Case 1 17-cv-02542 Document 1 Filed 04 10 17 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK KATE DOYLE NATIONAL SECURITY ARCHIVE CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY Civil Action No __________ Plaintiffs v U S DEPARTMENT OF HOMELAND SECURITY Defendant COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 This is an action under the Freedom of Information Act FOIA 5 U S C 552 and the Declaratory Judgment Act 28 U S C 2201-2202 for injunctive declaratory and other appropriate relief Plaintiffs challenge the failure of the U S Department of Homeland Security DHS to disclose to them records of visits to the White House and to President Donald Trump at his Mar-a-Lago and Trump Tower residences that the Secret Service a component of DHS maintains 2 This case seeks declaratory relief that DHS is in violation of the FOIA 5 U S C 552 a 3 a by refusing to search for and provide plaintiffs with all responsive documents on an expedited basis and injunctive relief ordering DHS to process and release to plaintiffs immediately the requested records Case 1 17-cv-02542 Document 1 Filed 04 10 17 Page 2 of 10 Jurisdiction and Venue 3 This Court has both subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U S C 552 a 4 B The Court also has jurisdiction over this action pursuant to 28 U S C 1331 2201 a and 2202 Venue lies in this district under 5 U S C 552 a 4 B Parties 4 Plaintiff Kate Doyle is a senior analyst of U S policy in Latin America Based in the New York office of the National Security Archive Ms Doyle works with other scholars journalists human rights groups truth commissions prosecutors and judges to open and analyze government files including through use of the FOIA Ms Doyle has authored several dozen book chapters and articles that have appeared in scholarly publications such as the World Policy Journal and in media ranging from Harper's Magazine to Mexico's Proceso 5 Plaintiff National Security Archive is an independent non-governmental non- profit research institute organized under section 501 c 3 of the Internal Revenue Code The Archive collects analyzes and publishes U S government documents acquired through the FOIA in order to enrich scholarship and journalism with primary sources and to promote openness and government accountability The Archive won the 1999 George Polk Award one of U S journalism's most prestigious prizes for -- in the words of the citation -- piercing selfserving veils of government secrecy guiding journalists in search for the truth and informing us all The Archive is a representative of the news media as defined in 5 U S C 552 a 4 a ii Prior Archive litigation under the FOIA and the Federal Records Act compelled the preservation and e-archiving of White House e-mail from every Presidential administration from Reagan to Obama 2 Case 1 17-cv-02542 Document 1 Filed 04 10 17 Page 3 of 10 6 Plaintiff CREW is a non-profit non-partisan organization organized under section 501 c 3 of the Internal Revenue Code CREW is committed to protecting the rights of citizens to be informed about the activities of government officials and agencies and to ensuring the integrity of government officials and agencies CREW seeks to empower citizens to have an influential voice in government decisions and in the government decision-making process through the dissemination of information about public officials and their actions To advance its mission CREW uses a combination of research litigation and advocacy As part of its research CREW uses government records made available to it under the FOIA CREW has sought records of White House visits from the Secret Service in the past and its prior litigation led to the decision of the Obama administration to establish a system for publishing White House visitor logs on an ongoing basis 7 Plaintiff Knight First Amendment Institute at Columbia University is a newly established New York not-for-profit corporation that works to preserve and expand the freedoms of speech and the press through strategic litigation research and public education Research and public education are essential to the Institute's mission Obtaining information about government activity through the FOIA analyzing that information and publishing and disseminating its analysis to the press and public are among the core activities the Institute was established to perform 8 Defendant DHS is an agency within the meaning of 5 U S C 552 f and 5 U S C 701 DHS and its component Secret Service have possession and control of the requested records and are responsible for fulfilling plaintiffs' FOIA requests 3 Case 1 17-cv-02542 Document 1 Filed 04 10 17 Page 4 of 10 Factual Background 9 In September 2009 then-President Obama announced that starting in a few months he would open up to the public White House visitor logs on a regular basis by posting online every month the names of visitors over the previous 90 to 120 days 10 Under the new policy the posted records would include names of visitors the dates and times they entered and left the White House compound and the names of the persons they visited The logs were subject to several exceptions including purely personal guests of the Obama family the need to protect national security interests and the temporary need to protect particularly sensitive meetings such as the vetting of a Supreme Court candidate 11 In explaining the policy President Obama said in a written statement Americans have a right to know whose voices are being heard in the policymaking process When he left office President Obama's administration had released under his policy 5 99 million records of White House visitors 12 President Obama's decision to provide public access to White House visitor logs was the result of four separate lawsuits brought by CREW under the FOIA 13 Currently the White House website page at which the visitor logs were made available during the Obama administration states it is being updated and that records of White House visitors will be posted on an ongoing basis once they become available 14 The White House has refused to say whether it will continue to provide public access to White House visitor logs In response to this silence on March 6 2017 eight Senators wrote to President Trump and U S Secret Service Deputy Director William J Callahan seeking the ongoing release of White House visitor logs 4 Case 1 17-cv-02542 Document 1 Filed 04 10 17 Page 5 of 10 15 In their letter to the president the senators noted that during President Obama's tenure t hese logs provided the American public an unprecedented look at who was lobbying his Administration without compromising the President's ability to execute the functions of his office on a day-to-day basis The letter also mentioned concerns about transparency at President Trump's so-called Winter White House Mar-a-Lago and urged the president to extend President Obama's policies on visitor logs to address your decision to regularly conduct official business at private properties that also provide access to certain members of the public 16 The senators' letter to Mr Callahan echoed these concerns Specifically they noted It would be a significant setback to efforts to give the public insight into who influences the White House if this policy were to be discontinued or limited Indeed given the unique aspects of how President Trump has decided to conduct official business we believe he needs to do even more just to meet the benchmark of transparency set by President Obama President Trump has already taken four trips to his so-called 'Winter White House' at his Mar-a-Lago estate in Florida during which he conducted official business in full view of Mar-a-Lago members and their guests During his transition then President-elect Trump worked at the Trump Tower and the Trump National Golf Club in Bedminster New Jersey two locations that are also open to certain members of the public Recently released audio of one post-election visit to Bedminster captured then President-elect Trump inviting members to 'come around' as he interviews people to serve in his administration 17 Both letters sought responses to specific questions Among the information sought from the Secret Service was whether the records systems used to track visitors at the White House complex -- the Workers and Visitors Entry System WAVES and the Access Control Records system ACR -- also were being used at Mar-a-Lago and whether their use was being considered for Trump Tower Bedminster and other Trump properties where the 5 Case 1 17-cv-02542 Document 1 Filed 04 10 17 Page 6 of 10 president may conduct official business This same question also was posed to President Trump 18 On information and belief neither President Trump nor Deputy Director Callahan has yet responded to these letters FOIA Requests At Issue 19 On January 23 2017 Plaintiff Kate Doyle sent a FOIA request by facsimile to the Secret Service requesting WAVES and ACR records for three days January 20 January 21 and January 22 2017 From these records Ms Doyle requested 28 fields of data that were displayed in a screenshot of the White House Visitor Records Requests website of President Obama which she included with her request 20 On February 24 2017 Ms Doyle sent by facsimile an administrative appeal based on the refusal of the Secret Service to respond in any way to her request 21 To date the Secret Service has not responded to either Ms Doyle's request of January 23 or her appeal of February 24 2017 22 The Secret Service has not provided Ms Doyle with a determination on her request including an identification of what documents the agency plans to release what documents the agency plans to withhold and why The FOIA requires agencies to make this determination within 20 business days of receiving a non-expedited FOIA request 23 Because the Secret Service has failed to make a determination under the FOIA on Ms Doyle's request she has now exhausted all applicable administrative remedies 24 On March 10 2017 Plaintiffs Doyle the National Security Archive CREW and the Knight First Amendment Institute sent by facsimile a second FOIA request to the Secret Service This request seeks two categories of records 1 WAVES and ACR records from 6 Case 1 17-cv-02542 Document 1 Filed 04 10 17 Page 7 of 10 January 20 2017 until March 8 2017 and 2 records of presidential visitors at Mar-a-Lago and Trump Tower from January 20 2017 to March 8 2017 From these records the request identifies the same 28 fields of data contained in the White House Visitor Records posted by the Obama administration 25 Plaintiffs also requested that the Secret Service expedite this second request in light of the significant concerns raised about how President Trump is using his private properties at Mar-a-Lago and Trump Tower and the extensive media coverage of this issue and the refusal of the president to date to commit to releasing the visitor logs data 26 To date the Secret Service has not responded in any way to the March 10 2017 expedited FOIA request 27 This failure to respond includes a failure to make a determination under the FOIA within 10 calendar days on plaintiffs' request for expedition as the FOIA and DHS regulations require 28 Further the Secret Service has failed to process the March 10 2017 request as soon as practicable and provide plaintiffs with a determination on their request including an identification of what documents the agency plans to release what documents the agency plans to withhold and why as the FOIA requires for expedited requests 29 The Secret Service also has failed to make a determination under the FOIA on plaintiffs' request within 20 business days as the FOIA requires for non-expedited requests 30 Because the Secret Service has failed to make a determination under the FOIA on plaintiffs' FOIA request under either the standards set out for expedited requests or those set out for all other requests plaintiffs have now exhausted all applicable administrative remedies 7 Case 1 17-cv-02542 Document 1 Filed 04 10 17 Page 8 of 10 PLAINTIFFS' CLAIMS FOR RELIEF CLAIM ONE Wrongful Withholding of Non-Exempt Records Requested by Plaintiff Doyle 31 Plaintiffs repeat and re-allege paragraphs 1-30 32 Plaintiff Doyle properly asked for records within the custody and control of the Secret Service a component of DHS 33 Defendant DHS wrongfully withheld agency records requested by Plaintiff Doyle by failing to comply with the statutory time limit for making a determination on non-expedited FOIA requests and by withholding from disclosure records responsive to her FOIA request 34 By failing to release the records as Plaintiff Doyle specifically requested defendant violated the FOIA 35 Plaintiff Doyle therefore is entitled to injunctive and declaratory relief with respect to the prompt processing and disclosure of the requested records CLAIM TWO Wrongful Withholding of Non-Exempt Records Requested by Plaintiffs 36 Plaintiffs repeat and re-allege paragraphs 1-35 37 Plaintiffs properly asked for records within the custody and control of the Secret Service a component of DHS on an expedited basis 38 Defendant DHS wrongfully withheld agency records requested by plaintiffs by failing to act as soon as practicable to make a determination on the plaintiffs' expedited FOIA request and by withholding from disclosure records responsive to their FOIA request 39 By failing to release the records as plaintiffs specifically requested defendant violated the FOIA 40 Plaintiffs therefore are entitled to injunctive and declaratory relief with respect to the expedited processing and disclosure of the requested records 8 Case 1 17-cv-02542 Document 1 Filed 04 10 17 Page 9 of 10 Requested Relief WHEREFORE plaintiffs respectfully request that this Court 1 Order Defendant DHS to fully and promptly process Plaintiff Doyle's January 23 2017 FOIA request and disclose all non-exempt documents immediately to Plaintiff 2 Issue a declaration that Plaintiff Doyle is entitled to prompt processing and disclosure of the requested records 3 Order Defendant DHS to fully and immediately process Plaintiffs' March 10 2017 FOIA request and disclose all non-exempt documents immediately to Plaintiffs 4 Issue a declaration that Plaintiffs are entitled to expedited processing and disclosure of the requested records 5 Provide for expeditious proceedings in this action 6 Retain jurisdiction of this action to ensure no agency records are wrongfully withheld and order Defendant DHS to disclose any wrongfully withheld records 7 Award plaintiffs their costs and reasonable attorneys' fees in this action and 8 Grant such other relief as the Court may deem just and proper Respectfully submitted Anne L Weismann D C Bar No 298190 pro hac vice motion forthcoming Citizens for Responsibility and Ethics in Washington 455 Massachusetts Ave N W Sixth Floor Washington DC 20001 Phone 202 408-5565 Facsimile 202 588-5020 s Alex Abdo Alex Abdo AA-0527 Jameel Jaffer JJ-4653 Knight First Amendment Institute at Columbia University 314 Low Library 9 Case 1 17-cv-02542 Document 1 Filed 04 10 17 Page 10 of 10 535 West 116th Street New York NY 10027 Phone 212 854-9600 alex abdo@knightcolumbia org Attorneys for Plaintiffs Dated April 10 2017 10                     National Security Archive    Suite 701  Gelman Library  The George Washington University    2130 H Street  NW  Washington  D C  20037    Phone  202 994‐7000  Fax  202 994‐7005  nsarchiv@gwu edu