Via Certified Mail and Electronic Submission
October 19, 2017
Laurie Day
Chief, Initial Request Staff
Office of Information Policy
Department of Justice
Suite 11050
1425 New York Avenue, N.W.
Washington, DC 20530-0001
Re: Freedom of Information Act Request, Request for Expedited Processing and
Fee Waiver
Dear Ms. Day:
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 Department of Justice
(“DOJ”) and its offices, divisions, and components, including but not limited to the Office of
Information Policy (“OIP”), Office of the Deputy Attorney General, Office of the Associate
Attorney General, and Office of the Attorney General. It is also a request for expedited
processing under 5 U.S.C. § 552(a)(6)(E) and 28 C.F.R. § 16.5(e)(1), and for a fee waiver under
5 U.S.C. §§ 552(a)(4)(A)(ii) & (iii) and 28 C.F.R. § 16.5(k).
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 then, the Commission has held public meetings in July
and September of this year.
In September 2017, the Department of Justice responded to a FOIA request submitted by
the Campaign Legal Center.1 That response included an email urging the Attorney General to
1

Letter from Department of Justice Office of Information Policy to Campaign Legal Center, Aug. 22, 2017,
http://www.campaignlegalcenter.org/document/letter-response-foia-request-voter-fraud.

 take certain actions regarding the composition of the yet to be constituted Commission.2 DOJ
redacted the name of that email’s author, but it was subsequently confirmed that current
Commission member Hans von Spakovsky wrote the message.3 DOJ also redacted multiple other
names referenced in the email. That email message, including emails forwarding that message, is
attached as Exhibit 1.
Also in September 2017, the Public Interest Legal Foundation (PILF) sent letters to 248
jurisdictions alleging that their voter list maintenance practices violate the National Voter
Registration Act.4 Commission member J. Christian Adams serves as PILF’s president and
general counsel.

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 DOJ:
1. The email string regarding the Commission without redactions of the senders’ or
recipients’ individual names. This includes the email sent from the Heritage Foundation
on February 22, 2017, and subsequently forwarded to at least three other email accounts,
including one belonging to the Attorney General, attached as Exhibit 1.
2. All communications and documents in DOJ email accounts sent from or to Hans von
Spakovsky, or the email address from which the original email in Exhibit 1 was sent,
between January 20, 2017 and the date of this request. This includes any communications
and documents in government or personal email accounts that contain emails used for
conducting DOJ business, including the personal email account of the Attorney General.
3. All communications and documents in DOJ email accounts sent from or to J. Christian
Adams, any employee of the Public Interest Legal Foundation (PILF), or others
concerning voter list maintenance practices or the National Voter Registration Act. This
includes any communications related to the letters sent by PILF to jurisdictions
concerning their voter list maintenance practices, and includes documents in government
or personal email accounts that contain emails used for conducting DOJ business.
4. 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 DOJ uses FOIA
questionnaires or certifications completed by individual custodians or components to
determine whether they possess responsive materials or to describe how they conducted

2

Id. at 5.
John Wagner, Trump voting fraud panel member lamented adding Democrats, ‘mainstream’ Republicans, WASH.
POST, Sept. 13, 2017, https://www.washingtonpost.com/politics/trump-voting-panel-member-lamented-inclusion-ofdemocrats-mainstream-republicans/2017/09/13/03f89a90-98bb-11e7-82e4f1076f6d6152_story.html?utm_term=.8547314b0064.
4
Public Interest Legal Foundation, 24 States Show Corrupted Voter Rolls, Sept. 25, 2017,
https://publicinterestlegal.org/blog/248-counties-registered-voters-live-adults/.
3

2

 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 DOJ, 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 DOJ’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 requests expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E)
and 28 C.F.R. § 16.5(e)(1)(ii), (iv). 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
3

 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” 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.” 28 C.F.R. § 16.5(e)(1)(ii), (iv).
The Brennan Center is a section 501(c)(3) non-profit organization that is “primarily
engaged in disseminating information” within the meaning of 5 U.S.C. § 552(a)(6)(E)(v)(II) and
28 C.F.R. § 16.5(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.5
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);
28 C.F.R. § 16.5(e)(1)(ii). 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 28 C.F.R. § 16.5(k), and for a waiver of all
fees, including duplication fees, pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) and 28 C.F.R. §
16.10(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.
A list of the Brennan Center’s recent publications is available at
http://www.brennancenter.org/content/resources/publications.
5

4

 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) 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 28 C.F.R. § 16.10(d)(1) 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 28 C.F.R. § 16.5(e)(1)(ii). 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 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 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); 28 C.F.R. § 16.5(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:
Michael Pelle
Brennan Center for Justice at NYU School of Law
120 Broadway, Suite 1750
New York, NY 10271
5

 michael.pelle@nyu.edu

Should you have any questions regarding this request, please contact Mr. Mehrbani at the
address above, by telephone at (646) 292-8310, or by e-mail at rudy.mehrbani@nyu.edu.

Sincerely,
Rudy Mehrbani Wendy Weiser
Spitzer Fellow and Senior Counsel Director, Democracy Program
Jonathan Brater
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