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Judicial Watch • JW v DHS Jeh Johnson emails complaint 00967

JW v DHS Jeh Johnson emails complaint 00967

JW v DHS Jeh Johnson emails complaint 00967

Page 1: JW v DHS Jeh Johnson emails complaint 00967

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Number of Pages:7

Date Created:December 27, 2016

Date Uploaded to the Library:January 03, 2017

Tags:Mayorkas, 00967, Jeh, Business, official, deputy, defendants, Plaintiffs, AGENCY, Emails, complaint, email, Johnson, DHS, government, Secretary, defendant, filed, plaintiff, request, document, records, FOIA, states, Washington, united


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Case 1:16-cv-Ofl67-RDM Document Filed 05/2?1 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
425 Third Street SW, Suite 800
Washington, 20024,
Plaintiff,
UNITED STATES DEPARTMENT HOMELAND SECURITY,
Office the General Counsel
245 Murray Lane
Mailstop 0485
Washington, 20528,
Defendant.
Civil Action No.
COMPLAINT
Plaintiff Judicial Watch, Inc. brings this action against Defendant United States
Department Homeland Security compel compliance with the Freedom Information Act,
U.S.C. 552 (FOIA). grounds therefor, Plaintiff alleges follows:
JURISDICTION AND VENUE
The Court has jurisdiction over this action pursuant U.S.C. 552(a)(4)(B)
and U.S.C. 1331.
Venue proper this district pursuant U.S.C. 1391(e).
PARTIES
Plaintiff Judicial Watch, Inc. not-for-profit, educational organization
incorporated under the laws the District Columbia and headquartered 425 Third Street
SW, Suite 800, Washington, 20024. Plaintiff seeks promote transparency, integrity, and
accountability government and fidelity the rule law. part its mission, Plaintiff
Case l:l6-cv-ooq57_RDM Document Filed 05/2? 11.6 Page
regularly requests records from federal agencies pursuant FOIA. Plaintiff analyzes the
agencies responses and disseminates both its findings and the requested records the American
public inform them about what their government to.
Defendant United States Department Homeland Security agency the
United States Government and headquartered 245 Murray Lane SW, Washington,
20528. Defendant has possession, custody, and control ofrecords which Plaintiff seeks
access.
STATEMENT FACTS December 29, 2015, Plaintiff submitted FOIA request Defendant seeking
the following:
Any and all emails regarding, concerning, relating
official United States Government business sent from
DHS Secretary Jeh Johnson from December 23, 2013
through the present date which Secretary Johnson used
non-.gov email addresses.
Any and all emails regarding, concerning, relating
official United States Government business sent from
DHS Deputy Secretary Alejandro Mayorkas from
December 23, 2013 through the present date which
Deputy Secretary Mayorkas used non-.gov email
addresses.
Any and all emails regarding, concerning, relating
official United States Government business sent from
DHS Chief Staff Christian Marrone from December 23,
2013 through the present date which Mr. Marrone used
non-.gov email addresses.
Any and all emails regarding, concerning, relating
official United States Government business sent from
DHS General Counsel Stevan Bunnell from December 23,
2013 through the present date which Mr. Bunnell used
non-.gov email addresses.
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Case 1:16-cv-ooq67-RDM Document Filed 05/2?1.6 Page
All four individuals identified the request were agency officials the time Plaintiff submitted
the request, and least three, Secretary Johnson, Deputy Secretary Mayorkas, and Mr. Bunnell,
remain office. information and belief, for security reasons Defendant blocks all agency
personnel from accessing private, internet-based email accounts agency computers. Also
information and belief, Defendant granted waivers each the four officials referenced
Plaintiffs FOIA request, and many other agency officials, authorizing their use non.gov email accounts conduct official agency business. Also information and belief,
Defendant unblocked these officials agency computers enable them access their private,
internet-based email accounts conduct official agency business. further information and
belief, Defendant knows the identity the private email addresses used these officials
conduct official agency business. According records Defendant produced Plaintiff
response separate FOIA request, the two private email address(es) used Secretary
Johnson conduct official agency business begin with JCJ and jcjsl, respectively, and the
private email address used Deputy Secretary Mayorkas begin with ANMS2. The remainder these addresses are known Defendant, but was redacted from the records. January 20, 2016, Defendant sent letter Plaintiff acknowledging receipt
the request January 2016 and advising Plaintiff that the request had been assigned FOIA
Request No. 2016-HQF0-00172. Defendants letter asserted that Plaintiffs request too
broad scope did not specifically identify the records which you are seeking. The letter
asked Plaintiff resubmit the request containing reasonable description the records you are
seeking. continued:
lfwe not hear from you within days from the date this letter, will
assume you are longer interested this FOIA request, and the case will
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Case 1:16-cv-onq57_RDM Document Filed 05/2?1.6 Page
administratively closed. Please advised that this action not denial your
request and will not preclude you from filing other requests the future.
The letter did not advise Plaintiff that could file administrative appeal.
Shortly after receiving Defendants letter, Plaintiff telephoned Defendant
discuss both the letter and Plaintiffs request. Defendant represented Plaintiff during the
telephone call that further response Plaintiffs request would forthcoming. January 25, 2016, Defendant sent Plaintiff email reaffirming its position
that the request was overly broad and advising Plaintiff that its January 20, 2016 letter was the
agencys final response. The email also stated that Defendant can only search gov (sic) email
accounts, and need subject matter with keywords search large timeframe. The email
further stated, government employee used personal email account for official business,
they are supposed forward the email their government email account for record keeping
purposes, although, information and belief, Defendant established mechanism audit
process for ensuring that employees follow this procedure. with the January 20, 2016 letter,
the January 25, 2016 email did not advise Plaintiff that could file administrative appeal
Defendants final response.
10. the date this Complaint, Defendant has failed to: (i) produce the
requested records demonstrate that the requested records are lawfully exempt from
production; (ii) notify Plaintiff the scope any responsive records Defendant intends
produce withhold and the reasons for any withholdings; (iii) inform Plaintiff that may
appeal any adequately specific, adverse determination.
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Case 1:16-cv-onq67-RDM Document Filed 05/2?16 Page
COUNTI
Violation FOIA, U.S.C. 552
11.
Plaintiff realleges paragraphs through fully stated herein.
12.
Plaintiffs request identifies name the four officials whose records are sought
(Secretary Johnson, Deputy Secretary Mayorkas, Chief Staff Marrone, and General Counsel
Bunnell) and specifies the time frame the records (December 23, 2013 the date the
request). The locations the records (the unblocked, private email accounts authorized
Defendant and for which Defendant granted waivers) are well known Defendant, and the
request makes clear that Plaintiff seeks all records these agency-authorized, unblocked
accounts that concern relate official government business. Consequently, the requested
records are described reasonably sufficient detail enable government employee locate
them without placing unreasonable burden Defendant. The request not overly broad.
13. granting waivers the four officials identified the request, authorizing
these officials use private email accounts conduct official, agency business, and unblocking
their agency computers that they can use their private email accounts conduct official,
agency business, Defendant has asserted ample control over any emails the accounts that were
created obtained the officials for purposes conducting government business such that the
records are agency records subject FOIA. failing search these accounts for records
responsive Plaintiffs request, Defendant violating FOIA.
14.
Plaintiff being irreparably harmed reason Defendants violation ofFOIA,
and Plaintiff will continue irreparably harmed unless Defendant compelled comply
with FOIA.
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Case l:l6-cv-onq57-RDM Document Filed 05/2?16 Page
15. trigger FOIAs administrative exhaustion requirement, Defendant was
required determine whether comply with Plaintiffs request within twenty (20) working
days ofreceiving the request January 2016. Because the request was sent the component Defendant designated Defendants regulations receive FOIA requests, Defendant had
additional ten (10) working days which issue its determination. Accordingly, Defendants
determination was due about April 18, 2016. minimum, Defendant was required to:
(i) gather and review the requested documents; (ii) determine and communicate Plaintiff the
scope any responsive records Defendant intended produce withhold and the reasons for
any withholdings; and (iii) inform Plaintiff that may appeal any adequately specific, adverse
determination. See, e.g., Citizens for Responsibility and Ethics Washington Federal
Election Commission, 711 F.3d 180, 188-89 (D.C. Cir. 2013).
16.
Because Defendant failed determine whether comply with Plaintiffs request
within the time period required FOIA, Plaintiff deemed have exhausted its administrative
appeal remedies. U.S.C. 552(a)(6)(C)(i).
WHEREFORE, Plaintiff respectfully requests that the Court: (1) order Defendant
conduct searches for any and all records responsive Plaintiffs FOIA request and demonstrate
that employed search methods reasonably likely lead the discovery records responsive Plaintiffs FOIA request; (2) order Defendant produce, date certain, any and all nonexempt records Plaintiffs FOIA request and Vaughn index any responsive records
withheld under claim exemption; (3) enjoin Defendant from continuing withhold any and
all non-exempt records responsive Plaintiffs FOIA request; (4) grant Plaintiff award
attorneys fees and other litigation costs reasonably incurred this action pursuant U.S.C.
552(a)(4)(E); and (5) grant Plaintiff such other relief the Court deems just and proper.
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Case 1:16-cv-00967-RDM Document Filed 05/231-1.6 Page
Respectfully submitted,
Dated: May 23, 2016
Isl James Peterson
James Peterson
D.C. Bar No. 450171
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff
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