Case 1:19-cv-02272 Document 1 Filed 07/30/19 Page 1 of 11

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
)
Plaintiff, )
)
v.
)
)
U.S. BUREAU OF PRISONS,
)
320 First Street NW
)
Washington, DC 20534
)
)
and
)
)
U.S. DEPARTMENT OF JUSTICE,
)
950 Pennsylvania Avenue NW
)
Washington, DC 20530
)
)
Defendants. )
)
AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

Case No. 19-cv-2272

COMPLAINT
1.

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

and 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).

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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.
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. Bureau of Prisons (“BOP”) is a component of the U.S.

Department of Justice, a department of the executive branch of the U.S. government,
headquartered in Washington, D.C., and an agency of the federal government within the meaning
of 5 U.S.C. § 552(f)(1). BOP has possession, custody, and control of the records that American
Oversight seeks.
7.

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 Information Policy
(“OIP”), the Office of the Attorney General (“OAG”), and the Office of the Deputy Attorney

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General (“ODAG”) are components of DOJ. OIP processes FOIA requests on behalf of certain
other components of DOJ, including OAG and ODAG. DOJ has possession, custody, and control
of the records that American Oversight seeks.
STATEMENT OF FACTS
8.

In late January and early February 2019, the Brooklyn Metropolitan Detention

Center (“MDC”), operated by BOP, reportedly experienced heat and power outages that caused
people detained in that facility to experience inhumane conditions, including extreme cold. See
Annie Correal, No Heat for Days at a Jail in Brooklyn Where Hundreds of Inmates Are Sick and
Frantic, N.Y. Times, Feb. 1, 2019, https://www.nytimes.com/2019/02/01/nyregion/mdcbrooklyn-jail-heat.html. During this period detainees were also reportedly denied access to legal
counsel and relatives. See id. In February 2019, American Oversight submitted four FOIA
requests to BOP and DOJ seeking, broadly speaking, documents related to the Brooklyn MDC,
BOP and DOJ responses to conditions at the MDC, and documents containing key terms that
may be related to the MDC.
BOP Leadership Communications FOIA
9.

On February 27, 2019, American Oversight submitted a FOIA request to BOP

seeking the following:
All records reflecting communications (including emails, email
attachments, text messages, messages on messaging platforms (such as
Slack, GChat or Google Hangouts, Lync, Skype, or WhatsApp), telephone
call logs, calendar invitations, calendar entries, meeting notices, meeting
agendas, informational material, draft legislation, talking points, any
handwritten or electronic notes taken during any oral communications,
summaries of any oral communications, or other materials) of the following
BOP officials concerning the Metropolitan Detention [Center] in Brooklyn:
1) Acting Director of the Bureau of Prisons, Hugh J. Hurwitz, and any
other political appointee* or career member of the Senior Executive
Service (SES) within the office of the Director of BOP;

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2) Any individual performing the duties and functions of the Deputy
Director of BOP;
3) Northeast Regional Director J. Ray Ormond, and any other political
appointee* or career member of the Senior Executive Service (SES)
within the office of the Northeast Regional Director.
Please provide all responsive records from January 1, 2019, through the date
of the search.
*“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.
10.

By letter dated March 26, 2019, BOP acknowledged receipt of the BOP

Leadership Communications FOIA and assigned it reference number 2019-02982.
11.

American Oversight has not received any further communication from BOP

regarding this FOIA request.
BOP Key Terms Communications FOIA
12.

Also on February 27, 2019, American Oversight submitted a FOIA request to

BOP seeking the following:
All email communications (including email messages, email attachments,
and calendar invitations/entries) of Acting Director of the Bureau of
Prisons, Hugh J. Hurwitz, Northeast Regional Director J. Ray Ormond, or
Brooklyn Metropolitan Detention Center Warden Herman Quay, containing
any of the following terms:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.

Heat
“Heating system”
temperature
Blanket
Blankets
Electricity
“Federal Defenders”
Nadler
Velasquez
“von Dornum”

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k. Protest
l. Protests
m. “hot water”
n. “hot meal”
o. “hot meals”
p. “power outage”
q. “minimally impacted”
r. “air handler”
s. “cold air”
t. “Unit I62”
u. Analisa
v. Annalisa
w. “Judge Torres”
x. Spilke
y. Kunstler
z. “water damage”
aa. Blackout
bb. “black-out”
cc. “black out”
dd. “lock down”
ee. “locked down”
ff. “electrical fire”
gg. Zimian
hh. Tabb
ii. “Con Ed”
jj. “Con Edison”
kk. “ConEd”
Please provide all responsive records from January 15, 2019, through the
date of the search.
13.

By letter dated March 26, 2019, BOP acknowledged receipt of the BOP Key

Terms Communications FOIA and assigned it reference number 2019-02980.
14.

American Oversight has not received any further communication from BOP

regarding this FOIA request.
BOP MDC Complaints FOIA
15.

Also on February 27, 2019, American Oversight submitted a FOIA request to

BOP seeking the following:

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1. All records reflecting communications (including emails, email
attachments, text messages, messages on messaging platforms (such as
Slack, GChat or Google Hangouts, Lync, Skype, or WhatsApp),
telephone call logs, calendar invitations, calendar entries, meeting
notices, meeting agendas, informational material, draft legislation,
talking points, any handwritten or electronic notes taken during any oral
communications, summaries of any oral communications, or other
materials) of BOP officials and employees at the Metropolitan
Detention [Center] (MDC) in Brooklyn regarding any of the following
topics:
a. The provision of heat, hot water, or medical care to people detained
at MDC;
b. The ability of people detained at MDC to communicate with legal
counsel;
c. Any limitation on the ability of people detained at MDC to meet
with visitors, legal counsel, or any other persons not detained at
MDC;
d. Complaints by people detained at the MDC regarding the
conditions of their confinement, including complaints regarding;
e. Problems with services rendered by contractors working at the
MDC facility; or
f. Requests by city, state, or federal government officials to visit,
inspect, or otherwise gain access to the MDC.
2. All records reflecting complaints filed by people detained at MDC
regarding any of the following:
a. The provision of heat, hot water, or medical care to people detained
at MDC;
b. The ability of people detained at MDC to communicate with legal
counsel;
c. Any limitation on the ability of people detained at MDC to meet
with visitors, legal counsel, or any other persons not detained at
MDC;
d. Complaints by people detained at the MDC regarding the
conditions of their confinement, including complaints regarding;
e. Problems with services rendered by contractors working at the
MDC facility; or
f. Requests by city, state, or federal government officials to visit,
inspect, or otherwise gain access to the MDC.
Please provide all responsive records from January 1, 2019, through the date
of the search.

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16.

By letter dated March 26, 2019, BOP acknowledged receipt of the BOP MDC

Complaints FOIA and assigned it reference number 2019-02979.
17.

American Oversight has not received any further communication from BOP

regarding this FOIA request.
DOJ Leadership Communications FOIA
18.

Also on February 27, 2019, American Oversight submitted a FOIA request to

DOJ seeking the following:
All records reflecting communications (including emails, email
attachments, text messages, messages on messaging platforms (such as
Slack, GChat or Google Hangouts, Lync, Skype, or WhatsApp), telephone
call logs, calendar invitations, calendar entries, meeting notices, meeting
agendas, informational material, draft legislation, talking points, any
handwritten or electronic notes taken during any oral communications,
summaries of any oral communications, or other materials) of any political
appointee* in the Office of the Attorney General or the Office of the Deputy
Attorney General concerning the Metropolitan Detention Facility in
Brooklyn.
Please provide all responsive records from January 1, 2019, through the date
of the search.
*“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.

By letter dated March 15, 2019, DOJ acknowledged receipt of DOJ Leadership

Communications FOIA and assigned it tracking number DOJ-2019-002598.
20.

American Oversight has not received any further communication from DOJ

regarding this FOIA request.

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Exhaustion of Administrative Remedies
21.

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.
22.

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.
COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Searches for Responsive Records
23.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
24.

American Oversight properly requested records within the possession, custody,

and control of Defendants.
25.

Defendants are an agency and a component thereof subject to FOIA, and they

must therefore make reasonable efforts to search for requested records.
26.

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

locating those records that are responsive to American Oversight’s FOIA requests.
27.

Defendants’ failure to conduct an adequate search for responsive records violates

FOIA and applicable regulations.

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28.

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
29.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
30.

American Oversight properly requested records within the possession, custody,

and control of Defendants.
31.

Defendants are an agency and a component thereof 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.
32.

Defendants are wrongfully withholding non-exempt agency records requested by

American Oversight by failing to produce non-exempt records responsive to its FOIA requests.
33.

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.
34.

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

and applicable regulations.
35.

Plaintiff American Oversight is therefore entitled to declaratory and injunctive

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

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Dated: July 30, 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

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