Case 1:19-cv-02119-DLF Document 6 Filed 08/28/19 Page 1 of 7

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF EDUCATION,
)
400 Maryland Avenue SW
)
Washington, DC 20202
)
Defendant. )
)
)
AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

Case No. 19-cv-2119

FIRST AMENDED COMPLAINT
1.

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

Education 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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Case 1:19-cv-02119-DLF Document 6 Filed 08/28/19 Page 2 of 7

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 Education (Education) 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). Education has possession,
custody, and control of the records American Oversight has requested.
STATEMENT OF FACTS
7.

On May 16, 2019, the Department of Education Inspector General (IG) issued a

report summarizing the findings of the IG's review of Education officials' use of personal email
to conduct agency business. The report noted that the IG had identified instances where
Secretary DeVos used personal email accounts to conduct agency business and stated that "the
Secretary's emails related to government business were not always being properly preserved."
Ltr. from Sandra D. Bruce, Acting Inspector General, U.S. Dep't of Education, to Rep. Rose
DeLauro, Chairwoman, U.S. House of Representatives, Subcommittee on Labor, Health and

2

Case 1:19-cv-02119-DLF Document 6 Filed 08/28/19 Page 3 of 7

Human Services, Education, and Related Agencies, May 16, 2019,
https://www2.ed.gov/about/offices/list/oig/auditrpts/responserepdelaurouseofemail05162019.pdf.
First Personal Email Request
8.

On November 29, 2018, American Oversight submitted a FOIA request to

Education seeking:
1. All records reflecting email communications (including any email
attachments) with any non-governmental email address attributed to
Secretary Betsy DeVos.
Your agency may limit its search to the following individuals:
a)
b)
c)
d)
e)

Nate Bailey
Joshua Venable
Jessica Newman
Nate Breeding
Robert Eitel

2. All emails sent from (a) any non-governmental email address attributed
to Secretary DeVos to (b) any governmental email address associated
with Secretary DeVos. Please include all messages, including those that
have been forwarded to Secretary DeVos's governmental email address
or on which Secretary Devos's governmental email address is carbon
copied.
Please provide all responsive records from January 20, 2017, to the date
the search is conducted.
9.

By letter dated December 3, 2018, Education acknowledged receipt of the First

Personal Email Request and assigned the request tracking number 19-000418-F.
10.

By letter dated December 20, 2018, Education notified American Oversight that it

would not respond to the First Personal Email Request within the statutorily required time
period.
11.

American Oversight has received no further communication from Education

regarding the processing of the First Personal Email Request.

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Case 1:19-cv-02119-DLF Document 6 Filed 08/28/19 Page 4 of 7

Second Personal Email Request
12.

On July 16, 2019, American Oversight submitted a FOIA request to Education

seeking:
All emails sent or received by Secretary Betsy Devos on any personal, nongovernmental, or non-official email account regarding official agency
business.
Please understand emails regarding "official agency business" to broadly
include, at a minimum, all communications that would ordinarily comprise
federal records per 44 U.S.C. ? 3301(a)(1)(A), which defines federal
government records as,
all recorded information . . . appropriate for preservation by that
agency or its legitimate successor as evidence of the organization,
functions, policies, decisions, procedures, operations, or other
activities of the United States Government or because of the
informational value of data in them[.] Id.
Please provide all responsive records from February 7, 2017, through the
date of the search.
13.

By letter dated July 18, 2019, Education acknowledged receipt of the Second

Personal Email Request and assigned the request tracking number 19-01861-F.
14.

By letter dated August 8, 2019, Education stated that it would not be able to

respond to the Second Personal Email Request within the 20-day statutorily required period and
could not provide an estimated completion date.
15.

American Oversight has received no further communication from Education

regarding the processing of the Second Personal Email Request.
Exhaustion of Administrative Remedies
16.

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

Oversight of any determination regarding its FOIA requests, including the scope of any
responsive records Education intends to produce or withhold and the reasons for any

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Case 1:19-cv-02119-DLF Document 6 Filed 08/28/19 Page 5 of 7

withholdings; or (b) produce the requested records or demonstrate that the requested records are
lawfully exempt from production.
17.

Through Education'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
18.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
19.

American Oversight properly requested records within the possession, custody,

and control of Education.
20.

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

efforts to search for requested records.
21.

Education has failed to promptly review agency records for the purpose of

locating those records that are responsive to American Oversight's FOIA requests.
22.

Education's failure to conduct adequate searches for responsive records violates

FOIA and Education regulations.
23.

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.

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Case 1:19-cv-02119-DLF Document 6 Filed 08/28/19 Page 6 of 7

COUNT II
Violation of FOIA, 5 U.S.C. ? 552
Wrongful Withholding of Non-Exempt Responsive Records
24.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
25.

American Oversight properly requested records within the possession, custody,

and control of Education.
26.

Education 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.
27.

Education is wrongfully withholding non-exempt agency records requested by

American Oversight by failing to produce non-exempt records responsive to its FOIA requests.
28.

Education 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.
29.

Education's failure to provide all non-exempt responsive records violates FOIA

and Education regulations.
30.

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.

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Case 1:19-cv-02119-DLF Document 6 Filed 08/28/19 Page 7 of 7

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.
Dated: August 28, 2019

Respectfully submitted,
/s/ Daniel A. McGrath
Daniel A. McGrath
D.C. Bar No. 1531723
Cerissa Cafasso
D.C. Bar No. 1011003
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 897-4213
daniel.mcgrath@americanoversight.org
cerissa.cafasso@americanoversight.org
Counsel for Plaintiff

7

Case 1:19-cv-02119 Document 1 Filed 07/17/19 Page 1 of 6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF EDUCATION,
)
400 Maryland Avenue SW
)
Washington, DC 20202
)
Defendant. )
)
)
AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

Case No. 19-cv-2119

COMPLAINT
1.

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

Education 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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 Case 1:19-cv-02119 Document 1 Filed 07/17/19 Page 2 of 6

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 Education (Education) 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). Education has possession,
custody, and control of the records American Oversight has requested.
STATEMENT OF FACTS
7.

On May 16, 2019, the Department of Education Inspector General (IG) issued a

report summarizing the findings of the IG’s review of Education officials’ use of personal email
to conduct agency business. The report noted that the IG had identified instances where
Secretary DeVos used personal email accounts to conduct agency business and stated that “the
Secretary’s emails related to government business were not always being properly preserved.”
Ltr. from Sandra D. Bruce, Acting Inspector General, U.S. Dep’t of Education, to Rep. Rose
DeLauro, Chairwoman, U.S. House of Representatives, Subcommittee on Labor, Health and

2

 Case 1:19-cv-02119 Document 1 Filed 07/17/19 Page 3 of 6

Human Services, Education, and Related Agencies, May 16, 2019,
https://www2.ed.gov/about/offices/list/oig/auditrpts/responserepdelaurouseofemail05162019.pdf.
8.

On November 29, 2018, American Oversight submitted a FOIA request to

Education seeking:
1. All records reflecting email communications (including any email
attachments) with any non-governmental email address attributed to
Secretary Betsy DeVos.
Your agency may limit its search to the following individuals:
a)
b)
c)
d)
e)

Nate Bailey
Joshua Venable
Jessica Newman
Nate Breeding
Robert Eitel

2. All emails sent from (a) any non-governmental email address attributed
to Secretary DeVos to (b) any governmental email address associated
with Secretary DeVos. Please include all messages, including those that
have been forwarded to Secretary DeVos’s governmental email address
or on which Secretary Devos’s governmental email address is carbon
copied.
Please provide all responsive records from January 20, 2017, to the date
the search is conducted.
9.

By letter dated December 3, 2018, Education acknowledged receipt of American

Oversight’s FOIA request and assigned the request tracking number 19-000418-F.
10.

By letter dated December 20, 2018, Education notified American Oversight that it

would not respond to American Oversight’s FOIA request within the statutorily required time
period.
11.

American Oversight has received no further communication from Education

regarding the processing of its FOIA request.

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 Case 1:19-cv-02119 Document 1 Filed 07/17/19 Page 4 of 6

Exhaustion of Administrative Remedies
12.

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

Oversight of any determination regarding its FOIA request, including the scope of any
responsive records Education 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.
13.

Through Education’s failure to respond to American Oversight’s FOIA request

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
14.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
15.

American Oversight properly requested records within the possession, custody,

and control of Education.
16.

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

efforts to search for requested records.
17.

Education has failed to promptly review agency records for the purpose of

locating those records that are responsive to American Oversight’s FOIA request.
18.

Education’s failure to conduct adequate searches for responsive records violates

FOIA and Education regulations.

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 Case 1:19-cv-02119 Document 1 Filed 07/17/19 Page 5 of 6

19.

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 request.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
20.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
21.

American Oversight properly requested records within the possession, custody,

and control of Education.
22.

Education 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.
23.

Education is wrongfully withholding non-exempt agency records requested by

American Oversight by failing to produce non-exempt records responsive to its FOIA request.
24.

Education 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 request.
25.

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

and Education regulations.
26.

Plaintiff American Oversight is therefore entitled to declaratory and injunctive

relief requiring Defendant to promptly produce all non-exempt records responsive to its FOIA
request and provide indexes justifying the withholding of any responsive records withheld under
claim of exemption.

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 Case 1:19-cv-02119 Document 1 Filed 07/17/19 Page 6 of 6

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 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
American Oversight’s 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 American Oversight’s FOIA request;
(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: July 17, 2019

Respectfully submitted,
/s/ Daniel A. McGrath
Daniel A. McGrath
D.C. Bar No. 1531723
Cerissa Cafasso
D.C. Bar No. 1011003
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 897-4213
daniel.mcgrath@americanoversight.org
cerissa.cafasso@americanoversight.org
Counsel for Plaintiff

6