Case 1:19-cv-02813 Document 1 Filed 09/19/19 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiff, )
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v.
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U.S. DEPARTMENT OF JUSTICE,
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950 Pennsylvania Avenue NW
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Washington, DC 20530
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Defendant. )
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AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

Case No. 19-cv-2813

COMPLAINT
1.

Plaintiff American Oversight brings this action against 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).
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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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 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)
is a component of DOJ and processes FOIA requests on behalf of itself and several other DOJ
components including the Office of the Attorney General (OAG), the Office of the Deputy
Attorney General (ODAG), and the Office of Legislative Affairs (OLA). DOJ has possession,
custody, and control of the records that American Oversight seeks.
STATEMENT OF FACTS
First White House Oversight Communications FOIA
7.

On June 24, 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

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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, handwritten or electronic summaries of any
oral communications, or other materials) between (a) political
appointees*1 in the Department of Justice (DOJ) Office of the
Attorney General, Office of the Deputy Attorney General, and the
Office of Legislative Affairs and (b) any of the White House
Counsel staff listed below regarding congressional oversight of the
executive branch—including both specific congressional oversight
of specific matters and general policies, concerns, and
considerations related to congressional oversight of the executive
branch.
8.

The request listed 48 White House staffers2 identified based on publicly available

information.
9.

American Oversight requested all responsive records from September 1, 2018,

through the date of the search.
10.

By letter dated July 22, 2019, DOJ acknowledged the First White House

Oversight Communications FOIA and assigned the FOIA tracking number DOJ-2019-005528.

1

In each of American Oversight’s requests “political appointees” was defined to include “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.”
The request identified the following individuals: 1) Don McGahn, 2) Pat Cipollone, 3) Stacy
Amin, 4) Omeed Assefi, 5) Sue Bai, 6) Trent Benishek, 7) Ryan Brady, 8) Joseph Clark,
9) Devin DeBacker, 10) Uttam Dhillon, 11) Jennifer Dickey, 12) George “Jed” Doty, 13) Anne
Donaldson, 14) John Eisenberg, 15) Michael Ellis, 16) Deirdre Eliot, 17) Dan Epstein, 18)
Emmett Flood, 19) Joe Gammello, 20) Kevin Garvey, 21) Scott Gast, 22) Scott Glabe, 23) Chris
Greico, 24) Mark Grider, 25) Steven Groves, 26) Eric Hamilton, 27) Tara Helfman, 28) David
Jones, 29) Dino LaVerghetta, 30) Will Levi, 31) Robert Luther, 32) Jon “Tyler” McGaughey,
33) Steven Menashi, 34) Chad Mizelle, 35) John Moran, 36) David Morrell, 37) Claire Murray,
38) Brian Nieves, 39) Kevin O'Scannlain, 40) Stefan Passantino, 41) Patrick Philben,
42) Bethany Pickett, 43) Sam Ramer, 44) Sean Sandoloski, 45) Schuyler Schouten, 46) Kathryn
Comerford Todd, 47) Michael Velchik, and 48) John Walk.
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11.

American Oversight has received no further communication from DOJ with

respect to the First White House Oversight Communications FOIA.
Second White House Oversight Communications FOIA
12.

On July 19, 2019, American Oversight submitted a FOIA request to DOJ seeking

the following records:
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, handwritten or electronic summaries of any
oral communications, or other materials) between (a) political
appointees* in the Department of Justice (DOJ) Office of the
Attorney General, Office of the Deputy Attorney General, and the
Office of Legislative Affairs and (b) any of the White House
Counsel staff listed below regarding congressional oversight of the
executive branch—including both specific congressional oversight
of specific matters and general policies, concerns, and
considerations related to congressional oversight of the executive
branch.
13.

The request listed 16 White House staffers3 identified based on recent publicly

available information.
14.

American Oversight requested all responsive records from September 1, 2018,

through the date the search is conducted.
15.

By letter dated August 13, 2019, DOJ acknowledged the Second White House

Oversight Communications FOIA and assigned the FOIA tracking number DOJ-2019-005994.

The request listed the following individuals: 1) Brittany Biles, 2) Richard Cleary, 3) John
Coghlan, 4) Christopher Cook, 5) Melissa Croslow, 6) Elizabeth Gorman, 7) Chase Harrington,
8) Elizabeth Horning, 9) Mark Lytle, 10) Coreen Mao, 11) Austin Mayron, 12) Brian Miller, 13)
Michael Purpura, 14) Brian Rabbitt, 15) Mackenzie Siebert, and 16) Jeffrey Freeland.
3

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16.

American Oversight has received no further communication from DOJ with

respect to the Second White House Oversight Communications FOIA.
Exhaustion of Administrative Remedies
17.

As of the date of this complaint, DOJ has failed to (a) notify American Oversight

of any determination regarding its FOIA requests, including the scope of any responsive records
DOJ 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.
18.

Through DOJ’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
19.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
20.

American Oversight properly requested records within the possession, custody,

and control of DOJ.
21.

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

to search for requested records.
22.

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

those records that are responsive to American Oversight’s FOIA requests.
23.

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

and DOJ regulations.

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24.

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.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
25.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
26.

American Oversight properly requested records within the possession, custody,

and control of DOJ.
27.

DOJ 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.
28.

DOJ is wrongfully withholding non-exempt agency records requested by

American Oversight by failing to produce non-exempt records responsive to its FOIA requests.
29.

DOJ 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.
30.

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

DOJ regulations.
31.

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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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.

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Dated: September 19, 2019

Respectfully submitted,
/s/ Cerissa Cafasso
Cerissa Cafasso
D.C. Bar No. 1011003
/s/ Daniel A. McGrath
Daniel A. McGrath
D.C. Bar No. 1531723
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-5244
cerissa.cafasso@americanoversight.org
daniel.mcgrath@americanoversight.org
Counsel for Plaintiff

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