Case 1:20-cv-02088 Document 1 Filed 03/09/20 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
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Plaintiff, )
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v.
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FEDERAL BUREAU OF INVESTIGATION,
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Defendant. )
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AMERICAN OVERSIGHT,

Case No. 20-cv-2088

COMPLAINT
1.

Plaintiff American Oversight brings this action against the Federal Bureau of

Investigation 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 28 U.S.C. § 1391(e) and 5 U.S.C.

§ 552(a)(4)(B), as the agency records requested by Plaintiff American Oversight are situated in
this district.
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

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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.
6.

Defendant Federal Bureau of Investigation (FBI) is a component of the U.S.

Department of Justice (DOJ), a department of the executive branch of the U.S. government, and
an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1). FBI, in
particular the New York Field Office, has possession, custody, and control of the records that
American Oversight seeks.
STATEMENT OF FACTS
7.

Public reports and the testimony of former Federal Bureau of Investigation (FBI)

director Jim Comey strongly suggest that FBI agents in the New York Field Office had
politically sensitive, and potentially improper, contacts with Rudy Giuliani—who now serves as
the president’s personal lawyer—around the time of the 2016 presidential election. See Byron
Tau & Natalie Andrews, Comey Tells House Panel He Suspected Giuliani Was Leaking FBI
Information to the Media, Wall. St. J. (Dec. 8, 2019, 9:25 PM),
https://www.wsj.com/articles/comey-tells-house-panel-he-suspected-giuliani-was-leaking-fbi-

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information-to-media-1544322346; Marshall Cohen, Justice Department Watchdog Investigating
Possible FBI Leaks to Giuliani in 2016, CNN (Dec. 11, 2019, 2:58 PM),
https://www.cnn.com/2019/12/11/politics/doj-ig-giuliani-fbi-leaks/index.html.
8.

On December 13, 2019, American Oversight submitted a FOIA request to FBI for

the following:
All records reflecting communications (including emails, email
attachments, text messages, messages on messaging platforms
(such as Slack, GChat or Google Hangouts, Lync, Skype, or
WhatsApp), telephone call logs, calendar invitations, calendar
entries, meeting notices, meeting agendas, informational material,
draft legislation, talking points, memos to file, any handwritten or
electronic notes taken during any oral communications, summaries
of any oral communications, or other materials) between (i) any
agent, official, or employee in the FBI New York Field Office
(NYFO) and (ii) Rudy Giuliani, or any personal assistants or others
communicating on his behalf, including, but not limited to, Jo Ann
Zafonte or Beau Wagner.
Please provide all responsive records from January 1, 2016,
through December 31, 2016.
9.

On information and belief, FBI employees, officials, or agents had contact with

Mr. Giuliani, or his agents, during the time period covered by the request.
10.

On February 10, 2020, FBI acknowledged American Oversight’s request and

assigned the request tracking number 1455000-000.
11.

American Oversight has not received any further communication from FBI

regarding its FOIA Request.
Exhaustion of Administrative Remedies
12.

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

Oversight of any determination regarding its FOIA request, including the scope of any
responsive records Defendant intends to produce or withhold and the reasons for any

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withholdings; or (b) produce the requested records or demonstrate that the requested records are
lawfully exempt from production.
13.

Through Defendant’s failure to respond to American Oversight’s FOIA request

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
14.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
15.

American Oversight properly requested records within the possession, custody,

and control of Defendant.
16.

Defendant is a component of an agency and is therefore subject to FOIA and must

therefore make reasonable efforts to search for requested records.
17.

Defendant failed to promptly review agency records for the purpose of locating

those records that are responsive to American Oversight’s FOIA request.
18.

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

FOIA and DOJ regulations.
19.

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 request.

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COUNT III
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
20.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
21.

American Oversight properly requested records within the possession, custody,

and control of Defendant.
22.

Defendant is a component of an agency and is therefore subject to FOIA and must

therefore release in response to a FOIA request any non-exempt records and provide a lawful
reason for withholding any materials.
23.

Defendant is wrongfully withholding non-exempt agency records requested by

American Oversight by failing to produce non-exempt records responsive to its FOIA request.
24.

Defendant 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 request.
25.

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

and DOJ regulations.
26.

Plaintiff American Oversight is therefore entitled to declaratory and injunctive

relief requiring Defendant to promptly produce all non-exempt records responsive to its FOIA
request and provide indexes justifying the withholding of any responsive records withheld under
claim of exemption.

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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 request;
(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 request 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 request;
(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.
Dated: March 9, 2020

Respectfully submitted,
/s/ Daniel A. McGrath
Daniel A. McGrath
Austin R. Evers
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 897-4213
daniel.mcgrath@americanoversight.org
austin.evers@americanoversight.org
Counsel for Plaintiff

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