Via Certified Mail and Electronic Submission October 18, 2017 Monica Chyn FOIA Public Liaison Social Security Administration Office of Privacy and Disclosure 617 Altmeyer Building 6401 Security Boulevard Baltimore, MD 21235 Re: Freedom of Information Act Request, Request for Expedited Processing and Fee Waiver Dear Ms. Chyn: This is a request on behalf of the Brennan Center for Justice at NYU School of Law under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to the Social Security Administration (“SSA”). It is also a request for expedited processing under 5 U.S.C. § 552(a)(6)(E) and 20 C.F.R. § 402.140(d), and for a fee waiver under 5 U.S.C. §§ 552(a)(4)(A)(ii) & (iii) and 20 C.F.R. § 402.180. 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.” 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.” Since its inception, the Commission has held public meetings in July and September of this year. The Commission has referenced the SSA on at least two occasions. First, at the Commission’s first public meeting in July, Commission member Hans von Spakovsky referred to the SSA as a potential source of data for voter record comparisons. Second, an index of Commission communications released pursuant to litigation in Lawyers Committee for Civil Rights Under Law v. Presidential Advisory Commission on Election Integrity, et al., No. 1:17-cv-1354 (D.D.C.) includes a heading referring to email contact on August 17, 2017 between Commission and SSA staff regarding “SSA data.” The relevant page is attached as Exhibit 1. II. Formal Request The Brennan Center for Justice at NYU School of Law requests, to the extent the following are in the possession, custody, or control of the SSA: 1. All communications and documents regarding access by the Presidential Advisory Commission on Election Integrity or any of its officers, agents, employees, or assignees to any of the following: a. The Death Master File; b. The SSA E-Verify System database; c. The Death Alert Control and Update System; d. Any other SSA data resource, whether public, restricted public, or non-public, for the purpose of matching, verifying, or investigating information on voter registration lists, including all lists to which the Commission was granted access. 2. All other communications and documents concerning the Presidential Advisory Commission on Election Integrity. a. This includes but is not limited to messages sent from or to the following personal email accounts: i. kkobach@gmail.com; ii. connie@lawsonandco.com; iii. chipkate@aol.com; iv. Mattdunlap47@gmail.com; v. cacm@aol.com; vi. david@capitolpartnersar.com; vii. mrhodes@woodcountywv.com; viii. Hans.VonSpakovsky@heritage.org; ix. adams@electionlawcenter.com; x. aking2322@gmail.com; xi. Kennethblackwell693@gmail.com. b. This also includes but is not limited to messages sent from or to the following executive branch employee email accounts: i. Andrew.J.Kossack@ovp.eop.gov; ii. Mark.R.Paoletta@ovp.eop.gov; iii. Matthew.E.Morgan@ovp.eop.gov; iv. Ronald.E.Williams@ovp.eop.gov; v. ElectionIntegrityStaff@ovp.eop.gov. 3. 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 the SSA 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— 2 “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 the SSA, 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 the SSA’s search. We request that responsive electronic records be provided electronically, in a text-searchable, staticimage (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 requests expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E) and 20 C.F.R. § 402.140(d). The Brennan Center intends 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. 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.” 20 C.F.R. § 402.140(d). The Brennan Center is a section 501(c)(3) non-profit organization “primarily engaged in disseminating information” within the meaning of 5 U.S.C. § 552(a)(6)(E)(v)(II) and 20 C.F.R. § 3 402.140(d). 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.1 Furthermore, the Brennan Center urgently requires 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); 20 C.F.R. § 402.140(d). The information requested herein concerns federal government activity that is of vital interest to the general public. The Brennan Center intends 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 needs 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 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 20 C.F.R. § 402.180, and for a waiver of all fees, including duplication fees, pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) and 20 C.F.R. § 402.180. 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 “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 “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 is therefore entitled to a waiver of search and review fees pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II). As a noncommercial requester, the Brennan Center also qualifies for waivers as an “educational institution” pursuant to 20 C.F.R. §§ 402.155(b), 402.30 because it is affiliated with the NYU School of Law, which is plainly an educational institution. 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 20 C.F.R. § 402.180. 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. A list of the Brennan Center’s recent publications is available at http://www.brennancenter.org/content/resources/publications. 1 4 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 ful?ll Congress?s legislative intent that FOIA be ?liberally construed in favor of waivers for noncommercial requesters.? McClellan Ecological Situation v. 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 will anticipate your determination regarding our request for expedited processing Within ten (10) calendar days. See 5 U.S.C. 20 CPR. I af?rm 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. We also request that you provide us with an estimated completion date, as required by 5 U.S.C. 1f the request is denied in whole or in part, we ask that you justify all deletions by reference to speci?c 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: Michael Pelle Brennan Center for Justice at NYU School of Law 120 Broadway, Suite 1750 New York, NY 10271 michael.pelle@nyu.edu Should you have any questions regarding this request, please contact Mr. Mehrbani at the address above, by telephone at (646) 292?83 10, or by e?mail at rudy.mehrbani@nyu.edu. Sincerely, Rudy Mehrbani Wendy Weiser Spitzer Fellow and Senior Counsel Director, Democracy Program Jonathan Brater ?y Counsel Brennan Center for Justice at NYU School of Brennan Center for Justice at NYU School of Law Law 1140 Connecticut Ave. NW, Suite 1150 120 Broadway, Suite 1750 Washington, DC 20036 New York, NY 10271