Via Certified Mail and Electronic Submission
May 15, 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
Nelson D. Hermilla
Chief, FOIA/PA Branch
Civil Rights Division
Department of Justice
BICN Bldg., Room 3234
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
Melissa Golden
Lead Paralegal and FOIA Specialist
Office of Legal Counsel
Department of Justice
Room 5511, 950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
Re:

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

Dear Ms. Day, Mr. Hermilla, and Ms. Golden:
This is a request 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 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 an Executive Order 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 the following:
“(a) those laws, rules, policies, activities, strategies, and practices that enhance the
American people’s confidence in the integrity of the voting processes used in Federal
elections;
“(b) those laws, rules, policies, activities, strategies, and practices that undermine the
American people’s confidence in the integrity of the voting processes used in Federal
elections; and
“(c) 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.”
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 Office of Legal Counsel, Office of Legal Policy, Civil Rights Division,
Office of the Deputy Attorney General, Office of the Associate Attorney General, or
Office of the Attorney General:
1.
All communications, including but not limited to emails and memoranda, between
any Department of Justice (“DOJ” or “Department”) officer, employee, or agent, or any
White House liaison to the Department, and any other person, including but not limited to
any officer, employee, or agent of the White House or DOJ, 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 Department officer, employee, or agent, or any White House liaison to the
Department, and any member of the Presidential Advisory Commission on Election
Integrity, other than Vice President Michael Pence, since November 8, 2016. 1
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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 Mike 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

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 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;
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; and
d) The membership of the Presidential Advisory Commission on Election Integrity,
including the criteria for selection of its members.
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 the Department, 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;

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.

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 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
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 28 C.F.R. § 16.5(e)(1)(ii), (iv). 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 that could affect public confidence.” 28
C.F.R. § 16.5(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 28 C.F.R. § 16.5(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

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 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.
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); 28 C.F.R. § 16.5(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
2

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

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 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.
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. § 16.10(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.
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 28 C.F.R. § 16.10(d)(1). 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).

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 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. § 16.10(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
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); 28
C.F.R. § 16.5. 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

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 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.

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

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