Case 1:20-cv-00633 Document 1 Filed 03/04/20 Page 1 of 10

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
)
Plaintiff, )
)
v.
)
)
ELECTION ASSISTANCE COMMISSION,
)
1335 East West Highway, Suite 4300
)
Silver Spring, MD 20910
)
)
Defendant. )
)
AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

Case No. 20-633

COMPLAINT
1.

Plaintiff American Oversight brings this action against the U.S. Election

Assistance Commission 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.
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 Defendant has 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 agency from

1

 Case 1:20-cv-00633 Document 1 Filed 03/04/20 Page 2 of 10

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 promoting transparency in government, educating 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. Election Assistance Commission (EAC) is an agency of the

federal government within the meaning of 5 U.S.C. § 552(f)(1) headquartered in Silver Spring,
MD. EAC has possession, custody, and control of the records that American Oversight seeks.
STATEMENT OF FACTS
7.

On June 15, 2019, Politico published a report detailing issues at EAC, including

diverging views among officials regarding the threat of foreign interference in American
elections and micromanagement of staff.
8.

American Oversight filed a series of FOIA requests seeking records to shed light

on EAC’s response to election security threats and whether and to what extent outside interests
influenced EAC’s response.

2

 Case 1:20-cv-00633 Document 1 Filed 03/04/20 Page 3 of 10

Directives FOIA
9.

On October 18, 2019, American Oversight submitted a FOIA request to EAC

seeking access to the following records:
Any final guidance, policy directives, or decision memoranda
related to foreign interference in elections.
To be clear, this request encompasses guidance, directives, or
decision memoranda which originated in the EAC as well as in other
U.S. federal government entities.
10.

American Oversight requested all responsive records from January 20, 2017,

through the date the search is conducted.
11.

At the time of this filing, American Oversight has received no communication

from EAC regarding the Directives FOIA.
White House Communications FOIA
12.

On October 18, 2019, American Oversight submitted a FOIA request to EAC

seeking access to the following records:
All communications (including emails, email attachments, or
calendar invitations or entries) between (a) the following EAC
custodians and (b) anyone in the Executive Office of the President
(including anyone with an email address ending in eop.gov)
regarding foreign election interference, including communications
regarding a lack of foreign election interference.
EAC Custodians
i.

ii.

Commissioner Christy McCormick, as well as anyone
communicating on her behalf (including communications
concerning official government business sent from any
personal account, including but not limited to the email
address cacm@aol.com)
Commissioner Benjamin W. Hovland, as well as anyone
communicating on his behalf, such as a Chief of Staff,
scheduler, or assistant

3

 Case 1:20-cv-00633 Document 1 Filed 03/04/20 Page 4 of 10

iii.
iv.
v.
vi.
vii.
13.

Commissioner Donald L. Palmer, as well as anyone
communicating on his behalf, such as a Chief of Staff,
scheduler, or assistant
Commissioner Thomas Hicks, as well as anyone
communicating on his behalf
Former Commissioner Matthew V. Masterson, as well as
anyone communicating on his behalf, such as a Chief of
Staff, scheduler, or assistant
Executive Director Brian Newby, as well as anyone
communicating on his behalf, such as a Chief of Staff,
scheduler, or assistant
General Counsel Cliff Tatum

American Oversight also provided a list of nine suggested search terms, stating

American Oversight’s view that a reasonable search for responsive records would require at least
those terms.
14.

American Oversight requested all responsive records from January 20, 2017,

through the date the search was conducted.
15.

At the time of this filing, American Oversight has received no communication

from EAC regarding the White House Communications FOIA.
Outside Communications FOIA
16.

On January 16, 2019, American Oversight submitted a FOIA request to EAC

seeking access to the following records:
All communications (including emails, email attachments, text
messages, calendar invitations/entries, letters, memoranda, or other
communications) between (a) any of the EAC officials or employees
listed in Column A below, and (b) any of the individuals or entities
listed in Column B below:
Column A: EAC Officials
i.

Column B: External
Individuals & Entities
i.
Kris Kobach (including
communications from
kkobach@gmail.com,
kris@kriskobach.com,

Commissioner Christy
McCormick, as well as
anyone communicating
on her behalf
(including

4

 Case 1:20-cv-00633 Document 1 Filed 03/04/20 Page 5 of 10

ii.

iii.

iv.

v.

vi.

vii.

communications
concerning official
government business
ii.
sent from any personal
account, including but
not limited to the email
address
cacm@aol.com)
iii.
Commissioner
Benjamin W. Hovland,
as well as anyone
iv.
communicating on his
behalf, such as a Chief
of Staff, scheduler, or
v.
assistant
vi.
Commissioner Donald
L. Palmer, as well as
vii.
anyone communicating viii.
on his behalf, such as a
ix.
Chief of Staff,
x.
scheduler, or assistant
xi.
Commissioner Thomas
Hicks, as well as
anyone communicating
on his behalf
xii.
Former Commissioner
Matthew V. Masterson,
as well as anyone
communicating on his
behalf, such as a Chief xiii.
of Staff, scheduler, or
assistant
Executive Director
Brian Newby, as well
xiv.
as anyone
communicating on his
behalf, such as a Chief
of Staff, scheduler, or
xv.
assistant
General Counsel Cliff
Tatum
xvi.

5

or any email addresses
ending in ks.gov)
Hans von Spakovsky
(including
communications from
hans.vonspakovsky@he
ritage.org)
Stephanie Edelman
(stephanie@stephanieed
elman.com)
Thomas Hofeller
(celticheal@aol.com or
thofeller@rnchq.org)
Dale Oldham
J. (John) Christian
Adams
John R. Lott Jr.
Ken Block
Robert Popper
Catherine Engelbrecht
Anyone communicating
on behalf of the Election
Law Center
(electionlawcenter.com)
Anyone communicating
on behalf of
Government
Accountability Project
(g-a-i.org)
Anyone communicating
on behalf of Judicial
Watch
(judicialwatch.org)
Anyone communicating
on behalf of Heritage
Foundation
(heritage.org)
Anyone communicating
on behalf of Heritage
Action for America
(heritageaction.com)
Anyone communicating
on behalf of American
Civil Rights Union
(theacru.org)

 Case 1:20-cv-00633 Document 1 Filed 03/04/20 Page 6 of 10

xvii.
xviii.

xix.

xx.

xxi.

Anyone communicating
on behalf of True the
Vote (truethevote.org)
Anyone communicating
on behalf of Public
Interest Legal
Foundation
(publicinterestlegal.org)
Anyone communicating
on behalf of Landmark
Legal Foundation
(landmarklegal.org)
Anyone communicating
on behalf of the
Republican State
Leadership Committee
(rslc.gop)
Anyone communicating
on behalf of the
National Republican
Redistricting Trust
(thenrrt.org)

Please exclude news clips or mass mailer generated from Column B
entities x-xviii distributed to a wide listserv of twenty or more email
addresses. However, a news clips or mass mailer email that is
forwarded to or from specified officials with any additional message
should be considered responsive.
17.

American Oversight requested all responsive records from January 20, 2017,

through the date the search was conducted.
18.

At the time of this filing, American Oversight has received no communication

from EAC regarding the Outside Communications FOIA.
Exhaustion of Administrative Remedies
19.

As of the date of this complaint, EAC has failed to (a) notify American Oversight

of any determination regarding its FOIA requests, including the scope of any responsive records
EAC intends to produce or withhold and the reasons for any withholdings; or (b) produce the

6

 Case 1:20-cv-00633 Document 1 Filed 03/04/20 Page 7 of 10

requested records or demonstrate that the requested records are lawfully exempt from
production.
20.

Through EAC’s 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
21.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
22.

American Oversight properly requested records within the possession, custody,

and control of EAC.
23.

EAC is an agency subject to FOIA, and it must therefore make reasonable efforts

to search for requested records.
24.

EAC has failed to promptly review agency records for the purpose of locating

those records that are responsive to American Oversight’s FOIA requests.
25.

EAC’s failure to conduct an adequate search for responsive records violates FOIA

and EAC regulations.
26.

Plaintiff American Oversight is therefore entitled to injunctive and declaratory

relief requiring Defendant to promptly make reasonable efforts to search for records responsive
to American Oversight’s FOIA requests.

7

 Case 1:20-cv-00633 Document 1 Filed 03/04/20 Page 8 of 10

COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
27.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
28.

American Oversight properly requested records within the possession, custody,

and control of EAC.
29.

EAC is an agency subject to FOIA, and it must therefore release in response to a

FOIA request any non-exempt records and provide a lawful reason for withholding any
materials.
30.

EAC is wrongfully withholding non-exempt agency records requested by

American Oversight by failing to produce non-exempt records responsive to its FOIA requests.
31.

EAC is 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.
32.

EAC’s failure to provide all non-exempt responsive records violates FOIA and

EAC regulations.
33.

Plaintiff American Oversight is therefore entitled to declaratory and injunctive

relief requiring Defendant 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.

8

 Case 1:20-cv-00633 Document 1 Filed 03/04/20 Page 9 of 10

REQUESTED RELIEF
WHEREFORE, American Oversight respectfully requests the Court to:
(1) Order Defendant to conduct a search or searches reasonably calculated to uncover all
records responsive to American Oversight’s FOIA requests;
(2) Order Defendant 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 Defendant 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.

9

 Case 1:20-cv-00633 Document 1 Filed 03/04/20 Page 10 of 10

Dated: March 4, 2020

Respectfully submitted,
/s/ Emma Lewis
Emma Lewis
D.C. Bar No. 144574
/s/ Katherine Anthony
Katherine Anthony
D.C. Bar No. 1630524
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-5244
emma.lewis@americanoversight.org
katherine.anthony@americanoversight.org
Counsel for Plaintiff

10