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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
)
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF JUSTICE,
)
)
and
)
)
FEDERAL BUREAU OF INVESTIGATION,
)
)
Defendants. )
)
AMERICAN OVERSIGHT,

Case No. 19-cv-8215

COMPLAINT
1.

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

Justice and the Federal Bureau of Investigation 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 28 U.S.C. § 1391(e) and 5 U.S.C.

§ 552(a)(4)(B), as the agency records requested by Plaintiff American Oversight are situated in
this district.
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

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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 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.
6.

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

branch of the U.S. government and an agency of the federal government within the meaning of
5 U.S.C. § 552(f)(1). The Executive Office of United States Attorneys (EOUSA) is a component
of DOJ, which receives and processes FOIA requests on behalf of U.S. Attorneys’ offices, which
are also components of DOJ. The U.S. Attorney’s Office for the Southern District of New York
has possession, custody, and control of the records that American Oversight seeks.
7.

Defendant Federal Bureau of Investigation (FBI) is a component of DOJ, a

department of the executive branch of the U.S. government, and an agency of the federal
government within the meaning of 5 U.S.C. § 552(f)(1). FBI has possession, custody, and control
of the records that American Oversight seeks.
STATEMENT OF FACTS
8.

The U.S. Attorney’s Office for the Southern District of New York conducted an

investigation of potential campaign finance violations by Michael Cohen in connection with his

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work for and with the presidential campaign of then-candidate Donald J. Trump, including
violations of the Federal Election Act of 1971. This investigation led to an indictment and
eventual guilty plea by Mr. Cohen. See Information, United States v. Michael Cohen, 18-cr-602
(S.D.N.Y., filed Aug. 21, 2018), ECF No. 2; Testimony of Michael D. Cohen at 2, Comm. on
Oversight & Reform, U.S. House of Representatives, Feb. 27, 2019,
https://www.documentcloud.org/documents/5753160-Michael-Cohen-s-written-testimony-toHouse.html.
9.

On July 17, 2019, the federal court that oversaw Mr. Cohen’s prosecution

ordered that materials related to Mr. Cohen’s campaign finance violations could be unsealed in
light of the Government’s representations that it had concluded the aspects of its investigation
that justified the continued sealing of materials related to Mr. Cohen’s campaign finance
violations. Memorandum & Order, United States v. Michael Cohen, 18-cr-602 (S.D.N.Y. filed
July 17, 2019), ECF No. 47. The Court recognized that materials related to Mr. Cohen’s
campaign finance violations concerned “a matter of national importance” and disclosure of those
materials was warranted in light of the “weighty public ramifications” of the conduct described
in the materials. Id.
10.

On July 22, 2019, American Oversight submitted a FOIA request to EOUSA and

FBI for records that, broadly speaking, reflecting the content of interviews conducted in the
course of the government’s investigation of potential campaign finance violations committed by
President Trump, Michael Cohen, the Trump Organization, or individuals representing President
Trump or the Trump Organization. Attached hereto as Exhibit A.
11.

Specifically, American Oversight’s FOIA request sought the following:
1) All FBI form 302s reflecting the content of all interviews
conducted as a part of the government’s investigation of potential

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campaign finance violations committed by President Trump, the
Trump Organization, Michael Cohen, or others representing
President Trump or the Trump Organization, as well as any
investigation of other potential violations related to that
investigation (including, for example, obstruction of justice).
Specifically, this request seeks 302s from the investigation(s) that
a Southern District of New York court acknowledged had been
concluded, at least in part, in its July 17, 2019 Opinion and Order
in United States v. Cohen, Case No. 18cr602 (S.D.N.Y.), ECF
No. 47.
2) All other records intended to summarize, memorialize, or record
witness interviews or witness statements collected or used in the
investigation(s) described in Item 1, including written proffers,
written summaries of oral proffers, transcripts or recordings of any
witness interviews or statements, and any other record
summarizing, memorializing, or reproducing the content of
witness interviews or statements collected or used in connection
with the above-described investigation.
Please provide all responsive records from September 1, 2016,
through the date the search is conducted.
Ex. A at 2.
12.

The records American Oversight has requested are related to an investigation and

prosecution conducted by the U.S. Attorney’s Office for the Southern District of New York and,
on information and belief, the requested records are situated in this district.
13.

American Oversight requested expedited processing of its request. Ex. A at 4–6.

14.

By letter dated July 24, 2019, EOUSA acknowledged receipt of American

Oversight’s request and noted that the request seeks records from “one or more field offices.”
EOUSA assigned the request tracking number EOUSA-2019-003828.
15.

On July 25, 2019, EOUSA indicated that it had denied American Oversight’s

request for expedited processing by a system-generated FOIAOnline notification, which
contained no explanation of the agency’s reasoning for its denial.

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16.

By letter dated July 31, 2019, FBI acknowledged receipt of American Oversight’s

request and assigned the request tracking number 1443116-000.
17.

By letter dated August 1, 2019, FBI granted American Oversight’s request for

expedited processing.
18.

American Oversight has not received any further communication from

Defendants regarding its FOIA Request.
Exhaustion of Administrative Remedies
19.

As of the date of this complaint, Defendants have failed to (a) notify American

Oversight of any determination regarding its FOIA request, 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.
20.

Through Defendants’ 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.
21.

EOUSA’s denial of expedited processing is subject to immediate judicial review

pursuant to 5 U.S.C. § 552(a)(6)(E)(iii).
COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Grant Expedited Processing
(as to EOUSA)
22.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
23.

American Oversight properly requested records within the possession, custody,

and control of DOJ on an expedited basis.

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24.

DOJ is an agency subject to FOIA, and it must process FOIA requests on an

expedited basis pursuant to the requirements of FOIA and agency regulations.
25.

The records sought relate to a subject of widespread and exceptional media

interest implicating questions concerning the government’s integrity that affect public
confidence. Therefore, American Oversight’s FOIA request justified expedited processing under
FOIA and DOJ regulations.
26.

DOJ’s failure to grant expedited processing of American Oversight’s FOIA

request violated FOIA and DOJ regulations.
27.

American Oversight is therefore entitled to declaratory and injunctive relief

requiring DOJ to grant expedited processing of American Oversight’s FOIA request.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Searches for 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 Defendants.
30.

Defendants are an agency and a component thereof subject to FOIA and must

therefore make reasonable efforts to search for requested records.
31.

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

those records that are responsive to American Oversight’s FOIA request.
32.

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

FOIA and DOJ regulations.

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33.

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 III
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
34.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
35.

American Oversight properly requested records within the possession, custody,

and control of Defendants.
36.

Defendants are an agency and a component thereof 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.
37.

Defendants are wrongfully withholding non-exempt agency records requested by

American Oversight by failing to produce non-exempt records responsive to its FOIA request.
38.

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 request.
39.

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

and DOJ regulations.
40.

Plaintiff American Oversight is therefore entitled to declaratory and injunctive

relief requiring Defendants 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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REQUESTED RELIEF
WHEREFORE, American Oversight respectfully requests the Court to:
(1) Order EOUSA to expedite the processing of American Oversight’s FOIA request;
(2) Order Defendants to conduct a search or searches reasonably calculated to uncover all
records responsive to American Oversight’s FOIA request;
(3) 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 request and indexes justifying the withholding of any
responsive records withheld under claim of exemption;
(4) Enjoin Defendants from continuing to withhold any and all non-exempt records
responsive to American Oversight’s FOIA request;
(5) 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
(6) Grant American Oversight such other relief as the Court deems just and proper.
Dated: September 4, 2019

Respectfully submitted,
/s/ Austin R. Evers
Austin R. Evers
Daniel A. McGrath* N.Y. Bar No. 5541198
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 897-4213
austin.evers@americanoversight.org
daniel.mcgrath@americanoversight.org
Counsel for Plaintiff
*pro hac vice motion forthcoming

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EXHIBIT A

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July 22, 2019
VIA ONLINE PORTAL
David M. Hardy
Chief, Record/Information
Dissemination Section
Records Management Division
Federal Bureau of Investigation
170 Marcel Drive
Winchester, VA 22602-4843
Via Online Portal

Kevin Krebs,
Assistant Director, FOIA/Privacy Unit
Executive Office for United States
Attorneys
175 N Street, NE, Suite 5.400
Washington, DC 20530-0001
Via FOIAOnline

Re: Expedited Freedom of Information Act Request
Dear Mr. Hardy and Mr. Krebs:
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. ? 552, and the
implementing regulations of your agency, 28 C.F.R. Part 16, American Oversight makes
the following request for records.
Recent public reports indicate that the investigation regarding President Trump's potential
violation of campaign finance laws conducted by the U.S. Attorney's Office for the
Southern District of New York has been concluded.1 Despite the recent practice of the
Department of Justice (DOJ) providing information about its decisions not to charge the
subjects of high-profile investigations, DOJ has not provided any public information
regarding its decision to close this investigation into potential crimes committed by the
president.2
Requested Records
American Oversight seeks expedited review of this request for the reasons identified
below and requests that DOJ and FBI produce the following records as soon as practicable,
and at least within twenty business days:

See Ben Protess et al., Investigation into Trump Campaign Violations Is Over, Judge Says, N.Y.
TIMES, July 17, 2019, https://www.nytimes.com/2019/07/17/nyregion/michael-cohentrump-investigation.html.
2 Jim Mustian, Why No Hush-Money Charges Against Trump? Feds Are Silent, AP, July 19, 2019,
https://www.apnews.com/0543a381b39a42d09c27567274477983.
1

1030 15th Street NW, Suite B255, Washington, DC 20005 | AmericanOversight.org

Case 1:19-cv-08215 Document 1-1 Filed 09/04/19 Page 3 of 9

1. All FBI form 302s reflecting the content of all interviews conducted as a part of
the government's investigation of potential campaign finance violations
committed by President Trump, the Trump Organization, Michael Cohen, or
others representing President Trump or the Trump Organization, as well as any
investigation of other potential violations related to that investigation
(including, for example, obstruction of justice). Specifically, this request seeks
302s from the investigation(s) that a Southern District of New York court
acknowledged had been concluded, at least in part, in its July 17, 2019 Opinion
and Order in United States v. Cohen, Case No. 18cr602 (S.D.N.Y.), ECF No. 47.
2. All other records intended to summarize, memorialize, or record witness
interviews or witness statements collected or used in the investigation(s)
described in Item 1, including written proffers, written summaries of oral
proffers, transcripts or recordings of any witness interviews or statements, and
any other record summarizing, memorializing, or reproducing the content of
witness interviews or statements collected or used in connection with the
above-described investigation.
Please provide all responsive records from September 1, 2016, through the date
the search is conducted.
Fee Waiver Request
In accordance with 5 U.S.C. ? 552(a)(4)(A)(iii) and your agency's regulations, American
Oversight requests a waiver of fees associated with processing this request for records.
The subject of this request concerns the operations of the federal government, and the
disclosures will likely contribute to a better understanding of relevant government
procedures by the general public in a significant way. Moreover, the request is primarily
and fundamentally for non-commercial purposes.
American Oversight requests a waiver of fees because disclosure of the requested
information is "in the public interest because it is likely to contribute significantly to
public understanding of operations or activities of the government."3 The public has a
significant interest in DOJ's investigation of potential crimes committed by the president
and information gained from that investigation. Records with the potential to shed light
on this matter would contribute significantly to public understanding of operations of the
federal government, including whether DOJ conducted a thorough investigation of
potential criminal activity by the highest-ranking official in the executive branch.
American Oversight is committed to transparency and makes the responses agencies
provide to FOIA requests publicly available, and the public's understanding of the
government's activities would be enhanced through American Oversight's analysis and
publication of these records.

3

5 U.S.C. ? 552(a)(4)(A)(iii).

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This request is primarily and fundamentally for non-commercial purposes.4 As a 501(c)(3)
nonprofit, American Oversight does not have a commercial purpose and the release of the
information requested is not in American Oversight's financial interest. American
Oversight's mission is to promote transparency in government, to educate the public
about government activities, and to ensure the accountability of government officials.
American Oversight uses the information gathered, and its analysis of it, to educate the
public through reports, press releases, or other media. American Oversight also makes
materials it gathers available on its public website and promotes their availability on social
media platforms, such as Facebook and Twitter.5
American Oversight has also demonstrated its commitment to the public disclosure of
documents and creation of editorial content through numerous substantive analyses
posted to its website.6 Examples reflecting this commitment to the public disclosure of
documents and the creation of editorial content include the posting of records related to
an ethics waiver received by a senior Department of Justice attorney and an analysis of
what those records demonstrated regarding the Department's process for issuing such
waivers;7 posting records received as part of American Oversight's "Audit the Wall" project
to gather and analyze information related to the administration's proposed construction of
a barrier along the U.S.-Mexico border, and analyses of what those records reveal;8 posting
records regarding potential self-dealing at the Department of Housing & Urban
Development and related analysis;9 posting records and analysis relating to the federal

See 5 U.S.C. ? 552(a)(4)(A)(iii).
American Oversight currently has approximately 12,200 page likes on Facebook and
54,200 followers on Twitter. American Oversight, FACEBOOK,
https://www.facebook.com/weareoversight/ (last visited May 29, 2019); American
Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited
May 29, 2019).
6 News, AMERICAN OVERSIGHT, https://www.americanoversight.org/blog.
7 DOJ Records Relating to Solicitor General Noel Francisco's Recusal, AMERICAN OVERSIGHT,
https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance; Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN
OVERSIGHT, https://www.americanoversight.org/francisco-the-travel-ban-what-welearned-from-the-doj-documents.
8 See generally Audit the Wall, AMERICAN OVERSIGHT,
https://www.americanoversight.org/investigation/audit-the-wall; see, e.g., Border Wall
Investigation Report: No Plans, No Funding, No Timeline, No Wall, AMERICAN OVERSIGHT,
https://www.americanoversight.org/border-wall-investigation-report-no-plans-nofunding-no-timeline-no-wall.
9 Documents Reveal Ben Carson Jr.'s Attempts to Use His Influence at HUD to Help His Business,
AMERICAN OVERSIGHT, https://www.americanoversight.org/documents-reveal-ben-carsonjr-s-attempts-to-use-his-influence-at-hud-to-help-his-business.
4
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government's efforts to sell nuclear technology to Saudi Arabia;10 posting records and
analysis regarding the Department of Justice's decision in response to demands from
Congress to direct a U.S. Attorney to undertake a wide-ranging review and make
recommendations regarding criminal investigations relating to the President's political
opponents and allegations of misconduct by the Department of Justice itself and the
Federal Bureau of Investigation.11
Accordingly, American Oversight qualifies for a fee waiver.
Application for Expedited Processing
Pursuant to 5 U.S.C. ? 552(a)(6)(E)(1) and 28 C.F.R. ? 16.5(e)(1)(iv), American
Oversight requests that your agency expedite the processing of this request.
I certify to be true and correct to the best of my knowledge and belief that there is
widespread and exceptional media interest and there exist possible questions concerning
the government's integrity, which affect public confidence.
There is widespread and exceptional media interest in understanding the conduct of and
facts gathered by DOJ's investigation of the president's potential commission of campaign
finance violations.12 The subject matter of this request also concerns possible questions
concerning the government's integrity. In particular, the fact that the president's former
attorney is serving a multi-year sentence in prison in part for his role in making payments
to women who accused the president of extramarital affairs before the 2016 presidential
election has given rise to public concerns that DOJ has not pursued criminal charges
against the president because of his position of power rather than the absence of evidence

Investigating the Trump Administration's Efforts to Sell Nuclear Technology to Saudi Arabia,
AMERICAN OVERSIGHT, https://www.americanoversight.org/investigating-the-trumpadministrations-efforts-to-sell-nuclear-technology-to-saudi-arabia.
11 Sessions' Letter Shows DOJ Acted On Trump's Authoritarian Demand to Investigate Clinton,
AMERICAN OVERSIGHT, https://www.americanoversight.org/sessions-letter.
12 See, e.g., Protess et al., supra note 1; Mustian, supra note 2; William K. Rashbaum & Ben
Protess, New Charges in Stormy Daniels Hush Money Inquiry Unlikely, Prosecutors Signal, N.Y.
TIMES, July 18, 2019, https://www.nytimes.com/2019/07/18/nyregion/stormy-danielsmichael-cohen-documents.html; Rebecca Balhaus, Prosecutors Are Asked Why Trump Wasn't
Indicted for Campaign Violations, WALL ST. J. (July 19, 2019, 4:18 PM),
https://www.wsj.com/articles/prosecutors-asked-why-trump-wasnt-indicted-forcampaign-finance-violations-11563561750; Matt Zapotosky, Prosecutors Have 'Concluded'
Michael Cohen Campaign Finance Probe, Judge Says, WASH. POST, July 17, 2019,
https://www.washingtonpost.com/national-security/prosecutors-have-concluded-michaelcohen-campaign-finance-probe-judge-says/2019/07/17/733391a0-a8b1-11e9-9214246e594de5d5_story.html?utm_term=.df3f81727e82.
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of his guilt.13 The U.S. House of Representatives Committee on Oversight and Reform has
expressed similar concerns. In particular, the Committee has asked whether DOJ failed to
pursue criminal charges due to an opinion that the president cannot be prosecuted while
in office, and the Committee further requested documents underlying the investigation.14
Moreover, I certify to be true and correct to the best of my knowledge and belief that there
exist possible questions concerning the government's integrity regarding the conduct of
the investigation into the president's potential criminal activity, and the decision to
conclude the investigation without filing charges.
I further certify that American Oversight is primarily engaged in disseminating
information to the public. American Oversight's mission is to promote transparency in
government, to educate the public about government activities, and to ensure the
accountability of government officials. Similar to other organizations that have been found
to satisfy the criteria necessary to qualify for expedition,15 American Oversight "'gathers
information of potential interest to a segment of the public, uses its editorial skills to turn
the raw material into a distinct work, and distributes that work to an audience.'"16
American Oversight uses the information gathered, and its analysis of it, to educate the
public through reports, press releases, and other media. American Oversight also makes
materials it gathers available on its public website and promotes their availability on social
media platforms, such as Facebook and Twitter.17 As discussed previously, American
Oversight has demonstrated its commitment to the public disclosure of documents and
creation of editorial content. 18
Chris Smith, "It Would Be Ridiculously Naive Not to Be Concerned": Trump Has Politicized the
DOJ. How Long Can the SDNY Hold Out?, VANITY FAIR, July 8, 2019,
https://www.vanityfair.com/news/2019/07/trump-has-politicized-the-doj-how-long-canthe-sdny-hold-out.
14 Kyle Cheney, Dems Ask Whether DOJ Memo Prevented Prosecuting Trump for Hush Payments,
Politico (July 19, 2019, 2:49 PM), https://www.politico.com/story/2019/07/19/dojmemo-trump-hush-payments-1422933; Ltr. from Rep. Elijah Cummings, Chairman, U.S.
House of Representatives, Comm. on Oversight and Reform, to Audrey Strauss, Deputy
United State Attorney, Southern District of New York, July 19, 2019,
https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2019-0719.COR%20to%20Strauss-SDNY%20re%20Hush%20Money%20Investigation.pdf.
15 See ACLU v. U.S. Dep't of Justice, 321 F. Supp. 2d 24, 30-31 (D.D.C. 2004); EPIC v. Dep't of
Defense, 241 F. Supp. 2d 5, 15 (D.D.C. 2003).
16 ACLU, 321 F. Supp. 2d at 29 n.5 (quoting EPIC, 241 F. Supp. 2d at 11).
17 American Oversight currently has approximately 12,200 page likes on Facebook and
54,200 followers on Twitter. American Oversight, FACEBOOK,
https://www.facebook.com/weareoversight/ (last visited May 29, 2019); American
Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited
May 29, 2019).
18 See generally News, AMERICAN OVERSIGHT, https://www.americanoversight.org/blog; see,
e.g., DOJ Civil Division Response Noel Francisco Compliance, AMERICAN OVERSIGHT,
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Accordingly, American Oversight's request satisfies the criteria for expedition.
Guidance Regarding the Search & Processing of Requested Records
In connection with its request for records, American Oversight provides the following
guidance regarding the scope of the records sought and the search and processing of
records:
?

Please search all locations and systems likely to have responsive records, regardless
of format, medium, or physical characteristics.

?

In conducting your search, please understand the terms "record," "document," and
"information" in their broadest sense, to include any written, typed, recorded,
graphic, printed, or audio material of any kind. We seek records of any kind,
including electronic records, audiotapes, videotapes, and photographs, as well as
letters, emails, facsimiles, telephone messages, voice mail messages and
transcripts, notes, or minutes of any meetings, telephone conversations or
discussions.

?

Our request for records includes any attachments to those records or other
materials enclosed with those records when they were previously transmitted. To
the extent that an email is responsive to our request, our request includes all prior
messages sent or received in that email chain, as well as any attachments to the
email.

?

Please search all relevant records or systems containing records regarding agency
business. Do not exclude records regarding agency business contained in files,
email accounts, or devices in the personal custody of your officials, such as

https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance; Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN
OVERSIGHT, https://www.americanoversight.org/francisco-the-travel-ban-what-welearned-from-the-doj-documents; Audit the Wall, AMERICAN OVERSIGHT,
https://www.americanoversight.org/investigation/audit-the-wall; Border Wall Investigation
Report: No Plans, No Funding, No Timeline, No Wall, AMERICAN OVERSIGHT,
https://www.americanoversight.org/border-wall-investigation-report-no-plans-nofunding-no-timeline-no-wall; Documents Reveal Ben Carson Jr.'s Attempts to Use His Influence at
HUD to Help His Business, AMERICAN OVERSIGHT,
https://www.americanoversight.org/documents-reveal-ben-carson-jr-s-attempts-to-usehis-influence-at-hud-to-help-his-business; Investigating the Trump Administration's Efforts to
Sell Nuclear Technology to Saudi Arabia, AMERICAN OVERSIGHT,
https://www.americanoversight.org/investigating-the-trump-administrations-efforts-tosell-nuclear-technology-to-saudi-arabia; Sessions' Letter Shows DOJ Acted On Trump's
Authoritarian Demand to Investigate Clinton, AMERICAN OVERSIGHT,
https://www.americanoversight.org/sessions-letter.

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personal email accounts or text messages. Records of official business conducted
using unofficial systems or stored outside of official files are subject to the Federal
Records Act and FOIA.19 It is not adequate to rely on policies and procedures that
require officials to move such information to official systems within a certain
period of time; American Oversight has a right to records contained in those files
even if material has not yet been moved to official systems or if officials have, by
intent or through negligence, failed to meet their obligations.20
?

Please use all tools available to your agency to conduct a complete and efficient
search for potentially responsive records. Agencies are subject to government-wide
requirements to manage agency information electronically,21 and many agencies
have adopted the National Archives and Records Administration (NARA)
Capstone program, or similar policies. These systems provide options for searching
emails and other electronic records in a manner that is reasonably likely to be
more complete than just searching individual custodian files. For example, a
custodian may have deleted a responsive email from his or her email program, but
your agency's archiving tools may capture that email under Capstone. At the same
time, custodian searches are still necessary; agencies may not have direct access to
files stored in .PST files, outside of network drives, in paper format, or in personal
email accounts.

?

In the event some portions of the requested records are properly exempt from
disclosure, please disclose any reasonably segregable non-exempt portions of the
requested records. If a request is denied in whole, please state specifically why it is
not reasonable to segregate portions of the record for release.

?

Please take appropriate steps to ensure that records responsive to this request are
not deleted by the agency before the completion of processing for this request. If
records potentially responsive to this request are likely to be located on systems
where they are subject to potential deletion, including on a scheduled basis, please
take steps to prevent that deletion, including, as appropriate, by instituting a
litigation hold on those records.

See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149-50 (D.C.
Cir. 2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955-56 (D.C. Cir. 2016).
20 See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8
(D.D.C. Dec. 12, 2016).
21 Presidential Memorandum--Managing Government Records, 76 Fed. Reg. 75,423
(Nov. 28, 2011), https://obamawhitehouse.archives.gov/the-pressoffice/2011/11/28/presidential-memorandum-managing-government-records; Office of
Mgmt. & Budget, Exec. Office of the President, Memorandum for the Heads of Executive
Departments & Independent Agencies, "Managing Government Records Directive,"
M-12-18 (Aug. 24, 2012), https://www.archives.gov/files/records-mgmt/m-12-18.pdf.
19

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Conclusion
If you have any questions regarding how to construe this request for records or believe
that further discussions regarding search and processing would facilitate a more efficient
production of records of interest to American Oversight, please do not hesitate to contact
American Oversight to discuss this request. American Oversight welcomes an opportunity
to discuss its request with you before you undertake your search or incur search or
duplication costs. By working together at the outset, American Oversight and your agency
can decrease the likelihood of costly and time-consuming litigation in the future.
Where possible, please provide responsive material in an electronic format by email.
Alternatively, please provide responsive material in native format or in PDF format on a
USB drive. Please send any responsive material being sent by mail to American Oversight,
1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of
responsive records to American Oversight, please also provide responsive material on a
rolling basis.
We share a common mission to promote transparency in government. American Oversight
looks forward to working with your agency on this request. If you do not understand any
part of this request, please contact Dan McGrath at foia@americanoversight.org or
202.897.4213. Also, if American Oversight's request for expedition is not granted or its
request for a fee waiver is not granted in full, please contact us immediately upon making
such a determination.
Sincerely,

Austin R. Evers
Executive Director
American Oversight

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