Case 1:20-cv-00511 Document 1 Filed 02/21/20 Page 1 of 14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) Plaintiff, ) ) v. ) ) U.S. DEPARTMENT OF ENERGY, ) 1000 Independence Avenue SW ) Washington, DC 20585 ) ) U.S. DEPARTMENT OF ) TRANSPORTATION, ) 1200 New Jersey Avenue SE ) Washington, DC 20590 ) ) and ) ) U.S. DEPARTMENT OF STATE ) 2201 C Street NW ) Washington, DC 20520 ) ) Defendants. ) ) AMERICAN OVERSIGHT, 1030 15th Street NW, B255 Washington, DC 20005 Case No. 20- COMPLAINT 1. Plaintiff American Oversight brings this action against the U.S. Department of Energy, the U.S. Department of Transportation, and the U.S. Department of State under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, seeking declaratory and injunctive relief to compel compliance with the requirements of FOIA. 1 Case 1:20-cv-00511 Document 1 Filed 02/21/20 Page 2 of 14 JURISDICTION AND VENUE 2. This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. §§ 1331, 2201, and 2202. 3. Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391(e). 4. Because Defendants have failed to comply with the applicable time-limit provisions of FOIA, American Oversight is deemed to have exhausted its administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C)(i) and is now entitled to judicial action enjoining the agencies from continuing to withhold agency records and ordering the production of agency records improperly withheld. PARTIES 5. Plaintiff American Oversight is a nonpartisan, non-profit section 501(c)(3) organization primarily engaged in disseminating information to the public. American Oversight is committed to the promotion of transparency in government, the education of the public about government activities, and ensuring the accountability of government officials. Through research and FOIA requests, American Oversight uses the information gathered, and its analysis of it, to educate the public about the activities and operations of the federal government through reports, published analyses, press releases, and other media. The organization is incorporated under the laws of the District of Columbia. 6. Defendant U.S. Department of Energy (DOE) is a department of the executive branch of the U.S. government headquartered in Washington, DC, and an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1). DOE has possession, custody, and control of the records that American Oversight seeks. 2 Case 1:20-cv-00511 Document 1 Filed 02/21/20 Page 3 of 14 7. Defendant U.S. Department of Transportation (DOT) is a department of the executive branch of the U.S. government headquartered in Washington, DC, and an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1). DOT has possession, custody, and control of the records that American Oversight seeks. 8. Defendant U.S. Department of State (State) is a department of the executive branch of the U.S. government headquartered in Washington, DC, and an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1). State has possession, custody, and control of the records that American Oversight seeks. STATEMENT OF FACTS 9. On June 11, 2019, August 27, 2019, and November 8, 2019, American Oversight submitted a FOIA request to DOE, DOT, and State seeking email communications between specified agency officials and the office of Senator Mitch McConnell. DOE McConnell Emails FOIA 10. On June 11, 2019, American Oversight submitted a FOIA request to DOE seeking the following: All email correspondence (including emails, email attachments, and calendar invitations) between (1) the DOE officials listed below and (2) the office of Senator McConnell, any representative of Senator McConnell, and/or any person working in Senator McConnell’s office, including but not limited to any person communication from an email address ending in @mcconnell.senate.gov or in @teammitch.com. a. All political appointees* in the Office of the Secretary b. Deputy Secretary Dan Brouillette c. Assistant Secretary of Energy of Congressional and Intergovernmental Affairs Melissa F. Burton d. Anyone communicating on behalf of any of the above officials, such as an administrative assistant or scheduler Please provide all responsive records from January 20, 2017, through the date the search is conducted. 3 Case 1:20-cv-00511 Document 1 Filed 02/21/20 Page 4 of 14 *“Political appointee” should be understood as any person who is a Presidential Appointee with Senate Confirmation (PAS), a Presidential Appointee (PA), a Non-career SES, any Schedule C employees, or any persons hired under Temporary Non-career SES Appointments, Limited Term SES Appointments, or Temporary Transitional Schedule C Appointments. 11. On June 13, 2019, DOE acknowledged receipt of the DOE McConnell Emails FOIA and assigned it reference number HQ-2019-01020-F. 12. On August 7, 2019, American Oversight and DOE agreed that DOE would search a list of thirteen specified custodians to satisfy the “all political appointees in the Office of the Secretary” portion of the request. See Ex. A. 13. American Oversight has not received any further communication from DOE regarding the DOE McConnell Emails FOIA. State McConnell Emails FOIA 14. On August 27, 2019, American Oversight submitted a FOIA request to State seeking the following: All email communications (including email messages, email attachments, calendar invitations, and attachments thereto) between (a) Senator Mitch McConnell or anyone who represents or works for Mr. McConnell, including but not limited to anyone whose email ends in @mcconnell.senate.gov or @teammitch.com, and (b) any of the following individuals: Secretary Mike Pompeo, and anyone in the Secretary’s immediate office communicating on his behalf, such as an executive or special assistant, or a scheduler; ii. Senior Advisor Michael McKinley; iii. Senior Advisor Mary Kissel; iv. Senior Advisor Toni Porter; v. Executive Secretary Lisa Kenna; vi. Under Secretary of State Brian Bulatao; vii. Counselor Ulrich Brechbuhl; viii. Kelly Knight Craft, U.S. Ambassador to Canada and incoming U.S. Ambassador to the United Nations, and anyone communicating on her behalf such as a Chief of Staff, executive assistant, or scheduler. i. 4 Case 1:20-cv-00511 Document 1 Filed 02/21/20 Page 5 of 14 Please provide all responsive records from October 23, 2017, through the date the search is conducted. 15. On August 29, 2019, State acknowledged receipt of the State McConnell Emails FOIA and assigned it reference number STATE-19-1070. 16. American Oversight has not received any further communication from State regarding the State McConnell Emails FOIA. DOT McConnell Campaign FOIA 17. On November 8, 2019, American Oversight submitted a FOIA request to DOT seeking the following: All records reflecting communications (including emails, email attachments, text messages, telephone call logs, calendar invitations/entries, meeting notices, meeting agendas, informational material, draft legislation, talking points, or other materials) between (a) any political appointees in the Immediate Office of the Secretary (S-1), including Secretary Chao, and (b) any of the following individuals or entities: a. McConnell Senate Committee, including but not limited to Kevin Golden, Shane Noem, Lauren Williams, James Kyrkanides, or any person using an email address ending in @teammitch.com b. Cavalry LLC, including but not limited to Josh Holmes, John Ashbrook, Michael Duncan, or any person using an email address ending in @cavalryllc.com c. National Republican Senatorial Committee, including but not limited to any person using an email address ending in @nrsc.org d. Republican Party of Kentucky, including but not limited to Sarah Pickerel, J. McCauley Brown, or any person using an email address ending in @rpk.org Please provide all responsive records from January 1, 2018 through the date of search. 18. On November 8, 2019, DOT acknowledged receipt of DOT McConnell Campaign FOIA and assigned it tracking number 2020-48. 19. American Oversight has not received any further communication from DOT regarding the DOT McConnell Campaign FOIA. 5 Case 1:20-cv-00511 Document 1 Filed 02/21/20 Page 6 of 14 Exhaustion of Administrative Remedies 20. As of the date of this complaint, Defendants have failed to (a) notify American Oversight of any determination regarding its FOIA requests, including the scope of any responsive records Defendants intend to produce or withhold and the reasons for any withholdings; or (b) produce the requested records or demonstrate that the requested records are lawfully exempt from production. 21. Through Defendants’ failure to respond to American Oversight’s FOIA requests within the time period required by law, American Oversight has constructively exhausted its administrative remedies and seeks immediate judicial review. COUNT I Violation of FOIA, 5 U.S.C. § 552 Failure to Conduct Adequate Searches for Responsive Records 22. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 23. American Oversight properly requested records within the possession, custody, and control of Defendants. 24. Defendants are agencies subject to FOIA, and they must therefore make reasonable efforts to search for requested records. 25. Defendants have failed to promptly review agency records for the purpose of locating those records that are responsive to American Oversight’s FOIA requests. 26. Defendants’ failure to conduct an adequate search for responsive records violates FOIA and applicable regulations. 6 Case 1:20-cv-00511 Document 1 Filed 02/21/20 Page 7 of 14 27. Plaintiff American Oversight is therefore entitled to injunctive and declaratory relief requiring Defendants to promptly make reasonable efforts to search for records responsive to American Oversight’s FOIA requests. COUNT II Violation of FOIA, 5 U.S.C. § 552 Wrongful Withholding of Non-Exempt Responsive Records 28. American Oversight repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 29. American Oversight properly requested records within the possession, custody, and control of Defendants. 30. Defendants are agencies subject to FOIA, and they must therefore release in response to a FOIA request any non-exempt records and provide a lawful reason for withholding any materials. 31. Defendants are wrongfully withholding non-exempt agency records requested by American Oversight by failing to produce non-exempt records responsive to its FOIA requests. 32. Defendants are wrongfully withholding non-exempt agency records requested by American Oversight by failing to segregate exempt information in otherwise non-exempt records responsive to American Oversight’s FOIA requests. 33. Defendants’ failure to provide all non-exempt responsive records violates FOIA and applicable regulations. 34. Plaintiff American Oversight is therefore entitled to declaratory and injunctive relief requiring Defendants to promptly produce all non-exempt records responsive to its FOIA requests and provide indexes justifying the withholding of any responsive records withheld under claim of exemption. 7 Case 1:20-cv-00511 Document 1 Filed 02/21/20 Page 8 of 14 REQUESTED RELIEF WHEREFORE, American Oversight respectfully requests the Court to: (1) Order Defendants to conduct a search or searches reasonably calculated to uncover all records responsive to American Oversight’s FOIA requests; (2) Order Defendants to produce, within twenty days of the Court’s order, or by such other date as the Court deems appropriate, any and all non-exempt records responsive to American Oversight’s FOIA requests and indexes justifying the withholding of any responsive records withheld under claim of exemption; (3) Enjoin Defendants from continuing to withhold any and all non-exempt records responsive to American Oversight’s FOIA requests; (4) Award American Oversight the costs of this proceeding, including reasonable attorneys’ fees and other litigation costs reasonably incurred in this action, pursuant to 5 U.S.C. § 552(a)(4)(E); and (5) Grant American Oversight such other relief as the Court deems just and proper. 8 Case 1:20-cv-00511 Document 1 Filed 02/21/20 Page 9 of 14 Dated: February 21, 2020 Respectfully submitted, /s/ Khahilia Y. Shaw Khahilia Y. Shaw D.C. Bar No. 1616974 Hart W. Wood D.C. Bar No. 1034361 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 539-6507 khahilia.shaw@americanoversight.org hart.wood@americanoversight.org Counsel for Plaintiff 9 Case 1:20-cv-00511 Document 1 Filed 02/21/20 Page 10 of 14 EXHIBIT A Case 1:20-cv-00511 Document 1 Filed 02/21/20 Page 11 of 14 Friday, February 21, 2020 at 10:32:50 AM Eastern Standard Time Subject: Re: DOE FOIA Request HQ-2019-01020-F: Phone call to discuss request Date: Wednesday, August 7, 2019 at 3:49:19 PM Eastern Daylight Time From: American Oversight FOIA To: Fellows, Rachel (CONTR) Hi Rachel, Thanks for your call, and I am confirming your original emailed list as the basis for the search. Best, Khahilia Khahilia Shaw Counsel American Oversight khahilia.shaw@americanoversight.org 202.539.6507 www.americanoversight.org @weareoversight From: "Fellows, Rachel (CONTR)" Date: Wednesday, August 7, 2019 at 3:48 PM To: American Oversight FOIA Subject: RE: DOE FOIA Request HQ-2019-01020-F: Phone call to discuss request Good a]ernoon, Ms. Shaw: Thanks again for speaking with me just now. Per our phone call a few minutes ago, I will disregard the list below and process this request in accordance with your original request submission, which was limited to any poliacal appointees in the Office of the Secretary. Also, as we discussed, you agreed with the list of DOE employees I sent yesterday and confirmed that DOE could consider those names a comprehensive list of custodians for this request. If I can assist with anything else, please feel free to reach out. Thanks again for your help. Best, Rachel Rachel Dillon Fellows, Esq. (202) 287-6831 From: American Oversight FOIA [mailto:foia@americanoversight.org] Sent: Wednesday, August 07, 2019 3:15 PM To: Fellows, Rachel (CONTR) Subject: [EXTERNAL] Re: DOE FOIA Request HQ-2019-01020-F: Phone call to discuss request HI Rachel, Thanks for your email and for compiling the poliacal appointee list. We’d like to add the following names to that list: Page 1 of 4 Case 1:20-cv-00511 Document 1 Filed 02/21/20 Page 12 of 14 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Teri Donaldson, Inspector General of Energy Daniel Simmons, Assistant Secretary (Energy, Efficiency, and Renewable Energy) Theodore Garrish, Assistant Secretary (Internaaonal Affairs) Paul Dabbar, Under Secretary of Energy (Science) Dr. Chris Fall, Director of the Office of Science Steven Winberg, Assistant Secretary (Fossil Energy) Bruce J. Walker, Assistant Secretary (Energy, Electricity, Delivery and Energy Reliability) Lisa Gordon-Hagerty, Under Secretary of Energy (Nuclear Security) Mark W. Menezes, Under Secretary of Energy James E. Campos, Director of the Office of Economic Impact and Diversity Karen S. Evans, Assistant Secretary (Cybersecurity, Energy Security and Emergency Response) Anne M. White, Former Assistant Secretary (Environmental Management) Please let me know if you have any addiaonal clarificaaons. Best, Khahilia Shaw Counsel American Oversight khahilia.shaw@americanoversight.org 202.539.6507 www.americanoversight.org @weareoversight From: "Fellows, Rachel (CONTR)" Date: Tuesday, August 6, 2019 at 3:52 PM To: American Oversight FOIA Subject: RE: DOE FOIA Request HQ-2019-01020-F: Phone call to discuss request Good a]ernoon, Ms. Shaw: Thank you for taking the ame to discuss this request with me this a]ernoon. Per our conversaaon, you’ve confirmed that DOE can limit this request to the two domain names you idenafied in your request (“@mcconnell.senate.gov” or “@teammitch.com”). Also, I wanted to suggest the following list of DOE employees for this request, which I put together a]er our call: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. Rick Perry Lucas Wallwork Stan Gerdes *Melissa Burnison Zead Haddad Fiona O’Beirne Johnathan Wetzel Michael Watson Dillian Knight Brian McCormack Andrea Yuzon Daniel Wilmot Dan Brouillese Page 2 of 4 Case 1:20-cv-00511 Document 1 Filed 02/21/20 Page 13 of 14 *As discussed, with respect to Item C, Melissa Burton will be corrected to Melissa Burnison in the request. When you have a moment, please confirm whether DOE can consider the above names a comprehensive list of custodians for this request, so that I can move forward with the searches. If you have any quesaons, please feel free to get in touch. Thank you again for your ame. Best, Rachel Rachel Dillon Fellows, Esq. FOIA Analyst Central Research, Inc., Contractor U.S. Department of Energy 1000 Independence Avenue, S.W. Washington, D.C. 20585 (202) 287-6831 -----Original Message----From: Fellows, Rachel (CONTR) Sent: Tuesday, August 06, 2019 8:32 AM To: American Oversight FOIA Subject: RE: DOE FOIA Request HQ-2019-01020-F: Phone call to discuss request Good morning, Ms. Shaw: Thank you for your quick response. I will give you a call at 1:00 pm today at the number listed in your email signature block below (202.539.6507). If anything comes up in the meaname, or if there's a beser number to reach you, just let me know. Best, Rachel Rachel Dillon Fellows, Esq. (202) 287-6831 -----Original Message----From: American Oversight FOIA [mailto:foia@americanoversight.org] Sent: Monday, August 05, 2019 3:07 PM To: Fellows, Rachel (CONTR) Subject: [EXTERNAL] Re: DOE FOIA Request HQ-2019-01020-F: Phone call to discuss request Hi Rachel, I'm happy to talk at your convenience. I'm available tomorrow at 1 or 2 pm. Best, Khahilia Shaw Counsel Page 3 of 4 Case 1:20-cv-00511 Document 1 Filed 02/21/20 Page 14 of 14 American Oversight khahilia.shaw@americanoversight.org 202.539.6507 www.americanoversight.org @weareoversight On 8/5/19, 2:20 PM, "Fellows, Rachel (CONTR)" wrote: Good a]ernoon, The above-capaoned DOE FOIA request was recently reassigned to me for processing. Does the responsible asorney have any availability in the near future to discuss this request? Please feel free to try me on my direct line, listed below, at your convenience, or please let me know a good ame and phone number to reach someone in your office. Thank you. Best, Rachel Rachel Dillon Fellows, Esq. FOIA Analyst Central Research, Inc., Contractor U.S. Department of Energy 1000 Independence Avenue, S.W. Washington, D.C. 20585 (202) 287-6831 ******************************************************************** This message does not originate from a known Department of Energy email system. 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