Via Certified Mail and Electronic Submission
January 8, 2018
Philip S. “Sam” Kaplan
Chief Privacy Officer
The Privacy Office
U.S. Department of Homeland Security
245 Murray Lane SW
STOP-0655
Washington, D.C. 20528-0655
Re: Freedom of Information Act Request, Request for Expedited Processing, and Fee Waiver Request
Dear Mr. Kaplan:
This is a request on behalf of the Brennan Center for Justice at NYU School of Law (the
“Brennan Center”) and the Protect Democracy Project (“Protect Democracy”) to the U.S. Department of
Homeland Security (“DHS”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. 1 It is also
a request for expedited processing under 5 U.S.C. § 552(a)(6)(E) and 6 C.F.R. § 5.5(e), as well as for a
fee waiver under 5 U.S.C. §§ 552(a)(4)(A)(ii) & (iii) and 6 C.F.R. § 5.11.

I. Background
President Donald Trump issued Executive Order 13799 to establish the “Presidential Advisory
Commission on Election Integrity” (the “PACEI” or “Commission”), purportedly “to promote fair and
honest Federal elections.” Pursuant to the Executive Order, the Commission was to “study the registration
and voting processes used in Federal elections . . . and [to] submit a report to the President that identifies .
. . those laws, rules, policies, activities, strategies, and practices” that “enhance” or “undermine . . . the
American people’s confidence in the integrity of the voting processes used in Federal elections” and
“those vulnerabilities in voting systems and practices used for Federal elections that could lead to
improper voter registrations and improper voting, including fraudulent voter registrations and fraudulent
voting.” The Executive Order did not call for the Commission to examine pressing election system issues,
like the nation’s aging voting equipment, voter suppression efforts, or low voter turnout. The
Commission’s chair was Vice President Michael R. Pence, and its vice chair was Kansas Secretary of
State Kris W. Kobach.
1

The Brennan Center and Protect Democracy are signatories to a January 8, 2018 letter seeking DHS’s assurance
that it does not intend to accept or maintain personal voter file data from Kansas Secretary of State Kris Kobach or
from the Presidential Advisory Commission on Election Integrity. The letter is attached hereto as Ex. A.

1

 On May 17, 2017, the Brennan Center and Protect Democracy submitted a FOIA request (“Initial
Request”) to DHS, a copy of which is attached hereto as Ex. B. DHS acknowledged receipt of the Initial
Request on May 19, 2017, and assigned it reference number 2017-HQFO-00794. On July 25, the Brennan
Center and Protect Democracy submitted a FOIA request (“Follow Up Request”) to DHS, a copy of
which is attached hereto as Ex. C. DHS acknowledged receipt of the Follow Up Request on July 28,
2017, and assigned it reference number 2017-HQFO-01111. 2 Following DHS’s failure to disclose the
requested information, the Brennan Center and Protect Democracy filed a lawsuit on August 21, 2017 in
the U.S. District Court for the Southern District of New York. The lawsuit, which is currently pending,
seeks a court order to require DHS, the Department of Justice, the Office of Management and Budget, and
the General Services Administration comply with the FOIA requests. That case is currently pending.
On June 28, 2017, Mr. Kobach sent letters to chief state election officials requesting they submit
“publicly-available data from state voter rolls and feedback on how to improve election integrity” by July
14, 2017. The PACEI explained that “any documents that are submitted to the full Commission will also
be made available to the public.” Civic groups, including the Brennan Center, challenged the
Commission’s requests in court, 3 and the Commission subsequently asked states to hold off submitting
data pending a court ruling. 4 The request was renewed on July 26, 2017. The PACEI held its first meeting
on July 19, 2017, and its second meeting on September 12, 2017. Mr. Kobach had also stated that the
Commission was likely to meet in January 2018. 5
On January 3, 2018, President Trump issued another Executive Order “revok[ing]” Executive
Order 13799 and terminating the Commission. On the same day, the White House issued a press
statement on the dissolution of the PACEI, which, purportedly, was carried out to quell the “endless legal
battles at taxpayer expense.” Nevertheless, the statement said that the president instructed DHS “to review
[the Commission’s] initial findings and determine next courses of action.” During the January 4, 2018
White House press briefing, press secretary Sarah Huckabee Sanders stated, “We are going to send the
preliminary findings from the Commission to the Department of Homeland Security, and make
determinations on the best way forward from that point.” 6
Following the White House’s announcement, Mr. Kobach was quoted in press accounts
analogizing the decision to “an option play,” one “made in the middle of the day to pass the ball,” because
DHS “is going to be able to move faster and more efficiently than a presidential advisory commission.” 7
According to another account, he described the revocation of the Commission as a “tactical change,”
saying that he “intends to work closely with DHS and the White House, and expects the bulk of the DHS

2
DHS acknowledged receipt of the Follow Up Request for a second time on August 7, 2017, assigning reference
number 2017-HQFO-01158.
3
Legal Actions Taken Against Trump’s “Voter Fraud” Commission, Brennan Center for Just. (Dec. 26, 2017),
https://www.brennancenter.org/legal-actions-taken-against-trump%E2%80%99s%E2%80%9Cfraud%E2%80%9Dcommission.
4
Spencer S. Hsu, Trump Voting Panel Tells States to Hold Off Sending Data While Court Weighs Privacy Impact,
Wash. Post, July 10, 2017, http://wapo.st/2tBvySS?tid=ss_mail&utm_term=.f7ce56635876.
5
Allison Kite, Kobach Voter Integrity Commission, Stalled by Lawsuits, Will Meet in January, Topeka Capital-J.,
Dec. 30, 2017, http://cjonline.com/news/state-government/2017-12-29/kobach-voter-integrity-commission-stalledlawsuits-will-meet#.
6
Sarah Huckabee Sanders, Press Briefing by Press Secretary Sarah Sanders, White House (Jan. 4, 2018),
https://www.whitehouse.gov/briefings-statements/press-briefing-by-press-secretary-sarah-sanders01042018/.
7
Michael Wines & Michael Tackett, Trump Disbands Commission on Voter Fraud, N.Y. Times, Jan. 3, 2018,
https://www.nytimes.com/2018/01/03/us/politics/trump-voter-fraud-commission.html?_r=0.

2

 investigation to be done by midsummer.” 8 Shortly afterward, a DHS spokesman stated that “Mr. Kobach
is not advising the Department on this matter.” 9

II. Formal Request
The Brennan Center and Protect Democracy Project request, to the extent the following are in the
possession, custody, or control of DHS:
1. All documents, analyses, and communications related to the decision to terminate the PACEI.
2. All documents and communications related to DHS’s assumption of any operations, tasks, duties, or
responsibilities of the Commission.
3. All documents and communications related to (a) the PACEI’s “initial findings” as described in the
January 3, 2018 White House press statement noted above, and (b) proposals, recommendations,
endorsements, or suggestions made by the Commission or any of its members, officers,
representatives, agents, consultants, advisors, staff, assignees, volunteers, and other personnel.
4. All documents and communications related to plans, instructions, or intentions to maintain, establish,
create, alter, or eliminate any formal or informal employment, or advising or consulting relationship,
between DHS and Mr. Kobach.
5. All communications between any officer, employee or agent of DHS and Mr. Kobach.
6. All documents or communications related to plans, instructions, or intentions to maintain, establish,
create, alter, or eliminate positions within DHS for any individual who served on or worked for the
PACEI in any capacity.
7. All documents and communications between the employees, agents, or detailees of the Commission
or in the Executive Office of the President and employees, agents, or detailees of DHS regarding the
work undertaken by the Commission (prior to its dissolution) or the work relating to the mission of
the PACEI planned to be undertaken by DHS.
8. All documents and communications relating to the letters sent to state election officials by Mr.
Kobach on June 28, 2017 and July 26, 2017, including but not limited to communication with state
officials regarding those letters, communications with any federal government employee or agent
regarding those letters, and any narrative responses or data provided by any state official in response
to those letters.
9. All documents and communications subject to the Initial Request, reference number 2017- HQFO00794, or the Follow Up Request, reference number 2017-HQFO-01111, created, dated, identified, or
modified subsequent to any search previously undertaken by DHS in response to the Initial or Follow
Up Requests.
8

Jill Colvin & John Hanna, Trump Signs Order Disbanding Voter Fraud Commission, Associated Press (Jan. 4,
2018), https://www.apnews.com/b3d4e5974aba421b81763c153541ea06/Trump-signs-order-disbanding-voter-fraudcommission.
9
Elizabeth Landers, Eli Watkins, & Kevin Liptak, Trump Dissolves Voter Fraud Commission; Adviser says it went
‘Off the Rails,’ CNN (Jan. 4, 2018), http://www.cnn.com/2018/01/03/politics/presidential-electioncommission/index.html.
3

 10. All communications and documents regarding use of the following databases for any purpose related
to the PACEI, whether by any employee of DHS or by the Commission, its members, agents, and
assignees:
a. The Systematic Alien Verification for Entitlements (“SAVE”) program;
b. The National Security Entry-Exit Registration Systems (“NSEERS”) program;
c. Any cross-state voter database programs, including but not limited to the Electronic Registration
Information Center (“ERIC”) and Interstate Voter Registration Crosscheck (“IVRC”) program;
d. Any list, program, or other resource that contains or can be used to determine the citizenship
status of any individual; and
e. Any other federal database for the purpose of matching, verifying, or investigating information on
voter registration lists, including all lists to which the Commission was granted access.
11. All communications and documents describing the processing of this request, including records
sufficient to identify search terms used and locations and custodians searched, and any tracking sheets
used to track the processing of this request. If DHS uses FOIA questionnaires or certifications
completed by individual custodians or components to determine whether they possess responsive
materials or to describe how they conducted searches, we also request any such records prepared in
connection with the processing of this request.

Definitions
As used in this request:
•

“Collaborative Work Environment” means a platform used to create, edit, review, approve, store,
organize, share, and access documents and information by and among authorized users,
potentially in diverse locations and with different devices. Collaborative Work Environments
include, but are not limited to, Google Drive sites, Microsoft SharePoint sites, eRooms, document
management systems (e.g., iManage), intranets, web content management systems (CMS) (e.g.,
Drupal), wikis, and blogs.

•

“Communications” means disclosures, transfers, or exchanges of information or opinions,
however made, including, but not limited to, any transmissions of information by oral, graphic,
written, pictorial, electronic, or other perceptible means.

•

“Documents” means all written, printed, or electronically stored information of any kind in the
possession, custody, or control of DHS, including, but not limited to, information stored on social
media accounts (e.g. Facebook, Twitter, Snapchat, etc.), chats, instant messages, and documents
contained in Collaborative Work Environments and other document databases. The term includes
agreements; letters; calendar appointments; telegrams; inter-office communications; memoranda;
reports; records; instructions; notes; notebooks; diaries; plans; diagrams; charts; photographs;
photocopies; descriptions; drafts (whether or not they resulted in a final document); agendas and
minutes of meetings, conferences, and telephone or other conversations or communications;
recordings; published or unpublished speeches and articles; publications; transcripts of telephone
conversations; phone mail; electronic-mail; and computer print-outs.

•

“Including” means including, but not limited to.

4

 •

“Presidential Advisory Commission on Election Integrity” means the commission created
pursuant to the Executive Order on “Establishment of Presidential Advisory Commission on
Election Integrity,” signed by President Donald Trump on May 11, 2017, or any effort to
establish any task force, commission, or committee, whether through a government agency or not,
to investigate voter fraud, vote suppression, or any other aspect of the voting or election system.

Unless otherwise noted, the request includes documents and communications dated, created,
identified, or modified between November 8, 2016 and the date of DHS’s search. In addition, we request
that responsive electronic records be provided electronically, in a text searchable, static-image (PDF)
format (in the best image quality available to the agency), pursuant to 5 U.S.C. § 552(a)(3)(A)(B) and (C).

III. Request for Expedited Processing
The Brennan Center and Protect Democracy request expedited processing pursuant to 5 U.S.C. §
552(a)(6)(E) and 6 C.F.R. § 5.5(e). The Brennan Center and Protect Democracy intend to disseminate the
information obtained in response to this request to enable the public to effectively monitor, evaluate,
participate in, and respond to the work performed by the Commission and DHS. Prior to its dissolution,
the Commission, among other things, sought to collect and make public voter information from all 50
states and the District of Columbia, and held meetings led by the Vice President (and featured remarks by
the President). According to reporting, the Commission’s work will not conclude, “but rather [will] be
transferred to the Department of Homeland Security,” and DHS will use “files on immigrants, legal and
otherwise” to identify those who are purportedly “casting ballots in American elections” illegally. 10 Both
the Commission and the issue of voter fraud have generated extensive public interest and media coverage,
reflecting the public’s urgent concern about election integrity. 11 Accordingly, this request meets the
criteria for expedited processing because there is “[a]n urgency to inform the public about an actual or
alleged Federal Government activity” and this request concerns “[a] matter of widespread and exceptional
media interest in which there exist possible questions about the government’s integrity which affect
public confidence.” 6 C.F.R. § 5.5(e)(1)(ii) and (iv).
The Brennan Center and Protect Democracy are 501(c)(3) non-profit organizations “primarily
engaged in disseminating information” within the meaning of 5 U.S.C. § 552(a)(6)(E)(v)(II) and 6 C.F.R.
§ 5.5(e)(1)(ii). The Brennan Center regularly writes and publishes reports and newspaper articles and
makes appearances on various media outlets regarding the fight to preserve and expand the right to vote
for every eligible citizen. Through practical policy proposals, litigation, advocacy, and communications,
the Brennan Center works to ensure that voting is free, fair, and accessible for all Americans.12
10

Michael Wines & Michael Tackett, Trump Disbands Commission on Voter Fraud, N.Y. Times, Jan. 3, 2018,
https://www.nytimes.com/2018/01/03/us/politics/trump-voter-fraud-commission.html.
11
See, e.g., Editorial, The Bogus Voter-Fraud Commission, N.Y. Times, July 22, 2017,
https://www.nytimes.com/2017/07/22/opinion/sunday/the-bogus-voter-fraud-commission.html; Vann R. Newkirk II,
Trump’s Voter-Fraud Commission Has Its First Meeting, The Atlantic (July 19, 2017),
https://www.theatlantic.com/politics/archive/2017/07/trumps-voter-fraud-commission-runs-intoaroadblock/534084/; Liz Stark & Grace Hauck, Forty-Four States and DC Have Refused to Give Certain Voter
Information to Trump Commission, CNN (July 5, 2017), http://www.cnn.com/2017/07/03/politics/kris-kobachlettervoter-fraud-commission-information/index.html; Trump ‘Voter Fraud’ Commission Seeking Data from All
States, CBS News (June 30, 2017), http://www.cbsnews.com/news/trump-voter-fraud-commission-seeking-voterdata-fromall-states/; Ali Vitali, Peter Alexander, & Kelly O’Donnell, Trump Establishes Voter Fraud Commission,
NBC News (May 11, 2017), http://www.nbcnews.com/politics/white-house/trump-establish-vote-fraudcommissionn757796.
12
Featured Publications, Brennan Center for Just. (Dec. 14, 2017),
http://www.brennancenter.org/content/resources/publications.
5

 The core mission of Protect Democracy is to inform public understanding on operations and
activities of the government. This request is submitted in accordance with the organization’s mission to
gather and disseminate information that is likely to contribute significantly to the public understanding of
executive branch operations and activities. Protect Democracy has routinely demonstrated the ability to
disseminate information about its FOIA requests to a wide audience,13 and has been recognized as an
organization that meets the applicable standard under FOIA. Protect Democracy Project, Inc. v. U.S.
Dep’t of Def., No. 17-CV-00842 (CRC), 2017 WL 2992076 (D.D.C. July 13, 2017). Protect Democracy
Project has no commercial interests.
Furthermore, the Brennan Center and Protect Democracy urgently require the information sought
by this request in order to inform the public of federal government activity. See 5 U.S.C. §
552(a)(6)(E)(v)(II); 6 C.F.R. § 5.5(e)(1)(ii). The information requested herein concerns federal
government activity that is of vital interest to the general public. The Brennan Center and Protect
Democracy intend to share any new information about DHS, the Commission, and the integrity of federal
elections obtained from this request with the public.
In order to adequately inform the public about the Commission’s work and to monitor DHS’s, the
Brennan Center and Protect Democracy need this information expeditiously. The information sought in
this request is critical for the public’s monitoring and evaluation of and response to those immediate
activities. The information is also critical to public evaluation and monitoring of the Commission’s work,
to pursue its mission of determining which “laws, rules, policies, activities, strategies, and practices”
enhance or undermine public confidence in elections and what vulnerabilities exist in America’s voting
systems – work that was well underway, and will continue under the auspices of DHS. Effective public
monitoring and involvement is urgently needed given the importance of the topics the Commission and
DHS have been charged with addressing.

IV. Application for Waiver or Limitation of All Fees
The Brennan Center and Protect Democracy request a waiver of all search, review, and
duplication fees associated with this request. Both organizations are eligible for a waiver of search and
review fees pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) and 6 C.F.R. § 5.11(k), and for a waiver of all fees,
including duplication fees, pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) and 6 C.F.R. § 5.11(k).
First, the Brennan Center and Protect Democracy plan to analyze, publish, and disseminate the
information obtained from this request to the public. The requested records are not sought for commercial
use and will be disclosed to the public at no cost.
Second, the Brennan Center and Protect Democracy both qualify as “representative[s] of the news
media” for the same reasons that they are “primarily engaged in dissemination of information,” i.e.,
because they will “gather[ ] information of potential interest to a segment of the public, uses its editorial
13

See, e.g., Lisa Rein, Watchdog Group, Citing ‘Integrity of Civil Service,’ Sues Trump to Find Out if Feds Are
Being Bullied, Wash. Post, Apr. 27, 2017,
https://www.washingtonpost.com/news/powerpost/wp/2017/04/27/watchdoggroup-citing-integrity-of-civil-servicesues-trump-to-find-out-if-feds-are-being-bullied/?utm_term=.8647ab128f3e; Ben Berwick, Going to Court for Civil
Servants, Take Care (Apr. 28, 2017), https://takecareblog.com/blog/going-to-court-for-civil-servants; Charlie
Savage, Watchdog Group Sues Trump Administration, Seeking Legal Rationale Behind Syria Strike, N.Y. Times,
May 8, 2017, https://nyti.ms/2pX82OV; Justin Florence, What’s the Legal Basis for the Syria Strikes? The
Administration Must Acknowledge Limits on Its Power to Start a War, Lawfare (May 8, 2017),
https://www.lawfareblog.com/whats-legal-basis-syria-strikes-administration-must-acknowledge-limits-itspowerstart-war.
6

 skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. §
552(a)(4)(A)(ii)(III); Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. Cir. 1989). As such,
the Brennan Center and Protect Democracy are entitled to a waiver of search and review fees pursuant to
5 U.S.C. § 552(a)(4)(A)(ii)(II) and 6 C.F.R. § 5.11(k).
As a noncommercial requester, the Brennan Center also qualifies for waivers as an “educational
institution” pursuant to 6 C.F.R. § 5.11 because it is affiliated with the New York University School of
Law, which is plainly an educational institution.
The Brennan Center and Protect Democracy are likewise entitled to a waiver of all fees, including
duplication fees, pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) and 6 C.F.R. § 5.11(k). First, the subject of the
requested records clearly concerns “the operations or activities of the federal government.” Disclosure of
the requested records is therefore in the public interest because it is likely to contribute significantly to
public understanding of how the government is regulating elections, which is plainly of interest to the
public.
Furthermore, disclosure is not primarily for the commercial interests of the Brennan Center or
Protect Democracy. As stated above, both organizations plan to make any disclosed information available
to the public at no cost. Therefore, a fee waiver would fulfill Congress’s legislative intent that FOIA be
“liberally construed in favor of waivers for noncommercial requesters.” McClellan Ecological Situation v.
Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987) (quoting 132 CONG. REC. 27, 190 (1986) (Statement of
Sen. Leahy)).
In the event you deny our waiver request, please contact us if you expect the costs to exceed the
amount of $500.00.

V. Response Requested in 10 Days
Your attention to this request is appreciated, and the Brennan Center and Protect Democracy will
anticipate your determination regarding our request for expedited processing within ten (10) calendar
days. See 5 U.S.C. § 552(a)(6)(E)(ii)(I); 6 C.F.R. § 5.5(e)(4). We affirm that the information provided
supporting the request for expedited processing is true and correct to the best of our knowledge and belief.
See 5 U.S.C. § 552(a)(6)(E)(vi).
We also request that you provide us with an estimated completion date, as required by 5 U.S.C. §
552(a)(7)(B)(ii). If the request is denied in whole or in part, we ask that you justify all deletions by
reference to specific exemptions to FOIA. We expect the release of all segregable portions of otherwise
exempt material. We reserve the right to appeal a decision to withhold any information or to deny a
waiver of fees.
Please furnish all applicable records to:
Wendy R. Weiser
Director, Democracy Program
Brennan Center for Justice at NYU School of Law
120 Broadway, Suite 1750
New York, NY 10271
(646) 292-8310
weiserw@brennan.law.nyu.edu

7

 Should you have any questions regarding this request, please contact Ms. Weiser at the address
above, by phone at (646) 292-8310, or by email at weiserw@brennan.law.nyu.edu; or Larry Schwartztol
by phone at (202) 599-0466 or by email at larry.schwartztol@protectdemocracy.org.

Sincerely,

______________________
Larry Schwartztol, Counsel
The Protect Democracy Project
2020 Pennsylvania Ave NW, #163
Washington, DC 20006

________________________
Wendy Weiser, Director
Rudy Mehrbani, Senior Counsel
Wilfred U. Codrington III, Counsel
Democracy Program
Brennan Center for Justice
at NYU School of Law
120 Broadway, Suite 1750
New York, NY 10271

8

 Exhibit A

Letter to DHS

January 8, 2018
The Honorable Kirstjen M. Nielsen
Secretary of Homeland Security
Washington, DC 20528
Dear Secretary Nielsen:
We write to you regarding the personal voter data obtained by the Presidential Advisory
Commission on Election Integrity. We represent the organizations that sued the Commission for
various violations of federal law.
By Executive Order issued on January 3, 2018, the President revoked the authorities
established by Executive Order 13799 and accordingly terminated the Presidential Advisory
Commission on Election Integrity.
However, shortly after the issuance of the Executive Order, former Commission Vice
Chair Kris Kobach told several news organizations that he intended to pursue the work of the
Commission at the Department of Homeland Security (“DHS”).1 Mr. Kobach also indicated that
the personal data obtained by the Commission would be transferred to the DHS.2
We write to emphasize that neither Mr. Kobach nor the defunct Commission have
authority to transfer the data obtained by it to any third party, including the DHS. The disposition
of all materials obtained or created by the Commission is subject to multiple federal laws,
including the Federal Advisory Committee Act, 5 U.S.C. app. 2, the Federal Records Act, 44
U.S.C. chs. 21, 29–33, and the Presidential Records Act, 44 U.S.C. §§ 2201–2207, under the
direction of the Administrator of General Services. 41 C.F.R. pt. 102-3, subpt. D, app. A.
Moreover, accepting or maintaining personal voter file data from Mr. Kobach or the
Commission would subject the DHS to obligations under the E-Government Act of 2002, 44
U.S.C. § 3501 note, the Privacy Act of 1974, 5 U.S.C. § 552a, and the Paperwork Reduction
Act, 44 U.S.C. §§ 3507–3521.
                                                        
1
Trump disbands Kobach-led voter fraud commission after resistance from states, Kansas City
Star (Jan. 3, 2018), http://www.kansascity.com/news/politicsgovernment/article192854444.html; Kobach says he will advise DHS after election panel’s
demise, Associated Press (Jan. 4, 2018), http://ksnt.com/2018/01/04/kobach-says-he-will-advisedhs-after-election-panels-demise/.
2
Trump Disbands Commission on Voter Fraud, N.Y. Times (Jan. 3, 2018),
https://www.nytimes.com/2018/01/03/us/politics/trump-voter-fraud-commission.html; Kris
Kobach On What Led to The Disbandment Of Controversial Election Commission, NPR All
Things Considered (Jan. 4, 2018), https://www.npr.org/2018/01/04/575774092/kris-kobach-onwhat-led-to-the-disbandment-of-controversial-election-commission.
1

 We seek your prompt assurance that the Department of Homeland Security has no
intention to accept or maintain any personal data from Mr. Kobach or the Presidential Advisory
Commission on Election Integrity.
Sincerely,
Marc Rotenberg, President and Executive Director
ELECTRONIC PRIVACY INFORMATION CENTER
Dale Ho, Director, ACLU Voting Rights Project
AMERICAN CIVIL LIBERTIES UNION
Austin Evers, Executive Director
AMERICAN OVERSIGHT
Wendy Weiser, Democracy Program Director
BRENNAN CENTER FOR JUSTICE
Karen Hobert Flynn, President
COMMON CAUSE
Anne Harkavy, Executive Director
DEMOCRACY FORWARD3
Kristen Clarke, President and Executive Director
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW
Vanita Gupta, President and CEO
THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS
Sherrilyn Ifill, President and Director-Counsel
NAACP LEGAL DEFENSE FUND
Ian Bassin, Executive Director
PROTECT DEMOCRACY
Robert Weissman, President
PUBLIC CITIZEN
Cc:

Administrator of General Services
Congressional Oversight Committees – Chairs and Ranking Members
State Secretaries
National Association of State Secretaries

                                                        
3
"Democracy Forward represents a party that is adverse to DHS in Common Cause v.
Presidential Advisory Commission on Election Integrity, No. 17-cv-1398 (D.D.C.).”
2

 Exhibit 

Initial Request

Via Certified Mail and Electronic Submission
May 17, 2017
Jonathan Cantor
Acting Chief Privacy Officer/Chief FOIA Officer
The Privacy Office
U.S. Department of Homeland Security
245 Murray Lane SW
STOP-0655
Washington, D.C. 20528-0655
Re:

Freedom of Information Act Request, Request for Expedited Processing and
Fee Waiver

Dear Mr. Cantor:
This is a request to the Department of Homeland Security under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552. It is also a request for expedited processing
under 5 U.S.C. § 552(a)(6)(E) and 6 C.F.R. § 5.5(e), and for a fee waiver under 5 U.S.C.
§§ 552(a)(4)(A)(ii) & (iii) and 6 C.F.R. § 5.11.
I.

Background

President Trump issued Executive Order 13799, creating a “Presidential Advisory
Commission on Election Integrity” (the “Commission”), supposedly “to promote fair and
honest Federal elections.” According to the Executive Order, the Commission shall
“study the registration and voting processes used in Federal elections… and shall submit
a report to the President that identifies… those laws, rules, policies, activities, strategies,
and practices” that either “enhance” or “undermine… the American people’s confidence
in the integrity of the voting processes used in Federal elections;” and “those
vulnerabilities in voting systems and practices used for Federal elections that could lead
to improper voter registrations and improper voting, including fraudulent voter
registrations and fraudulent voting.”

 The Commission is chaired by the Vice President of the United States and, per the
Executive Order, “shall be informed by, and shall strive to avoid duplicating, the efforts
of existing government entities.”
The Order also provides for “staff to provide support for [the Commission’s]
functions.” Further, “subject to the availability of appropriations, the General Services
Administration shall provide the Commission with such administrative services, funds,
facilities, staff, equipment, and other support services as may be necessary to carry out its
mission on a reimbursable basis.”
II.

Formal Request

The Brennan Center for Justice at NYU School of Law and The Protect
Democracy Project request, to the extent the following are in the possession, custody, or
control of the Department of Homeland Security:
1.
All communications, including but not limited to emails and memoranda, between
any Department of Homeland Security (“DHS” or “Department”) officer, employee, or
agent, or any White House liaison to DHS, and any other person, including but not
limited to any officer, employee, or agent of the White House or DHS, or any member of
the presidential transition team or the presidential campaign of Donald Trump, regarding
the Presidential Advisory Commission on Election Integrity or any other effort since
November 8, 2016 to establish a commission, task force, or committee to study voter
fraud or any aspect of the voting system.
2.
All communications, including but not limited to emails and memoranda, between
any DHS officer, employee, or agent, or any White House liaison to DHS, and any
member of the Presidential Advisory Commission on Election Integrity, other than Vice
President Michael Pence, since November 8, 2016. 1
3.
All documents relating to the Presidential Advisory Commission on Election
Integrity or any other effort since November 8, 2016 to establish a commission, task
force, or committee to study voter fraud or any aspect of the voting system, including all
documents discussing or making reference to the following subjects:
a) The Executive Order creating the Presidential Advisory Commission on Election
Integrity;

1

According to a public announcement from the White House, the following individuals are currently
members of the Presidential Advisory Commission on Election Integrity: Vice President Michael Pence,
Kansas Secretary of State Kris Kobach, Indiana Secretary of State Connie Lawson, New Hampshire
Secretary of State William Gardner, Maine Secretary of State Matthew Dunlap, former Ohio Secretary of
State J. Kenneth Blackwell, and EAC Commissioner Christy McCormick. The White House, Office of the
Press Secretary, President Announces Formation of Bipartisan Presidential Commission on Election
Integrity, May 11, 2017, https://www.whitehouse.gov/the-press-office/2017/05/11/president-announcesformation-bipartisan-presidential-commission.

2

 b) The reasons for forming the Presidential Advisory Commission on Election
Integrity;
c) The goals and mission of the Presidential Advisory Commission on Election
Integrity;
d) The membership of the Presidential Advisory Commission on Election Integrity,
including the criteria for selection of its members; and
e) The staffing of the Presidential Advisory Commission on Election Integrity,
including job descriptions, organization charts, and criteria for hiring.
Definitions
As used in this request—
“Collaborative Work Environment” means a platform used to create, edit, review,
approve, store, organize, share, and access documents and information by and among
authorized users, potentially in diverse locations and with different devices. Collaborative
Work Environments include Google Docs sites, Microsoft SharePoint sites, eRooms,
document management systems (e.g., iManage), intranets, web content management
systems (CMS) (e.g., Drupal), wikis, and blogs.
“Communications” means disclosure, transfer, or exchange of information or opinion,
however made, including any transmission of information by oral, graphic, written,
pictorial, electronic, or other perceptible means.
“Documents” means all written, printed, or electronically stored information of any kind
in the possession, custody, or control of DHS, including information stored on social
media accounts like Twitter or Facebook, chats, instant messages, and documents
contained in Collaborative Work Environments and other document databases. The term
includes agreements; letters; telegrams; inter-office communications; memoranda;
reports; records; instructions; notes; notebooks; diaries; plans; diagrams; photographs;
photocopies; charts; descriptions; drafts, whether or not they resulted in a final document;
agendas and minutes of meetings, conferences, and telephone or other conversations or
communications; recordings; published or unpublished speeches or articles; publications;
transcripts of telephone conversations; phone mail; electronic-mail; and computer printouts.
“Including” means including, but not limited to.
“Presidential Advisory Commission on Election Integrity” means the commission created
pursuant to the Executive Order on “Establishment of Presidential Advisory Commission
on Election Integrity,” signed by President Donald Trump on May 11, 2017, or any effort
to establish any task force, commission, or committee, whether through a government

3

 agency or not, to investigate voter fraud, vote suppression, or any other aspect of the
voting system.
We request that responsive electronic records be provided electronically, in a textsearchable, static-image (PDF) format (in the best image quality available to the agency),
pursuant to 5 U.S.C. § 552(a)(3)(A)(B) and (C).
III.

Application for Expedited Processing

The Brennan Center and The Protect Democracy Project request expedited
processing pursuant to 5 U.S.C. § 552(a)(6)(E) and 6 C.F.R. § 5.5(e). This request meets
the criteria for expedited processing because there is “[a]n urgency to inform the public
about an actual or alleged Federal Government activity, if made by a person who is
primarily engaged in disseminating information;” and this request concerns “[a] matter of
widespread and exceptional media interest in which there exist possible questions about
the government’s integrity which affect public confidence.” 6 C.F.R. § 5.5(e)(1)(ii) and
(iv). As explained below in more detail in the section of this request regarding a fee
waiver, the Brennan Center and The Protect Democracy Project intend to disseminate the
information obtained in response to this request to enable the public to effectively
monitor, evaluate, participate in, and respond to the work of the Commission, which is
scheduled to begin immediately.
The Brennan Center and The Protect Democracy Project are section 501(c)(3)
non-profit organizations that are “primarily engaged in disseminating information” within
the meaning of 5 U.S.C. § 552(a)(6)(E)(v)(II) and 6 C.F.R. § 5.5(e)1)(ii). The United
States District Court for the District of Columbia has found that a non-profit, public
interest group that “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” is “primarily engaged in disseminating information” within the
meaning of the statute and regulations. Am. Civil Liberties Union v. Dep’t of Justice, 321
F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (quoting Elec. Privacy Info. Ctr. v. Dep’t of Def.,
241 F. Supp. 2d 5, 11 (D.D.C. 2003)). The Brennan Center regularly writes and publishes
reports and newspaper articles and makes appearances on various media outlets regarding
the fight to preserve and expand the right to vote for every eligible citizen. Through
practical policy proposals, litigation, advocacy, and communications, the Brennan Center
works to ensure that voting is free, fair, and accessible for all Americans. 2
The core mission of The Protect Democracy Project, a new organization awaiting
501(c)(3) status, is to inform public understanding on operations and activities of the
government. This request is submitted in accordance with the organization’s mission to
gather and disseminate information that is likely to contribute significantly to the public
understanding of executive branch operations and activities. The Protect Democracy
Project has no commercial interests.

2

A list of the Brennan Center’s recent publications is available at
http:/www.brennancenter.org/content/resources/publications.

4

 Furthermore, the Brennan Center and The Protect Democracy Project urgently
require the information sought by this request in order to inform the public of federal
government activity. See 5 U.S.C. § 552(a)(6)(E)(v)(II); 6 C.F.R. § 5.5(e)(1)(ii). The
information requested herein concerns federal government activity with regard to the
conduct and integrity of federal elections, which is at the core of the missions for both the
Department and the newly established Commission. This information is of vital interest
to the general public. Both the Commission and the issue of voter fraud have generated
extensive public interest and media coverage, reflecting the public’s urgent concern about
election integrity. The Brennan Center and The Protect Democracy Project intend to
share any new information about the Commission and the integrity of federal elections
obtained from this request with the public. The Commission’s charge includes
recommending changes to the nation’s “laws, rules, policies, activities, strategies, and
practices” regarding voting—all of which are of critical importance to the public and the
integrity of American democracy, as well as to the missions of the Brennan Center for
Justice and The Protect Democracy Project.
In order to adequately inform the public and to monitor the Commission, the
Brennan Center and The Protect Democracy Project need this information expeditiously.
According to news reports, the Commission will begin its work shortly, 3 and according to
the White House’s official announcement, a final report will be submitted to the President
next year. 4 Before this summer, the Commission will likely name additional members
(fewer than half of a possible total of fifteen are currently named), hire staff, and
establish a meeting and hearing calendar, as provided for in the Executive Order. The
information sought in this request is critical for the public’s monitoring and evaluation of
and response to those immediate activities. The information is also critical to public
evaluation and monitoring of the Commission’s work, to pursue its mission of
determining which “laws, rules, policies, activities, strategies, and practices” enhance or
undermine public confidence in elections and what vulnerabilities exist in America’s
voting systems—work which the Commission plans to begin expeditiously. Effective
public monitoring and involvement is urgently needed given the importance of the topics
the Commission is charged with addressing.

3

See Ali Vitali, Peter Alexander, & Kelly O’Donnell, Trump Establishes Voter Fraud Commission, NBC
NEWS, May 11, 2017, http://www.nbcnews.com/politics/white-house/trump-establish-vote-fraudcommission-n757796; Jenna Johnson & John Wagner, White House launches a commission to study voter
fraud and suppression, WASH. POST, May 11, 2017, https://www.washingtonpost.com/news/postpolitics/wp/2017/05/11/white-house-to-launch-a-commission-to-study-voter-fraud-andsuppression/?utm_term=.a495285c5a69; Pam Fessler, Despite Little Evidence of Fraud, White House
Launches Voting Commission, NAT’L PUB. RADIO, May 11, 2017,
http://www.npr.org/2017/05/11/527924633/white-house-expected-to-announce-voting-fraud-commission;
DEBORAH BARRY & DAVID JACKSON, Trump orders “voter fraud” commission as FBI firing fallout
lingers, USA Today, May 11, 2017, https://www.usatoday.com/story/news/politics/2017/05/11/donaldtrump-voter-fraud-mike-pence-kris-kobach/101544112/.
4
The White House, Office of the Press Secretary, President Announces Formation of Bipartisan
Presidential Commission on Election Integrity, May 11, 2017, https://www.whitehouse.gov/the-pressoffice/2017/05/11/president-announces-formation-bipartisan-presidential-commission.

5

 IV.

Application for Waiver or Limitation of All Fees

The Brennan Center requests a waiver of all search, review, and duplication fees
associated with this request. The Brennan Center is eligible for a waiver of search and
review fees pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) and 6 C.F.R. § 5.11(k), and for a
waiver of all fees, including duplication fees, pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) and
6 C.F.R. § 5.11(k).
First, the Brennan Center plans to analyze, publish, and publicly disseminate
information obtained from this request. The requested records are not sought for
commercial use and will be disclosed to the public at no cost.
Second, the Brennan Center qualifies as a “representative of the news media” for
the same reasons that it is “primarily engaged in dissemination of information,” i.e.,
because the Brennan Center “gathers information of potential interest to a segment of the
public, uses its editorial skills to turn the raw materials into a distinct work, and
distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii)(III); Nat’l Sec. Archive
v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. Cir. 1989). The Brennan Center has released
dozens of publications regarding voting issues in the form of reports and papers on
various issues of public importance. Cf. Elec. Privacy Info. Ctr., 241 F. Supp. 2d at 11-12
(finding that the Electronic Privacy Information Center was representative of the news
media based on its publication of seven books about national and international policies
relating to privacy and civil rights); see also Nat’l Sec. Archive, 880 F.2d at 1386
(deeming the National Security Archive a representative of the news media after it
published one book and indicated its intention to publish a set of documents on national
and international politics and nuclear policy). The Brennan Center is therefore entitled to
a waiver of search and review fees pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) and
28 C.F.R. § 16.10(k).
As a noncommercial requester, the Brennan Center also qualifies for waivers as
an “educational institution” pursuant to 6 C.F.R. § 5.11. The Brennan Center qualifies as
an educational institution because it is affiliated with the NYU School of Law, which is
plainly an educational institution. See also Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d
1381 (D.C. Cir. 1989).
The Brennan Center is also entitled to a waiver of all fees, including duplication
fees, pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) and 6 C.F.R. § 5.11(k). First, the subject of
the requested records clearly concerns “the operations or activities of the federal
government.” This request seeks records and information concerning federal government
activity because the materials requested concern allegations by the President of voter
fraud in the conduct of federal elections and proposed changes to federal law. This
connection to the federal government is “direct and clear, not remote or attenuated.”
Disclosure of the requested records is therefore in the public interest because it is likely
to contribute significantly to public understanding of how the government is regulating

6

 elections, which is plainly of interest to the public. Disclosure will significantly enhance
the public’s understanding of this subject.
Moreover, disclosure is not primarily in the Brennan Center’s commercial
interests. As stated above, the Brennan Center plans to make any information disclosed as
a result of this request available to the public at no cost. A fee waiver would therefore
fulfill Congress’s legislative intent that FOIA be “liberally construed in favor of waivers
for noncommercial requesters.” McClellan Ecological Situation v. Carlucci, 835 F.2d
1282, 1284 (9th Cir. 1987) (quoting 132 CONG. REC. 27, 190 (1986) (Statement of Sen.
Leahy)).
In the event you deny our waiver request, please contact us if you expect the costs
to exceed the amount of $500.00.
V.

Response Requested in 10 Days

Your attention to this request is appreciated, and the Brennan Center and The
Protect Democracy Project will anticipate your determination regarding our request for
expedited processing within ten (10) calendar days. See 5 U.S.C. § 552(a)(6)(E)(ii)(I); 6
C.F.R. § 5.5(e)(4). I affirm that the information provided supporting the request for
expedited processing is true and correct to the best of my knowledge and belief. See 5
U.S.C. § 552(a)(6)(E)(vi).
We also request that you provide us with an estimated completion date, as
required by 5 U.S.C. § 552(a)(7)(B)(ii). If the request is denied in whole or in part, we
ask that you justify all deletions by reference to specific exemptions to FOIA. We expect
the release of all segregable portions of otherwise exempt material. We reserve the right
to appeal a decision to withhold any information or to deny a waiver of fees.
Please furnish all applicable records to:
Wendy R. Weiser
Director, Democracy Program
Brennan Center for Justice at NYU School of Law
120 Broadway, Suite 1750
New York, NY 10271
(646) 292-8310
www.brennancenter.org
Should you have any questions regarding this request, please contact Ms. Weiser at the
address above, by telephone at (646) 292-8310, or by e-mail at
weiserw@brennan.law.nyu.edu; or Ben Berwick by email at
ben.berwick@protectdemocracy.org.

7

 Sincerely,

_________________________

_________________________

Ben Berwick, Counsel
The Protect Democracy Project

Wendy Weiser, Director
Adam Gitlin, Counsel
Tomas Lopez, Counsel
Democracy Program
Brennan Center for Justice at NYU School
of Law
120 Broadway, Suite 1750
New York, New York 10271

8

 Exhibit 

Follow Up Request

Via Certified Mail and Electronic Submission
July 25, 2017
Jonathan Cantor
Acting Chief Privacy Officer/Chief FOIA Officer
The Privacy Office
U.S. Department of Homeland Security
245 Murray Lane SW
STOP-0655
Washington, D.C. 20528-0655
Re: Freedom of Information Act Request, Request for Expedited Processing and Fee Waiver
Dear Mr. Cantor:
This is a request on behalf of the Brennan Center for Justice at NYU School of Law and
the Protect Democracy Project to the Department of Homeland Security (“DHS”) under the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. It is also a request for expedited
processing under 5 U.S.C. § 552(a)(6)(E) and 6 C.F.R. § 5.5(e), and for a fee waiver under 5
U.S.C. §§ 552(a)(4)(A)(ii) & (iii) and 6 C.F.R. § 5.11.
I.

Background

President Trump issued Executive Order 13799, creating a “Presidential Advisory
Commission on Election Integrity” (the “Commission”), purportedly “to promote fair and honest
Federal elections.” According to the Executive Order, the Commission shall “study the
registration and voting processes used in Federal elections… and shall submit a report to the
President that identifies… those laws, rules, policies, activities, strategies, and practices” that
either “enhance” or “undermine … the American people’s confidence in the integrity of the
voting processes used in Federal elections;” and “those vulnerabilities in voting systems and
practices used for Federal elections that could lead to improper voter registrations and improper
voting, including fraudulent voter registrations and fraudulent voting.” The Executive Order
excludes examination of pressing vulnerabilities in elections systems, like the nation’s aging
voting equipment, and fails to reference any investigation into voter suppression efforts or voter
turnout issues.

 The Commission is chaired by the Vice President of the United States and, per the
Executive Order, “shall be informed by, and shall strive to avoid duplicating, the efforts of
existing government entities.”
The Order also provides for “staff to provide support for [the Commission’s] functions.”
Further, “subject to the availability of appropriations, the General Services Administration shall
provide the Commission with such administrative services, funds, facilities, staff, equipment, and
other support services as may be necessary to carry out its mission on a reimbursable basis.”
On May 17, 2017, the Brennan Center for Justice at NYU School of Law and The Protect
Democracy Project submitted a FOIA request (“Initial FOIA Request”) to DHS, a copy of which
is attached hereto as Exhibit A. On May 19, 2017, DHS acknowledged receipt of the Initial
FOIA Request and assigned it reference number 2017-HQFO-00794.
On June 28, 2017, the Commission’s vice chair, Kansas Secretary of State Kris Kobach,
sent letters to chief state election officials requesting they submit “publicly-available data from
state voter rolls and feedback on how to improve election integrity” by July 14. The Commission
explained that “any documents that are submitted to the full Commission will also be made
available to the public.” Civic groups, including the Brennan Center, challenged the
Commission’s requests in court,1 and the Commission subsequently asked states to hold off
submitting data pending a court ruling.2
President Trump attended and spoke at the Commission’s first meeting, which took place
on July 19, 2017. The Commission has scheduled its next meeting for September 2017.
II.

Formal Request

The Brennan Center for Justice at NYU School of Law and The Protect Democracy
Project request, to the extent the following are in the possession, custody, or control of DHS:
1. All communications and documents subject to the Initial FOIA Request, reference
number 2017-HQFO-00794, created, dated, identified, or modified subsequent to any
search previously undertaken by DHS in response to the Initial Request.
2. All communications and documents regarding use of the following databases for any
purpose related to the Presidential Advisory Commission on Election Integrity, whether
by any employee of DHS or by any commissioner, officer, agent, employee, or assignee
of the Presidential Advisory Commission on Election Integrity:
a. The Systematic Alien Verification for Entitlements (“SAVE”) program;
b. The National Security Entry-Exit Registration Systems (“NSEERS”) program;

Legal Actions Taken Against Trump’s “Voter Fraud” Commission, Brennan Center for Justice (updated July 21,
2017), https://www.brennancenter.org/legal-actions-taken-against-trump%E2%80%99s%E2%80%9Cfraud%E2%80%9D-commission.
2
Spencer S. Hsu, Trump voting panel tells states to hold off sending data while court weighs privacy impact, Wash.
Post (July 10, 2017), http://wapo.st/2tBvySS?tid=ss_mail&utm_term=.f7ce56635876.
1

2

 c. Any cross-state voter database programs, including but not limited to the Electronic
Registration Information Center (“ERIC”) and Interstate Voter Registration
Crosscheck (“IVRC”) program;
d. Any list, program, or other resource that contains or can be used to determine the
citizenship status of any individual;
e. Any other federal database for the purpose of matching, verifying, or investigating
information on voter registration lists, including all lists to which the Commission
was granted access.
3. All communications and documents concerning the Presidential Advisory Commission
on Election Integrity, including but not limited to emails, memoranda, and letters to state
election officials regarding the requests for narrative responses and voter file data sent by
the Commission on or around June 28, 2017.
4. All communications and documents identifying the names and titles of DHS officers,
agents, employees, or assignees on detail or assignment to the Commission, the
Executive Office of the President (“EOP”), or other agency or government entity to work
with or on behalf of the Commission, including but not limited to memoranda of
understanding with the Commission, EOP, or other agency or government entity
outlining such individuals’ responsibilities while on detail or assignment.
5. All communications and documents regarding the selection of members of the
Commission, including but not limited to selection criteria.
6. All communications and documents regarding the staffing of the Commission, including
but not limited to job descriptions, organization charts, and criteria for hiring.
7. All communications and documents regarding DHS expenditures directly or indirectly
related to the Commission and Commission activities.
8. All communications and documents regarding the Commission’s July 19, 2017 meeting,
including but not limited to communications and documents concerning the meeting
agenda, staffing, location, and budget and any notes or transcripts of the meeting
proceedings.
9. All communications and documents concerning the Commission’s research or
investigatory activities, including but not limited to communications and documents
concerning the Commission’s research methodologies, identification of experts,
consultation with experts, and materials reviewed in connection with the Commission’s
research and investigatory activities.
10. All communications and documents describing the processing of this request, including
records sufficient to identify search terms used and locations and custodians searched,
and any tracking sheets used to track the processing of this request. If DHS uses FOIA
questionnaires or certifications completed by individual custodians or components to
determine whether they possess responsive materials or to describe how they conducted
3

 searches, we also request any such records prepared in connection with the processing of
this request.
Definitions
As used in this request—
“Collaborative Work Environment” means a platform used to create, edit, review, approve, store,
organize, share, and access documents and information by and among authorized users,
potentially in diverse locations and with different devices. Collaborative Work Environments
include Google Docs sites, Microsoft SharePoint sites, eRooms, document management systems
(e.g., iManage), intranets, web content management systems (CMS) (e.g., Drupal), wikis, and
blogs.
“Communications” means disclosure, transfer, or exchange of information or opinion, however
made, including any transmission of information by oral, graphic, written, pictorial, electronic, or
other perceptible means.
“Documents” means all written, printed, or electronically stored information of any kind in the
possession, custody, or control of DHS, including information stored on social media accounts
like Twitter or Facebook, chats, instant messages, and documents contained in Collaborative
Work Environments and other document databases. The term includes agreements; letters;
calendar appointments; telegrams; inter-office communications; memoranda; reports; records;
instructions; notes; notebooks; diaries; plans; diagrams; photographs; photocopies; charts;
descriptions; drafts, whether or not they resulted in a final document; agendas and minutes of
meetings, conferences, and telephone or other conversations or communications; recordings;
published or unpublished speeches or articles; publications; transcripts of telephone
conversations; phone mail; electronic-mail; and computer print-outs.
“Including” means including, but not limited to.
“Presidential Advisory Commission on Election Integrity” means the commission created
pursuant to the Executive Order on “Establishment of Presidential Advisory Commission on
Election Integrity,” signed by President Donald Trump on May 11, 2017, or any effort to
establish any task force, commission, or committee, whether through a government agency or
not, to investigate voter fraud, vote suppression, or any other aspect of the voting system.
Unless otherwise noted, the request includes documents and communications dated,
created, identified, or modified between November 8, 2016 and the date of DHS’s search.
We request that responsive electronic records be provided electronically, in a textsearchable, static-image (PDF) format (in the best image quality available to the agency),
pursuant to 5 U.S.C. § 552(a)(3)(A)(B) and (C).
III.

Request for Expedited Processing

The Brennan Center and The Protect Democracy Project request expedited processing
pursuant to 5 U.S.C. § 552(a)(6)(E) and 6 C.F.R. § 5.5(e). The Brennan Center and The Protect

4

 Democracy Project intend to disseminate the information obtained in response to this request to
enable the public to effectively monitor, evaluate, participate in, and respond to the work of the
Commission, which has begun in earnest. The Commission has attempted to collect and make
public voter information from all 50 states, held an introductory meeting led by the Vice
President and featuring remarks by the President, and plans to meet again this September. Both
the Commission and the issue of voter fraud have generated extensive public interest and media
coverage, reflecting the public’s urgent concern about election integrity.3 Accordingly, this
request meets the criteria for expedited processing because there is “[a]n urgency to inform the
public about an actual or alleged Federal Government activity” and this request concerns “[a]
matter of widespread and exceptional media interest in which there exist possible questions
about the government’s integrity which affect public confidence.” 6 C.F.R. § 5.5(e)(1)(ii) and
(iv).
The Brennan Center and The Protect Democracy Project are section 501(c)(3) non-profit
organizations that are “primarily engaged in disseminating information” within the meaning of 5
U.S.C. § 552(a)(6)(E)(v)(II) and 6 C.F.R. § 5.5(e)(1)(ii). The Brennan Center regularly writes
and publishes reports and newspaper articles and makes appearances on various media outlets
regarding the fight to preserve and expand the right to vote for every eligible citizen. Through
practical policy proposals, litigation, advocacy, and communications, the Brennan Center works
to ensure that voting is free, fair, and accessible for all Americans.4
The core mission of The Protect Democracy Project, a new organization awaiting
501(c)(3) status, is to inform public understanding on operations and activities of the
government. This request is submitted in accordance with the organization’s mission to gather
and disseminate information that is likely to contribute significantly to the public understanding
of executive branch operations and activities. The Protect Democracy Project has routinely
demonstrated the ability to disseminate information about its FOIA requests to a wide audience.5

3

See, e.g., Ed. Board, The Bogus Voter-Fraud Commission, N.Y. Times, Jul. 22, 2017,
https://www.nytimes.com/2017/07/22/opinion/sunday/the-bogus-voter-fraud-commission.html; Vann R. Newkirk II,
Trump’s Voter-Fraud Commission Has Its First Meeting, Atlantic, Jul. 19, 2017,
https://www.theatlantic.com/politics/archive/2017/07/trumps-voter-fraud-commission-runs-into-aroadblock/534084/; Liz Stark & Grace Hauck, Forty-four states and DC have refused to give certain voter
information to Trump commission, CNN, Jul. 5, 2017, http://www.cnn.com/2017/07/03/politics/kris-kobach-lettervoter-fraud-commission-information/index.html; CBS News, Trump “voter fraud” commission seeking data from
all states, June 30, 3017, http://www.cbsnews.com/news/trump-voter-fraud-commission-seeking-voter-data-fromall-states/; Ali Vitali, Peter Alexander & Kelly O’Donnell, Trump Establishes Voter Fraud Commission, NBC
News, May 11, 2017, http://www.nbcnews.com/politics/white-house/trump-establish-vote-fraud-commissionn757796.
4
A list of the Brennan Center’s recent publications is available at
http://www.brennancenter.org/content/resources/publications.
5
See, e.g., Lisa Rein, Watchdog group, citing “integrity of civil service,” sues Trump to find out if feds are being
bullied, Wash. Post, Apr. 27, 2017, https://www.washingtonpost.com/news/powerpost/wp/2017/04/27/watchdoggroup-citing-integrity-of-civil-service-sues-trump-to-find-out-if-feds-are-being-bullied/?utm_term=.8647ab128f3e;
Ben Berwick, Going to Court for Civil Servants, Take Care, April 28, 2017, https://takecareblog.com/blog/going-tocourt-for-civil-servants; Charlie Savage, Watchdog Group Sues Trump Administration, Seeking Legal Rationale
Behind Syria Strike, N.Y. Times, May 8, 2017, https://nyti.ms/2pX82OV; Justin Florence, What’s the Legal Basis
for the Syria Strikes? The Administration Must Acknowledge Limits on its Power to Start a War, Lawfare, May 8,

5

 The Protect Democracy Project has been recognized as an organization that meets this standard.
Protect Democracy Project, Inc. v. U.S. Dep’t of Def., No. 17-CV-00842 (CRC), 2017 WL
2992076 (D.D.C. July 13, 2017). The Protect Democracy Project has no commercial interests.
Furthermore, the Brennan Center and The Protect Democracy Project urgently require the
information sought by this request in order to inform the public of federal government activity.
See 5 U.S.C. § 552(a)(6)(E)(v)(II); 6 C.F.R. § 5.5(e)(1)(ii). The information requested herein
concerns federal government activity that is of vital interest to the general public. The Brennan
Center and The Protect Democracy Project intend to share any new information about the
Commission and the integrity of federal elections obtained from this request with the public.
In order to adequately inform the public and to monitor the Commission, the Brennan
Center and The Protect Democracy Project need this information expeditiously. The information
sought in this request is critical for the public’s monitoring and evaluation of and response to
those immediate activities. The information is also critical to public evaluation and monitoring of
the Commission’s work, to pursue its mission of determining which “laws, rules, policies,
activities, strategies, and practices” enhance or undermine public confidence in elections and
what vulnerabilities exist in America’s voting systems—work which the Commission has
already started. Effective public monitoring and involvement is urgently needed given the
importance of the topics the Commission is charged with addressing.
IV.

Application for Waiver or Limitation of All Fees

The Brennan Center and The Protect Democracy Project request a waiver of all search,
review, and duplication fees associated with this request. The Brennan Center and the Protect
Democracy Project are eligible for a waiver of search and review fees pursuant to 5 U.S.C.
§ 552(a)(4)(A)(ii)(II) and 6 C.F.R. § 5.11(k), and for a waiver of all fees, including duplication
fees, pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) and 6 C.F.R. § 5.11(k).
First, the Brennan Center and The Protect Democracy Project plan to analyze, publish,
and publicly disseminate information obtained from this request. The requested records are not
sought for commercial use and will be disclosed to the public at no cost.
Second, the Brennan Center and The Protect Democracy Project qualify as
“representative[s] of the news media” for the same reasons that they are “primarily engaged in
dissemination of information,” i.e., because the Brennan Center and The Protect Democracy
Project “gather[] information of potential interest to a segment of the public, uses its editorial
skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5
U.S.C. § 552(a)(4)(A)(ii)(III); Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C.
Cir. 1989). The Brennan Center and The Protect Democracy Project are therefore entitled to a
waiver of search and review fees pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) and 6 C.F.R.
§ 5.11(k).

2017, https://www.lawfareblog.com/whats-legal-basis-syria-strikes-administration-must-acknowledge-limits-itspower-start-war.

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 As a noncommercial requester, the Brennan Center also qualifies for waivers as an
“educational institution” pursuant to 6 C.F.R. § 5.11 because it is affiliated with the NYU School
of Law, which is plainly an educational institution.
The Brennan Center and The Protect Democracy Project are also entitled to a waiver of
all fees, including duplication fees, pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) and 6 C.F.R. §
5.11(k). First, the subject of the requested records clearly concerns “the operations or activities
of the federal government.” Disclosure of the requested records is therefore in the public interest
because it is likely to contribute significantly to public understanding of how the government is
regulating elections, which is plainly of interest to the public.
Moreover, disclosure is not primarily in the Brennan Center’s or The Protect Democracy
Project’s commercial interests. As stated above, the Brennan Center and The Protect Democracy
Project plan to make any information disclosed as a result of this request available to the public
at no cost. A fee waiver would therefore fulfill Congress’s legislative intent that FOIA be
“liberally construed in favor of waivers for noncommercial requesters.” McClellan Ecological
Situation v. Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987) (quoting 132 CONG. REC. 27, 190
(1986) (Statement of Sen. Leahy)).
In the event you deny our waiver request, please contact us if you expect the costs to
exceed the amount of $500.00.
V.

Response Requested in 10 Days

Your attention to this request is appreciated, and the Brennan Center and The Protect
Democracy Project will anticipate your determination regarding our request for expedited
processing within ten (10) calendar days. See 5 U.S.C. § 552(a)(6)(E)(ii)(I); 6 C.F.R. § 5.5(e)(4).
I affirm that the information provided supporting the request for expedited processing is true and
correct to the best of my knowledge and belief. See 5 U.S.C. § 552(a)(6)(E)(vi).
We also request that you provide us with an estimated completion date, as required by 5
U.S.C. § 552(a)(7)(B)(ii). If the request is denied in whole or in part, we ask that you justify all
deletions by reference to specific exemptions to FOIA. We expect the release of all segregable
portions of otherwise exempt material. We reserve the right to appeal a decision to withhold any
information or to deny a waiver of fees.
Please furnish all applicable records to:
Wendy R. Weiser
Director, Democracy Program
Brennan Center for Justice at NYU School of Law
120 Broadway, Suite 1750
New York, NY 10271
(646) 292-8310
www.brennancenter.org

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 Should you have any questions regarding this request, please contact Ms. Weiser at the
address above, by telephone at (646) 292-8310, or by e-mail at weiserw@brennan.law.nyu.edu;
or Larry Schwartztol by telephone at (202) 599-0466 or by email at
larry.schwartztol@protectdemocracy.org.

Sincerely,

_______________________________

_______________________________

Larry Schwartztol, Counsel
The Protect Democracy Project
2020 Pennsylvania Ave NW, #163
Washington, DC 20006

Wendy Weiser, Director
Tomas Lopez, Counsel
Democracy Program
Brennan Center for Justice at NYU School
of Law
120 Broadway, Suite 1750
New York, New York 10271

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