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Judicial Watch • JW v DOD et al BDS complaint 01721

JW v DOD et al BDS complaint 01721

JW v DOD et al BDS complaint 01721

Page 1: JW v DOD et al BDS complaint 01721

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Number of Pages:5

Date Created:July 24, 2018

Date Uploaded to the Library:July 25, 2018

Tags:01721, BDS, Dod, Pentagon, DHS, filed, FOIA


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Case 1:18-cv-01721 Document Filed 07/24/18 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.
425 Third Street, SW, Suite 800
Washington, 20024,
Plaintiff,
U.S. DEPARTMENT DEFENSE,
1400 Defense Pentagon
Washington, 20301,
U.S. DEPARTMENT
HOMELAND SECURITY
Office the General Counsel
245 Murray Lane SW, Mailstop 0485
Washington, 20528,
U.S. DEPARTMENT STATE
The Executive Office
Office the Legal Adviser, Suite 5.600
600 19th Street
Washington, 20522,
Defendants.
____________________________________)
Civil Action No.
COMPLAINT
Plaintiff Judicial Watch, Inc. brings this action against Defendants U.S. Department
Defense, U.S. Department Homeland Security, and U.S. Department State 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.
Case 1:18-cv-01721 Document Filed 07/24/18 Page
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, accountability,
and integrity government and fidelity the rule law. part its mission, Plaintiff
regularly requests records from federal agencies pursuant FOIA. Plaintiff analyzes the
responses and disseminates its findings and the requested records the American public
inform them about what their government to.
Defendant U.S. Department Defense DoD agency the United States
government. DoD has possession, custody, and control records which Plaintiff seeks
access. DoD headquartered 1400 Defense Pentagon, Washington, 20301.
Defendant U.S. Department Homeland Security DHS agency the
United States government. DHS has possession, custody, and control records which
Plaintiff seeks access. DHS headquartered 245 Murray Lane SW, Washington, 20528.
Defendant U.S. Department State State agency the United States
government. State has possession, custody, and control records which Plaintiff seeks
access. State headquartered 2201 Street NW, Washington, 20520.
STATEMENT FACTS April 23, 2018, Plaintiff submitted nearly identical FOIA requests DoD,
DHS, and State seeking the following:
All emails from current former officials the [DoD, DHS, State]
Office the Secretary containing the phrase boycott divestment and
sanctions.
Case 1:18-cv-01721 Document Filed 07/24/18 Page
All emails from current former officials the [DoD, DHS, State] Office
the Secretary containing both the terms BDS and Israel.
The time frame for these requests was January 2015 through December 31, 2015. letter dated May 2018, DoD confirmed writing that Plaintiff request
had been received and designated with FOIA control number 18-F-0864. letter dated May 15, 2018, DoD made final response Plaintiff request
stating that DoD conducted search but located responsive records.
10. letter dated May 23, 2018, Plaintiff filed timely administrative appeal
DoD determination responsive records.
11. the filing this Complaint, DoD 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 DoD intends produce withhold and
the reasons for any withholdings; (iii) inform Plaintiff any determination concerning
Plaintiff administrative appeal.
12. letter dated April 26, 2018, DHS confirmed writing that Plaintiff request
had been received and designated with FOIA control number 2018-HQFO-00900.
13. the filing this Complaint, DHS 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 DHS intends produce withhold and
the reasons for any withholdings; (iii) inform Plaintiff that may appeal any adequately
specific, adverse determination.
14. April 23, 2018, State confirmed via email that Plaintiff request had been
received, later assigning the request Control No. F-2018-03106.
Case 1:18-cv-01721 Document Filed 07/24/18 Page
15. the filing this Complaint, State 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 State intends produce withhold and
the reasons for any withholdings; (iii) inform Plaintiff that may appeal any adequately
specific, adverse determination.
Count Violation FOIA, U.S.C. 552
16.
Plaintiff realleges paragraphs through fully stated herein.
17.
Plaintiff being irreparably harmed reason Defendants violations FOIA,
and Plaintiff will continue irreparably harmed unless Defendants are compelled comply
with FOIA.
18. trigger FOIA administrative exhaustion requirement, Defendant DoD was
required determine whether grant deny Plaintiff administrative appeal within twenty
(20) business days receipt, and Defendants DHS and State Defendant were required
determine whether comply with Plaintiff requests within thirty (30) business days receipt.
Accordingly, all Defendants determination was due June 2018 the latest.
minimum, Defendants were required to: (i) inform Plaintiff whether the appeal was granted
denied; (ii) gather and review the requested documents; (iii) determine and communicate
Plaintiff the scope any responsive records Defendant intended produce withhold and the
reasons for any withholdings; (iv) inform Plaintiff that may appeal any adequately specific,
adverse determination; and (v) make the records available promptly thereafter. See, e.g., Citizens
for Responsibility and Ethics Washington Federal Election Commission, 711 F.3d 180, 18889 (D.C. Cir. 2013).
Case 1:18-cv-01721 Document Filed 07/24/18 Page
19.
Because Defendant DoD failed grant deny Plaintiff timely filed
administrative appeal DoD determination responsive records, Plaintiff deemed
have exhausted its administrative remedies with respect DoD. U.S.C. 552(a)(6)(A)(ii).
20.
Because Defendants DHS and State failed make substantive, appealable
determination whether comply with Plaintiff request within the time required FOIA for
all components, Plaintiff deemed have exhausted its administrative remedies with respect
DHS and State. 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 Plaintiff FOIA request and demonstrate
that employed search methods reasonably likely lead the discovery records responsive Plaintiff FOIA request; (2) order Defendant produce, date certain, any and all nonexempt records Plaintiff 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 Plaintiff 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.
Dated: July 24, 2018
Respectfully submitted, Chris Fedeli
Chris Fedeli Bar No. 472919
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
cfedeli@judicialwatch.org
(202) 646-5172
Counsel for Plaintiff