Case 1:17-cv-06335-AKH Document 90 Filed 11/14/18 Page 1 of 20

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BRENNAN CENTER FOR JUSTICE AT NEW
YORK UNIVERSITY SCHOOL OF LAW;
THE PROTECT DEMOCRACY PROJECT,
INC.,
Plaintiffs,
v.
U.S. DEPARTMENT OF JUSTICE; U.S.
DEPARTMENT OF HOMELAND
SECURITY; U.S. GENERAL SERVICES
ADMINISTRATION; OFFICE OF
MANAGEMENT AND BUDGET; U.S.
SOCIAL SECURITY ADMINISTRATION,

Case No. 1:17-cv-06335-AKH
Hon. Alvin K. Hellerstein

Defendants.

PLAINTIFFS’ REPLY MEMORANDUM OF LAW IN
SUPPORT OF MOTION TO COMPEL DEFENDANTS TO
PRODUCE DOCUMENTS AND OPPOSITION TO DEFENDANTS’
CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

JENNER & BLOCK LLP
919 Third Avenue
New York, NY 10022
(212) 891-1600
BRENNAN CENTER FOR JUSTICE AT NEW
YORK UNIVERSITY SCHOOL OF LAW
161 Avenue of the Americas
New York, NY 10013
(646) 292-8335
THE PROTECT DEMOCRACY PROJECT, INC.
2020 Pennsylvania Ave., NW #163
Washington, DC 20006
(202) 599-0466

 Case 1:17-cv-06335-AKH Document 90 Filed 11/14/18 Page 2 of 20

TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1 
ARGUMENT .................................................................................................................................. 2 
I. 

DHS Has Failed To Justify Its Two-Year Production Schedule. ..............................2 
A.  The Court May Direct DHS to Complete Timely Production of Requested
Records Under Either Its Equitable Powers or the Preliminary Injunction
Standard. ........................................................................................................... 2 
B.  The Supplemental DHS Request Requires a Timely Response........................ 4 
C.  DHS’s Proposed Schedule is Untimely. ........................................................... 6 

II. 

Defendants Have Failed to Demonstrate A Reasonable Search for Responsive
Records. .....................................................................................................................9 
A.  Defendants Have Failed to Demonstrate the Use of Reasonable Search
Terms. ............................................................................................................... 9 
B.  Defendants Have Failed to Justify Their Refusal To Search Private Email
Accounts. ........................................................................................................ 10 

CONCLUSION ............................................................................................................................. 13 

i

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TABLE OF AUTHORITIES
Page(s)
CASES
ACLU v. DOD,
339 F. Supp. 2d 501 (S.D.N.Y. 2004)........................................................................................8
Carney v. DOJ,
19 F.3d 807 (2d Cir. 1994).......................................................................................................13
Clemente v. FBI,
71 F. Supp. 3d 262 (D.D.C. 2014) .....................................................................................3, 7, 8
Competitive Enter. Inst. v. Office of Sci. & Tech. Policy,
241 F. Supp. 3d 14 (D.D.C. 2017) .....................................................................................11, 12
Competitive Enter. Inst. v. Office of Sci. & Tech. Policy,
827 F.3d 145 (D.C. Cir. 2016) .................................................................................................10
CREW v. Dep’t of Veterans Affairs,
828 F. Supp. 2d 325 (D.D.C. 2011) .........................................................................................13
CREW v. DOJ,
No. CIV. 05-2078(EGS), 2006 WL 1518964 (D.D.C. Jun. 1, 2006) ......................................13
CREW v. FEC,
711 F.3d 180 (D.C. Cir. 2013) ...................................................................................................6
Doe v. Gonzales,
386 F. Supp. 2d 66 (D. Conn. 2005) ..........................................................................................3
EPIC v. FBI,
933 F. Supp. 2d 42 (D.D.C. 2013) .....................................................................................3, 7, 8
Ettlinger v. FBI,
596 F. Supp. 867 (D. Mass. 1984) .........................................................................................3, 8
Families for Freedom v. U.S. Customs & Border Prot.,
837 F. Supp. 2d 331 (S.D.N.Y. 2011)......................................................................................13
Ferguson v. FBI.,
722 F. Supp. 1137 (S.D.N.Y. 1989).......................................................................................7, 8
Fiduccia v. DOJ,
185 F.3d 1035 (9th Cir. 1999) ...................................................................................................7

ii

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Hamlin v. Kelley,
433 F. Supp. 180 (N.D. Ill. 1977) ..............................................................................................9
Judicial Watch v. Dep’t of Energy,
191 F.Supp.2d 138 (D.D.C. 2002) .............................................................................................8
Landmark Legal Found. v. EPA,
959 F. Supp. 2d 175 (D.D.C. 2013) ...................................................................................10, 12
Leadership Conf. on Civ. Rights v. Gonzales,
404 F. Supp. 2d 246 (D.D.C. 2005) ...........................................................................................6
Middle East Forum v. DHS,
297 F.Supp.3d 183 (D.D.C. 2018) .............................................................................................8
NRDC v. Dep’t of Energy,
191 F. Supp. 2d 41 (D.D.C. 2002) .........................................................................................3, 8
Open America v. Watergate Special Prosecution Force,
547 F.2d 605 (D.C. Cir. 1976) ...................................................................................................6
Our Children’s Earth Found. v. Nat’l Marine Fisheries Serv.,
Nos. 14-4365 SC, 14-1130 SC, 2015 WL 4452136 (N.D. Cal. Jul. 20, 2015) ..........................3
Payne Enters., Inc. v. United States,
837 F.2d 486 (D.C. Cir. 1988) .........................................................................................3, 9, 13
Pietrangelo v. U.S. Army,
334 F. App’x 358 (2d Cir. 2009) ...............................................................................................3
Ross v. Reno,
No. 95-CV-1088, 1996 WL 612457 (E.D.N.Y. Aug. 13, 1996)................................................7
Seavey v. DOJ,
266 F. Supp. 3d 241 (D.D.C. 2017) .......................................................................................8, 9
Wright v. Admin. for Children & Families,
No. CV 15-218, 2016 WL 5922293 (D.D.C. Oct. 11, 2016).......................................10, 11, 12
STATUTES
5 U.S.C. § 552(a)(6)(C)(i)................................................................................................................2
5 U.S.C. § 552(a)(6)(C)(ii) ..............................................................................................................2
5 U.S.C. § 552(a)(6)(E)(iii)..............................................................................................................2
44 U.S.C. § 2911(a)(2)...................................................................................................................11
iii

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OTHER AUTHORITIES
Amanda Arnold, What’s Happening With Stacey Abrams’s Governor Race?, THE
CUT .............................................................................................................................................5
DHS Privacy Office, 2016 Freedom of Information Act Report to the Attorney
General of the United States, Feb. 2017 ....................................................................................8
DHS Privacy Office, 2017 Freedom of Information Act Report to the Attorney
General of the United States, Feb. 2018 ....................................................................................8
Donald J. Trump (@realDonaldTrump), Twitter (Nov. 10, 2018, 1:09 PM) ..................................5
Donald J. Trump (@realDonaldTrump), Twitter (Nov. 5, 2018, 9:41 AM) ...................................5
Donald J. Trump (@realDonaldTrump), Twitter (Nov. 9, 2018, 10:53 AM) .................................5
Donald J. Trump (@realDonaldTrump), Twitter (Nov. 9, 2018, 2:33 PM) ..................................5
Dylan Scott, Cindy Hyde-Smith and Mike Espy Advance to Mississippi Senate
Runoff Election, VOX (Nov. 6, 2018) ........................................................................................5
Exec. Order 13799, 82 Fed. Reg. 22389 (May 11, 2017) ................................................................5
Frances Robles and Patricia Mazzei, Florida Begins Vote Recounts in Senate and
Governor’s Races, THE NEW YORK TIMES (Nov. 10, 2018)......................................................5
Matt Dixon, After Scott Requested Investigation, Law Enforcement Says No Voter
Fraud Allegations Found, POLITICO (Nov. 9, 2018) .................................................................5
Max Greenwood, Kobach defends use of private email for voter fraud commission
business, THE HILL (Sept. 19, 2017) ........................................................................................11
U.S. Dep’t of Justice, Guide to the Freedom of Information Act (2016 Ed.) ................................13

iv

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PRELIMINARY STATEMENT
Defendants’ Opposition and Cross-Motion (“Opposition”) (Dkt. 80) ignores three simple
points. First, DHS’s proposed two-year response to a targeted FOIA request is untimely and
violates FOIA’s mandate that an agency make records “promptly available” and that requests are
processed “as soon as practicable.” Second, Defendants’ search protocol is unreasonable; DHS
and OMB searched only three generic terms not reasonably calculated to produce relevant
results. Third, because Defendants and Commission members used their private emails for
official agency business, the law mandates a search and review of Defendants’ private emails.
Throughout this litigation, instead of committing to search and produce documents in a
reasonable and timely manner, Defendants create red herrings. In support of DHS’s languid
response, Defendants point to DHS’s FOIA “burden,” trivialize the importance and exigency of
the requests, and rely on the Court’s previous denial of a preliminary injunction motion, which
(i) dealt with a different request, (ii) predated public information showing DHS’s unprecedented
interference with voting rights, and (iii) resulted in a production schedule nearly identical to what
Plaintiffs now seek. Rather than defend the substance of their unreasonable search terms,
Defendants claim Plaintiffs are attempting to dictate the Government’s search protocols. And,
notwithstanding evidence showing Defendants used private emails for agency business and only
turned these records over in different litigation, Defendants incredibly frame Plaintiffs’ request
as unsubstantiated speculation.
If, as Plaintiffs have alleged, Defendants have been engaging in, or permitting third
parties to facilitate, activities to suppress the full exercise of the right to vote, that is an ongoing
harm that the public has an urgent need to know about. Defendants have no justification for their
lack of diligence and unwillingness to meet their FOIA obligations in a timely manner. Their

 Case 1:17-cv-06335-AKH Document 90 Filed 11/14/18 Page 7 of 20

inaction to and excuses for meeting the narrowly tailored and reasonable requests from Plaintiffs
hamper the ability of Plaintiffs and the public to assess the legitimacy of our voting process,
which provides the foundation for our democracy and our elected leaders. Because Defendants
have failed to justify DHS’s extended production timeline or Defendants’ unreasonable search
protocols, the Court should grant Plaintiffs’ motion to compel and deny Defendants’ crossmotion for partial summary judgment.

ARGUMENT
I. DHS HAS FAILED TO JUSTIFY ITS TWO-YEAR PRODUCTION SCHEDULE.
Apparently recognizing that their 27-month production schedule violates FOIA, DHS
now offers a deadline of just under two years. See Holzer Decl. ¶ 14. This modest change does
not obscure DHS’s flouting of FOIA’s facial requirements to make records “promptly available”
and process requests “as soon as practicable.” 5 U.S.C. §§ 552(a)(6)(C)(i), 552(a)(6)(E)(iii).
A. The Court May Direct DHS to Complete Timely Production of Requested
Records Under Either Its Equitable Powers or the Preliminary Injunction
Standard.
Plaintiffs’ motion asks the Court to exercise its authority under FOIA and direct DHS to
complete its production no later than January 31, 2019—i.e., to make the records “promptly
available” and “as soon as practicable” pursuant to 5 U.S.C. § 552(a)(6)(C)(ii). See generally
Mot. Compel at 1619. Defendants take issue with Plaintiffs’ choice of procedural vehicle,
arguing that these claims should be presented in a motion for a preliminary injunction. Opp. at
2022. Pursuant to Orders of this Court directing a motion on all production issues and setting
aside the summary judgment briefing schedule (Dkt. 70), Plaintiffs styled their motion as a
motion to compel production of documents. The style of motion does not control the availability
of substantive relief.

2

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Courts may compel document production under FOIA absent a preliminary injunction or
showing of irreparable harm. See, e.g., Clemente v. FBI, 71 F. Supp. 3d 262, 264 (D.D.C. 2014)
(ordering document production on a “Motion for an Order Requiring Prompt Review and
Release of All Nonexempt Responsive Records”); NRDC v. Dep’t of Energy, 191 F. Supp. 2d 41,
42 (D.D.C. 2002) (ordering document production on an “Expedited Motion for Release of
Responsive Records and for a Vaughn Index”); Ettlinger v. FBI, 596 F. Supp. 867, 878 (D.
Mass. 1984) (ordering production where plaintiff sought “an order requiring the FBI to produce
all of the documents requested by the plaintiff” within 60 days).
Directing disclosure is squarely within the Court’s discretion. See Payne Enters., Inc. v.
United States, 837 F.2d 486, 494 (D.C. Cir. 1988) (“The FOIA imposes no limits on courts’
equitable powers in enforcing its terms.”); see also EPIC v. FBI, 933 F. Supp. 2d 42, 50 (D.D.C.
2013) (denying defendant’s motion to stay because no “exceptional circumstances” existed and
ordering the production of documents).1 Particularly in light of DHS’s conceded departmentwide failure to respond to requests in a timely fashion, see generally Opp. at 23-24, Plaintiffs
urge the Court to exercise its authority and direct prompt and full disclosure. See Our Children’s
Earth Found. v. Nat’l Marine Fisheries Serv., Nos. 14-4365 SC, 14-1130 SC, 2015 WL
4452136, at *8-9 (N.D. Cal. Jul. 20, 2015) (granting declaratory relief when agency “repeatedly
and substantially violated [FOIA’s] time limits,” to prevent recurrence of future violations).
Even if the Court evaluated the relief under the preliminary injunction standard, as
Defendants suggest, Plaintiffs are entitled to such relief as they are likely to succeed on the
merits and failure to release the records would be manifest irreparable harm. See Doe v.
Gonzales, 386 F. Supp. 2d 66, 71-72 (D. Conn. 2005) (citing Beal v. Stern, 184 F.3d 117, 122-23

1

The Second Circuit declined to decide the scope of courts’ equitable authority under FOIA in Pietrangelo v. U.S.
Army, 334 F. App’x 358, 360 (2d Cir. 2009).

3

 Case 1:17-cv-06335-AKH Document 90 Filed 11/14/18 Page 9 of 20

(2d Cir 1999)). As outlined in Plaintiffs’ motion to compel, Defendants have violated FOIA and
thus, Plaintiffs have demonstrated success on the merits. In addition, as explained further in
section I.B below, the ongoing threat to voting rights and legitimacy of elections constitutes
irreparable harm.
Defendants also rely on Judge Forrest’s denial of Plaintiffs’ original motion for
preliminary injunction, Opp. at 20, which addressed an earlier request to DHS, was briefed
before the evidence that DHS was continuing the work of the recently-disbanded Commission
had surfaced, and involved proposed production timelines that were months away, not years. See
generally Dkt. 42. The facts surrounding the previous motion for a preliminary injunction make
its holding inapplicable to the issues currently presented.
B. The Supplemental DHS Request Requires a Timely Response.
Defendants ignore the exigency and import of the information Plaintiffs seek in their
Requests and the irreparable harm caused by its sluggish response.

In its opposition, the

Government incorrectly states that DHS has already granted expedited processing to Plaintiffs’
Supplemental DHS Request. Opp. at 22. In fact, while DHS originally granted expedited
processing of the Supplemental DHS Request on January 29, 2018, Lee Decl. Ex. E at 1, DHS
subsequently denied Plaintiffs’ request on February 12, 2018, ostensibly due to Plaintiff Brennan
Center’s “limited constituency.” Wedoff Decl. Ex. 15 at 3–4; see also Mot. Compel at 16–19.
As Defendants now concede that the Supplemental DHS Request deserves expedited
processing, it cannot subsequently trivialize the Request’s urgency. ICE, a component of DHS,
is issuing indictments and collecting tens of millions of voter records in North Carolina, and
nineteen individuals have been charged with crimes relating to voting. See Mot. Compel at 5–6.
Similar to the Commissions’ requests for voter information sent to state agencies, these
subpoenas are likely to chill voter participation. See Suppl. Compl. ¶¶ 20–21. Not only that,
4

 Case 1:17-cv-06335-AKH Document 90 Filed 11/14/18 Page 10 of 20

these actions provide clear evidence that the ultimate goal of the Commission—investigation of
“those vulnerabilities in voting systems and practices used for Federal elections that could lead to
improper voter registration and improper voting, including fraudulent voter registrations and
fraudulent voting,” Exec. Order 13799, 82 Fed. Reg. 22389 (May 11, 2017)—is being
undertaken by DHS, exactly as Mr. Kobach stated. See Mot. Compel at 4–6. Further, at the time
of this writing, vote tabulations from the 2018 midterm elections are still ongoing; statewide
recounts are proceeding in Florida;2 and runoffs in Mississippi’s Senate race3 and possibly
Georgia’s gubernatorial race4 will follow. Law enforcement has been dispatched to investigate
alleged voter fraud in Georgia and Florida.5 In addition, before last week’s election, President
Trump warned on Twitter that “[a]nyone caught [committing voter fraud] will be subject to the
Maximum Criminal Penalties allowed by law.”6

Following the election, the President has

continued to allege—without evidence—that members of the Democratic party were trying to
“STEAL” elections,7 that election officials in Broward County, Florida were improperly
manufacturing votes for Democrat candidates,8 and that there are mismatched signatures on
Arizona ballots and calling for a new election.9 The right to vote is the bastion of a properly

2

Frances Robles and Patricia Mazzei, Florida Begins Vote Recounts in Senate and Governor’s Races, THE NEW
YORK TIMES (Nov. 10, 2018), https://www.nytimes.com/2018/11/10/us/florida-senate-governor-votes-recount.html
3
Dylan Scott, Cindy Hyde-Smith and Mike Espy Advance to Mississippi Senate Runoff Election, VOX (Nov. 6,
2018), https://www.vox.com/policy-and-politics/2018/11/6/18056746/election-results-midterm-mississippi-cindyhyde-smith-mike-espy-runoff.
4
Amanda Arnold, What’s Happening With Stacey Abrams’s Governor Race?, THE CUT,
https://www.thecut.com/2018/11/will-there-be-a-runoff-georgia-kemps-abrams-election-results.html (last visited
Nov. 13, 2018 4:17 PM).
5
Matt Dixon, After Scott Requested Investigation, Law Enforcement Says No Voter Fraud Allegations Found,
POLITICO (Nov. 9, 2018), https://www.politico.com/states/florida/story/2018/11/09/after-scott-requestedinvestigation-law-enforcement-says-no-voter-fraud-allegations-found-690552.
6
Donald
J.
Trump
(@realDonaldTrump),
Twitter
(Nov.
5,
2018,
9:41
AM),
https://twitter.com/realdonaldtrump/status/1059470847751131138?s=11
7
Donald
J.
Trump
(@realDonaldTrump),
Twitter
(Nov.
10,
2018,
1:09
PM),
https://twitter.com/realDonaldTrump/status/1061335051294728194.
8
Donald
J.
Trump
(@realDonaldTrump),
Twitter
(Nov.
9,
2018,
10:53
AM),
https://twitter.com/realDonaldTrump/status/1060938144336367616.
9
Donald
J.
Trump
(@realDonaldTrump),
Twitter
(Nov.
9,
2018,
2:33
PM)
https://twitter.com/realDonaldTrump/status/1060993836984324096.

5

 Case 1:17-cv-06335-AKH Document 90 Filed 11/14/18 Page 11 of 20

functioning democracy and constantly a pressing concern. That concern is particularly manifest
now, given the nature of the 2018 midterm elections and the rampant allegations of voter
intimidation, voter fraud, and voter suppression. It is critical the requested information is
released in a timely fashion.10 See Leadership Conf. on Civ. Rights v. Gonzales, 404 F. Supp. 2d
246, 260 (D.D.C. 2005) (ordering expedited processing, with production by a set date, because
the FOIA requests “could advance the current debate” regarding an issue of “paramount”
importance – the future of voting rights in America–and where the record “is full of news
reports” regarding the same).
C. DHS’s Proposed Schedule is Untimely.
DHS does not seriously dispute that its proposed production schedule is untimely.11
Instead, it defends the untimeliness by pointing to the large number of FOIA requests and
lawsuits to which it must respond. In terms of the speed of Defendant DHS’ production, their
excuses fall flat in the face of FOIA’s requirements, and even more in the face of an expedited
request.
It would turn logic on its head if the justification for DHS failing to produce documents is
that it is routinely and consistently ignoring FOIA’s requirements in other cases. An agency’s
FOIA load cannot perpetually remain “exceptional.”

In their opposition, Defendants

inappropriately dismiss the holdings of Open America v. Watergate Special Prosecution Force,

10

If the Court requires a preliminary injunction standard to be met, Plaintiffs’ evidence also satisfies the requirement
of irreparable harm.
11
Thus, under the standard Defendants announce—that the requirement to make documents “promptly available” is
only triggered once agencies have completed a multi-step “determination,” Opp. at 24-25—such documents can be
withheld indefinitely so long as the “determination” is ongoing. Clearly this cannot be said to be in compliance with
FOIA. CREW v. FEC, which Defendants cite, discusses what violations of FOIA are sufficient to exhaust
administrative remedies and allow a court to retain jurisdiction and actually holds that a “‘determination’ thus neatly
complements the requirement that documents be made ‘promptly available’” and should be completed within 20
working days, or 30 days in “‘unusual circumstances.’” Id. at 188-89 (citing 5 U.S.C. § 552(a)(3)(A), (a)(6)(C)(i))..
711 F.3d 180, 185-86 (D.C. Cir. 2013). Therefore, because a “determination” is ongoing, Defendants have violated
FOIA and the Court has jurisdiction to remedy the violation.

6

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547 F.2d 605 (D.C. Cir. 1976) and Ross v. Reno, No. 95-CV-1088, 1996 WL 612457 (E.D.N.Y.
Aug. 13, 1996), which both clearly acknowledge that allowing federal agencies to avoid their
FOIA obligations due to an ongoing state of stretched resources will swallow the “exceptional
circumstances” exception completely. See Opp. at 24 n.8.
Moreover, these cases—and numerous others—confirm that agencies can only claim an
overload of requests as “exceptional circumstances” when those requests are “vastly in excess of
that anticipated by Congress . . . .” Open Am., 547 F.2d at 616. To illustrate, in Clemente, the
court rejected the FBI’s exceptional circumstances argument in part because the FBI’s increase
in workload was due to changes in its own policies. 71 F. Supp. 3d at 267; see also EPIC, 933 F.
Supp. 2d at 47 (finding that despite an increase in FOIA requests, no exceptional circumstances
existed because the volume of requests was not “‘vastly in excess’ of the volume anticipated by
Congress”). In addition, the court found that while requests may have become “increas[ingly]
complex[],” it could not determine how such requests affected the workload of the FBI and thus,
could not support a finding of exceptional circumstances.” Id.; see also EPIC, 933 F. Supp. 2d at
48 (same); Fiduccia v. DOJ, 185 F.3d 1035, 1041 (9th Cir. 1999) (holding that “practical
difficulties for federal agencies” are not the courts’ concerns “[s]o long as [FOIA] is the law,”
Courts “cannot repeal [FOIA] by a construction that vitiates any practical utility it may have,”
and that agencies should instead “attempt to persuade Congress to change the law or provide
additional funds to achieve compliance”); Ferguson v. FBI., 722 F. Supp. 1137, 1140 (S.D.N.Y.
1989) (“[R]outine, ‘normal’ backlog is not ‘exceptional.’” (citation omitted)).
While DHS claims it is addressing its backlog, it does not in any way indicate that it is
also adapting its processes to appropriately handle its ongoing level of new requests, which
cannot remain “unanticipated” indefinitely. DHS notes that it faced an increase of only 100

7

 Case 1:17-cv-06335-AKH Document 90 Filed 11/14/18 Page 13 of 20

requests over the prior year, Opp. at 23, or a 7.3% increase. In fact, per DHS’s own annual
report from both 2016 and 2017, “DHS consistently receives the largest number of FOIA
requests of any federal department or agency.”12 Moreover, of the 428 expedited requests that
DHS and all its components processed in 2017, only four took more than 400 days to process.13
Thus, there is no basis in fact, nor should there be in law, for DHS to claim its FOIA caseload is
unusual or unanticipated.
Defendants cite Middle East Forum v. DHS for the proposition that 500 pages per month
is an appropriate rate of production. See Opp. at 24. However, in that case the plaintiff “ha[d]
not asserted that it is entitled to expedited processing,” “ha[d] not provided reasons that its
requests should take precedence” and did not claim “other than in vague and generalized
statements...that accelerated processing is necessary.” 297 F.Supp.3d 183, 186–87 (D.D.C.
2018). Conversely, here, Defendants ostensibly concede the Supplemental DHS Request is
entitled to expedited processing, and Plaintiffs have provided ample specific and detailed reasons
for urgent processing and release of the requested materials. Further, courts have routinely
directed agencies to produce documents at rates far greater than 500 pages per month.14 In sum,

12

DHS Privacy Office, 2017 Freedom of Information Act Report to the Attorney General of the United States, Feb.
2018
https://www.dhs.gov/sites/default/files/publications/FY%202017%20DHS%20FOIA%20Annual%
20Report.pdf (“2017 FOIA Report”); DHS Privacy Office, 2016 Freedom of Information Act Report to the Attorney
General
of
the
United
States,
Feb.
2017,
https://www.dhs.gov/sites/default/files/publications/
FY%202016%20DHS%20FOIA%20Annual%20Report.pdf.
13
DHS, 2017 FOIA Report at 13.
14
See ACLU v. DOD, 339 F. Supp. 2d 501, 503, 505 (S.D.N.Y. 2004) (processing of 17,000-20,000 pages in one
month); Clemente v. FBI, 71 F. Supp. 3d at 269 (processing of 5,000 pages a month); Judicial Watch v. Dep’t of
Energy, 191 F.Supp.2d 138, 140–41 (D.D.C. 2002) (production of 9,000 pages and 6,000 pages within
approximately 60 days); EPIC, 933 F. Supp. 2d at 50 (processing of 25,000 pages in four months and production on
a rolling basis); NRDC, 191 F. Supp. 2d at 43 (processing of 7,584 pages in two months); Seavey v. DOJ, 266 F.
Supp. 3d 241, 248 (D.D.C. 2017) (processing of no less than 2,850 pages per month); Ettlinger, 596 F. Supp. at
878–79 (production of 3,241 pages in two months); Ferguson, 722 F. Supp. at 1141, 1145 (production of 2,411
pages in 85 days).

8

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DHS has not met its burden of showing exceptional circumstances, and Plaintiffs’ proposed
January 31, 2019 deadline is reasonable.15
II. DEFENDANTS HAVE FAILED TO DEMONSTRATE A REASONABLE SEARCH FOR RESPONSIVE
RECORDS.
A. Defendants Have Failed to Demonstrate the Use of Reasonable Search Terms.
Despite refusing to negotiate search terms with Plaintiffs, Defendants now claim that
Plaintiffs are attempting to dictate the agencies’ search terms. Plaintiffs raised their concerns
more than a year ago, at the outset of this litigation, and Defendants responded that the
appropriate time to dispute search terms was in a post-production motion for summary
judgment.16 See Wedoff Decl. Exs. 18-20. At least two Defendants—DHS and OMB—used
search terms not reasonably calculated to identify responsive records.17 OMB searched only
“PACEI” or “election commission” or “election integrity commission,” while DHS searched
only “Presidential Advisory Commission on Election Integrity” or “Election Commission” or
“Commission” appearing along with “Voter Fraud.”

Opp. at 11–12.

Clearly, since other

agencies believed a more tailored set of search terms was necessary to capture all responsive
documents, Plaintiffs’ requests for additional search terms are not unreasonable. See also Mot.

15

Further, under a preliminary injunction standard, Plaintiffs’ evidence demonstrates they are likely to succeed on
the merits.
16
Plaintiffs take no position on the government’s statement that adequacy of search is typically addressed in a
motion for summary judgment. Indeed, Plaintiffs had agreed to a summary judgment schedule with Defendants.
But there is nothing in the statute that mandates that procedure, and it is fully within the court’s discretion and
equitable powers to consider the motion in this context. See Payne Enters., 837 F.2d at 494 (“The FOIA imposes no
limits on courts’ equitable powers in enforcing its terms.” (citing Renegotiation Bd. v. Bannercraft Clothing Co.,
415 U.S. 1, 19–20 (1974)). Plaintiffs do not object to the Court construing the Motion to Compel as a motion for
partial summary judgment with respect to adequacy of search issues, and Plaintiffs’ requested relief would be
equally appropriate in that posture. See, e.g., Hamlin v. Kelley, 433 F. Supp. 180, 182–83 (N.D. Ill. 1977) (granting
partial summary judgment for plaintiff sua sponte); Seavey, 266 F. Supp. 3d at 242 (ordering defendants to produce
documents on partial summary judgment motion).
17
Along with its brief, Defendants have attached declarations that identify the search terms and search protocols
used to respond to the Plaintiffs’ FOIA requests, despite having this information for over a year and countless
opportunities to share it. These declarations provide far more information regarding Defendants’ search terms and
protocols than anything previously shared with Plaintiffs. Although Plaintiffs believe the search terms still have
shortcomings, Plaintiffs agree to discontinue the challenge to DOJ-OIP, DOJ-OLC, GSA, and SSA’s search terms
based on the new information provided in Defendants’ declarations.

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Compel at 21–22.

The Court can and should direct DHS and OMB to correct these

deficiencies.18
B. Defendants Have Failed to Justify Their Refusal To Search Private Email
Accounts.
Defendants admit that high-ranking agency personnel used private email to conduct core
agency business relating to the Commission. See Opp. at 10. Defendants also admit that any
such emails would be agency records if they otherwise qualify under the Federal Records Act,
even though not in the immediate possession or control of the agency. Id. at 12; cf. Competitive
Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 147–50 (D.C. Cir. 2016) (hereinafter,
“Competitive Enterprise I”). Instead, the crux of Defendants’ argument—particularly Defendant
DOJ—in support of their refusal to search private email accounts is that agencies are entitled to a
presumption that their employees properly discharge their official duties, which include
forwarding any private emails to official accounts. While Defendant agencies are entitled to this
presumption, it may of course be rebutted. See Wright v. Admin. for Children & Families, No.
CV 15-218, 2016 WL 5922293, at *8 (D.D.C. Oct. 11, 2016); Landmark Legal Found. v. EPA,
959 F. Supp. 2d 175, 182 (D.D.C. 2013).
Plaintiffs produced evidence that, at a minimum, officials from Defendant DOJ-CRT
used personal email accounts to correspond regarding official agency business. See Wedoff
Decl. Exs. 22–25. Moreover, these emails included communication with Commission members

18

Defendants also challenge the production deadline for non-DHS productions of searches with adequate terms.
The burden they allege, however, is self-created. Had Defendants conducted reasonable searches in the first
instance, or engaged with Plaintiffs, the searches would not need to be repeated. In addition, this argument is
hypocritical when contrasted with Defendants’ insistence that search terms can only be challenged in a postproduction motion for summary judgment. See Opp. at 2, 14. January 31, 2019 is an appropriate production
deadline.

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who were also using personal email accounts. See id.19 The Federal Records Act—which
Defendants purportedly comply with, see Opp. at 35, requires that any records created or
transmitted on a non-official email account be forwarded to an official account “not later than 20
days after the original creation or transmission of the record.” 44 U.S.C. § 2911(a)(2) (emphasis
added). Plaintiffs’ exhibits demonstrate that these officials were communicating about agency
business for months before the entire chain was forwarded to an official email account by one of
the participating officials. At the very least, these officials demonstrably violated the FRA’s
requirement that records be forwarded within 20 days. This proven violation is more than
sufficient to rebut any presumption Defendants are compliant with the law.
To defend their dogged refusal to search private emails, Defendants cite only two cases
that specifically address the issue: Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 241
F. Supp. 3d 14 (D.D.C. 2017) (hereinafter “Competitive Enterprise II”), and Wright, 2016 WL
5922293. Both are readily distinguishable. In Competitive Enterprise II, the government had
produced evidence that the official in question had properly forwarded work-related
correspondence to his official account on approximately 4,500 occasions,20 while the plaintiff
offered only speculation that the official might not have always complied with the policy, and
admitted it was the official’s “customary practice.”

241 F. Supp. 3d at 22.

Conversely,

Defendants produced no evidence that these policies were followed, other than to state vaguely
that “each [agency] found no basis to conclude that” “private email accounts might contain
responsive records . . . .” Opp. at 34. Similarly, in Wright, the plaintiff had conceded that “he

19

See also Max Greenwood, Kobach defends use of private email for voter fraud commission business, THE HILL,
(Sept. 19, 2017), https://thehill.com/blogs/blog-briefing-room/news/351414-kobach-defends-use-of-private-emailfor-voter-fraud-commission.
20
Though not required by law, the government in Competitive Enterprise II had also submitted a declaration of the
official himself—in addition to those of the records custodians—attesting that he did indeed forward his private
emails. See 241 F. Supp. 3d at 21. None of the officials in this case whose private emails Plaintiffs request have
submitted similar declarations.

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‘ha[d] no specific information that agency personnel conducted official business through
personal email . . . .’” 2016 WL 5922293 at *8. And in contrast with the plaintiff’s conclusory
allegations in Competitive Enterprise II and Wright, Plaintiffs here have actual evidence the
legally-required practice was not followed. Plaintiffs are not merely engaging in a “creative
exercise in semantics.” Competitive Enterprise II. 241 F. Supp. 3d at 22. Here, Plaintiffs have
presented specific, concrete, evidence that agency personnel conducted official business through
personal email and did not regularly forward messages to their official accounts as required by
law. Therefore, Plaintiffs have sufficiently rebutted the presumption of Defendants’ good faith,
and demonstrate that a search designed to uncover “all responsive records” must also search
relevant officials’ private email accounts.
If Defendants’ argument were taken to its logical conclusion, any official could use
private email to conduct as much agency business as she wanted, so long as she never forwarded
any email to her official account, or did so only once. There would never be a mechanism to
verify that such a practice was not occurring, even in the face of direct evidence, because that
would merely “confirm that [the officials] fulfilled their duties . . . .” Opp. at 35. This cannot be
the law.

Defendants’ steadfast refusal to search private emails, as in Landmark Legal

Foundation v. EPA, “may indicate bad faith on the part of the agency” and the “possibility that
leaders in the [agencies] may have purposefully attempted to skirt disclosure under the FOIA.”
959 F. Supp. 2d at 184. The only way to know is to conduct a reasonable search of the relevant
officials’ private email accounts.
Alternatively, Defendants warn that any discovery to investigate whether private emails
were used—as authorized by cases such as Landmark Legal—would allow Plaintiffs “an
opportunity to pursue a bare hope” of impugning the agencies’ good faith. Opp. at 35 (citing

12

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Carney v. DOJ, 19 F.3d 807, 813 (2d Cir. 1994)). But Defendants fail to include that, even
absent a showing of bad faith, discovery is justified where Plaintiffs “provide some tangible
evidence that an exemption claimed by the agency should not apply.” Carney, 19 F.3d at 812;
see also, CREW v. DOJ, No. CIV. 05-2078(EGS), 2006 WL 1518964, at *6 (D.D.C. Jun. 1,
2006) (approving 4 depositions of top government officials, including an Associate Attorney
General and the Director of OIP, because of the agency’s extreme delay in processing a FOIA
request); CREW v. Dep’t of Veterans Affairs, 828 F. Supp. 2d 325, 334 (D.D.C. 2011)
(approving a second round of limited depositions to investigate whether documents were
improperly destroyed, where government counsel was not “forthcoming”).
Plaintiffs have more than justified limited discovery. At the very least, Plaintiffs are
entitled to investigation by the Defendant agencies asking custodians “to report if they had any
“potentially responsive agency records outside of a Department records system, such as in a
personal email account,” an inquiry already made by Defendant DOJ-OLC. Colborn Decl. ¶ 18;
cf. Families for Freedom v. U.S. Customs & Border Prot., 837 F. Supp. 2d 331, 337 (S.D.N.Y.
2011) (granting limited discovery and instructing Plaintiffs to submit a letter to the court
“describing precisely what limited discovery they believe is appropriate.”). See U.S. Dep’t of
Justice, Guide to the Freedom of Information Act, 113 nn.318–19, 119 nn.330–32 (2016 Ed.)
(collecting cases where courts have granted limited discovery in FOIA cases); see also Payne
Enters., 837 F.2d at 494 (“The FOIA imposes no limits on courts’ equitable powers in enforcing
its terms.”).

CONCLUSION
For the reasons set forth herein, Plaintiff respectfully requests the Court enter an Order
granting the relief requested in the Motion to Compel: direct Defendants to (i) produce to

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Plaintiffs all responsive records no later than January 31, 2019; (ii) conduct searches of private
emails of agency personnel, or in the alternative, allow limited discovery on agency personnel’s
use of private email for agency business; (iii) use the search terms set forth in this Motion; and
(iv) search for records through the date each agency conducted its search.

Dated: November 14, 2018
New York, New York

Respectfully submitted,
/s/ Jeremy M. Creelan
Jeremy M. Creelan
David W. Sussman
Carl N. Wedoff
Katherine A. Rosoff
JENNER & BLOCK LLP
919 Third Avenue
New York, NY 10022
(212) 891-1600
jcreelan@jenner.com
dsussman@jenner.com
cwedoff@jenner.com
krosoff@jenner.com
Wendy R. Weiser
BRENNAN CENTER FOR JUSTICE
AT NEW YORK UNIVERSITY
SCHOOL OF LAW
161 Avenue of the Americas
New York, New York 10013
(646) 292-8335
weiserw@brennan.law.nyu.edu
Laurence Schwartztol
Allison F. Murphy (pro hac vice forthcoming)
THE PROTECT DEMOCRACY PROJECT, INC.
2020 Pennsylvania Ave., NW #163
Washington, DC 20006
(202) 599-0466
larry.schwartztol@protectdemocracy.org
allison.murphy@protectdemocracy.org
Counsel for Plaintiffs

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 Case 1:17-cv-06335-AKH Document 90 Filed 11/14/18 Page 20 of 20

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the foregoing was
served on November 14, 2018, by CM/ECF on all counsel of record.

/s/ Carl N. Wedoff