Case 1:19-cv-03029 Document 1 Filed 10/10/19 Page 1 of 12

IN THE 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-3029

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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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.

President Trump recently nominated Steven Menashi, the Department of

Education’s former acting General Counsel, to the U.S. Court of Appeals for the Second Circuit.
Before Mr. Menashi was the department’s head lawyer, he was the Deputy Counsel for
Postsecondary Education. As Mr. Menashi has been nominated to serve a lifetime term on the
federal bench, there is an urgent need to reveal any communications with the potential to inform
his confirmation process, for both the elected officials with the authority to confirm and the
constituents they represent.

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Ethics FOIA
8.

On September 10, 2019, American Oversight submitted a FOIA request to

Education seeking expedited production of:
a. Any conflicts or ethics waivers or authorizations for Steven
Menashi, including authorizations pursuant to 5 C.F.R.
§ 2635.502.
b. Records reflecting any recusal determination made or issued for
Mr. Menashi.
c. Any ethics agreement or ethics or recusal screening agreement
or protocol for Mr. Menashi.
d. All email communications (including email messages, complete
email chains, email attachments, calendar invitations, and
attachments thereto) sent by former General Counsel Steven
Menashi to any of the individuals or entities listed below:
I. George Mason University (@gmu.edu)
II. Mercatus Center (@mercatus.org)
III. Kirkland & Ellis (@kirkland.com)
IV. NBC Universal (@nbc.com and @nbcuniversal.com)
9.

American Oversight requested all responsive records from May 24, 2017, to

May 1, 2018.
10.

Further, in an effort to accommodate Education and reduce the number of

responsive records to be processed and produced, American Oversight limited its request to
emails sent by former General Counsel Steven Menashi. American Oversight still requested that
complete email chains be produced, displaying both the sent messages and the prior received
messages in each email chain. This means, for example, that both Mr. Menashi’s response to an
email and the initial received message are responsive to this request and should be produced.
This request included all prior messages (whether incoming or outgoing) reflected in the

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responsive correspondence and any attachments thereto. A copy of the Ethics FOIA is attached
hereto as Exhibit A, and incorporated herein.
11.

By letter dated September 11, 2019, Education acknowledged receipt of American

Oversight’s FOIA request and assigned the Ethics FOIA tracking number 19-02227-F.
12.

Education did not respond to American Oversight’s request for expedited

processing of the Ethics FOIA.
Immigration Communications FOIA
13.

On September 10, 2019, American Oversight submitted a FOIA request to

Education seeking expedited production of:
All email communications (including email messages, complete
email chains, email attachments, calendar invitations, and
attachments thereto) sent by former General Counsel Steven
Menashi containing the following terms:
a.
b.
c.
d.
e.
14.

“Plyler”
“Public charge”
“undocumented”
“illegal alien”
“illegal immigrant”

American Oversight requested all responsive records from May 24, 2017, to

May 1, 2018.
15.

Further, in an effort to accommodate Education and reduce the number of

responsive records to be processed and produced, American Oversight limited its request to
emails sent by former General Counsel Steven Menashi. American Oversight still requested that
complete email chains be produced, displaying both the sent messages and the prior received
messages in each email chain. This means, for example, that both Mr. Menashi’s response to an
email and the initial received message are responsive to this request and should be produced.
This request included all prior messages (whether incoming or outgoing) reflected in the

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responsive correspondence and any attachments thereto. A copy of the Immigration
Communications FOIA is attached hereto as Exhibit B, and incorporated herein.
16.

By letter dated September 11, 2019, Education acknowledged receipt of American

Oversight’s FOIA request and assigned the Immigration Communications FOIA tracking number
19-02226-F.
17.

Education did not respond to American Oversight’s request for expedited

processing of the Immigration Communications FOIA.
White House Communications FOIA
18.

On September 10, 2019, American Oversight submitted a FOIA request to

Education seeking expedited production of:
All email communications (including email messages, complete
email chains, email attachments, calendar invitations, and
attachments thereto) between (1) former General Counsel Steven
Menashi or any person communicating on his behalf, such as
schedulers or assistants, and (2) any of the individuals or entities
listed below:
a.
b.
c.
d.
19.

Stephen Miller (stephen.miller@who.eop.gov)
Robert Gabriel (robert.gabriel@who.eop.gov)
Jennifer Cytryn (Jennifer.cytryn@who.eop.gov)
McLaurine Klingler (including but not limited to the email
address mclaurine.klingler@who.eop.gov)

American Oversight requested all responsive records from May 24, 2017, to

May 1, 2018. A copy of the White House Communications FOIA is attached hereto as Exhibit C,
and incorporated herein.
20.

By letter dated September 11, 2019, Education acknowledged receipt of American

Oversight’s FOIA request and assigned the White House Communications FOIA tracking
number 19-02225-F.

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21.

By letter dated September 17, 2019, Education denied American Oversight’s

request for expedited processing of the White House Communications FOIA.
External Communications FOIA
22.

On September 10, 2019, American Oversight submitted a FOIA request to

Education seeking expedited production of:
All email communications (including email messages, complete
email chains, email attachments, calendar invitations, and
attachments thereto) between (1) former General Counsel Steven
Menashi or any person communicating on his behalf, such as
schedulers or assistants, and (2) any of the individuals or entities
listed below:
1.
2.
3.
4.
5.
6.
7.
8.
9.

A Voice for Men (avoiceformen.com)
Alliance Defending Freedom (adflegal.org)
Carrie Severino
Center for Immigration Studies (cis.org)
Ed Bartlett
Ed Whelan (ewhelan@eppc.org)
Eric Rosenberg (erosenberg@rosenbergball.com)
Faith and Freedom Coalition (ffcoalition.com)
Families Advocating for Campus Equality
(facecampusequality.org)
10. Family Policy Alliance (familypolicyalliance.com)
11. Family Research Council (frc.org)
12. Family Research Council Action (frcaction.org)
13. Federalist Society (fedsoc.org)
14. Federation for American Immigration Reform (fairus.org)
15. First Liberty (firstliberty.org)
16. Focus on the Family (focusonthefamily.com)
17. Greg Josefchuk
18. Heritage Action for America (heritageaction.org)
19. Heritage Foundation (heritage.org)
20. Immigration Reform Law Institute (irli.org)
21. Jake Goldberg
22. Jerry Falwell Jr.
23. Judicial Crisis Network
24. Justin Dillon (jdillon@kaiserdillon.com)
25. Kursat Pekgoz
26. Leonard Leo
27. Liberty Counsel (lc.org)
28. Liberty University (liberty.edu)

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29. Mark Perry (mjperry@umflint.edu)
30. National Center for Men (nationalcenterformen.org)
31. National Coalition for Men (ncfm.org)
32. National Rifle Association (@nra.org, @nrahq.org,
@nraila.org, or @am.com)
33. NumbersUSA (numbersusa.com)
34. Paul Elam (paul@avoiceformen.com)
35. Shan Wu
36. Stop Abusive and Violent Environments
(saveservices.org)
37. The Remembrance Project (theremembranceproject.org)
38. Tom Rossley
39. Warren Farrell (warren@warrenfarrell.com)
23.

American Oversight requested all responsive records from May 24, 2017, to

May 1, 2018. A copy of the External Communications FOIA is attached hereto as Exhibit D, and
incorporated herein.
24.

By letter dated September 11, 2019, Education acknowledged receipt of American

Oversight’s FOIA request and assigned the External Communications FOIA tracking number 1902224-F.
25.

By letter dated September 17, 2019, Education denied American Oversight’s

request for expedited processing of the External Communications FOIA.
Exhaustion of Administrative Remedies
26.

Through Education’s failure to respond to American Oversight’s requests for

expedited processing of the Ethics FOIA and Immigration Communications FOIA within the
time period required by law, American Oversight has constructively exhausted its administrative
remedies as to that issue and seeks immediate judicial review.
27.

Through Education’s denial of American Oversight’s requests for expedited

processing of the White House Communications FOIA and External Communications FOIA,

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American Oversight has exhausted its administrative remedies as to that issue and seeks
immediate judicial review.
28.

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
withholdings; or (b) produce the requested records or demonstrate that the requested records are
lawfully exempt from production.
29.

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 Grant Expedited Processing
30.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
31.

American Oversight properly requested records within the possession, custody,

and control of Education on an expedited basis.
32.

Education is an agency subject to FOIA and must process FOIA requests on an

expedited basis pursuant to the requirements of 5 U.S.C. § 552(a)(6)(E) and 34 C.F.R.
§ 5.21(i)(2)(i)(B).
33.

The records sought by American Oversight contain information urgently needed

in order to inform the public concerning actual or alleged government activity, and therefore
justify expedited processing under 34 C.F.R. § 5.21(i)(2)(i)(B).

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34.

Education failed to make a determination as to whether expedited processing was

appropriate for the Ethics FOIA and Immigration Communications FOIA and to notify American
Oversight of any such determination within ten days after the date of the request.
35.

Education’s failure to grant expedited processing of the Ethics FOIA and

Immigration Communications FOIA violates FOIA and agency regulations.
36.

Plaintiff American Oversight is therefore entitled to injunctive and declaratory

relief requiring Defendant to grant expedited processing of the Ethics FOIA and Immigration
Communications FOIA.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Denial of Expedited Processing
37.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
38.

American Oversight properly requested records within the possession, custody,

and control of Education on an expedited basis.
39.

Education 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.
40.

The records sought by American Oversight contain information urgently needed

in order to inform the public concerning actual or alleged government activity, and therefore
justify expedited processing under 34 C.F.R. § 5.21(i)(2)(i)(B).
41.

Education wrongfully denied American Oversight’s request for expedited

processing of the White House Communications FOIA and the External Communications FOIA.
42.

Education’s denial of expedited processing under 34 C.F.R. § 5.21(i)(2)(i)(B)

violated FOIA and agency regulations.

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43.

Plaintiff American Oversight is therefore entitled to declaratory and injunctive

relief requiring Defendant to grant expedited processing of the White House Communications
FOIA and the External Communications FOIA.
COUNT III
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Searches for Responsive Records
44.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
45.

American Oversight properly requested records within the possession, custody,

and control of Education.
46.

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

efforts to search for requested records.
47.

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

locating those records that are responsive to American Oversight’s FOIA requests.
48.

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

FOIA and Education regulations.
49.

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 IV
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
50.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.

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51.

American Oversight properly requested records within the possession, custody,

and control of Education.
52.

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.
53.

Education is wrongfully withholding non-exempt agency records requested by

American Oversight by failing to produce non-exempt records responsive to its FOIA requests.
54.

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.
55.

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

and Education regulations.
56.

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.
REQUESTED RELIEF
WHEREFORE, American Oversight respectfully requests the Court to:
(1) Order Defendant to expedite the processing of the FOIA requests identified in this
Complaint;
(2) Order Defendant to conduct a search or searches reasonably calculated to uncover all
records responsive to American Oversight’s FOIA requests;

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(3) 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;
(4) Enjoin Defendant from continuing to withhold any and all non-exempt records
responsive to American Oversight’s FOIA requests;
(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: October 10, 2019

Respectfully submitted,
/s/ Emma Lewis
Emma Lewis
D.C. Bar No. 144574
/s/ Sara Kaiser Creighton
Sara Kaiser Creighton
D.C. Bar No. 1002367
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 919-6303
emma.lewis@americanoversight.org
sara.creighton@americanoversight.org
Counsel for Plaintiff

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EXHIBIT A

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September 10, 2019
VIA EMAIL
FOIA Public Liaison
U.S. Department of Education
Office of Management
Office of the Chief Privacy Officer
400 Maryland Avenue SW, LBJ 2E320
Washington, DC 20202-4536
EDFOIAManager@ed.gov
Re: Expedited Freedom of Information Act Request
Dear FOIA Officer:
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. ? 552, and the
implementing regulations of the Department of Education (Education), 34 C.F.R. Part 5,
American Oversight makes the following request for records.
President Trump recently announced his intent to nominate Steven Menashi, the
Department of Education's former acting General Counsel, to the U.S. Court of Appeals
for the Second Circuit.1 Before Mr. Menashi was the department's head lawyer, he was the
Deputy Counsel for Postsecondary Education. As Mr. Menashi has been nominated to
serve a lifetime term on the federal bench, there is an urgent need to reveal any
communications with the potential to inform his confirmation process, for both the
representatives with the authority to confirm and the constituents they represent.
American Oversight seeks records with the potential to shed light on Mr. Menashi's
activities and communications during his tenure at Education.
Requested Records
American Oversight seeks expedited review of this request for the reasons identified
below and requests that Education produce the following records as soon as practicable,
and at least within twenty business days:

Tal Axelrod, Trump Taps White House Lawyer for Federal Appeals Court, THE HILL (Aug. 18,
2019, 5:58 PM), https://thehill.com/homenews/administration/457470-trump-tapswhite-house-lawyer-for-federal-appeals-court.
1

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Case 1:19-cv-03029 Document 1-1 Filed 10/10/19 Page 3 of 10

a. Any conflicts or ethics waivers or authorizations for Steven Menashi,
including authorizations pursuant to 5 C.F.R. ? 2635.502.
b. Records reflecting any recusal determination made or issued for Mr.
Menashi.
c. Any ethics agreement or ethics or recusal screening agreement or
protocol for Mr. Menashi.
d. All email communications (including email messages, complete email
chains, email attachments, calendar invitations, and attachments
thereto) sent by former General Counsel Steven Menashi to any of the
individuals or entities listed below:
I.
George Mason University (@gmu.edu)
II.
Mercatus Center (@mercatus.org)
III.
Kirkland & Ellis (@kirkland.com)
IV.
NBC Universal (@nbc.com and @nbcuniversal.com)
Please provide all responsive records from May 24, 2017 to May 1, 2018.
In an effort to accommodate Education and reduce the number of responsive
records to be processed and produced, American Oversight has limited its request
to emails sent by former General Counsel Steven Menashi. To be clear, however,
American Oversight still requests that complete email chains be produced,
displaying both the sent messages and the prior received messages in each email
chain. This means, for example, that both Mr. Menashi's response to an email and
the initial received message are responsive to this request and should be produced.
This request includes all prior messages (whether incoming or outgoing) reflected
in the responsive correspondence and any attachments thereto.
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."2 As Mr. Menashi's
nomination process moves forward, the public has a significant interest in understanding
Mr. Menashi's former activities at Education, including the types of communications he
had while serving as acting general counsel and Postsecondary deputy counsel, as well as
2

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

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understanding whether a former Education official has complied with ethical
requirements. Recent reporting has shed light on Mr. Menashi's former written opinions
on a variety of social and political issues that raise questions about his activities while at
the Department.3 Records with the potential to shed light on this matter would contribute
significantly to public understanding of operations of the federal government, including
with whom Mr. Menashi corresponded and the extent of outside influence on Mr.
Menashi's decisions. 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.
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
Trudy Ring, Trump Judicial Nominee Has History of Antigay, Misogynistic Writings, ADVOCATE
(Aug. 26, 2019, 11:28 AM), https://www.advocate.com/politics/2019/8/26/trumpjudicial-nominee-has-history-antigay-misogynistic-writings; Andrew Kaczynski & Em
Steck, Trump Court Pick Denounced Feminists, Gay Rights Groups and Diversity Efforts in 1990s,
2000s Editorials, CNN (Aug. 22, 2019, 5:13 PM),
https://www.cnn.com/2019/08/22/politics/kfile-steven-menashi-judgenominee/index.html; Eleanor Clift, Trump Judge Pick Spread Anti-Muslim Pig Blood Bullet
Myth, THE DAILY BEAST (Aug. 24, 2019, 5:14 AM), https://www.thedailybeast.com/trumpjudge-pick-steven-menashi-spread-anti-muslim-pig-blood-bullet-myth; Rachel Maddow,
Trump Nominates Advocate of 'Ethnonationalism' for Judgeship, MSNBC, Aug. 15, 2019,
https://www.msnbc.com/rachel-maddow/watch/trump-nominates-advocate-ofethnonationalism-for-judgeship-66238021914.
4 See 5 U.S.C. ? 552(a)(4)(A)(iii).
5 American Oversight currently has approximately 12,200 page likes on Facebook and
54,500 followers on Twitter. American Oversight, FACEBOOK,
https://www.facebook.com/weareoversight/ (last visited Sept. 9, 2019); American
Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited
Sept. 9, 2019).
6 News, AMERICAN OVERSIGHT, https://www.americanoversight.org/blog.
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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
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 34 C.F.R. ? 5.21(i)(2)(i)(B), 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 the information
requested is urgently needed in order to inform the public concerning actual or alleged
government activity. President Trump recently nominated former acting General Counsel

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.
10 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.
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Steven Menashi to the Second Circuit of the U.S Court of Appeals.12 As Mr. Menashi has
been nominated to serve a lifetime term on the federal bench, there is an urgent need to
reveal communications with external parties and about pertinent matters Mr. Menashi
worked on while serving at Education, including if he complied with his ethical
requirements. The American public has a substantial and urgent interest in understanding
Mr. Menashi's activities and decisions at Education as the confirmation process
advances.13
Moreover, I certify to be true and correct to the best of my knowledge and belief that there
is an urgent need to inform the public about Mr. Menashi's communications and activities
while serving as a top lawyer for Education. There has been intense public interest in and
concern about Mr. Menashi's previous opinions, and the American people need access to
this information with sufficient time to advocate for their elected representatives to move
forward with Mr. Menashi's nomination or to withdraw that support or reject his
nomination to the Second Circuit.
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,14 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.'"15
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
See President Donald J. Trump Announces Judicial Nominees, Unites States Attorney Nominees, and
United States Marshal Nominees, THE WHITE HOUSE (Aug. 14, 2019),
https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announcesjudicial-nominees-united-states-attorney-nominees-united-states-marshal-nominees/.
13 Trudy Ring, Trump Judicial Nominee Has History of Antigay, Misogynistic Writings, ADVOCATE
(Aug. 26, 2019, 11:28 AM), https://www.advocate.com/politics/2019/8/26/trumpjudicial-nominee-has-history-antigay-misogynistic-writings; Andrew Kaczynski & Em
Steck, Trump Court Pick Denounced Feminists, Gay Rights Groups and Diversity Efforts in 1990s,
2000s Editorials, CNN (Aug. 22, 2019, 5:13 PM),
https://www.cnn.com/2019/08/22/politics/kfile-steven-menashi-judgenominee/index.html; Eleanor Clift, Trump Judge Pick Spread Anti-Muslim Pig Blood Bullet
Myth, THE DAILY BEAST (Aug. 24, 2019, 5:14 AM), https://www.thedailybeast.com/trumpjudge-pick-steven-menashi-spread-anti-muslim-pig-blood-bullet-myth; Rachel Maddow,
Trump Nominates Advocate of 'Ethnonationalism' for Judgeship, MSNBC, Aug. 15, 2019,
https://www.msnbc.com/rachel-maddow/watch/trump-nominates-advocate-ofethnonationalism-for-judgeship-66238021914.
14 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).
15 ACLU, 321 F. Supp. 2d at 29 n.5 (quoting EPIC, 241 F. Supp. 2d at 11).
12

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materials it gathers available on its public website and promotes their availability on social
media platforms, such as Facebook and Twitter.16 As discussed previously, American
Oversight has demonstrated its commitment to the public disclosure of documents and
creation of editorial content. 17
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. For instance, if the request seeks
"communications," please search all locations likely to contain communications,
including relevant hard-copy files, correspondence files, appropriate locations on
hard drives and shared drives, emails, text messages or other direct messaging
systems (such as iMessage, WhatsApp, Signal, or Twitter direct

American Oversight currently has approximately 12,200 page likes on Facebook and
54,500 followers on Twitter. American Oversight, FACEBOOK,
https://www.facebook.com/weareoversight
(last visited Sept. 9, 2019); American Oversight (@weareoversight), TWITTER,
https://twitter.com/weareoversight (last visited Sept. 9, 2019).
17 See generally News, AMERICAN OVERSIGHT, https://www.americanoversight.org/blog; see,
e.g., DOJ Civil Division Response Noel Francisco Compliance, 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; 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.
16

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messages),voicemail messages, instant messaging systems such as Lync or ICQ,
and shared messages systems such as Slack.
?

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
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.18 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.19

?

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,20 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

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).
19 See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8
(D.D.C. Dec. 12, 2016).
20 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.
18

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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.

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 Cerissa Cafasso at foia@americanoversight.org or
(202) 869-5244. Also, if American Oversight's request for expedition is not granted or its

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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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EXHIBIT 

Case 1:19-cv-03029 Document 1-2 Filed 10/10/19 Page 2 of 10

September 10, 2019
VIA EMAIL
FOIA Public Liaison
U.S. Department of Education
Office of Management
Office of the Chief Privacy Officer
400 Maryland Avenue SW, LBJ 2E320
Washington, DC 20202-4536
EDFOIAManager@ed.gov
Re: Expedited Freedom of Information Act Request
Dear FOIA Officer:
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. ? 552, and the
implementing regulations of the Department of Education (Education), 34 C.F.R. Part 5,
American Oversight makes the following request for records.
President Trump recently announced his intent to nominate Steven Menashi, the
Department of Education's former acting General Counsel, to the U.S. Court of Appeals
for the Second Circuit.1 Before Mr. Menashi was the department's head lawyer, he was the
Deputy Counsel for Postsecondary Education. As Mr. Menashi has been nominated to
serve a lifetime term on the federal bench, there is an urgent need to reveal any
communications with the potential to inform his confirmation process, for both the
representatives with the authority to confirm and the constituents they represent.
American Oversight seeks records with the potential to shed light on Mr. Menashi's
activities and communications during his tenure at Education.
Requested Records
American Oversight seeks expedited review of this request for the reasons identified
below and requests that Education produce the following records as soon as practicable,
and at least within twenty business days:

Tal Axelrod, Trump Taps White House Lawyer for Federal Appeals Court, THE HILL (Aug. 18,
2019, 5:58 PM), https://thehill.com/homenews/administration/457470-trump-tapswhite-house-lawyer-for-federal-appeals-court.
1

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

Case 1:19-cv-03029 Document 1-2 Filed 10/10/19 Page 3 of 10

All email communications (including email messages, complete email chains,
email attachments, calendar invitations, and attachments thereto) sent by former
General Counsel Steven Menashi containing the following terms:
a.
b.
c.
d.
e.

"Plyler"
"Public charge"
"undocumented"
"illegal alien"
"illegal immigrant"

Please provide all responsive records from May 24, 2017 to May 1, 2018.
In an effort to accommodate Education and reduce the number of responsive
records to be processed and produced, American Oversight has limited its request
to emails sent by former General Counsel Steven Menashi. To be clear, however,
American Oversight still requests that complete email chains be produced,
displaying both the sent messages and the prior received messages in each email
chain. This means, for example, that both Mr. Menashi's response to an email and
the initial received message are responsive to this request and should be produced.
This request includes all prior messages (whether incoming or outgoing) reflected
in the responsive correspondence and any attachments thereto.
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."2 As Mr. Menashi's
nomination process moves forward, the public has a significant interest in understanding
Mr. Menashi's former activities at Education, including the types of communications he
had while serving as acting general counsel and Postsecondary deputy counsel, as well as
understanding whether a former Education official has complied with ethical
requirements. Recent reporting has shed light on Mr. Menashi's former written opinions
on a variety of social and political issues that raise questions about his activities while at

2

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

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the Department.3 Records with the potential to shed light on this matter would contribute
significantly to public understanding of operations of the federal government, including
with whom Mr. Menashi corresponded and the extent of outside influence on Mr.
Menashi's decisions. 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.
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

Trudy Ring, Trump Judicial Nominee Has History of Antigay, Misogynistic Writings, ADVOCATE
(Aug. 26, 2019, 11:28 AM), https://www.advocate.com/politics/2019/8/26/trumpjudicial-nominee-has-history-antigay-misogynistic-writings; Andrew Kaczynski & Em
Steck, Trump Court Pick Denounced Feminists, Gay Rights Groups and Diversity Efforts in 1990s,
2000s Editorials, CNN (Aug. 22, 2019, 5:13 PM),
https://www.cnn.com/2019/08/22/politics/kfile-steven-menashi-judgenominee/index.html; Eleanor Clift, Trump Judge Pick Spread Anti-Muslim Pig Blood Bullet
Myth, THE DAILY BEAST (Aug. 24, 2019, 5:14 AM), https://www.thedailybeast.com/trumpjudge-pick-steven-menashi-spread-anti-muslim-pig-blood-bullet-myth; Rachel Maddow,
Trump Nominates Advocate of 'Ethnonationalism' for Judgeship, MSNBC, Aug. 15, 2019,
https://www.msnbc.com/rachel-maddow/watch/trump-nominates-advocate-ofethnonationalism-for-judgeship-66238021914.
4 See 5 U.S.C. ? 552(a)(4)(A)(iii).
5 American Oversight currently has approximately 12,200 page likes on Facebook and
54,500 followers on Twitter. American Oversight, FACEBOOK,
https://www.facebook.com/weareoversight/ (last visited Sept. 9, 2019); American
Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited
Sept. 9, 2019).
6 News, AMERICAN OVERSIGHT, https://www.americanoversight.org/blog.
3

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Case 1:19-cv-03029 Document 1-2 Filed 10/10/19 Page 5 of 10

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
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 34 C.F.R. ? 5.21(i)(2)(i)(B), 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 the information
requested is urgently needed in order to inform the public concerning actual or alleged
government activity. President Trump recently nominated former acting General Counsel
Steven Menashi to the Second Circuit of the U.S Court of Appeals.12 As Mr. Menashi has

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.
10 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 President Donald J. Trump Announces Judicial Nominees, Unites States Attorney Nominees, and
United States Marshal Nominees, THE WHITE HOUSE (Aug. 14, 2019),
7

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been nominated to serve a lifetime term on the federal bench, there is an urgent need to
reveal communications with external parties and about pertinent matters Mr. Menashi
worked on while serving at Education, including if he complied with his ethical
requirements. The American public has a substantial and urgent interest in understanding
Mr. Menashi's activities and decisions at Education as the confirmation process
advances.13
Moreover, I certify to be true and correct to the best of my knowledge and belief that there
is an urgent need to inform the public about Mr. Menashi's communications and activities
while serving as a top lawyer for Education. There has been intense public interest in and
concern about Mr. Menashi's previous opinions, and the American people need access to
this information with sufficient time to advocate for their elected representatives to move
forward with Mr. Menashi's nomination or to withdraw that support or reject his
nomination to the Second Circuit.
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,14 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.'"15
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

https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announcesjudicial-nominees-united-states-attorney-nominees-united-states-marshal-nominees/.
13 Trudy Ring, Trump Judicial Nominee Has History of Antigay, Misogynistic Writings, ADVOCATE
(Aug. 26, 2019, 11:28 AM), https://www.advocate.com/politics/2019/8/26/trumpjudicial-nominee-has-history-antigay-misogynistic-writings; Andrew Kaczynski & Em
Steck, Trump Court Pick Denounced Feminists, Gay Rights Groups and Diversity Efforts in 1990s,
2000s Editorials, CNN (Aug. 22, 2019, 5:13 PM),
https://www.cnn.com/2019/08/22/politics/kfile-steven-menashi-judgenominee/index.html; Eleanor Clift, Trump Judge Pick Spread Anti-Muslim Pig Blood Bullet
Myth, THE DAILY BEAST (Aug. 24, 2019, 5:14 AM), https://www.thedailybeast.com/trumpjudge-pick-steven-menashi-spread-anti-muslim-pig-blood-bullet-myth; Rachel Maddow,
Trump Nominates Advocate of 'Ethnonationalism' for Judgeship, MSNBC, Aug. 15, 2019,
https://www.msnbc.com/rachel-maddow/watch/trump-nominates-advocate-ofethnonationalism-for-judgeship-66238021914.
14 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).
15 ACLU, 321 F. Supp. 2d at 29 n.5 (quoting EPIC, 241 F. Supp. 2d at 11).

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media platforms, such as Facebook and Twitter.16 As discussed previously, American
Oversight has demonstrated its commitment to the public disclosure of documents and
creation of editorial content. 17
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. For instance, if the request seeks
"communications," please search all locations likely to contain communications,
including relevant hard-copy files, correspondence files, appropriate locations on
hard drives and shared drives, emails, text messages or other direct messaging
systems (such as iMessage, WhatsApp, Signal, or Twitter direct
messages),voicemail messages, instant messaging systems such as Lync or ICQ,
and shared messages systems such as Slack.

American Oversight currently has approximately 12,200 page likes on Facebook and
54,500 followers on Twitter. American Oversight, FACEBOOK,
https://www.facebook.com/weareoversight
(last visited Sept. 9, 2019); American Oversight (@weareoversight), TWITTER,
https://twitter.com/weareoversight (last visited Sept. 9, 2019).
17 See generally News, AMERICAN OVERSIGHT, https://www.americanoversight.org/blog; see,
e.g., DOJ Civil Division Response Noel Francisco Compliance, 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; 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.
16

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?

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
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.18 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.19

?

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,20 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

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).
19 See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8
(D.D.C. Dec. 12, 2016).
20 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.
18

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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.

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 Cerissa Cafasso at foia@americanoversight.org or
(202) 869-5244. Also, if American Oversight's request for expedition is not granted or its

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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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EXHIBIT 

Case 1:19-cv-03029 Document 1-3 Filed 10/10/19 Page 2 of 9

September 10, 2019
VIA EMAIL
FOIA Public Liaison
U.S. Department of Education
Office of Management
Office of the Chief Privacy Officer
400 Maryland Avenue SW, LBJ 2E320
Washington, DC 20202-4536
EDFOIAManager@ed.gov
Re: Expedited Freedom of Information Act Request
Dear FOIA Officer:
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. ? 552, and the
implementing regulations of the Department of Education (Education), 34 C.F.R. Part 5,
American Oversight makes the following request for records.
President Trump recently announced his intent to nominate Steven Menashi, the
Department of Education's former acting General Counsel, to the U.S. Court of Appeals
for the Second Circuit.1 Before Mr. Menashi was the department's head lawyer, he was the
Deputy Counsel for Postsecondary Education. As Mr. Menashi has been nominated to
serve a lifetime term on the federal bench, there is an urgent need to reveal any
communications with the potential to inform his confirmation process, for both the
representatives with the authority to confirm and the constituents they represent.
American Oversight seeks records with the potential to shed light on Mr. Menashi's
activities and communications during his tenure at Education.
Requested Records
American Oversight seeks expedited review of this request for the reasons identified
below and requests that Education produce the following records as soon as practicable,
and at least within twenty business days:

Tal Axelrod, Trump Taps White House Lawyer for Federal Appeals Court, THE HILL (Aug. 18,
2019, 5:58 PM), https://thehill.com/homenews/administration/457470-trump-tapswhite-house-lawyer-for-federal-appeals-court.
1

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

Case 1:19-cv-03029 Document 1-3 Filed 10/10/19 Page 3 of 9

All email communications (including email messages, complete email chains,
email attachments, calendar invitations, and attachments thereto) between
(1) former General Counsel Steven Menashi or any person communicating on his
behalf, such as schedulers or assistants, and (2) any of the individuals or entities
listed below:
a.
b.
c.
d.

Stephen Miller (stephen.miller@who.eop.gov)
Robert Gabriel (robert.gabriel@who.eop.gov)
Jennifer Cytryn (Jennifer.cytryn@who.eop.gov)
McLaurine Klingler (including but not limited to the email address
mclaurine.klingler@who.eop.gov)

Please provide all responsive records from May 24, 2017 to May 1, 2018.
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."2 As Mr. Menashi's
nomination process moves forward, the public has a significant interest in understanding
Mr. Menashi's former activities at Education, including the types of communications he
had while serving as acting general counsel and Postsecondary deputy counsel, as well as
understanding whether a former Education official has complied with ethical
requirements. Recent reporting has shed light on Mr. Menashi's former written opinions
on a variety of social and political issues that raise questions about his activities while at
the Department.3 Records with the potential to shed light on this matter would contribute
5 U.S.C. ? 552(a)(4)(A)(iii).
Trudy Ring, Trump Judicial Nominee Has History of Antigay, Misogynistic Writings, ADVOCATE
(Aug. 26, 2019, 11:28 AM), https://www.advocate.com/politics/2019/8/26/trumpjudicial-nominee-has-history-antigay-misogynistic-writings; Andrew Kaczynski & Em
Steck, Trump Court Pick Denounced Feminists, Gay Rights Groups and Diversity Efforts in 1990s,
2000s Editorials, CNN (Aug. 22, 2019, 5:13 PM),
https://www.cnn.com/2019/08/22/politics/kfile-steven-menashi-judgenominee/index.html; Eleanor Clift, Trump Judge Pick Spread Anti-Muslim Pig Blood Bullet
Myth, THE DAILY BEAST (Aug. 24, 2019, 5:14 AM), https://www.thedailybeast.com/trumpjudge-pick-steven-menashi-spread-anti-muslim-pig-blood-bullet-myth; Rachel Maddow,
Trump Nominates Advocate of 'Ethnonationalism' for Judgeship, MSNBC, Aug. 15, 2019,
2
3

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Case 1:19-cv-03029 Document 1-3 Filed 10/10/19 Page 4 of 9

significantly to public understanding of operations of the federal government, including
with whom Mr. Menashi corresponded and the extent of outside influence on Mr.
Menashi's decisions. 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.
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

https://www.msnbc.com/rachel-maddow/watch/trump-nominates-advocate-ofethnonationalism-for-judgeship-66238021914.
4 See 5 U.S.C. ? 552(a)(4)(A)(iii).
5 American Oversight currently has approximately 12,200 page likes on Facebook and
54,500 followers on Twitter. American Oversight, FACEBOOK,
https://www.facebook.com/weareoversight/ (last visited Sept. 9, 2019); American
Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited
Sept. 9, 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,

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Case 1:19-cv-03029 Document 1-3 Filed 10/10/19 Page 5 of 9

records regarding potential self-dealing at the Department of Housing & Urban
Development and related analysis;9 posting records and analysis relating to the federal
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 34 C.F.R. ? 5.21(i)(2)(i)(B), 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 the information
requested is urgently needed in order to inform the public concerning actual or alleged
government activity. President Trump recently nominated former acting General Counsel
Steven Menashi to the Second Circuit of the U.S Court of Appeals.12 As Mr. Menashi has
been nominated to serve a lifetime term on the federal bench, there is an urgent need to
reveal communications with external parties and about pertinent matters Mr. Menashi
worked on while serving at Education, including if he complied with his ethical
requirements. The American public has a substantial and urgent interest in understanding
Mr. Menashi's activities and decisions at Education as the confirmation process
advances.13
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.
10 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 President Donald J. Trump Announces Judicial Nominees, Unites States Attorney Nominees, and
United States Marshal Nominees, THE WHITE HOUSE (Aug. 14, 2019),
https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announcesjudicial-nominees-united-states-attorney-nominees-united-states-marshal-nominees/.
13 Trudy Ring, Trump Judicial Nominee Has History of Antigay, Misogynistic Writings, ADVOCATE
(Aug. 26, 2019, 11:28 AM), https://www.advocate.com/politics/2019/8/26/trumpjudicial-nominee-has-history-antigay-misogynistic-writings; Andrew Kaczynski & Em
Steck, Trump Court Pick Denounced Feminists, Gay Rights Groups and Diversity Efforts in 1990s,

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Case 1:19-cv-03029 Document 1-3 Filed 10/10/19 Page 6 of 9

Moreover, I certify to be true and correct to the best of my knowledge and belief that there
is an urgent need to inform the public about Mr. Menashi's communications and activities
while serving as a top lawyer for Education. There has been intense public interest in and
concern about Mr. Menashi's previous opinions, and the American people need access to
this information with sufficient time to advocate for their elected representatives to move
forward with Mr. Menashi's nomination or to withdraw that support or reject his
nomination to the Second Circuit.
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,14 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.'"15
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.16 As discussed previously, American
Oversight has demonstrated its commitment to the public disclosure of documents and
creation of editorial content. 17
2000s Editorials, CNN (Aug. 22, 2019, 5:13 PM),
https://www.cnn.com/2019/08/22/politics/kfile-steven-menashi-judgenominee/index.html; Eleanor Clift, Trump Judge Pick Spread Anti-Muslim Pig Blood Bullet
Myth, THE DAILY BEAST (Aug. 24, 2019, 5:14 AM), https://www.thedailybeast.com/trumpjudge-pick-steven-menashi-spread-anti-muslim-pig-blood-bullet-myth; Rachel Maddow,
Trump Nominates Advocate of 'Ethnonationalism' for Judgeship, MSNBC, Aug. 15, 2019,
https://www.msnbc.com/rachel-maddow/watch/trump-nominates-advocate-ofethnonationalism-for-judgeship-66238021914.
14 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).
15 ACLU, 321 F. Supp. 2d at 29 n.5 (quoting EPIC, 241 F. Supp. 2d at 11).
16 American Oversight currently has approximately 12,200 page likes on Facebook and
54,500 followers on Twitter. American Oversight, FACEBOOK,
https://www.facebook.com/weareoversight
(last visited Sept. 9, 2019); American Oversight (@weareoversight), TWITTER,
https://twitter.com/weareoversight (last visited Sept. 9, 2019).
17 See generally News, AMERICAN OVERSIGHT, https://www.americanoversight.org/blog; see,
e.g., DOJ Civil Division Response Noel Francisco Compliance, 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; Audit the Wall, AMERICAN OVERSIGHT,

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Case 1:19-cv-03029 Document 1-3 Filed 10/10/19 Page 7 of 9

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. For instance, if the request seeks
"communications," please search all locations likely to contain communications,
including relevant hard-copy files, correspondence files, appropriate locations on
hard drives and shared drives, emails, text messages or other direct messaging
systems (such as iMessage, WhatsApp, Signal, or Twitter direct
messages),voicemail messages, instant messaging systems such as Lync or ICQ,
and shared messages systems such as Slack.

?

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.

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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Case 1:19-cv-03029 Document 1-3 Filed 10/10/19 Page 8 of 9

?

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
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.18 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.19

?

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,20 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

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).
19 See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8
(D.D.C. Dec. 12, 2016).
20 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.
18

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Case 1:19-cv-03029 Document 1-3 Filed 10/10/19 Page 9 of 9

take steps to prevent that deletion, including, as appropriate, by instituting a
litigation hold on those records.
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 Cerissa Cafasso at foia@americanoversight.org or
(202) 869-5244. 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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Case Document 1-4 Filed 10/10/19 Page 1 of 10

EXHIBIT 

Case 1:19-cv-03029 Document 1-4 Filed 10/10/19 Page 2 of 10

September 10, 2019
VIA EMAIL
FOIA Public Liaison
U.S. Department of Education
Office of Management
Office of the Chief Privacy Officer
400 Maryland Avenue SW, LBJ 2E320
Washington, DC 20202-4536
EDFOIAManager@ed.gov
Re: Expedited Freedom of Information Act Request
Dear FOIA Officer:
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. ? 552, and the
implementing regulations of the Department of Education (Education), 34 C.F.R. Part 5,
American Oversight makes the following request for records.
President Trump recently announced his intent to nominate Steven Menashi, the
Department of Education's former acting General Counsel, to the U.S. Court of Appeals
for the Second Circuit.1 Before Mr. Menashi was the department's head lawyer, he was the
Deputy Counsel for Postsecondary Education. As Mr. Menashi has been nominated to
serve a lifetime term on the federal bench, there is an urgent need to reveal any
communications with the potential to inform his confirmation process, for both the
representatives with the authority to confirm and the constituents they represent.
American Oversight seeks records with the potential to shed light on Mr. Menashi's
activities and communications during his tenure at Education.
Requested Records
American Oversight seeks expedited review of this request for the reasons identified
below and requests that Education produce the following records as soon as practicable,
and at least within twenty business days:

Tal Axelrod, Trump Taps White House Lawyer for Federal Appeals Court, THE HILL (Aug. 18,
2019, 5:58 PM), https://thehill.com/homenews/administration/457470-trump-tapswhite-house-lawyer-for-federal-appeals-court.
1

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

Case 1:19-cv-03029 Document 1-4 Filed 10/10/19 Page 3 of 10

All email communications (including email messages, complete email chains,
email attachments, calendar invitations, and attachments thereto) between
(1) former General Counsel Steven Menashi or any person communicating on his
behalf, such as schedulers or assistants, and (2) any of the individuals or entities
listed below:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.

A Voice for Men (avoiceformen.com)
Alliance Defending Freedom (adflegal.org)
Carrie Severino
Center for Immigration Studies (cis.org)
Ed Bartlett
Ed Whelan (ewhelan@eppc.org)
Eric Rosenberg (erosenberg@rosenbergball.com)
Faith and Freedom Coalition (ffcoalition.com)
Families Advocating for Campus Equality (facecampusequality.org)
Family Policy Alliance (familypolicyalliance.com)
Family Research Council (frc.org)
Family Research Council Action (frcaction.org)
Federalist Society (fedsoc.org)
Federation for American Immigration Reform (fairus.org)
First Liberty (firstliberty.org)
Focus on the Family (focusonthefamily.com)
Greg Josefchuk
Heritage Action for America (heritageaction.org)
Heritage Foundation (heritage.org)
Immigration Reform Law Institute (irli.org)
Jake Goldberg
Jerry Falwell Jr.
Judicial Crisis Network
Justin Dillon (jdillon@kaiserdillon.com)
Kursat Pekgoz
Leonard Leo
Liberty Counsel (lc.org)
Liberty University (liberty.edu)
Mark Perry (mjperry@umflint.edu)
National Center for Men (nationalcenterformen.org)
National Coalition for Men (ncfm.org)
National Rifle Association (@nra.org, @nrahq.org, @nraila.org, or
@am.com)
NumbersUSA (numbersusa.com)
Paul Elam (paul@avoiceformen.com)
Shan Wu
Stop Abusive and Violent Environments (saveservices.org)
The Remembrance Project (theremembranceproject.org)
Tom Rossley

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39. Warren Farrell (warren@warrenfarrell.com)
Please provide all responsive records from May 24, 2017 to May 1, 2018.
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."2 As Mr. Menashi's
nomination process moves forward, the public has a significant interest in understanding
Mr. Menashi's former activities at Education, including the types of communications he
had while serving as acting general counsel and Postsecondary deputy counsel, as well as
understanding whether a former Education official has complied with ethical
requirements. Recent reporting has shed light on Mr. Menashi's former written opinions
on a variety of social and political issues that raise questions about his activities while at
the Department.3 Records with the potential to shed light on this matter would contribute
significantly to public understanding of operations of the federal government, including
with whom Mr. Menashi corresponded and the extent of outside influence on Mr.
Menashi's decisions. 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.

5 U.S.C. ? 552(a)(4)(A)(iii).
Trudy Ring, Trump Judicial Nominee Has History of Antigay, Misogynistic Writings, ADVOCATE
(Aug. 26, 2019, 11:28 AM), https://www.advocate.com/politics/2019/8/26/trumpjudicial-nominee-has-history-antigay-misogynistic-writings; Andrew Kaczynski & Em
Steck, Trump Court Pick Denounced Feminists, Gay Rights Groups and Diversity Efforts in 1990s,
2000s Editorials, CNN (Aug. 22, 2019, 5:13 PM),
https://www.cnn.com/2019/08/22/politics/kfile-steven-menashi-judgenominee/index.html; Eleanor Clift, Trump Judge Pick Spread Anti-Muslim Pig Blood Bullet
Myth, THE DAILY BEAST (Aug. 24, 2019, 5:14 AM), https://www.thedailybeast.com/trumpjudge-pick-steven-menashi-spread-anti-muslim-pig-blood-bullet-myth; Rachel Maddow,
Trump Nominates Advocate of 'Ethnonationalism' for Judgeship, MSNBC, Aug. 15, 2019,
https://www.msnbc.com/rachel-maddow/watch/trump-nominates-advocate-ofethnonationalism-for-judgeship-66238021914.
2
3

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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
54,500 followers on Twitter. American Oversight, FACEBOOK,
https://www.facebook.com/weareoversight/ (last visited Sept. 9, 2019); American
Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited
Sept. 9, 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
5

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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 34 C.F.R. ? 5.21(i)(2)(i)(B), 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 the information
requested is urgently needed in order to inform the public concerning actual or alleged
government activity. President Trump recently nominated former acting General Counsel
Steven Menashi to the Second Circuit of the U.S Court of Appeals.12 As Mr. Menashi has
been nominated to serve a lifetime term on the federal bench, there is an urgent need to
reveal communications with external parties and about pertinent matters Mr. Menashi
worked on while serving at Education, including if he complied with his ethical
requirements. The American public has a substantial and urgent interest in understanding
Mr. Menashi's activities and decisions at Education as the confirmation process
advances.13

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 President Donald J. Trump Announces Judicial Nominees, Unites States Attorney Nominees, and
United States Marshal Nominees, THE WHITE HOUSE (Aug. 14, 2019),
https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announcesjudicial-nominees-united-states-attorney-nominees-united-states-marshal-nominees/.
13 Trudy Ring, Trump Judicial Nominee Has History of Antigay, Misogynistic Writings, ADVOCATE
(Aug. 26, 2019, 11:28 AM), https://www.advocate.com/politics/2019/8/26/trumpjudicial-nominee-has-history-antigay-misogynistic-writings; Andrew Kaczynski & Em
Steck, Trump Court Pick Denounced Feminists, Gay Rights Groups and Diversity Efforts in 1990s,
2000s Editorials, CNN (Aug. 22, 2019, 5:13 PM),
https://www.cnn.com/2019/08/22/politics/kfile-steven-menashi-judgenominee/index.html; Eleanor Clift, Trump Judge Pick Spread Anti-Muslim Pig Blood Bullet
Myth, THE DAILY BEAST (Aug. 24, 2019, 5:14 AM), https://www.thedailybeast.com/trumpjudge-pick-steven-menashi-spread-anti-muslim-pig-blood-bullet-myth; Rachel Maddow,
Trump Nominates Advocate of 'Ethnonationalism' for Judgeship, MSNBC, Aug. 15, 2019,
10

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Moreover, I certify to be true and correct to the best of my knowledge and belief that there
is an urgent need to inform the public about Mr. Menashi's communications and activities
while serving as a top lawyer for Education. There has been intense public interest in and
concern about Mr. Menashi's previous opinions, and the American people need access to
this information with sufficient time to advocate for their elected representatives to move
forward with Mr. Menashi's nomination or to withdraw that support or reject his
nomination to the Second Circuit.
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,14 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.'"15
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.16 As discussed previously, American
Oversight has demonstrated its commitment to the public disclosure of documents and
creation of editorial content. 17
https://www.msnbc.com/rachel-maddow/watch/trump-nominates-advocate-ofethnonationalism-for-judgeship-66238021914.
14 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).
15 ACLU, 321 F. Supp. 2d at 29 n.5 (quoting EPIC, 241 F. Supp. 2d at 11).
16 American Oversight currently has approximately 12,200 page likes on Facebook and
54,500 followers on Twitter. American Oversight, FACEBOOK,
https://www.facebook.com/weareoversight
(last visited Sept. 9, 2019); American Oversight (@weareoversight), TWITTER,
https://twitter.com/weareoversight (last visited Sept. 9, 2019).
17 See generally News, AMERICAN OVERSIGHT, https://www.americanoversight.org/blog; see,
e.g., DOJ Civil Division Response Noel Francisco Compliance, 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; 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-use-

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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. For instance, if the request seeks
"communications," please search all locations likely to contain communications,
including relevant hard-copy files, correspondence files, appropriate locations on
hard drives and shared drives, emails, text messages or other direct messaging
systems (such as iMessage, WhatsApp, Signal, or Twitter direct
messages),voicemail messages, instant messaging systems such as Lync or ICQ,
and shared messages systems such as Slack.

?

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
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

his-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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Records Act and FOIA.18 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.19
?

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,20 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).
19 See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8
(D.D.C. Dec. 12, 2016).
20 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.
18

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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 Cerissa Cafasso at foia@americanoversight.org or
(202) 869-5244. 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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