemption;

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(3) Enjoin Defendant from continuing to withhold any and all non-exempt records
responsive to American Oversight’s FOIA requests;
(4) Award American Oversight 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: June 17, 2019

Respectfully submitted,
/s/ Sara Kaiser Creighton
Sara Kaiser Creighton
D.C. Bar No. 1002367
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-5245
sara.creighton@americanoversight.org
Counsel for Plaintiff

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