Case 1.207cv701571 Document 1 Flled 06/16/20 Page 1 of4 IN THE STATES DISTRICT COURT OF THE DISTRICT OF LS SPECIAL OPERATIONS COMMAND, 7701 Tampa Point MacDill Atr Force Base, FL 33621 LS DEPARTMENT OF DEFENSE, [55 Defense Pentagon 20301 Defendantss COMPLAINT FREDDY MARTINEZ, Ihls Freedom of lnformatlon Acl suil to force SPECIAL OPERATIONS COMMAND and DEPARTMENT OF DEFENSE to comply with MARTINEZ's Freedom ofIIlformation Act request for vet records of Conan, a specta] operations dog in the United States SFODVD (Delta Force) Conan tn the raid that ktlled the ISIS leader Abu Bakr Upon Comn's Prestdent Trump tdenttfied Conan's sex as male, was directly refuted by other new: organtzattons that churned Comn's sex In he female when the controversy arose, the Pentagon countered with a descriptlon of Conan belng rt male dog MARTINEZ seeks the vet records to dtscent the truth regarding Conan's sex, bul the Defendants dented the request a "Glomar" response, that merely acknowledgmg the exlslence ofthese records would compromlse nattonal security Case 1:20-cv-01571 Document 1 Filed 06/16/20 Page 2 of 4 PARTIES 2. Plaintiff FREDDY MARTINEZ is a member of the media and made the FOIA request at issue in this case. 3. Defendant U.S. SPECIAL OPERATIONS COMMAND (“USSOCOM”) is a federal agency and is subject to the Freedom of Information Act, 5 U.S.C. § 552. 4. Defendant U.S. DEPARTMENT OF DEFENSE (“DOD”) is a federal agency and is subject to the Freedom of Information Act, 5 U.S.C. § 552. JURISDICTION AND VENUE 5. This case is brought under 5 U.S.C. § 552(a)(4)(B) and presents a federal question conferring jurisdiction on this Court. See 28 U.S.C. § 1331. 6. Venue is proper under 5 U.S.C. § 552(a)(4)(B). NOVEMBER 26, 2019, FOIA REQUEST 7. On November 26, 2019, MARTINEZ submitted a FOIA request to United States Army Special Operations Command (“USASOC”) for “[d]ocuments sufficient to learn the sex of ‘Con[a]n’ the dog who is a special operations military working dog in the United States 1st SFOD-D (Delta Force). Given that these dogs routinely get medical care, including known and declassified medical care provided to the dog, these should be documents about Con[a]n including sex, weight and other characteristics.” Exhibit A. 8. MARTINEZ also requested expedited processing and a fee waiver. Exhibit A. 9. On November 27, 2019, USASOC sent a link to an article and asked MARTINEZ whether the article answers his FOIA request. Exhibit B. 10. After MARTINEZ clarified that the article does not satisfy the original FOIA request, USASOC indicated that it referred the FOIA request to USSOCOM on December 2, 2019. Exhibit A at 2-3. -2- Case 1:20-cv-01571 Document 1 Filed 06/16/20 Page 3 of 4 11. On December 16, 2019, USSOCOM acknowledged receipt of the request and assigned reference number USSOCOM FOIA 2020-073. In that email, USSOCOM indicated that “the time for completion to be approximately be 12-15 months.” Exhibit C. 12. On January 15, 2020, MARTINEZ asked for an estimated completion date of the request. Exhibit D. 13. On January 16, 2020, USSOCOM stated that “it will be at least 12 months to complete processing” of the FOIA request. Exhibit D. 14. On April 15, 2020, USSOCOM denied the request and claimed that “in accordance with 5 U.S.C. § 552 (b)(1), via Executive Order 13526, Classified National Security Information, paragraph 1.4, USSOCOM can neither nor deny the existence or nonexistence of records responsive to [the] request.” Exhibit E. 15. Although the final response letter was dated March 20, 2020, MARTINEZ received the denial letter via email on April 15, 2020. Exhibit E. 16. On April 26, 2020, MARTINEZ appealed USSOCOM’s “Glomar” response. Exhibit F. 17. On April 27, 2020, USSOCOM acknowledged receipt of the appeal, assigned reference number 20-AC-0043-A1, and claimed that it is “unable to complete [the] appeal within the statutory time requirement.” Exhibit F. 18. As of the date of this filing, USSOCOM and DOD have not complied with FOIA by improperly invoking a “Glomar” response and have produced no records responsive to the request. COUNT I – DEFENDANTS’ FOIA VIOLATION 19. The above paragraphs are incorporated herein. 20. Defendants are federal agencies, subject to FOIA. -3- Case 1:20-cv-01571 Document 1 Filed 06/16/20 Page 4 of 4 21. The requested records are not exempt under FOIA. 22. Defendants have not complied with FOIA. WHEREFORE, MARTINEZ asks the Court to: i. declare that Defendants have violated FOIA; ii. order Defendants to conduct a reasonable search for records and to produce the requested records; iii. enjoin Defendants from withholding non-exempt public records under FOIA; iv. award MARTINEZ attorneys’ fees and costs; and v. award such other relief the Court considers appropriate. Dated: June 16, 2020 RESPECTFULLY SUBMITTED, /s/ Joshua Hart Burday Attorney for Plaintiff FREDDY MARTINEZ Matthew Topic, D.C. Bar No. IL0037 Joshua Burday, D.C. Bar No. IL0042 Merrick Wayne, D.C. Bar No. IL 0058 LOEVY & LOEVY 311 North Aberdeen, 3rd Floor Chicago, IL 60607 312-243-5900 foia@loevy.com -4-