ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:17−cv−07520−PGG

Brennan Center For Justice At New York University School Of Law v. United States Department of State Assigned to: Judge Paul G. Gardephe Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 10/02/2017 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Brennan Center For Justice At New York University School Of Law

represented by Sirine Shebaya National Immigration Project of the National Lawyers' G 2201 Wisconsin Ave NW Suite 200 Washington, DC 20007 202−656−4788 Email: sirine@nipnlg.org TERMINATED: 08/20/2019 LEAD ATTORNEY

Andrew Lieb Nellis Americans United For Separation of Church and State 1301 L Street Nw, Suite 200 Washington, DC 20005 202−466−3234 x220 Email: nellis@au.org TERMINATED: 08/17/2018

Eric Jonathan Rothschild Americans United For Separation of Church and State 1301 L Street Nw, Suite 200 Washington, DC 20005 (202)−898−2133 Email: rothschild@au.org TERMINATED: 08/16/2018

Ishita Kala Covington & Burling LLP (NYC) 620 Eighth Avenue New York, NY 10018−1405 212−841−1121 Fax: 212−841−1010 Email: ikala@cov.com ATTORNEY TO BE NOTICED

Jaclyn E. Martinez Resly Covington & Burling, LLP (DC) 850 10th Street NW Washington, DC 20001 (202)−662−5528 Email: jmartinezresly@cov.com TERMINATED: 02/28/2019

Johnathan James Smith Muslim Advocates PO Box 66408 Washington, DC 20035 (202) 897−2622

Fax: (415)−765−1774 Email: johnathan@muslimadvocates.org TERMINATED: 02/05/2019
Kevin Barnett Covington & Burling, LLP (DC) 850 10th Street NW Washington, DC 20001 (202)−662−5430 Email: kbarnett@cov.com ATTORNEY TO BE NOTICED
Mark H. Lynch Covington & Burling, LLP (DC) 850 10th Street NW Washington, DC 20001 202−662−5544 Fax: 202−778−5544 Email: mlynch@cov.com ATTORNEY TO BE NOTICED
Richard B Katskee Mayer Brown LLP 1999 K Street Nw Washington, DC 20006 (202) 263−3222 Email: katskee@au.org PRO HAC VICE ATTORNEY TO BE NOTICED
Neil Kenneth Roman Covington & Burling, LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001−4956 202−662−6000 Fax: 202−778−5135 Email: nroman@cov.com ATTORNEY TO BE NOTICED

V. Defendant United States Department of State

represented by Christopher Kendrick Connolly United States Attorney's Office SDNY 86 Chambers Street 3 Floor New York, NY 10007 (212) 637−2761 Fax: (212) 637−2786 Email: christopher.connolly@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/02/2017

# Docket Text
1 COMPLAINT against United States Department of Justice. (Filing Fee $ 400.00, Receipt Number 0208−14196219)Document filed by Brennan Center For Justice At New York University School Of Law. (Attachments: # 1 Exhibit A, September 24, 2017 Proclamation by President Trump, # 2 Exhibit B, FOIA Request, # 3 Exhibit C, Interim Response by Department of State, # 4 Exhibit D, August 24, 2017 Email from L. Qadir to Department of State, # 5 Exhibit E, August 28, 2017 Email from

10/02/2017 10/02/2017 10/02/2017 10/03/2017
10/03/2017
10/03/2017 10/03/2017 10/11/2017
10/11/2017 10/12/2017
10/12/2017
10/12/2017
10/17/2017 10/19/2017

Department of State to L. Qadir)(Roman, Neil) (Entered: 10/02/2017)
2 CIVIL COVER SHEET filed. (Roman, Neil) (Entered: 10/02/2017)
3 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Brennan Center For Justice At New York University School Of Law.(Roman, Neil) (Entered: 10/02/2017)
4 REQUEST FOR ISSUANCE OF SUMMONS as to United States Department of State, re: 1 Complaint,,. Document filed by Brennan Center For Justice At New York University School Of Law. (Roman, Neil) (Entered: 10/02/2017)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge John G. Koeltl. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (kl) (Entered: 10/03/2017)
Magistrate Judge Kevin Nathaniel Fox is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (kl) (Entered: 10/03/2017)
Case Designated ECF. (kl) (Entered: 10/03/2017)
5 ELECTRONIC SUMMONS ISSUED as to United States Department of State. (kl) (Entered: 10/03/2017)
6 MOTION for Mark H. Lynch to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14231385. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Brennan Center For Justice At New York University School Of Law. (Attachments: # 1 Exhibit A, Certificate of Good Standing, # 2 Exhibit B, Proposed Order, # 3 Exhibit C, Declaration of Mark H. Lynch)(Lynch, Mark) (Entered: 10/11/2017)
7 NOTICE OF APPEARANCE by Johnathan James Smith on behalf of Brennan Center For Justice At New York University School Of Law. (Smith, Johnathan) (Entered: 10/11/2017)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 6 MOTION for Mark H. Lynch to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14231385. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 10/12/2017)
8 MOTION for Jaclyn E. Martinez Resly to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14236576. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Brennan Center For Justice At New York University School Of Law. (Attachments: # 1 Exhibit A, District of Columbia Certificate of Good Standing, # 2 Exhibit B, Texas Certificate of Good Standing, # 3 Exhibit C, Proposed Order, # 4 Exhibit D, Declaration of Jaclyn E. Martinez Resly)(Martinez Resly, Jaclyn) (Entered: 10/12/2017)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 8 MOTION for Jaclyn E. Martinez Resly to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14236576. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 10/12/2017)
NOTICE OF CASE REASSIGNMENT to Judge Paul G. Gardephe. Judge John G. Koeltl is no longer assigned to the case. (bcu) (Entered: 10/17/2017)
9 ORDER FOR ADMISSION PRO HAC VICE granting 8 Motion for Jaclyn E. Martinez Resly to Appear Pro Hac Vice. (As further set forth in this Order.) (Signed by Judge Paul G. Gardephe on 10/19/2017) (cf) (Entered: 10/19/2017)

10/19/2017 10/19/2017
10/20/2017 10/25/2017 10/27/2017
10/30/2017 11/06/2017 11/06/2017 11/06/2017
11/09/2017
11/09/2017
11/13/2017

10 ORDER FOR ADMISSION PRO HAC VICE granting 6 Motion for Mark H. Lynch to Appear Pro Hac Vice. (As further set forth in this Order.) (Signed by Judge Paul G. Gardephe on 10/19/2017) (cf) (Entered: 10/19/2017)
11 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 12 Affidavit) − AFFIDAVIT OF SERVICE of Summons and Complaint served. United States Department of State served on 10/3/2017, answer due 12/4/2017. Service was made by Certified Mail. Document filed by Brennan Center For Justice At New York University School Of Law. (Martinez Resly, Jaclyn) Modified on 10/20/2017 (db). As per ecf_error email correspondence received on 1/20/17 @ 11:39am. (Entered: 10/19/2017)
12 AFFIDAVIT OF SERVICE (FOIA CASE) of Summons and Complaint,, served. United States Department of State served on 10/3/2017, answer due 11/2/2017. Service was made by Certified Mail. Document filed by Brennan Center For Justice At New York University School Of Law. (Martinez Resly, Jaclyn) (Entered: 10/20/2017)
13 NOTICE OF PRETRIAL CONFERENCE: Initial Conference set for 1/4/2018 at 10:15 AM in Courtroom 705, 40 Centre Street, New York, NY 10007 before Judge Paul G. Gardephe, as further set forth in this order. (Signed by Judge Paul G. Gardephe on 10/25/2017) (jwh) (Entered: 10/25/2017)
14 MOTION for Richard Brian Katskee to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14298668. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Brennan Center For Justice At New York University School Of Law. (Attachments: # 1 certificates of good standing, # 2 Text of Proposed Order proposed order, # 3 Affidavit declaration in support)(Katskee, Richard) (Entered: 10/27/2017)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 14 MOTION for Richard Brian Katskee to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14298668. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 10/30/2017)
15 NOTICE OF APPEARANCE by Christopher Kendrick Connolly on behalf of United States Department of State. (Connolly, Christopher) (Entered: 11/06/2017)
16 ANSWER to 1 Complaint,,. Document filed by United States Department of State.(Connolly, Christopher) (Entered: 11/06/2017)
17 ORDER FOR ADMISSION PRO HAC VICE granting 14 Motion for Richard B. Katskee to Appear Pro Hac Vice. IT IS HEREBY ORDERED that Applicant is admitted to practice Pro Hac Vice in the above−captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing discipline of attorneys. (Signed by Judge Paul G. Gardephe on 11/6/17) (yv) (Entered: 11/07/2017)
18 MOTION for Andrew Lieb Nellis to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14346783. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Brennan Center For Justice At New York University School Of Law. (Attachments: # 1 Certificate of good standing, # 2 Text of Proposed Order granting admission, # 3 Affidavit in support)(Nellis, Andrew) (Entered: 11/09/2017)
19 MOTION for Eric Jonathan Rothschild to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14348344. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Brennan Center For Justice At New York University School Of Law. (Attachments: # 1 Certificates of good standing, # 2 Text of Proposed Order granting admission, # 3 Affidavit in support)(Rothschild, Eric) (Entered: 11/09/2017)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 19 MOTION for Eric Jonathan Rothschild to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14348344. Motion and supporting papers to be reviewed by Clerk's Office staff., 18 MOTION for Andrew Lieb Nellis to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14346783. Motion and

11/16/2017 11/16/2017 12/21/2017 12/21/2017 12/21/2017
12/21/2017 12/21/2017 12/21/2017 12/27/2017 12/29/2017 01/04/2018 01/10/2018
02/23/2018

supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 11/13/2017)
20 ORDER FOR ADMISSION PRO HAC VICE: granting 19 Motion for Eric Jonathan Rothschild to Appear Pro Hac Vice. (Signed by Judge Paul G. Gardephe on 11/15/2017) (ama) (Entered: 11/16/2017)
21 ORDER FOR ADMISSION PRO HAC VICE: granting 18 Motion for Andrew Lieb Nellis to Appear Pro Hac Vice. (Signed by Judge Paul G. Gardephe on 11/15/2017) (ama) (Entered: 11/16/2017)
22 MOTION to Expedite Freedom of Information Act Action. Document filed by Brennan Center For Justice At New York University School Of Law.(Roman, Neil) (Entered: 12/21/2017)
23 MEMORANDUM OF LAW in Support re: 22 MOTION to Expedite Freedom of Information Act Action. . Document filed by Brennan Center For Justice At New York University School Of Law. (Roman, Neil) (Entered: 12/21/2017)
24 DECLARATION of Jaclyn E. Martinez Resly in Support re: 22 MOTION to Expedite Freedom of Information Act Action.. Document filed by Brennan Center For Justice At New York University School Of Law. (Attachments: # 1 Exhibit A − October 26, 2017 E−mail, # 2 Exhibit B − November 1, 2017 E−mail, # 3 Exhibit C − November 7, 2017 E−mail, # 4 Exhibit D − November 7, 2017 E−mail Reply, # 5 Exhibit E − November 10, 2017 E−mail, # 6 Exhibit F− November 15, 2017 E−mail, # 7 Exhibit G − November 17, 2017 E−mail, # 8 Exhibit H − November 21, 2017 E−mail, # 9 Exhibit I − November 22, 2017 E−mail, # 10 Exhibit J − November 29, 2017 E−mail, # 11 Exhibit K − Proposed Order)(Martinez Resly, Jaclyn) (Entered: 12/21/2017)
25 MEMORANDUM OF LAW in Opposition re: 22 MOTION to Expedite Freedom of Information Act Action. . Document filed by United States Department of State. (Connolly, Christopher) (Entered: 12/21/2017)
26 DECLARATION of Eric F. Stein in Opposition re: 22 MOTION to Expedite Freedom of Information Act Action.. Document filed by United States Department of State. (Attachments: # 1 Exhibit 1)(Connolly, Christopher) (Entered: 12/21/2017)
27 REPLY MEMORANDUM OF LAW in Support re: 22 MOTION to Expedite Freedom of Information Act Action. . Document filed by Brennan Center For Justice At New York University School Of Law. (Martinez Resly, Jaclyn) (Entered: 12/21/2017)
28 JOINT LETTER addressed to Judge Paul G. Gardephe from Neil K. Roman dated December 27, 2017 Document filed by Brennan Center For Justice At New York University School Of Law.(Roman, Neil) (Entered: 12/27/2017)
29 NOTICE OF APPEARANCE by Sirine Shebaya on behalf of Brennan Center For Justice At New York University School Of Law. (Shebaya, Sirine) (Entered: 12/29/2017)
Minute Entry for proceedings held before Judge Paul G. Gardephe: Telephone Conference held on 1/4/2018. (mr) (Entered: 01/08/2018)
30 MEMORANDUM OPINION & ORDER re: 22 MOTION to Expedite Freedom of Information Act Action filed by Brennan Center For Justice At New York University School Of Law. For the reasons stated above, Plaintiff's motion to expedite is granted. Defendant will produce all non−exempt materials and a declaration−consistent with Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)−explaining what exemptions apply to any materials withheld. Both the production of non−exempt materials and the Vaughn index will be produced by February 9, 2018. The Clerk of the Court is directed to terminate the motion (Dkt. No. 22). (Signed by Judge Paul G. Gardephe on 1/10/2018) (mro) (Entered: 01/10/2018)
31 LETTER addressed to Judge Paul G. Gardephe from AUSA Christopher Connolly dated February 23, 2018 re: government's request for leave to file motion for summary judgment. Document filed by United States Department of State. (Attachments: # 1 Exhibit)(Connolly, Christopher) (Entered: 02/23/2018)

02/28/2018 02/28/2018
03/15/2018 03/15/2018 03/15/2018 04/16/2018 04/16/2018 06/26/2018 06/29/2018 06/29/2018 07/05/2018 08/01/2018
08/01/2018
08/02/2018 08/02/2018

32 LETTER addressed to Judge Paul G. Gardephe from Jaclyn E. Martinez Resly dated February 28, 2018 re: Defendant's Request for Leave to Move for Summary Judgment. Document filed by Brennan Center For Justice At New York University School Of Law.(Martinez Resly, Jaclyn) (Entered: 02/28/2018)
33 ORDER. It is hereby ORDERED that the following schedule will apply to Plaintiff's motion to compel a Vaughn index: 1. Plaintiff's motion is due on March 08, 2018; 2. Defendant's opposition is due on March 15, 2018. So ordered. (Motions due by 3/8/2018. Responses due by 3/15/2018) (Signed by Judge Paul G. Gardephe on 2/28/2018) (rjm) (Entered: 03/01/2018)
34 MOTION to Compel United States Department of State to Comply with the Court's January 10, 2018 Order . Document filed by Brennan Center For Justice At New York University School Of Law.(Roman, Neil) (Entered: 03/15/2018)
35 MEMORANDUM OF LAW in Support re: 34 MOTION to Compel United States Department of State to Comply with the Court's January 10, 2018 Order . . Document filed by Brennan Center For Justice At New York University School Of Law. (Roman, Neil) (Entered: 03/15/2018)
36 MEMORANDUM OF LAW in Opposition re: 34 MOTION to Compel United States Department of State to Comply with the Court's January 10, 2018 Order . . Document filed by United States Department of State. (Connolly, Christopher) (Entered: 03/15/2018)
37 ORDER denying 34 Letter Motion to Compel. For the reasons stated above, Plaintiff's motion to compel is denied. The Clerk of the Court is directed to terminate the motion (Dkt. No. 34). (Signed by Judge Paul G. Gardephe on 4/16/2018) (mro) (Entered: 04/17/2018)
Set/Reset Deadlines: Cross Motions due by 6/28/2018. Responses due by 7/12/2018 Replies due by 7/22/2018. (mro) (Entered: 06/12/2018)
38 JOINT LETTER MOTION for Extension of Time to Complete Briefing on the Parties' Cross−Motions for Summary Judgment addressed to Judge Paul G. Gardephe from Neil K. Roman dated June 26, 2018. Document filed by Brennan Center For Justice At New York University School Of Law.(Roman, Neil) (Entered: 06/26/2018)
39 ORDER granting 38 Letter Motion for Extension of Time. The application is granted. (Signed by Judge Paul G. Gardephe on 6/29/2018) (tro) (Entered: 06/29/2018)
Set/Reset Deadlines as to Responses due by 7/23/2018 Replies due by 8/2/2018. (tro) (Entered: 06/29/2018)
40 NOTICE OF APPEARANCE by Ishita Kala on behalf of Brennan Center For Justice At New York University School Of Law. (Kala, Ishita) (Entered: 07/05/2018)
41 MOTION for Kevin Barnett to Appear Pro Hac Vice as Counsel for Plaintiff. Filing fee $ 200.00, receipt number 0208−15395145. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Brennan Center For Justice At New York University School Of Law. (Attachments: # 1 Exhibit A − DC Certificate of Good Standing, # 2 Exhibit B − MA Certificate of Good Standing, # 3 Exhibit C − Proposed Order, # 4 Exhibit D − Declaration of Kevin Barnett)(Barnett, Kevin) (Entered: 08/01/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 41 MOTION for Kevin Barnett to Appear Pro Hac Vice as Counsel for Plaintiff. Filing fee $ 200.00, receipt number 0208−15395145. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (ma) (Entered: 08/01/2018)
42 ORDER FOR ADMISSION PRO HAC VICE: granting 41 Motion for Kevin Barnett to Appear Pro Hac Vice. So Ordered. (Signed by Judge Paul G. Gardephe on 8/2/2018) (js) (Entered: 08/02/2018)
43 MOTION for Summary Judgment . Document filed by United States Department of State.(Connolly, Christopher) (Entered: 08/02/2018)

08/02/2018 08/02/2018 08/02/2018 08/02/2018 08/02/2018 08/02/2018 08/02/2018
08/02/2018 08/02/2018

44 MEMORANDUM OF LAW in Support re: 43 MOTION for Summary Judgment . . Document filed by United States Department of State. (Connolly, Christopher) (Entered: 08/02/2018)
45 DECLARATION of Eric F. Stein in Support re: 43 MOTION for Summary Judgment .. Document filed by United States Department of State. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Connolly, Christopher) (Entered: 08/02/2018)
46 DECLARATION of James V.M.L. Holzer in Support re: 43 MOTION for Summary Judgment .. Document filed by United States Department of State. (Connolly, Christopher) (Entered: 08/02/2018)
47 DECLARATION of David M. Hardy in Support re: 43 MOTION for Summary Judgment .. Document filed by United States Department of State. (Connolly, Christopher) (Entered: 08/02/2018)
48 CROSS MOTION for Partial Summary Judgment . Document filed by Brennan Center For Justice At New York University School Of Law.(Roman, Neil) (Entered: 08/02/2018)
49 MEMORANDUM OF LAW in Support re: 48 CROSS MOTION for Partial Summary Judgment . and in Opposition to Defendant's Motion for Summary Judgment. Document filed by Brennan Center For Justice At New York University School Of Law. (Roman, Neil) (Entered: 08/02/2018)
50 DECLARATION of Ishita Kala in Support re: 48 CROSS MOTION for Partial Summary Judgment .. Document filed by Brennan Center For Justice At New York University School Of Law. (Attachments: # 1 Appendix of Exhibits, # 2 Exhibit 01 Berman 2/9/18 Letter to Roman, # 3 Exhibit 02 Stein Decl Ex 2_A1b, # 4 Exhibit 03 NBC Donald Trump's Plan for a Muslim Database Draws Comparisons to Nazi Germany, # 5 Exhibit 04 2015.12.07 Donald J. Trump Statement on Preventing Muslim Immigration, # 6 Exhibit 05 2015.12.08 MSNBC − Donald Trump on Muslim Travel Ban, # 7 Exhibit 06 2016.03.09 CNN − Anderson Cooper 360 Degrees Transcript, # 8 Exhibit 07 2016.10.09 The American Presidency Project, Presidential Debate at Washington Univ. in St. Louis, # 9 Exhibit 08 Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017), # 10 Exhibit 09 2017.01.29 Giuliani − Trump asked me how to do a Muslim ban legally, # 11 Exhibit 10 2017.01.29 N.Y. Times − How Trumps Rush to Enact an Immigration Ban, # 12 Exhibit 11 NYT_Trump's Immigration Ban Who is Barred and Who is Not, # 13 Exhibit 12 Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017), # 14 Exhibit 13 DOD − Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States, # 15 Exhibit 14 Maintaining Enhanced Vetting Capabilities, # 16 Exhibit 15 Harsha Panduranga, et al., Extreme Vetting & the Muslim Ban, Brennan Ctr. for J. (2017), # 17 Exhibit 16 Transcript of Oral Argument at 3, Trump v. Hawaii, 138 S. Ct. 923 (2018) (No. 17−965), # 18 Exhibit 17 Fact Sheet − Proclamation on Enhancing Vetting Capabilities and Processes for Detecting (2017.09.24), # 19 Exhibit 18 Fact Sheet − President Donald J. Trump Strengthens Security Standards For Traveling to Am (2017.09.24), # 20 Exhibit 19 FAQ_ Proclamation on Enhancing Vetting Capabilities and Processes for Detect, # 21 Exhibit 20 2017.09.24 President Donald J. Trump Announces Enhanced National Security Measures Press, # 22 Exhibit 21 2017.09.26 State Dept News Briefing, # 23 Exhibit 22 Application (17A560) for Stay Pending App. to the U.S. Ct. App. 4th Cir. at 5, Trump v. IRAP, # 24 Exhibit 23 Oral Argument at 1.56.45, Intl Refugee Assistance Proj. v. Trump, 857 F.3d 554 (2017) (No. 17−1351), # 25 Exhibit 24 2017.07.12 Reuters − Elizabeth Culliford, Exlusive U.S. Demands Nations Provide More Traveler Data, # 26 Exhibit 25 2017.01.27 CBN News − Brody File Exclusive − President Trump Says Persecuted Christians Will Be Given, # 27 Exhibit 26 Donald Trump (@realDonaldTrump), Twitter (June 5, 2017, 3.29 a.m.), # 28 Exhibit 27 2017.03.15 CNN − Second Defeat for the White House on the Presidents Travel Ban, # 29 Exhibit 28 Br. for Pet., Trump v. Haw., No. 17−965 (Feb. 2018), # 30 Exhibit 29 Reply Brief for the Petitioners Trump v. Hawaii)(Roman, Neil) (Entered: 08/02/2018)
51 RULE 56.1 STATEMENT. Document filed by Brennan Center For Justice At New York University School Of Law. (Roman, Neil) (Entered: 08/02/2018)
52 MEMORANDUM OF LAW in Opposition re: 48 CROSS MOTION for Partial Summary Judgment . and in further support of the government's motion for summary

08/02/2018 08/02/2018 08/02/2018 08/02/2018 08/15/2018 08/15/2018 08/16/2018
08/16/2018 08/16/2018 08/17/2018
08/29/2018 08/29/2018 12/27/2018

judgment. Document filed by United States Department of State. (Connolly, Christopher) (Entered: 08/02/2018)
53 CERTIFICATE OF SERVICE of Plaintiff's Cross−Motion for Partial Summary Judgment and Opposition to Defendant's Motion for Summary Judgment served on Defendant on July 9, 2018. Document filed by Brennan Center For Justice At New York University School Of Law. (Roman, Neil) (Entered: 08/02/2018)
54 REPLY MEMORANDUM OF LAW in Support re: 48 CROSS MOTION for Partial Summary Judgment . . Document filed by Brennan Center For Justice At New York University School Of Law. (Roman, Neil) (Entered: 08/02/2018)
55 DECLARATION of Ishita Kala in Support re: 48 CROSS MOTION for Partial Summary Judgment .. Document filed by Brennan Center For Justice At New York University School Of Law. (Attachments: # 1 Exhibit 30 − Dep't of Justice, OIP Guidance)(Roman, Neil) (Entered: 08/02/2018)
56 CERTIFICATE OF SERVICE of Reply in Further Support of Plaintiff's Cross−Motion for Partial Summary Judgment served on Defendant on August 2, 2018. Document filed by Brennan Center For Justice At New York University School Of Law. (Roman, Neil) (Entered: 08/02/2018)
57 MOTION for Eric Jonathan Rothschild to Withdraw as Attorney . Document filed by Brennan Center For Justice At New York University School Of Law. (Attachments: # 1 Affidavit of Richard Katskee)(Katskee, Richard) (Entered: 08/15/2018)
58 PROPOSED ORDER FOR WITHDRAWAL OF ATTORNEY. Document filed by Brennan Center For Justice At New York University School Of Law. Related Document Number: 57 . (Katskee, Richard) (Entered: 08/15/2018)
59 ORDER GRANTING MOTION FOR LEAVE TO WITHDRAW AS COUNSEL 57 Motion to Withdraw as Attorney. The motion of Eric Rothschild for leave to withdraw as counsel for Plaintiff in the above−captioned action is before the Court. The Court orders that the motion is granted and that Eric Rothschild has withdrawn as counsel for Plaintiff, effective on today's date. Attorney Eric Jonathan Rothschild terminated (Signed by Judge Paul G. Gardephe on 8/15/2018) (cf) (Entered: 08/16/2018)
60 MOTION for Andrew Lieb Nellis to Withdraw as Attorney . Document filed by Brennan Center For Justice At New York University School Of Law. (Attachments: # 1 Affidavit of Andrew L. Nellis)(Nellis, Andrew) (Entered: 08/16/2018)
61 PROPOSED ORDER FOR WITHDRAWAL OF ATTORNEY. Document filed by Brennan Center For Justice At New York University School Of Law. Related Document Number: 60 . (Nellis, Andrew) (Entered: 08/16/2018)
62 ORDER GRANTING MOTION FOR LEAVE TO WITHDRAW AS COUNSEL 60 Motion to Withdraw as Attorney. The motion of Andrew L. Nellis for leave to withdraw as counsel for Plaintiff in the above−captioned action is before the Court. The Court orders that the motion is granted and that Andrew L. Nellis has withdrawn as counsel for Plaintiff, effective on today's date. Attorney Andrew Lieb Nellis terminated (Signed by Judge Paul G. Gardephe on 8/17/2018) (cf) (Entered: 08/17/2018)
63 NOTICE OF CHANGE OF ADDRESS by Sirine Shebaya on behalf of Brennan Center For Justice At New York University School Of Law. New Address: MUSLIM ADVOCATES, PO Box 34440, Washington, DC, USA 20043, (202) 897−2622. (Shebaya, Sirine) (Entered: 08/29/2018)
64 NOTICE OF CHANGE OF ADDRESS by Johnathan James Smith on behalf of Brennan Center For Justice At New York University School Of Law. New Address: Muslim Advocates, PO Box 34440, Washington, DC, USA 20043, (202) 897−2622. (Smith, Johnathan) (Entered: 08/29/2018)
65 STANDING ORDER M10−468: The United States Attorney's Office shall notify the Court immediately upon the restoration of Department of Justice funding. (As further set forth in this Order.) (Signed by Judge Colleen McMahon on 12/27/2018) (ne) (Entered: 01/07/2019)

12/27/2018 02/01/2019 02/01/2019 02/05/2019
02/26/2019 02/28/2019 03/29/2019
04/05/2019 04/05/2019 04/15/2019 08/17/2019 08/17/2019 08/20/2019

Case Stayed (ne) (Entered: 01/17/2019)
66 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Johnathan James Smith to Withdraw as Attorney . Document filed by Brennan Center For Justice At New York University School Of Law. (Attachments: # 1 Affidavit of Johnathan Smith)(Smith, Johnathan) Modified on 2/12/2019 (ldi). (Entered: 02/01/2019)
67 PROPOSED ORDER FOR WITHDRAWAL OF ATTORNEY. Document filed by Brennan Center For Justice At New York University School Of Law. Related Document Number: 66 . (Smith, Johnathan) (Entered: 02/01/2019)
68 ORDER GRANTING MOTION FOR LEAVE TO WITHDRAW AS COUNSEL granting 66 Motion to Withdraw as Attorney. The motion of Johnathan Smith for leave to withdraw as counsel for Plaintiff in the above−captioned action is before the Court. The Court orders that the motion is granted and thatJohnathan Smith has withdrawn as counsel for Plaintiff, effective on today's date. Attorney Johnathan James Smith terminated. (Signed by Judge Paul G. Gardephe on 2/5/2019) (jca) (Entered: 02/05/2019)
69 LETTER addressed to Judge Paul G. Gardephe from Jaclyn E. Martinez Resly dated February 26, 2019 re: Withdrawal of Appearance. Document filed by Brennan Center For Justice At New York University School Of Law.(Martinez Resly, Jaclyn) (Entered: 02/26/2019)
70 MEMO ENDORSEMENT on re: 69 Letter filed by Brennan Center For Justice At New York University School Of Law. ENDORSEMENT: SO ORDERED. (Attorney Jaclyn E. Martinez Resly terminated.) (Signed by Judge Paul G. Gardephe on 2/28/2019) (rro) (Entered: 03/01/2019)
71 ORDER denying without prejudice to renewal by formal motion 43 Motion for Summary Judgment; granting in part to the extent and denying without prejudice in part 48 Motion for Partial Summary Judgment. For the reasons stated above, Plaintiff's motion for partial summary judgment is granted to the extent it requests that the Court order in camera review of the requested records to determine the applicability of the presidential communication privilege. The remainder of Plaintiffs motion is denied without prejudice, pending this Court's in camera review. Defendant's motion for summary judgment is denied without prejudice to renewal of the motion following the Court's in camera review. Defendant will provide the Court with copies of the five documents at issue in this case by April 8, 2019. The Clerk of Court is directed to terminate the motions (Dkt. Nos. 43, 48). SO ORDERED. (Signed by Judge Paul G. Gardephe on 3/29/2019) (anc) (Entered: 04/01/2019)
72 LETTER MOTION for Extension of Time to submit records for in camera review addressed to Judge Paul G. Gardephe from AUSA Christopher Connolly dated April 5, 2019. Document filed by United States Department of State.(Connolly, Christopher) (Entered: 04/05/2019)
73 ORDER granting 72 Letter Motion for Extension of Time. The Application is granted. SO ORDERED. (Signed by Judge Paul G. Gardephe on 4/5/2019) (jca) (Entered: 04/05/2019)
74 LETTER addressed to Judge Paul G. Gardephe from AUSA Christopher Connolly dated April 15, 2019 re: lodging of records for ex parte, in camera review. Document filed by United States Department of State.(Connolly, Christopher) (Entered: 04/15/2019)
75 LETTER addressed to Judge Paul G. Gardephe from Sirine Shebaya dated August 17, 2019 re: Withdrawal of appearance. Document filed by Brennan Center For Justice At New York University School Of Law.(Shebaya, Sirine) (Entered: 08/17/2019)
76 AMENDED LETTER addressed to Judge Paul G. Gardephe from Sirine Shebaya dated August 17, 2019 re: Withdrawal of appearance. Document filed by Brennan Center For Justice At New York University School Of Law.(Shebaya, Sirine) (Entered: 08/17/2019)
77 MEMO ENDORSEMENT on re: 76 Letter Withdrawal of appearance, filed by Brennan Center For Justice At New York University School Of Law. ENDORSEMENT: So Ordered., (Attorney Sirine Shebaya terminated.) (Signed by

03/02/2020

Judge Paul G. Gardephe on 8/20/19) (yv) (Entered: 08/20/2019)
78 NOTICE OF CHANGE OF ADDRESS by Neil Kenneth Roman on behalf of Brennan Center For Justice At New York University School Of Law. New Address: Covington & Burling LLP, One CityCenter, 850 Tenth Street, NW, Washington, District of Columbia, 20001, 202−662−6000..(Roman, Neil) (Entered: 03/02/2020)

 
 Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 1 of 18

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

)

BRENNAN CENTER FOR JUSTICE,

)

120 Broadway, #1750

)

New York, NY 10271

)

)

THE PROTECT DEMOCRACY PROJECT,

)

INC., 2020 Pennsylvania Avenue, NW, #163

)

Washington, DC 20006,

)

)

Plaintiffs,

)

)

v.

)

)

U.S. DEPARTMENT OF JUSTICE

)

950 Pennsylvania Avenue, NW

)

Washington, DC 20530

)

)

U.S. DEPARTMENT OF HOMELAND

)

SECURITY, 245 Murray Lane, SW

)

Washington, DC 20528

)

)

OFFICE OF MANAGEMENT AND BUDGET, )

725 17th Street, NW

)

Washington, DC 20503

)

)

Defendants.

)

__________________________________________)

Civil Action No.:

COMPLAINT

Plaintiffs Brennan Center for Justice (“Brennan Center”) and The Protect Democracy

Project, Inc. (“Protect Democracy”) (collectively, “Plaintiffs”) bring this action under the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to compel defendants U.S. Department

of Justice (“DOJ”), U.S. Department of Homeland Security (“Homeland Security”), and U.S.

Office of Management and Budget (“OMB”) (collectively, “Defendants”) to disclose records

regarding the “Presidential Advisory Commission on Election Integrity” (the “Commission”)

requested by Plaintiffs under FOIA.

1

Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 2 of 18
JURISDICTION AND VENUE 1. The Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331. 2. Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B).
PARTIES 3. Plaintiff Brennan Center for Justice at N.Y.U. School of Law is a not-for-profit nonpartisan law and policy institute that seeks to improve the nation’s systems of democracy and justice. The Brennan Center works to eliminate barriers to full political participation and to ensure that public policy and institutions reflect all members of our diverse society. The Brennan Center regularly writes and publishes articles and makes appearances in a wide range of media outlets regarding voting rights, election administration, and government oversight. The Brennan Center maintains offices in New York City and in Washington, DC. 4. Plaintiff Protect Democracy is an organization awaiting section 501(c)(3) status, incorporated under the laws of the District of Columbia. Protect Democracy’s mission is to prevent those in power from depriving Americans of a free, fair, and fully-informed opportunity to exercise ultimate sovereignty. As part of this mission, Protect Democracy seeks to inform public understanding of operations and activities of the government by gathering and disseminating information that is likely to contribute significantly to the public understanding of executive branch operations and activities. Protect Democracy regularly requests such government information pursuant to FOIA. Protect Democracy has been held to be an organization that is “primarily engaged in disseminating information.”1
1 Protect Democracy Project, Inc. v. U.S. Dep't of Def., No. 17-CV-00842 (CRC), 2017 WL 2992076 (D.D.C. July 13, 2017).
2

Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 3 of 18
5. Defendant DOJ is an agency of the executive branch of the federal government of the United States and includes the Office of Information Policy and Office of Legal Counsel. DOJ is headquartered at 950 Pennsylvania Avenue, NW, Washington, DC 20530. DOJ is an “agency” within the meaning of 5 U.S.C. § 552(f), and has possession, custody, and control of documents that Plaintiffs seek in response to their FOIA requests.
6. Defendant Homeland Security is an agency of the executive branch of the federal government of the United States. Homeland Security is headquartered at 245 Murray Lane, SW, Washington, DC 20528. Homeland Security is an “agency” within the meaning of 5 U.S.C. § 552(f), and has possession, custody, and control of documents that Plaintiffs seek in response to their FOIA requests.
7. Defendant OMB is an agency of the executive branch of the federal government of the United States. OMB is headquartered at 725 17th Street, NW, Washington, DC 20503. OMB is an “agency” within the meaning of 5 U.S.C. § 552(f), and has possession, custody, and control of documents that Plaintiffs seek in response to their FOIA requests.
STATEMENT OF FACTS President Trump’s Advisory Commission on Election Integrity 8. On May 11, 2017, President Donald J. Trump issued Executive Order 13799 establishing a “Presidential Advisory Commission on Election Integrity,” ostensibly to “promote fair and honest Federal elections.” According to the Executive Order, the Commission is “study[ing] the registration and voting processes used in Federal elections.” The Executive Order provides that the Commission shall submit a report to the President that identifies “those laws, rules, policies, activities, strategies, and practices” that either “enhance” or “undermine” “the American people’s confidence in the integrity of the voting process used in Federal
3

Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 4 of 18
elections,” and “those vulnerabilities in voting systems and practices used for Federal elections that could lead to improper voter registration and improper voting, including fraudulent voter registrations and fraudulent voting.”
9. The Commission is chaired by the Vice President of the United States, and its vice chair is Kansas Secretary of State Kris Kobach.
10. Other members of the Commission include Hans von Spakovsky (Senior Legal Fellow, Heritage Foundation), J. Christian Adams (President and General Counsel, Public Interest Legal Foundation), and Ken Blackwell (Former Ohio Secretary of State). These commissioners have long records of championing measures that impede eligible voters from participating in elections. For example, von Spakovsky helped lead an effort in 2005 to pass a law in Georgia which required people to present government-issued photo identification to vote as well as efforts to promote aggressive purges of state voter rolls in and around 2008. He is seen as one of the leading figures in the country in promoting policies to reduce access to voting by claiming widespread voter fraud.2 Similarly, Adams has a history of promoting voting restrictions. He serves as the president and general counsel of the Public Interest Legal Foundation, which works to promote aggressive purges of voter rolls and promotes the idea that non-citizens vote in large numbers.3 And Blackwell has implemented policies that restricted voting access in Ohio in 2004 and 2006, including a policy of rejecting voter registration forms
2 Alex Horton & Gregory S. Schneider, Trump’s Pick to Investigate Voter Fraud is Freaking Out Voting Rights Activists, WASHINGTON POST, June 30, 2017, available at https://www.washingtonpost.com/news/post-nation/wp/2017/06/30/trumps-pick-to-investigate-voterfraud-is-freaking-out-voting-rights-activists/?utm_term=.d5e907e50cfd 3 Meet the Members of Trump’s ‘Voter Fraud’ Commission, Brennan Center for Justice, July 18, 2017, https://www.brennancenter.org/analysis/meet-members
4

Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 5 of 18
that were not submitted on a certain grade of card stock, and a policy of limiting access to provisional ballots in violation of federal law.4
11. In public statements leading up to the creation of the Commission, President Trump has suggested that the Commission’s purpose would be to substantiate the President’s conviction, not founded in any credible evidence, that voter fraud is rampant in U.S. elections. On November 27, 2016, for instance, President Trump tweeted that “[i]n addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally.”5 On January 23, 2017, President Trump told congressional leaders that 3 to 5 million “illegals” had voted in the 2017 federal election.6 Subsequently, on January 25, 2017, President Trump tweeted that he would be “asking for a major investigation into VOTER FRAUD.”7
12. On information and belief, the Commission was also created to justify legislative changes to impose new barriers to exercising the franchise. In recently disclosed emails between Kobach and the Trump transition team on November 9 and 10, 2016, Kobach indicated he was working with other advisors on “legislation drafts for submission to Congress early in the administration,” and that he had already started drafting “amendments to the NVRA [National
4 Id. 5 Cleve R. Wootson Jr., Donald Trump: ‘I Won the Popular Vote if You Deduct the Millions of People Who Voted Illegally, WASHINGTON POST, Nov. 27, 2017, available at https://www.washingtonpost.com/news/the-fix/wp/2016/11/27/donald-trump-i-won-the-popular-vote-ifyou-deduct-the-millions-of-people-who-voted-illegally/?utm_term=.eed362335b3e. 6 Abby Phillip & Mike DeBonis, Without Evidence, Trump Tells Lawmakers 3 Million to 5 Million Illegal Ballots Cost Him the Popular Vote, WASHINGTON POST, Jan. 23, 2017, available at https://www.washingtonpost.com/news/post-politics/wp/2017/01/23/at-white-house-trump-tellscongressional-leaders-3-5-million-illegal-ballots-cost-him-the-popular-vote/?utm_term=.50b6369f474a. 7 Curt Mills, Trump Calls for Voter Fraud Investigation, US NEWS, Jan. 25, 2017, available at https://www.usnews.com/news/politics/articles/2017-01-25/donald-trump-tweets-call-for-majorinvestigation-into-voter-fraud.
5

Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 6 of 18
Voter Registration Act of 1993] to make clear that proof of citizenship requirements are permitted.”8
13. On June 28, 2017, Kobach sent letters to chief state election officials requesting that they submit “publicly-available voter roll data” and feedback on how to improve election integrity by July 14, 2017. The requested voter roll data included:
a. the full first and last names of all registrants, middle names or initials if available, b. addresses, c. dates of birth, d. political party (if recorded), e. last four digits of social security number if available, f. voter history (elections voted in) from 2006 onward, g. active/inactive status, cancelled status, h. information regarding any felony convictions, i. information regarding voter registration in another state, j. information regarding military status, and k. overseas citizen information. Kobach also asked state election officials to provide, among other things, recommendations regarding changes to federal election laws that would enhance the integrity of federal elections, information regarding instances of voter fraud or registration fraud, and information regarding convictions for election-related crimes since the November 2000 federal election.
8 Christopher Ingraham, Vice Chair of Trump’s Voter Fraud Commission Wants to Change Federal Law to Add New Requirements for Voting, Email Shows, WASHINGTON POST, July 17, 2017, available at https://www.washingtonpost.com/news/wonk/wp/2017/07/17/vice-chair-of-trumps-voter-fraudcommission-wants-to-change-federal-law-to-make-it-harder-to-vote-emailshows/?utm_term=.77d87d87f27d.
6

Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 7 of 18
14. In his June 28, 2017 letter requests, Kobach stated that “any documents that are submitted to the full Commission will also be made available to the public,” although Kobach has since represented that this statement applies only to “narrative responses” submitted by states to the Commission and that voter roll data will be de-identified prior to any public release of documents.
15. A first meeting of the Commission was held on July 19, 2017. President Trump attended and spoke at that meeting. During his statements, Trump stressed that “voter fraud,” including “[a]ny form of illegal or fraudulent voting, whether by non-citizens or the deceased,” was something that his administration “can’t let . . . happen.” He also suggested that states that are unwilling to share the voter roll information requested by Kobach are “worried about” having “something” to hide.9
16. On July 26, 2017, Kobach sent letters to chief state election officials renewing his request for voter roll data and feedback on the federal election process.
17. The Commission’s next meeting is scheduled for September 2017. 18. The Commission’s actions have already had a chilling effect on voter registration. For example, nearly 4,000 people in Colorado canceled their voter registrations after Kobach issued his requests for state voter roll data.10 Similarly, over 1,715 Florida voters cancelled their voter registrations in the twenty-day period after Kobach requested state voter roll data, a 117
9 Pam Fessler & Brett Nelly, Talk of Voter Fraud Dominates First Meeting of Election Integrity Commission, NPR, July 18, 2017, available at http://www.npr.org/2017/07/19/538152713/talk-of-voterfraud-dominates-first-meeting-of-election-integrity-commission. 10 Aidan Quigley, Trump Voter Fraud Probe Sparks Wave of Canceled Registrations in Colorado, NEWSWEEK, July 17, 2017, available at http://www.newsweek.com/thousands-colorado-democrats-andindependents-cancel-voter-registration-after-637996.
7

Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 8 of 18
percent increase in cancellations over the same period in the prior year.11 Multiple election officials have said that the volume of registration cancellations in response to Kobach’s requests is unprecedented. Far from demonstrating evidence of voter fraud, on information and belief such cancellations suggest that many eligible voters are deeply concerned that their personal information may be shared or disclosed publicly by the Commission.
19. The Commission’s actions have also raised questions about its ability to adequately protect the privacy of voters. For example, on July 14, 2017, the Commission published to the general public comments and feedback it had received at a Commission email address without redacting commenters’ names or, in many instances, other personal information, including email addresses.12 This unanticipated, wide release of personal information demonstrates the need for the public to have more information about the Commission’s methods for collecting, protecting, and disclosing voter roll data and other information about the federal election process.
20. Neither the President nor any executive branch official has publicly released any legal analysis, memorandum, or other written record of how the Commission will identify practices that enhance or undermine confidence in federal elections or investigate vulnerabilities in voting systems used for federal elections.
21. In order for Congress and state and local elected officials to exercise their roles as representatives of the people, the people must be able to provide their representatives with their
11 Asa Royal, Florida Voters Cancel Their Own Registration. Is Trump’s Fraud Commission the Cause?, TAMPA BAY TIMES, Aug. 15, 2017, available at http://www.tampabay.com/news/florida-voters-canceltheir-own-registration-is-trumps-fraud-commission/2332036. 12 Scott Neuman, Vote Fraud Commission Releases Public Comments, Email Addresses and All, NPR, July 14, 2017, available at http://www.npr.org/sections/thetwo-way/2017/07/14/537282309/vote-fraudcommission-releases-public-comments-email-addresses-and-all.
8

Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 9 of 18
views. The public cannot do this in an informed way about an issue as critically important as their right to vote in the absence of information from Defendant agencies about the Commission.
22. The Commission and the issue of voter fraud have been the focus of widespread and extensive public interest and media coverage, reflecting the public’s urgent concern about election integrity, data privacy, and whether the Commission is pursuing an illegitimate or predetermined agenda for purposes of voter suppression.
23. Because the Commission is proceeding with its effort to collect state voter roll data, and because other actions by the Commission that may lead to increased voter disenfranchisement or voter suppression may also be imminent, it is imperative that the public be informed immediately of the Commission’s intentions and processes in order for the public to formulate and communicate their views to state officials, Congress, and President Trump’s Commission.
24. Plaintiffs intend to share any documents transmitted via FOIA with the public (subject to any and all appropriate redactions of personal information), and to provide information and analysis about those documents as appropriate.
Plaintiffs’ FOIA Requests and Defendants’ Responses DOJ Office of Information Policy and Office of Legal Counsel 25. On May 15, 2017, Plaintiffs sent a FOIA request to Defendant DOJ, and specifically to the Office of Information Policy and Office of Legal Counsel. 26. On information and belief, Defendant DOJ – and the Office of Information Policy and Office of Legal Counsel, specifically – has documents related to the Commission, including documents related to the reasons for forming the Commission, the goals and missions of the Commission, and the Commission’s intended activities. This belief is based upon statements
9

Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 10 of 18
made by Kobach indicating that he would seek “information” from DOJ regarding issues related
to voter fraud,13 statements given at the Commission’s first meeting stating that it intends to
“find out from the U.S. attorneys’ offices all across the country whether they are complying
with” the National Voter Registration Act and to seek information regarding whether US
attorneys’ office are sharing data with states regarding convictions that might disqualify
individuals from voting, and statements from senior White House officials indicating that DOJ
would be “looking [] very seriously and very hard” at issues of voter fraud.14
27. Plaintiffs’ May 15, 2017 FOIA request to DOJ sought the following records:
1. All communications, including but not limited to emails and memoranda, between any Department of Justice (“DOJ” or “Department”) officer, employee, or agent, or any White House liaison to the Department, and any other person, including but not limited to any officer, employee, or agent of the White House or DOJ, or any member of the presidential transition team or the presidential campaign of Donald Trump, regarding the Presidential Advisory Commission on Election Integrity or any other effort since November 8, 2016 to establish a commission, task force, or committee to study voter fraud or any aspect of the voting system.
2. All communications, including but not limited to emails and memoranda, between any Department officer, employee, or agent, or any White House liaison to the Department, and any member of the Presidential Advisory Commission on Election Integrity, other than Vice President Michael Pence, since November 8, 2016.
3. All documents relating to the Presidential Advisory Commission on Election Integrity or any other effort since November 8, 2016 to establish a commission, task force, or committee to study voter fraud or any aspect of the voting system, including all documents discussing or making reference to the following subjects:
13 Dave Boyer, Voter Fraud and Suppression Commission to Meet in July, WASHINGTON TIMES, June 27, 2017, available at http://www.washingtontimes.com/news/2017/jun/27/voter-fraud-and-suppressioncommission. 14 Glenn Kessler, Stephen Miller’s Bushels of Pinocchios for False Voter-Fraud Claims, WASHINGTON POST, Feb. 12, 2017, available at https://www.washingtonpost.com/news/factchecker/wp/2017/02/12/stephen-millers-bushels-of-pinocchios-for-false-voter-fraudclaims/?utm_term=.1e53ead71b5e.
10

Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 11 of 18
a) The Executive Order creating the Presidential Advisory Commission on Election Integrity;
b) The reasons for forming the Presidential Advisory Commission on Election Integrity;
c) The goals and mission of the Presidential Advisory Commission on Election Integrity; and
d) The membership of the Presidential Advisory Commission on Election Integrity, including the criteria for selection of its members.
28. Plaintiffs also requested expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E) and 28 C.F.R. § 16.5(e).
29. Plaintiffs also requested fee waivers pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II), 5 U.S.C. § 552(a)(4)(A)(iii), and 28 C.F.R. § 16.10(k).
30. On May 24, 2017, the DOJ Office of Information Policy acknowledged receipt of the request on May 15, 2017, and assigned it four case reference numbers (DOJ-2017-004083, -004291, -004292, -004293). The Office of Information Policy did not respond to the request for expedited processing or for a fee waiver.
31. On June 8, 2017, the DOJ Office of Legal Counsel acknowledged receipt of the request on May 15, 2017, and assigned it a case reference number (FY17-218). The DOJ Office of Legal Counsel granted the request for expedited processing, but indicated that it had not yet initiated process and stated that, because of the considerable number of FOIA requests received, it was “likely that we will be unable to respond to the request within the twenty-day statutory deadline.” The DOJ Office of Legal Counsel further stated that it would make a decision on the request for a fee waiver after determining whether fees would be assessed for the request.
32. Pursuant to FOIA, within 20 business days of receipt of the requests – that is, by June 13, 2017, at the latest – Defendant DOJ was required to “determine . . . whether to comply
11

Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 12 of 18
with such request” and to “immediately notify” Plaintiffs of “such determination and the reasons therefor,” Plaintiffs’ right “to seek assistance from the FOIA Public Liaison of the agency,” and, in the case of an adverse determination, Plaintiffs’ appeal rights. 5 U.S.C. § 552(a)(6)(A)(i) & (B)(i).
33. To date, Defendant DOJ has failed to make the required determination and notifications.
DHS 34. On May 17, 2017, Plaintiffs sent a FOIA request to Defendant DHS. 35. On information and belief, Defendant DHS has documents related to the Commission, including documents related to the reasons for forming the Commission, the goals and missions of the Commission, and the Commission’s intended activities. This belief is based upon statements made by Kobach indicating his belief that DHS has “data” regarding issues related to voter fraud,15 representations from both Kobach and a spokesman for Vice President Pence that the Commission intends to “check” the voter roll information it has requested “against the federal government’s database of non-citizens” (i.e. against information maintained by DHS),16 and statements from members at the Commission’s first meeting that the Commission intends to collect “helpful” data already in the possession of the federal government, including from DHS databases. Prior to the Commission’s creation, Kobach also stated that it would have
15 Dave Boyer, Voter Fraud and Suppression Commission to Meet in July, WASHINGTON TIMES, June 27, 2017, available at http://www.washingtontimes.com/news/2017/jun/27/voter-fraud-and-suppressioncommission-to-meet-in-/. 16 Jessica Huseman, Election Experts See Flaws in Trump Voter Commission’s Plan to Smoke out Fraud. PROPUBLICA, July 6, 2017, available at https://www.propublica.org/article/election-experts-see-flawstrump-voter-commissions-plan-to-smoke-out-fraud.
12

Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 13 of 18
a “full-time staff” from DHS,17 and was photographed holding documents emblazoned with the
title “Department of Homeland Security.”18
36. Plaintiffs’ May 17, 2017 FOIA request to DHS sought the following records:
1. All communications, including but not limited to emails and memoranda, between any Department of Homeland Security (“DHS” or “Department”) officer, employee, or agent, or any White House liaison to DHS, and any other person, including but not limited to any officer, employee, or agent of the White House or DHS, or any member of the presidential transition team or the presidential campaign of Donald Trump, regarding the Presidential Advisory Commission on Election Integrity or any other effort since November 8, 2016 to establish a commission, task force, or committee to study voter fraud or any aspect of the voting system.
2. All communications, including but not limited to emails and memoranda, between any DHS officer, employee, or agent, or any White House liaison to DHS, and any member of the Presidential Advisory Commission on Election Integrity, other than Vice President Michael Pence, since November 8, 2016.
3. All documents relating to the Presidential Advisory Commission on Election Integrity or any other effort since November 8, 2016 to establish a commission, task force, or committee to study voter fraud or any aspect of the voting system, including all documents discussing or making reference to the following subjects:
a) The Executive Order creating the Presidential Advisory Commission on Election Integrity;
b) The reasons for forming the Presidential Advisory Commission on Election Integrity;
c) The goals and mission of the Presidential Advisory Commission on Election Integrity;
17 Katy Ergen & Bryan Lowry, Kobach Says he Turned Down White House Job, KANSAS CITY STAR, June 8, 2017, available at http://www.kansascity.com/news/politics-government/article155170989.html. 18 Caroline Kenny, Photo of Trump-Kobach Meeting Reveals Apparent DHS Proposal, CNN, Nov. 21, 2016, available at http://www.cnn.com/2016/11/21/politics/kris-kobach-donald-trump-department-ofhomeland-security/index.html.
13

Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 14 of 18
d) The membership of the Presidential Advisory Commission on Election Integrity, including the criteria for selection of its members; and
e) The staffing of the Presidential Advisory Commission on Election Integrity, including job descriptions, organization charts, and criteria for hiring.
37. Plaintiffs also requested expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E) and 28 C.F.R. § 16.5(e).
38. Plaintiffs also requested fee waivers pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II), 5 U.S.C. § 552(a)(4)(A)(iii), and 28 C.F.R. § 16.10(k).
39. On May 19, 2017, Defendant DHS acknowledged receipt of the request on May 17, 2017, and assigned it a case reference number (2017-HQFO-00794). In its letter, DHS granted Plaintiffs’ request for expedited processing and fee waiver, but also indicated that it had not yet initiated processing and claimed unusual circumstances – that the request “seeks documents that will require a thorough and wide-ranging search” – such that it would need an additional 10 days to make a determination.
40. Pursuant to FOIA, within 30 business days of receipt of Plaintiffs’ request – that is, by June 28, 2017 – DHS was required to “determine . . . whether to comply with such request” and to “immediately notify” Plaintiffs of “such determination and the reasons therefor,” Plaintiffs’ right “to seek assistance from the FOIA Public Liaison of the agency,” and, in the case of an adverse determination, Plaintiffs’ appeal rights. 5 U.S.C. § 552(a)(6)(A)(i) & (B)(i).
41. To date, Defendant DHS has failed to make the required determination and notifications.
OMB 42. On May 17, 2017, Plaintiffs sent a FOIA request to Defendant OMB.
14

Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 15 of 18
43. On information and belief, Defendant OMB has documents related to the
Commission, including documents related to the reasons for forming the Commission, the goals
and missions of the Commission, and the Commission’s intended activities. Among other
things, agencies are statutorily required to request approval from OMB’s Office of Information
and Regulatory Affairs regarding information collection requests, like that issued from the
Commission to the state election officials. The OMB is also generally responsible for assisting
the President in overseeing the “implementation of his vision across the Executive Branch,”19
which, upon information and belief, would include providing assistance to or coordinating with
the Commission.
44. Plaintiffs’ May 17, 2017 FOIA request to OMB sought the following records:
1. All communications, including but not limited to emails and memoranda, within the custody or control of OMB regarding the Presidential Advisory Commission on Election Integrity or any other effort since November 8, 2016 to establish a commission, task force, or committee to study voter fraud or any aspect of the voting system.
2. All communications, including but not limited to emails and memoranda, within the custody or control of OMB with any member of the Presidential Advisory Commission on Election Integrity, other than Vice President Michael Pence, since November 8, 2016.
3. All documents relating to the Presidential Advisory Commission on Election Integrity or any other effort since November 8, 2016 to establish a commission, task force, or committee to study voter fraud or any aspect of the voting system, including all documents discussing or making reference to the following subjects:
a) The Executive Order creating the Presidential Advisory Commission on Election Integrity;
b) The reasons for forming the Presidential Advisory Commission on Election Integrity;
c) The goals and mission of the Presidential Advisory Commission on Election Integrity;
19 The White House, Office of Management and Budget, https://www.whitehouse.gov/omb (last visited Aug. 15, 2017).
15

Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 16 of 18
d) The membership of the Presidential Advisory Commission on Election Integrity, including the criteria for selection of its members;
e) The budget of the Presidential Advisory Commission on Election Integrity, including line items for salaries, research, travel, meetings, hearings, and public materials; and
f) The staffing of the Presidential Advisory Commission on Election Integrity, including job descriptions, organization charts, and criteria for hiring.
45. Plaintiffs also requested expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E) and 28 C.F.R. § 16.5(e).
46. Plaintiffs also requested fee waivers pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II), 5 U.S.C. § 552(a)(4)(A)(iii), and 28 C.F.R. § 16.10(k).
47. On May 18, 2017, Defendant OMB acknowledged receipt of the request on May 18, 2017, and assigned it a case reference number (2017-231). OMB did not respond to the request for expedited processing or for a fee waiver.
48. Pursuant to FOIA, within 20 business days of receipt of Plaintiffs’ request – that is, June 16, 2017 – OMB was required to “determine . . . whether to comply with such request” and to “immediately notify” Plaintiffs of “such determination and the reasons therefor,” Plaintiffs’ right “to seek assistance from the FOIA Public Liaison of the agency,” and, in the case of an adverse determination, Plaintiffs’ appeal rights. 5 U.S.C. § 552(a)(6)(A)(i).
49. To date, Defendant OMB has failed to make the required determination and notifications.
COUNT I 50. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 49 as if fully set forth herein.
16

Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 17 of 18
51. Defendants are in violation of FOIA by failing to respond to Plaintiffs’ requests within the statutorily prescribed time limit and by unlawfully withholding records responsive to Plaintiffs’ requests.
COUNT II 52. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 51 as if fully set forth herein. 53. Defendants DOJ and OMB are in violation of FOIA by failing to grant expedited processing to Plaintiff under 5 U.S.C. § 552(a)(6)(E).
REQUESTED RELIEF WHEREFORE, Plaintiffs respectfully request that the Court: (1) Order Defendants, by a date certain, to conduct a search that is reasonably likely
to lead to the discovery of any and all records responsive to Plaintiffs’ requests; (2) Order Defendants, by a date certain, to disclose all non-exempt records responsive
to Plaintiffs’ FOIA requests, as a well as a Vaughn index of any records or portions of records withheld due to a claim of exemption; (3) Order Defendants to grant Plaintiffs’ requests for a fee waiver; (4) Order Defendants DOJ and OMB to grant Plaintiffs’ request for expedited processing of its request; (5) Award Plaintiffs its costs and reasonable attorney fees incurred in this action; and (6) Grant such other relief as the Court may deem just and proper.
17

Case 1:17-cv-06335 Document 1 Filed 08/21/17 Page 18 of 18

Date: August 21,2017

Respectfully submitted,
Jeremy M. 4r€elan David W. Sussman Emily S. Deininger Justin O. Spiegel Derek Stegelmeier Carl N. Wedoff JENNER & BLOCK LLP 919 Third Avenue New York, NY 10022 Phone: (212) 891-1600 j creelan@j enner.com dsussman@j enner. com edeininger@j ermer.com jspiegel@jermer.com dstegelmeier@j enner. com cwedoff@j enner. com
Laurence Schwartztol THE PROTECT DEMOCRACY PROJECT, INC. 2020 Pennsylvania Ave., NW #163 Washington, DC 20006 Phone: (202) 599-0466 larry.schwartztol@protectdemocracy.org
Wendy R. Weiser BRENNAN CENTER FOR JUSTICE
at New York University School of Law 161 Avenue of the Americas New York, New York 10013 Phone: (646) 292-8335 weiserw@brerman.law.nyu.edu
Counselfor Plaintiffs

18

 
 Case 1:17-cv-07520-PGG Document 23 Filed 12/21/17 Page 1 of 14





,17+(81,7('67$7(6',675,&7&2857

)257+(6287+(51',675,&72)1(:<25.





%5(11$1&(17(5)25-867,&(



$71(:<25.81,9(56,7<



6&+22/2)/$:







3ODLQWLII

&DVH1R&LY3**



YV





81,7('67$7(6'(3$570(172)



67$7(

'HIHQGDQW
 0(025$1'802)/$:,168332572)3/$,17,))¶6027,2172(;3(',7(
)5(('202),1)250$7,21$&7³)2,$´$&7,21

  1HLO.5RPDQ &29,1*721 %85/,1*//3 7KH1HZ<RUN7LPHV%XLOGLQJ (LJKWK$YHQXH 1HZ<RUN1<  QURPDQ#FRYFRP  0DUN+/\QFKL -DFO\Q(0DUWtQH]5HVO\L &29,1*721 %85/,1*//3 2QH&LW\&HQWHU 7HQWK6W1: :DVKLQJWRQ'&  PO\QFK#FRYFRP MPDUWLQH]UHVO\#FRYFRP  L$GPLWWHGpro hac vice LL$GPLVVLRQSHQGLQJ $GPLWWHGLQ1HZ<RUN6XSHUYLVHGE\5LFKDUG %.DWVNHHDPHPEHURIWKH'&%DU

-RKQDWKDQ6PLWK 6LULQH6KHED\DLL 086/,0$'92&$7(6 32%R[ :DVKLQJWRQ'&  MRKQDWKDQ#PXVOLPDGYRFDWHVRUJ VLULQH#PXVOLPDGYRFDWHVRUJ  5LFKDUG%.DWVNHHL (ULF5RWKVFKLOGL $QGUHZ/1HOOLVL $0(5,&$1681,7(')256(3$5$7,21 2)&+85&+$1'67$7( /6W1:6XLWH :DVKLQJWRQ'&  NDWVNHH#DXRUJ URWKVFKLOG#DXRUJ QHOOLV#DXRUJ 

Attorneys for Plaintiff Brennan Center for Justice at New York University School of Law 
 

Case 1:17-cv-07520-PGG Document 23 Filed 12/21/17 Page 2 of 14





7$%/(2)&217(176

3DJH

%$&.*5281'

$5*80(17

, )2,$$FWLRQV$UH(VSHFLDOO\$SSURSULDWHIRU([SHGLWLRQ

,, ([SHGLWLRQLV:DUUDQWHG+HUH

&21&/86,21











 

Case 1:17-cv-07520-PGG Document 23 Filed 12/21/17 Page 3 of 14
7$%/(2)$87+25,7,(6
 3DJHV
&DVHV
Am. Civil Liberties Union v. Dep’t of Defense )6XSSG6'1<
Elec. Privacy Info. Ctr. v. Dep’t of Justice )6XSSG''&
Ettlinger v. FBI )6XSS'0DVV
Ferguson v. FBI )6XSS6'1<
Ferguson v. FBI )6XSS6'1<
Fox News Network, LLC v. U.S. Dep’t of the Treasury )6XSSG6'1<
Freedom Commc’ns Inc. v. FDIC )5'&'&DO
Int’l Refugee Assistance Proj. v. Trump (“IRAP II”) )GWK&LUHQEDQFvacated as moot sub nom. Trump v. Int’l Refugee Assistance Proj. (“IRAP III”)²6&W²:/ 2FW
Int’l Refugee Assistance Proj. v. Trump (“IRAP IV”) ²)6XSSG²:/'0G2FWappeal docketed1RWK&LU2FW
Knight Publishing Co. v. U.S. Dep’t of Justice )6XSS:'1&
Nat. Res. Def. Council v. Dep’t of Energy )6XSSG''&
Ontario Forest Indus. Assoc v. United States &,7&W,QW¶O7UDGH
Providence Journal Co. v. U.S. Dep’t of the Army )6XSS'5,
LL 

Case 1:17-cv-07520-PGG Document 23 Filed 12/21/17 Page 4 of 14 Trump v. Int’l Refugee Assistance Proj. (“IRAP III”)²6&W²:/
2FW Washington v. Trump
:/:':DVK)HE 6WDWXWHV 86&passim 86&D 2WKHU$XWKRULWLHV &)5I )HG5HJ-DQ )HG5HJ0DU +55HS1RWK&RQJG6HVV
LLL 

Case 1:17-cv-07520-PGG Document 23 Filed 12/21/17 Page 5 of 14





%$&.*5281' 3ODLQWLIIEULQJVWKLVPRWLRQWRH[SHGLWHEHFDXVH'HIHQGDQWKDVIDLOHGWLPHO\WRSURGXFH GRFXPHQWVUHOHYDQWWRWKH3UHVLGHQW¶V0XVOLP7UDYHO%DQVQRWZLWKVWDQGLQJWKHUHTXLUHPHQWVRI WKH)UHHGRPRI,QIRUPDWLRQ$FW³)2,$´3ODLQWLIIVHHNVSURGXFWLRQZLWKLQGD\VRIWKLV &RXUW¶V2UGHUDQGDQH[SODQDWLRQDVWRZK\DQ\PDWHULDOZDVZLWKKHOGDZHHNDIWHUWKDW $VWKH&RXUWLVOLNHO\DZDUHWKH7UXPSDGPLQLVWUDWLRQKDVLVVXHGWKUHHEURDGEDQVRQ WUDYHOWRWKH8QLWHG6WDWHVE\QDWLRQDOVRIIRUHLJQFRXQWULHVWKH³0XVOLP7UDYHO%DQV´See  )HG5HJ-DQILUVW0XVOLP7UDYHO%DQ±³(2´)HG5HJ0DU VHFRQG0XVOLP7UDYHO%DQ±³(2´3URFODPDWLRQ1R'NWWKLUG0XVOLP 7UDYHO%DQ±WKH³3URFODPDWLRQ´(DFKEDQKDVIRFXVHGRQQDWLRQVZLWKSUHGRPLQDQWO\0XVOLP SRSXODWLRQVDQGUHOLHGRQYDJXHDVVHUWLRQVRIQDWLRQDOVHFXULW\FRQFHUQVLQDQDWWHPSWWRLQVXODWH LWIURPWKH3UHVLGHQW¶VUHFRUGRIUHOLJLRXVDQLPXVDQGSURPLVHVWREDQ0XVOLPVSee (2(2 3URFODPDWLRQsee also, e.g. Donald J. Trump Statement on Preventing Muslim Immigration 'RQDOG-7UXPSIRU3UHVLGHQW,QF'HFFDOOLQJIRU³WRWDODQGFRPSOHWHVKXWGRZQRQ 0XVOLPVHQWHULQJWKH8QLWHG6WDWHV´Transcript: Donald Trump’s National Security Speech 3ROLWLFR-XQ30³:HFDQQRWFRQWLQXHWRDOORZWKRXVDQGVXSRQWKRXVDQGVRI >0XVOLP@SHRSOHWRSRXULQWRRXUFRXQWU\PDQ\RIZKRPKDYHWKHVDPHWKRXJKWSURFHVVDVWK>H@ VDYDJH>6DQ%HUQDUGLQR@NLOOHU´ &RXUWVWKDWKDYHFRQVLGHUHGWKHOHJDOLW\RIWKHVH0XVOLP7UDYHO%DQVKDYHKHOGWKHPWR EHSUHVXPSWLYHO\XQODZIXODQGHDFKEDQKDVEHHQHQMRLQHGSHQGLQJUHVROXWLRQRQWKHPHULWVRI

 KWWSVZHEDUFKLYHRUJZHEZZZGRQDOGMWUXPSFRPSUHVVUHOHDVHVGRQDOG MWUXPSVWDWHPHQWRQSUHYHQWLQJPXVOLPLPPLJUDWLRQ KWWSZZZSROLWLFRFRPVWRU\WUDQVFULSWGRQDOGWUXPSQDWLRQDOVHFXULW\VSHHFK 

 

Case 1:17-cv-07520-PGG Document 23 Filed 12/21/17 Page 6 of 14
WKHOHJDOFKDOOHQJHVWRLWSee, e.g.Int’l Refugee Assistance Proj. v. Trump (“IRAP IV”)²) 6XSSG²:/'0G2FW3URFODPDWLRQappeal docketed1R WK&LU2FWInt’l Refugee Assistance Proj. v. Trump (“IRAP II”))G WK&LUHQEDQF(2vacated as moot sub nom. Trump v. Int’l Refugee Assistance Proj. (“IRAP III”)²6&W²:/2FWWashington v. Trump :/:':DVK)HE(2,QVRGHFLGLQJFRXUWVKDYHUHOLHGRQWKH REYLRXVGLVFRQQHFWEHWZHHQWKHUHDVRQVSURIIHUHGIRUWKHEDQVDQGWKHWUXHPRWLYDWLRQV DSSHDULQJWRXQGHUOLHWKHPSee, e.g.IRAP II)GDW³>7@KH*RYHUQPHQW¶VDVVHUWHG QDWLRQDOVHFXULW\LQWHUHVWDSSHDUVWREHDSRVWKRFVHFRQGDU\MXVWLILFDWLRQIRUDQH[HFXWLYH DFWLRQURRWHGLQUHOLJLRXVDQLPXVDQGLQWHQGHGWREDU0XVOLPVIURPWKLVFRXQWU\´
7KHDGPLQLVWUDWLRQ¶VODWHVWLWHUDWLRQRIWKH0XVOLP7UDYHO%DQVFRPHVIURPWKHVDPH SOD\ERRN,WSXUSRUWVWRUHO\RQDPRQJRWKHUWKLQJVWKHUHVXOWVRID³ZRUOGZLGHUHYLHZ´RI LQIRUPDWLRQVKDULQJSUDFWLFHVSROLFLHVDQGFDSDELOLWLHVRIIRUHLJQFRXQWULHVZKLFKZDVRUGHUHG E\WKH3UHVLGHQW¶V6HFRQG0XVOLP7UDYHO%DQSee 3URFODPDWLRQDW3UHDPEOH FG 7KHJRYHUQPHQWWDNHVWKHSRVLWLRQWKDWWKLV³ZRUOGZLGHUHYLHZ´VXIILFLHQWO\GLVWLQJXLVKHVWKH FXUUHQW0XVOLP7UDYHO%DQIURPSULRULWHUDWLRQVKHOGWREHOLNHO\XQODZIXOSee IRAP IV :/DW
7KLVODZVXLWVHHNVWZRUHSRUWVVSHFLILFDOO\LGHQWLILHGLQWKH3URFODPDWLRQUHODWHGWRWKLV ³ZRUOGZLGHUHYLHZ´²UHSRUWVGDWHG-XO\DQG6HSWHPEHUIURPWKH6HFUHWDU\ RI+RPHODQG6HFXULW\WR3UHVLGHQW7UXPS²DQGDQ\RWKHUUHSRUWVGHWDLOLQJWKHFRQFOXVLRQVRI VXFK³ZRUOGZLGHUHYLHZ´IRUWKHHLJKWFRXQWULHVFRYHUHGE\WKH3URFODPDWLRQDQGWKHVL[WHHQ FRXQWULHVWKDWWKH6HFUHWDU\RI+RPHODQG6HFXULW\LGHQWLILHGDVEHLQJ³LQDGHTXDWH´WRWKHH[WHQW QRWLQFOXGHGLQWKH-XO\RU6HSWHPEHUUHSRUWVSee &RPSO'NWDW3ODLQWLIIKDG
 

Case 1:17-cv-07520-PGG Document 23 Filed 12/21/17 Page 7 of 14
RULJLQDOO\UHTXHVWHGWKHVHUHSRUWVDVSDUWRIDEURDGHUVHWRIUHFRUGVUHODWHGWRWKH DGPLQLVWUDWLRQ¶V0XVOLP7UDYHO%DQVYLDD)2,$UHTXHVWOHWWHUVXEPLWWHGWR'HIHQGDQW8QLWHG 6WDWHV'HSDUWPHQWRI6WDWHRQ-XO\See )2,$5HTXHVW'NWDWUHTXHVW³Z´
3ODLQWLII¶VOHWWHUDOVRUHTXHVWHGH[SHGLWHGSURFHVVLQJSXUVXDQWWRWKH)2,$DQG6WDWH 'HSDUWPHQWUHJXODWLRQVsee id.DWERWKRIZKLFKSURYLGHWKDWH[SHGLWLRQLVZDUUDQWHG XSRQDVKRZLQJRIFRPSHOOLQJQHHG86&D(&)5I,QVXSSRUW RILWVUHTXHVWIRUH[SHGLWHGSURFHVVLQJ3ODLQWLIIFLWHGWKHFRPSHOOLQJQHHGWRLQIRUPWKHSXEOLF DERXWWKHDGPLQLVWUDWLRQ¶VSRWHQWLDOO\GLVFULPLQDWRU\DQGDUELWUDU\SROLFLHVWKHLPSDLUPHQWRI GXHSURFHVVULJKWVDQGKDUPWRKXPDQLWDULDQLQWHUHVWVWKDWZRXOGUHVXOWIURPFRQWLQXHG ZLWKKROGLQJRIWKHUHFRUGVDQGWKHIDVWWUDFNLQJRIUHODWHGDVSHFWVRIWKHDGPLQLVWUDWLRQ¶V SROLFLHVSee 'NWDW
-XVWIRXUGD\VODWHU'HIHQGDQWgranted3ODLQWLII¶VUHTXHVWIRUH[SHGLWHGSURFHVVLQJ VWDWLQJWKDW³>D@IWHUFRQVLGHUDWLRQ´WKHUHTXHVWZDV³ZDUUDQW>HG@´'HI¶V-XO\5HVS'NW DQGDIHZZHHNVODWHU'HIHQGDQWSURPLVHGWRFRPSOHWHLWVGRFXPHQWSURGXFWLRQE\2FWREHU see (PDLOIURP/4DGLUWR'HI$XJ'NW
'HIHQGDQWKRZHYHUKDVQRWLQIRUPHG3ODLQWLIIZKHWKHULWZLOOVXEVWDQWLYHO\JUDQWRU GHQ\3ODLQWLII¶V)2,$UHTXHVWDQGKDVQRWSURGXFHGRULGHQWLILHGDQ\UHFRUGVRUSRUWLRQVWKHUHRI WKDWLWLQWHQGVWRZLWKKROGSee 'HFORI-DFO\Q(0DUWtQH]5HVO\³'HFO´,QIDFW 'HIHQGDQWDSSDUHQWO\KDVQRWHYHQUHDFKHGDSRLQWLQLWVUHYLHZ²LIUHYLHZKDVEHJXQDWDOO² WRHQDEOHLWWRSURYLGHDQH[SHFWHGWLPHIUDPHIRUFRPSOHWLRQRILWVGHWHUPLQDWLRQUHJDUGLQJWKH OLPLWHGVXEVHWRIUHFRUGVDWLVVXHLQWKLVOLWLJDWLRQSee id. ([)VWDWLQJWKDW'HIHQGDQW LV³ZRUNLQJWRFRRUGLQDWHWKLV>UHYLHZ@SURFHVV´DQGGHFOLQLQJWRSURSRVHVFKHGXOHIRU SURGXFWLRQDQGLQGH[LQJ
 

Case 1:17-cv-07520-PGG Document 23 Filed 12/21/17 Page 8 of 14
%HFDXVHIRXUPRQWKVKDYHSDVVHGVLQFH3ODLQWLII¶V)2,$UHTXHVWEHFDXVHQHDUO\DPRQWK KDVSDVVHGVLQFHWKHGHDGOLQHWKDW'HIHQGDQWRULJLQDOO\VHWIRULWVHOIWRFRPSOHWHSURGXFWLRQRI UHFRUGVUHVSRQVLYHWR3ODLQWLII¶V)2,$UHTXHVWEHFDXVH'HIHQGDQWKDVIDLOHGWRSURSRVHD ZRUNDEOHVFKHGXOHIRUSURGXFWLRQDQGLQGH[LQJRIWKHQDUURZVXEVHWRIGRFXPHQWVDWLVVXHLQWKLV OLWLJDWLRQDQGEHFDXVHWKHUHLVJRRGFDXVHWRH[SHGLWH'HIHQGDQW¶VSURGXFWLRQDQGLQGH[ 3ODLQWLIIUHVSHFWIXOO\VHHNVUHOLHIIURPWKH&RXUWWR³DVVXUHWKDW>3ODLQWLII¶V@ULJKWWRLQIRUPDWLRQ >XQGHUWKH)2,$@LVQRWVXEPHUJHG>E\@JRYHUQPHQWREIXVFDWLRQ´RUGHOD\Ferguson v. FBI )6XSS6'1<
$5*80(17 7KH&LYLO3ULRULWLHV$FW86&SURYLGHVWKDW³FRXUW>V@VKDOOH[SHGLWHWKH FRQVLGHUDWLRQRIDQ\>@DFWLRQLIJRRGFDXVH>@LVVKRZQ´86&D,WIXUWKHU SURYLGHVWKDWµ³>J@RRGFDXVH¶LVVKRZQLIDULJKWXQGHUWKH&RQVWLWXWLRQRIWKH8QLWHG6WDWHVRUD )HGHUDO6WDWXWHincluding rights under section 552 of title 5[, FOIA]ZRXOGEHPDLQWDLQHGLQD IDFWXDOFRQWH[WWKDWLQGLFDWHVWKDWDUHTXHVWIRUH[SHGLWHGFRQVLGHUDWLRQKDVPHULW´Id.HPSKDVLV DGGHG 7KHUHLVJRRGFDXVHIRUH[SHGLWLRQKHUH , )2,$$FWLRQV$UH(VSHFLDOO\$SSURSULDWHIRU([SHGLWLRQ $VWKLV&RXUWKDVUHFRJQL]HG³>V@SHHGLVDQHVVHQWLDOHOHPHQWLQ>WKH&RXUW¶V@SURFHVVRI GHQRYRUHYLHZXQGHU)2,$´Ferguson)6XSSDW([SHGLWLRQLVZDUUDQWHGEHFDXVH WKH)2,$³ZDVLQWHQGHGWRSURYLGHDPHDQVRIDFFRXQWDELOLW\WRDOORZ$PHULFDQVWRNQRZZKDW WKHLUJRYHUQPHQWLVGRLQJ>DFFRUGLQJO\@GHOD\LQFRPSO\LQJZLWK)2,$UHTXHVWVPD\EH µWDQWDPRXQWWRGHQLDO¶´Am. Civil Liberties Union v. Dep’t of Defense)6XSSG 6'1<TXRWLQJ+5HS1RG&RQJG6HVV,QYLHZRIWKHVH SULQFLSOHV&RQJUHVVPDGHWKH)2,$WKH³ILUVWDPRQJHTXDOV´LQWHUPVRIGLVFUHWLRQDU\
 

Case 1:17-cv-07520-PGG Document 23 Filed 12/21/17 Page 9 of 14
H[SHGLWLRQE\FRXUWV²LQRWKHUZRUGV³ZRUWK\RIVSHFLDOFRQVLGHUDWLRQ´Freedom Commc’ns Inc. v. FDIC)5'&'&DO
,QOLQHZLWK&RQJUHVV¶VLQWHQWLRQFRXUWVKDYHKHOGWKDWWKH\KDYHD³µGXW\¶WRSUHYHQW µXQUHDVRQDEOHGHOD\VLQGLVFORVLQJQRQH[HPSWGRFXPHQWV´Elec. Privacy Info. Ctr. v. Dep’t of Justice)6XSSG''&TXRWLQJPayne Enters. v. United States)G '&&LU&RXUWVSURWHFWDJDLQVWVXFKGHOD\VLQ)2,$VXLWVE\LPSRVLQJ GHDGOLQHVRQWKHJRYHUQPHQWWRSURGXFHUHVSRQVLYHGRFXPHQWVDQGLQGLFHVVHWWLQJIRUWK MXVWLILFDWLRQVIRUZLWKKHOGUHFRUGVDQGUHGDFWLRQVNQRZQDVVaughnLQGLFHVSee, e.g.Fox News Network, LLC v. U.S. Dep’t of the Treasury)6XSSG6'1< GD\SURGXFWLRQGHDGOLQHDQGGD\LQGH[LQJGHDGOLQHElec. Privacy Info. Ctr.). 6XSSGDWGD\SURGXFWLRQGHDGOLQHDQGGD\LQGH[LQJGHDGOLQHAm. Civil Liberties Union)6XSSGDWGD\GHDGOLQHIRUSURGXFWLRQDQGLQGH[Nat. Res. Def. Council v. Dep’t of Energy)6XSSG''&GD\DQGGD\ SURGXFWLRQGHDGOLQHVDQGGD\LQGH[LQJGHDGOLQHProvidence Journal Co.)6XSSDW GD\LQGH[LQJGHDGOLQHFerguson)6XSSDWGD\SURGXFWLRQGHDGOLQH DQGGD\LQGH[LQJGHDGOLQHKnight Publishing Co. v. U.S. Dep’t of Justice)6XSS :'1&GD\GHDGOLQHIRUGHWHUPLQDWLRQRIUHTXHVW GD\LQGH[LQJGHDGOLQH Ettlinger v. FBI)6XSS'0DVVGD\GHDGOLQHIRUSURGXFWLRQDQG
 ³$VaughnLQGH[LVDGHWDLOHGLQGH[LWHPL]LQJHDFKLWHPZLWKKHOGE\WKHJRYHUQPHQWWKH H[HPSWLRQVWKHJRYHUQPHQWLVFODLPLQJIRUWKRVHLWHPVDQGWKHUHDVRQVZK\WKHH[HPSWLRQV DSSO\WRWKRVHLWHPV7KHVaughnLQGH[VHUYHVWKUHHSXUSRVHVLWIRUFHVWKHJRYHUQPHQWWR FDUHIXOO\VFUXWLQL]HWKHPDWHULDOLWZLVKHVWRZLWKKROGLWHQDEOHVWKHWULDOFRXUWWRKDYHDEDVLV XSRQZKLFKWRUXOHRQWKHDSSOLFDELOLW\RIWKH)2,$H[HPSWLRQFODLPHGDQGLWHQDEOHVWKH DGYHUVDU\V\VWHPWRRSHUDWHE\JLYLQJWKHUHTXHVWRUDVPXFKLQIRUPDWLRQDVSRVVLEOHRQWKHEDVLV RIZKLFKKHFDQSUHVHQWKLVFDVHWRWKHWULDOFRXUW´Providence Journal Co. v. U.S. Dep’t of the Army)6XSS'5,LQWHUQDOTXRWDWLRQPDUNVDQGFLWDWLRQVRPLWWHG
 

Case 1:17-cv-07520-PGG Document 23 Filed 12/21/17 Page 10 of 14
LQGH[$VWKLV&RXUWKDVQRWHG³>F@UHDWLRQRIDVaughnLQGH[LVDVWDQGDUGSURFHGXUH´WKDW³LV DQLQWHJUDOFRPSRQHQWRIWULDOFRXUWUHYLHZRI)2,$FKDOOHQJHVWRQRQGLVFORVXUHRI LQIRUPDWLRQ´Ferguson)6XSSDWsee also Ferguson v. FBI)6XSS 6'1<GLVFXVVLQJQHHGIRUVaughnLQGH[
([SHGLWLRQWKH+RXVHRI5HSUHVHQWDWLYHVH[SODLQHGLQLWVUHSRUWRQWKH&LYLO3ULRULWLHV $FWLVFRQVLVWHQWZLWKERWKWKHQDWXUHRI)2,$OLWLJDWLRQDQGWKHRYHUDUFKLQJSXUSRVHRIWKH$FW %HFDXVH³PRVW)2,$FDVHVGRQRWLQYROYHH[WHQGHGGLVFRYHU\RUWHVWLPRQ\>@´)2,$FDVHVQHHG ³QRWEXUGHQFRXUWGRFNHWVIRUH[WHQVLYHSHULRGVRIWLPH´+55HS1RWK&RQJG 6HVVDW0RUHIXQGDPHQWDOO\)2,$³LVDPDMRUWRROWKURXJKZKLFKWKHSXEOLFDQGWKH SUHVVREWDLQLQIRUPDWLRQDERXWWKHLUJRYHUQPHQW´DQG³H[WHQGHGGHOD\VLQFRXUWFDQHQFRXUDJH XQMXVWLILHGUHIXVDOVWRGLVFORVHLQIRUPDWLRQ>DQG@KDPSHUUHSRUWLQJRIJRYHUQPHQWDO DFWLYLWLHV´Id.DW$FFRUGLQJO\³WKHµJRRGFDXVH¶SURYLVLRQ>RIWKH&LYLO3ULRULWLHV$FW VKRXOG@EHOLEHUDOO\FRQVWUXHGE\WKHFRXUWVLQJUDQWLQJUHTXHVWVIRUH[SHGLWHGFRQVLGHUDWLRQ XQGHUWKH>)2,$@´Id.DW ,, ([SHGLWLRQLV:DUUDQWHG+HUH
+HUHWKDWWKHUHLV³DIDFWXDOFRQWH[WWKDWLQGLFDWHVWKDWDUHTXHVWIRUH[SHGLWHG FRQVLGHUDWLRQKDVPHULW´86&DLVFRQILUPHGE\'HIHQGDQW¶VDGPLVVLRQWKDW 3ODLQWLII¶V³UHTXHVWGRHVZDUUDQWH[SHGLWHGSURFHVVLQJ´'NW,QGHHGWKHSURSULHW\RIDQ RUGHUWKDWIXUWKHUVWKHSDUWLHV¶DJUHHPHQWRQWKHQHHGIRUH[SHGLWLRQFDQQRWEHVHULRXVO\ FRQWHVWHGSee Elec. Privacy Info. Ctr.)6XSSGDWRUGHULQJH[SHGLWLRQZKHUH DJHQF\HDUOLHU³FRQFHGHGWKDWH[SHGLWHGSURFHVVLQJLVDSSURSULDWH´see also Ferguson) 6XSSDW³>'@LVWULFWFRXUWVKDYHEDODQFHGWKHVDPHHTXLWLHVSHUWLQHQWWRWKHWLPLQJRID UHVSRQVHWRD)2,$GRFXPHQWUHTXHVWLQWKHLUGHWHUPLQDWLRQVRIWKHDSSURSULDWHWLPLQJRID UHVSRQVHWRDVaughnLQGH[UHTXHVW´
 

Case 1:17-cv-07520-PGG Document 23 Filed 12/21/17 Page 11 of 14
1RUFRXOGWKHUHEHUHDVRQDEOHGLVDJUHHPHQWRQWKHSURSULHW\RIH[SHGLWLRQJLYHQWKH LQWHQVHSXEOLFLQWHUHVWLQWKHVXEMHFWPDWWHURIWKLVOLWLJDWLRQ2QHFDQKDUGO\IRUJHWWKH ³ZLGHVSUHDGFKDRVDW86DLUSRUWV´DFURVVWKHFRXQWU\ZKHUH³>S@URWHVWVHUXSWHG´DQG³ODZ\HUV PRELOL]H>G@´IROORZLQJWKHLQLWLDO0XVOLP7UDYHO%DQ+DQQDQ$GHO\ .HOG\2UWL]Protests Erupt at U.S. Airports Over Ban on Refugees86$7RGD\-DQXSGDWHG-DQ -RQDK(QJHO%URPZLFKLawyers Mobilize at Nation’s Airports After Trump’s Order 1<7LPHV-DQ/XF\:HVWFRWWThousands of Lawyers Descend on U.S. Airports to Fight Trump’s Immigrant Ban1HZVZHHN-DQ3UHVVFRYHUDJHDQGQDWLRQDORXWFU\ KDYHRFFXUUHGIROORZLQJHDFKRIWKHDGPLQLVWUDWLRQ¶VVXFFHVVLYH0XVOLP7UDYHO%DQVSee, e.g. 1DXUHHQ6KDKTrump’s Muslim Ban 2.0 is Just as Inhumane — and Even More Frightening 7LPH0DU,DQ'XQFDQNew Trump Travel Restrictions Face Same Opposition7KH %DOW6XQ6HSW30
7KHGHEDWHRYHUWKHOHJDOLW\RIWKHDGPLQLVWUDWLRQ¶V0XVOLP7UDYHO%DQVKDVVSDZQHG OLWLJDWLRQLQFRXUWVDFURVVWKHFRXQWU\see supraDWFROOHFWLQJFDVHVDQGUHDFKHGWKH6XSUHPH &RXUWLQILYHPRQWKVRQO\WREHPRRWHGIROORZLQJWKHLVVXDQFHRIWKH3URFODPDWLRQsee IRAP III:/ZKLFKWKHJRYHUQPHQWFODLPVLVGLVWLQJXLVKHGIURPWKHSULRU0XVOLP 7UDYHO%DQE\WKHVDPHUHSRUWVWKDWDUHWKHVXEMHFWRIWKLVVXLWsee IRAP IV:/ DW  KWWSVZZZXVDWRGD\FRPVWRU\QHZVQDWLRQQRZSURWHVWVHUXSWXVDLUSRUWVRYHU EDQUHIXJHHV KWWSVZZZQ\WLPHVFRPXVODZ\HUVWUXPSPXVOLPEDQLPPLJUDWLRQKWPO KWWSZZZQHZVZHHNFRPODZ\HUVYROXQWHHUXVDLUSRUWVWUXPSEDQ KWWSWLPHFRPWUXPSWUDYHOEDQPXVOLPV KWWSZZZEDOWLPRUHVXQFRPQHZVPDU\ODQGSROLWLFVEVPGWUXPWUDYHOEDQUHDFWLRQ VWRU\KWPO
 

Case 1:17-cv-07520-PGG Document 23 Filed 12/21/17 Page 12 of 14
3ODLQWLIIDQGWKHSXEOLFDWODUJHDUHHQWLWOHGWRWHVWWKHJRYHUQPHQW¶VUHOLDQFHRQWKH UHTXHVWHGUHSRUWVE\WLPHO\REWDLQLQJWKHPRUWKHSRUWLRQVWRZKLFKWKH\DUHOHJDOO\HQWLWOHG XQGHUWKH)2,$See86&D³>(@DFKDJHQF\XSRQDQ\UHTXHVWIRUUHFRUGV VKDOOPDNHWKHUHFRUGVSURPSWO\DYDLODEOHWRDQ\SHUVRQ´³>0@HDQLQJIXOGHEDWH´DERXW³WKH OHJDOLW\RIWKH$GPLQLVWUDWLRQ¶V>0XVOLP7UDYHO%DQV@FDQRQO\RFFXULI>'HIHQGDQW@ SURFHVVHVLWV)2,$UHTXHVWVLQDWLPHO\IDVKLRQDQGUHOHDVHVWKHLQIRUPDWLRQVRXJKW´Elec. Privacy Info. Ctr.)6XSSGDWsee also id.³>$@PHDQLQJIXODQGWUXO\GHPRFUDWLF GHEDWHRQWKHOHJDOLW\DQGSURSULHW\RI>WKHFRQWHVWHGSROLF\@FDQQRWEHEDVHGVROHO\XSRQ LQIRUPDWLRQWKDWWKH$GPLQLVWUDWLRQYROXQWDULO\FKRRVHVWRGLVVHPLQDWH´LQWHUQDOTXRWDWLRQ PDUNVDQGFLWDWLRQRPLWWHG
1RWDEO\WKHUHFRUGV3ODLQWLIIVHHNVLQWKLVODZVXLWDUHRQO\DVXEVHWRIGRFXPHQWVUHODWHG WRWKH0XVOLP7UDYHO%DQ²GRFXPHQWVWKDWVKRXOGEHUHDGLO\LGHQWLILDEOHDQGWKDWVKRXOGQRW HYHQUHTXLUHDQHOHFWURQLFVHDUFK
)LQDOO\H[SHGLWLRQLVZDUUDQWHGEHFDXVH³WKHSXEOLFLQWHUHVWLQHQIRUFHPHQWRIWKHVWDWXWH LVSDUWLFXODUO\VWURQJ´+5HSDW1RWRQO\LVD)2,$VXLWWKH³SDUDGLJPDWLF H[DPSOH>@RIµJRRGFDXVH¶´IRUH[SHGLWLRQOntario Forest Indus. Assoc v. United States &,7&W,QW¶O7UDGHEXW3ODLQWLII¶VUHTXHVWLVDSDUDGLJPDWLFH[DPSOHRI ZKDWWKH)2,$ZDVGHVLJQHGWRSURPRWH³7KHSXUSRVHRI)2,$LVWRILQGRXWZKDWRXU µJRYHUQPHQWLVXSWR>@¶>DQGW@KDWLVSUHFLVHO\WKHSXUSRVHRIWKH3ODLQWLII¶V)2,$UHTXHVW´ Nat.Res. Def. Council)6XSSGDWTXRWLQJU.S. Dep’t of Justice v. Reporters Comm. For Freedom of the Press86see also Elec. Privacy Info. Ctr.) 6XSSGDW³>3@XEOLFDZDUHQHVVRIWKHJRYHUQPHQW¶VDFWLRQVLVµDVWUXFWXUDOQHFHVVLW\LQD UHDOGHPRFUDF\¶VRWRRLVtimelySXEOLFDZDUHQHVV>@DVµVWDOHLQIRUPDWLRQLVRIOLWWOH
 

Case 1:17-cv-07520-PGG Document 23 Filed 12/21/17 Page 13 of 14 YDOXH¶´TXRWLQJNat’l Archives & Records Admin. v. Favish86 Payne Enters.)GDW
$FFRUGLQJO\³3ODLQWLII¶VUHTXHVWLVHQWLWOHGWRUDSLGFRQVLGHUDWLRQE\WKH&RXUWDQGWKH >JRYHUQPHQW@´Freedom Commc’ns Inc.)5'DW
&21&/86,21 )RUWKHIRUHJRLQJUHDVRQVWKH&RXUWVKRXOGJUDQW3ODLQWLII¶VPRWLRQWRH[SHGLWHRUGHU 'HIHQGDQWWRSURGXFHWR3ODLQWLIIUHVSRQVLYHUHFRUGVDQGUHDVRQDEO\VHJUHJDEOHSRUWLRQVRI UHVSRQVLYHUHFRUGVZLWKLQGD\VRIWKH&RXUW¶VUXOLQJDQGRUGHU'HIHQGDQWWRSURGXFHWR 3ODLQWLIIZULWWHQMXVWLILFDWLRQVIRUDQ\SRUWLRQVRIUHVSRQVLYHUHFRUGVZLWKKHOGE\'HIHQGDQW ZLWKLQGD\VRIWKH&RXUW¶VUXOLQJ
 

Case 1:17-cv-07520-PGG Document 23 Filed 12/21/17 Page 14 of 14

'DWHG 1HZ<RUN1HZ<RUN



1RYHPEHU





1HLO.5RPDQ

&29,1*721 %85/,1*//3

7KH1HZ<RUN7LPHV%XLOGLQJ

(LJKWK$YHQXH

1HZ<RUN1<



QURPDQ#FRYFRP



0DUN+/\QFKL

-DFO\Q(0DUWtQH]5HVO\L

&29,1*721 %85/,1*//3

2QH&LW\&HQWHU

7HQWK6W1:

:DVKLQJWRQ'&



PO\QFK#FRYFRP

MPDUWLQH]UHVO\#FRYFRP





5HVSHFWIXOO\VXEPLWWHG  V1HLO.5RPDQ 1HLO.5RPDQ  -RKQDWKDQ6PLWK 6LULQH6KHED\DLL 086/,0$'92&$7(6 32%R[ :DVKLQJWRQ'&  MRKQDWKDQ#PXVOLPDGYRFDWHVRUJ VLULQH#PXVOLPDGYRFDWHVRUJ  5LFKDUG%.DWVNHHL (ULF5RWKVFKLOGL $QGUHZ/1HOOLVL $0(5,&$1681,7(')256(3$5$7,21 2)&+85&+$1'67$7( /6W1:6XLWH :DVKLQJWRQ'&  NDWVNHH#DXRUJ URWKVFKLOG#DXRUJ QHOOLV#DXRUJ 

i Admitted pro hac vice ii Admission pending * Admitted in New York. Supervised by Richard

B. Katskee, a member of the D.C. Bar. 

Attorneys for Plaintiff Brennan Center for Justice at New York University School of Law

 

 
 Case 1:17-cv-07520-PGG Document 25 Filed 12/21/17 Page 1 of 6

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------x

BRENNAN CENTER FOR JUSTICE AT NEW :

YORK UNIVERSITY SCHOOL OF LAW,

:

:

Plaintiff,

:

:

v.

:

UNITED STATES DEPARTMENT OF STATE,

: :

:

Defendant.

:

-------------------------------------------------------------x

17 Civ. 7520 (PGG)

MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION TO EXPEDITE
JOON H. KIM Acting United States Attorney for the Southern District of New York 86 Chambers Street New York, New York 10007 Telephone: (212) 637-2761 Facsimile: (212) 637-2786

CHRISTOPHER CONNOLLY Assistant United States Attorney
– Of Counsel –

Case 1:17-cv-07520-PGG Document 25 Filed 12/21/17 Page 2 of 6
PRELIMINARY STATEMENT Defendant the United States Department of State, by its attorney, Joon H. Kim, Acting United States Attorney for the Southern District of New York, respectfully submits this memorandum of law in opposition to the Motion to Expedite filed by plaintiff the Brennan Center for Justice. Plaintiff’s demand that the government be ordered to process the classified records at issue in this Freedom of Information Act (“FOIA”) litigation within 21 days is not practical, and is therefore not required under FOIA. The State Department granted plaintiff’s request for expedited processing, has already completed its search for potentially responsive records, and has referred those records to their originating agency, thus obviating any need for the Court to order it to take further action. Further, the nature of the records themselves—presidential communications containing classified information and multiple agency equities—precludes the production of nonresponsive material on plaintiff’s compressed timeframe. Finally, nothing in FOIA entitles plaintiff to a Vaughn index outside the context of summary judgment briefing. Accordingly, plaintiff’s motion should be denied, and the Court should set a reasonable schedule for processing, production, and summary judgment briefing.
BACKGROUND On or about July 20, 2017, plaintiff submitted a 23-part FOIA request to the State Department, seeking a wide variety of records purportedly relating to “the Administration’s visaapplication vetting policies and procedures.” See Declaration of Eric F. Stein, dated Dec. 14, 2017 (“Stein Decl.”) ¶ 4; Compl. (ECF No. 1), Ex. B. In an acknowledgment letter dated July 24, 2017, the State Department granted plaintiff’s request for expedited processing. See Stein Decl. ¶ 5; Compl., Ex. C. On August 18, 2017, plaintiff called the State Department’s FOIA Status Hotline,

Case 1:17-cv-07520-PGG Document 25 Filed 12/21/17 Page 3 of 6
and was given an estimated completion date of October 31, 2017, for their FOIA request. Stein Decl. ¶ 6.
On October 2, 2017, plaintiff commenced the instant action, seeking one subpart of its FOIA request. See id. ¶ 7. Specifically, plaintiff’s complaint seeks the disclosure of reports submitted by the Secretary of the Department of Homeland Security (“DHS”) to the President, which are referenced in the President’s September 24, 2017 Proclamation entitled “Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.” See id. ¶ 8.
Plaintiff submitted the instant motion on November 30, 2017, alleging that the State Department “has failed timely to produce documents” responsive to their FOIA request, and seeking an order compelling “production within 21 days . . . and an explanation as to why any material was withheld [i.e., a Vaughn index] a week after that.” Pl. Br. 1.
The State Department conducted an initial search for records responsive to the relevant subpart of plaintiff’s request, and identified six such records. See id. ¶ 9. Because those records originated with DHS, they were referred to that agency for a direct response to plaintiff. See id. The State Department informed plaintiff of the referral in a letter dated December 5, 2017. See id. & Ex. 1.
ARGUMENT PLAINTIFF’S MOTION TO EXPEDITE SHOULD BE DENIED A. Plaintiff’s Proposed Schedule is Not Practicable The Court should decline to adopt plaintiff’s proposed 21-day processing and production schedule. Expedited requests are only required to be processed “as soon as practicable.” 5 U.S.C. § 552(a)(6)(E)(iii); accord 22 C.F.R. § 171.11(f) (State Department regulations governing
2

Case 1:17-cv-07520-PGG Document 25 Filed 12/21/17 Page 4 of 6
expedited requests); see also EPIC v. DOJ, 416 F. Supp. 2d 30, 39 (D.D.C. 2006) (an agency can establish that a proposed time frame for expedited processing is not feasible “if the agency presents credible evidence that disclosure within such time period is truly not practicable”). Plaintiff’s proposed schedule is neither practicable nor reasonable for several reasons.
At the threshold, plaintiff’s characterization of the State Department’s handling of their request as “[un]timely,” see Pl. Br. 1, lacks merit, because the State Department has already conducted a search for records implicated by plaintiff’s complaint and referred the records it identified to DHS for a direct response. Because processing and (to the extent appropriate) production of the records will fall to DHS, the Court cannot order the State Department to take any further action.
Nor, for that matter, was the State Department less than expeditious in its processing prior to the referral to DHS. The State Department granted expedition for the entirety of plaintiff’s FOIA request—a request that is particularly broad and complex, see Stein Decl. ¶¶ 11-12, and which plaintiff has not withdrawn despite seeking only a subset of records in this litigation, see Compl. 6 n.1. Courts have routinely recognized agencies’ need for “more time to respond to a particularly burdensome request.” CREW v. FEC, 711 F.3d 180, 189 (D.C. Cir. 2013). Accordingly, plaintiff’s mischaracterization of the October 31, 2017, estimated completion date as a “promise,” Pl. Br. 3, is irrelevant. Finally, the State Department’s substantial FOIA caseload underscores that its treatment of plaintiff’s request has, in fact, been expeditious. See Stein Decl. ¶¶ 13-14 (State Department received 22,664 FOIA requests in FY 2016 and currently has a backlog of approximately 11,200 requests); EPIC v. DOJ, 15 F. Supp. 3d 32, 42 (D.D.C. 2014) (requested expedition not practical in light of, among other things, other requests the agency was processing).
3

Case 1:17-cv-07520-PGG Document 25 Filed 12/21/17 Page 5 of 6
The nature of the records themselves also demonstrates that disclosure on plaintiff’s proposed schedule is impractical. First, as is clear from plaintiff’s own descriptions of the records, these are communications directly to the President, meaning that the White House must be consulted in determining the nature and scope of applicable exemptions. See Stein Decl., ¶ 9. Second, because parts of these records contain national security information, processing the records will involve classification reviews. See id. Finally, in addition to DHS and the State Department, several other agencies possess equities in material contained within the records, meaning that processing the records and applying exemptions will require inter-agency coordination. See id. All of these factors make a 21-day production schedule impractical, and thus not required under FOIA. B. Plaintiff Is Not Entitled to a Freestanding Vaughn Index
In addition to requesting an impossible production schedule, plaintiff’s request for a Vaughn index just one week after the government’s production of records is premature. Nothing in FOIA requires the government to produce a Vaughn index at or around the same time that any non-exempt portions of responsive documents are released. If the government deems any records to be exempt in full or in part, it need only comply with FOIA’s mandate that “[t]he amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record” at the time of production. 5 U.S.C. § 552(b), 40 C.F.R. § 2.104(h). To the extent plaintiff then challenges any of the government’s withholdings, the government would move for summary judgment and justify those withholdings in an appropriate format that may or may not take the form of a traditional Vaughn index. See, e.g., New York Times Co. v. U.S. Dep’t of Justice, 758 F.3d 436, 438-39 (2d Cir. 2014) (although classic Vaughn indexes are frequently used to justify FOIA exemptions, “[i]n some cases detailed affidavits from agency
4

Case 1:17-cv-07520-PGG Document 25 Filed 12/21/17 Page 6 of 6
officials may suffice to indicate that requested documents are exempt from disclosure” (citing cases)). Unless and until this litigation reaches that stage, however, plaintiff’s request for a Vaughn index prior to summary judgment should be dismissed as premature. See, e.g., Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993) (“The plaintiff’s early attempt in litigation of this kind to obtain a Vaughn index and to take discovery depositions is inappropriate until the government has first had a chance to provide the court with the information necessary to make a decision on the applicable exemptions.”); Bassiouni v. CIA, 248 F. Supp. 2d 795, 795-97 (N.D. Ill. 2003) (dismissing plaintiff’s “motion to compel production of a Vaughn index” which was filed after defendant filed its answer, where “present case is only in the initial stages of litigation”); Stimac v. U.S. Dep’t of Justice, 620 F. Supp. 212, 213 (D.D.C. 1985) (denying as “untimely” plaintiff’s motion for DOJ component to prepare Vaughn index because such an index “would be premature before the filing of dispositive motions”).
CONCLUSION Plaintiff’s motion to expedite should be denied. Dated: New York, New York December 14, 2017
JOON H. KIM Acting United States Attorney for the Southern District of New York Attorney for Defendant By: /s/ Christopher Connolly CHRISTOPHER CONNOLLY Assistant United States Attorney 86 Chambers Street New York, New York 10007 Tel.: (212) 637-2761 Fax: (212) 637-2786 E-mail: christopher.connolly@usdoj.gov
5

 
 Case 1:17-cv-07520-PGG Document 27 Filed 12/21/17 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW,
Plaintiff,
vs.

Case No. 17 Civ. 7520 (PGG)

UNITED STATES DEPARTMENT OF STATE,
Defendant.
PLAINTIFF’S REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PLAINTIFF’S MOTION TO EXPEDITE FREEDOM OF INFORMATION ACT (“FOIA”) ACTION

Neil K. Roman COVINGTON & BURLING LLP The New York Times Building 620 Eighth Avenue New York, NY 10018-1405 (212) 841-1000 nroman@cov.com
Mark H. Lynchi Jaclyn E. Martínez Reslyi COVINGTON & BURLING LLP One CityCenter 850 Tenth St. NW Washington, DC 20001-4956 (202) 662-6000 mlynch@cov.com jmartinezresly@cov.com
i Admitted pro hac vice ii Admission pending * Admitted in New York. Supervised by Richard B. Katskee, a member of the D.C. Bar.

Johnathan Smith Sirine Shebayaii MUSLIM ADVOCATES P.O. Box 66408 Washington, DC 20035 (202) 897-1897 johnathan@muslimadvocates.org sirine@muslimadvocates.org
Richard B. Katskeei Eric Rothschildi Andrew L. Nellisi* AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE 1310 L St. NW, Suite 200 Washington, DC 20005 (202) 466-3234 katskee@au.org rothschild@au.org nellis@au.org

Attorneys for Plaintiff Brennan Center for Justice at New York University School of Law

Case 1:17-cv-07520-PGG Document 27 Filed 12/21/17 Page 2 of 11
INTRODUCTION Defendant’s opposition is notable for what it does not contest. Most notably, Defendant does not disagree that FOIA matters are especially appropriate for expedition (see Pl.’s Mem. of Law in Supp. of Mot. to Expedite FOIA Action (“Mem.”), at 4-6), that there is intense public interest in the subject matter of this litigation and that the public is entitled to test the government’s reliance on the requested reports by timely obtaining them (see id. at 7-8), and that the Court should set a schedule for processing and producing non-exempt portions of the responsive records (compare id. at 9 with Def.’s Mem. of Law in Opp’n to Pl.’s Mot. to Expedite (“Opp’n”) at 1). The opposition also reveals that only six documents are at issue. See Decl. of E. Stein ¶ 9. Those documents have been at the heart of the controversy over the President’s most recent iteration of his efforts to ban entry of Muslims to this country, see Mem. at 2. Defendant does not make and cannot make a claim of burden: this case does not involve an overwhelming number of documents or documents that are difficult to locate. Accordingly, the dispute boils down to (a) the production schedule that the Court should impose and (b) whether the Court should order Defendant to produce, before summary judgment briefing, written justifications for portions of responsive records that are withheld. Because Plaintiff’s proposed schedule for production and indexing is appropriate in the “factual context” presented here, 28 U.S.C. § 1657(a), the Court should grant Plaintiff’s motion and order Defendant to produce the six documents (or all segregable non-exempt portions thereof) within 21 days and written justification for any withheld documents or portions of documents within 28 days.

Case 1:17-cv-07520-PGG Document 27 Filed 12/21/17 Page 3 of 11
ARGUMENT I. Defendant’s Steadfast Refusal To Propose A Viable Production Schedule Is
Unreasonable. Defendant’s opposition is a continuation of its strategy of obfuscation and delay. See Decl. of J. Martínez Resly ¶¶ 3-15 (detailing history of Defendant’s refusal to provide schedule). Indeed, Defendant argues that the Court “should decline to adopt [P]laintiff’s proposed 21-day processing and production schedule[] [because] [e]xpedited requests are only required to be processed ‘as soon as practicable,’” Opp’n at 2, but never explains what would be “practicable” by proposing an expedited and workable production schedule. Moreover, Defendant has failed to invoke the mechanisms afforded by the FOIA to extend the time for agencies to respond to requests. Specifically, the “FOIA requires that ‘each agency, upon request for records . . . determine within 20 [business] days . . . whether to comply with such request.” Nat’l Day Laborer Org. Network v. U.S. Immig. & Customs Enf’t, 236 F. Supp. 3d 810, 814 (S.D.N.Y. 2017). At that time, the agency “must at least indicate . . . the scope of the documents it will produce and the exemptions it will claim with respect to any withheld documents.” Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180, 18283 (D.C. Cir. 2013). And it may extend that 20-day deadline by 10 business days if, within those 20 days and in writing, it “set[s] forth the unusual circumstances for such extension and the date on which a determination [of the request] is expected to be dispatched.” 5 U.S.C. § 552(a)(6)(B)(i). Defendant never made a timely claim of “unusual circumstances” with respect to Plaintiff’s FOIA request. Nor did Defendant request a stay of litigation on the basis of “exceptional circumstances,” as permitted once the original 20-day period has passed. Bloomberg, L.P. v. FDA, 500 F. Supp. 2d 371, 374 (S.D.N.Y. 2007). “Exceptional circumstances” are shown where
2

Case 1:17-cv-07520-PGG Document 27 Filed 12/21/17 Page 4 of 11
“(1) the agency is deluged with a[] volume of requests for information on a level unanticipated by Congress; (2) existing agency resources are inadequate to deal with the volume of requests within the time limits established [by the FOIA]; and (3) [] the agency can show that it is exercising due diligence in processing the requests.” Id. (citing Open Am. v. Watergate Spec. Prosecution Force, 547 F.2d 605, 616 (D.C. Cir. 1976)). Defendant made no attempt to request a stay on the basis of such exceptional circumstances.
It only gets worse. Instead of invoking its statutory rights and making the requisite showings, Defendant asserts that the Court should provide it an unspecified amount of additional time to process and produce non-exempt portions of six documents. See Decl. of E. Stein ¶ 9. And that is even though, under Plaintiff’s proposed schedule, the FOIA request will have been pending for almost six months.
More broadly, Defendant has failed to honor its obligation to respond with due diligence and the appropriate level of attention to an admittedly urgent request. Although Defendant initially provided “an estimated completion date of October 31, 2017” for Plaintiff’s full request, id. ¶ 6, it failed to notify Plaintiff that it would not meet that estimated projection once that became clear, did not initiate contact with Plaintiff once that timeframe had passed, and still has not provided Plaintiff an estimated completion date for processing and producing the six responsive documents, see Decl. of J. Martínez Resly ¶¶ 2, 13, 15.1 Moreover, although it should have been clear to Defendant by at least early October, when Defendant’s counsel was
1 Defendant’s reference to its “FOIA [c]aseload” for the fiscal years preceding the year in which Plaintiff made its request, see Decl. of E. Stein ¶ 13 (request and backlog metrics for FY 2011 to FY 2016, not FY 2017), is clearly irrelevant, and Defendant’s professed ability to reduce its backlog by more than 11,000 requests in a one-year period, see id. ¶¶ 13-14, means little if it cannot process six responsive documents in six months.
3

Case 1:17-cv-07520-PGG Document 27 Filed 12/21/17 Page 5 of 11
served with the Complaint, that the portion of Plaintiff’s request at issue in this litigation was the most urgent,2 see Dkt. 1, Plaintiff had to move to expedite this action to receive any sign of progress on even this narrow portion of the request, see Ex. 1 to Decl. of E. Stein (letter from Defendant dated Dec. 5, 2017, five days after Plaintiff served motion). Nor has Defendant explained why it has taken so long to “retriev[e]” (Decl. of E. Stein ¶ 9) the two reports to the President that are the backbone of the government’s effort to distinguish the current version of the Muslim travel ban from its two ill-fated predecessors. See Int’l Refugee Assistance Proj. v. Trump (“IRAP IV”), — F. Supp. 3d —, 2017 WL 4674314, at *32 (D. Md. Oct. 17, 2017), appeal docketed No. 17-2231 (4th Cir. Oct. 23, 2017). Defendant clearly knew where to find these documents.
The vague statements in Defendant’s declaration in support of its opposition do not demonstrate that Defendant is taking appropriate measures to ensure that processing and production will occur expeditiously. For example, although it claims that “the White House and multiple other government agencies” will need to “be consulted,” the only apparent step it has taken has been to refer the documents to the Department of Homeland Security (“DHS”). Decl. of E. Stein ¶¶ 9, 12. There is no indication that the consultation procedure with other agencies has commenced and no hint as to how long consultation will take or whether it will take place concurrently or sequentially, one agency at a time. See id. ¶ 9. Rather than moving this suit to resolution, Defendant’s opposition lays the groundwork for further delays if this Court does not act to set an expedited schedule.
2 For this reason, Defendant’s stray references to the “br[eadth]” and “complex[ity]” of the request or the fact that “[P]laintiff has not withdrawn” the portions not at-issue in this litigation are irrelevant. Opp’n at 3.
4

Case 1:17-cv-07520-PGG Document 27 Filed 12/21/17 Page 6 of 11
It also bears emphasis that if Defendant were serious about demonstrating diligence, it
presumably would have obtained a declaration from DHS or explained in its own declaration
how it otherwise intends to facilitate expedition of the records at issue.3
Nor can Defendant excuse its conduct by asserting that “[b]ecause processing and . . .
production of the records will fall to DHS, the Court cannot order the State Department to take
any further action.” Opp’n at 3. As an initial matter, Defendant at once attempts to wash its
hands of the matter, see id., but also asserts that it “possess[es] equities in [the] material” such
that “exemption[]” determinations “will require inter-agency coordination,” id. at 4. Second, and
more fundamentally, it is well settled that the referring agency — here, Defendant — “is
ultimately responsible for processing responsive records [that were] in its custody and control at
the time of the FOIA request.” Plunkett v. DOJ, 924 F. Supp. 2d 289, 305 (D.D.C. 2013).4
Moreover, the official guidance on referrals, consultations, and coordination instructs that
referral and consultation procedures “are designed to maximize efficiency and ensure agency
3 Cf., e.g., Hall v. CIA, 881 F. Supp. 2d 38, 56 (D.D.C. 2012) (CIA “fulfilled its burden as to the coordination of these documents” where it submitted “supporting declarations from the coordinating agencies”); Keys v. Dep’t of Homeland Sec., 570 F. Supp. 2d 59 (D.D.C. 2008) (declarations submitted from agencies to which documents referred). Again, there is no indication from DHS that it is actually processing the six responsive documents. Notably, although it is “[s]tandard [p]rocedure[]” upon receipt of a referral to send the FOIA requester an acknowledgment of receipt that includes both agencies’ tracking numbers, OIP Guidance — Referrals, Consultations, and Coordination: Procedures for Processing Records When Another Agency or Entity Has an Interest in Them, DOJ (2011), https://www.justice.gov/oip/blog/foiaguidance-13, Plaintiff has received no such communication from DHS. 4 See also Gahagan v. U.S. Citizenship & Migration Servs., 2015 WL 350356, at *19-20 (E.D. La. Jan. 23, 2015) (“In providing, at § 552[(a)](3)(A), that ‘each agency, upon any request for records . . . shall make the records promptly available to any person,’ FOIA imposes a duty upon the agency that receives the request, not upon a third-party agency that receives the request upon referral. . . . [N]o provision of the statute establishes that an agency may avoid responsibility for improper withholding by referring documents elsewhere.”); Hall, 881 F. Supp. 2d at 56 (“The CIA goes on to state that it ‘has fulfilled its obligation and has no power or control over the actions of another federal agency.’ Here, the CIA’s response is not only baffling, but the failure to produce the documents amounts to an improper withholding.”).
5

Case 1:17-cv-07520-PGG Document 27 Filed 12/21/17 Page 7 of 11
accountability for the overall benefit of FOIA administration.” OIP Guidance, supra note 3. Indeed, Defendant’s declarant appears to understand the State Department’s responsibility for the inter-agency coordination where he states that the “Department is working to process Plaintiff’s request expeditiously” after the Department has referred the documents to DHS. Decl. of E. Stein ¶ 12. Thus, the Court can, and should, impose a production deadline on Defendant, which has “the ultimate responsibility for a full response” to the FOIA request. Hronek v. DEA, 16 F. Supp. 2d 1260, 1272 (D. Or. 1998), aff’d, 7 F. App’x 591 (9th Cir. 2001).5
In this regard, the Court should not “give the agency unchecked power to drag its feet and ‘pay lip service’ to [Plaintiff’s] ‘statutory and regulatory entitlement to expedition.’” Elec. Priv. Info. Ctr. v. DOJ, 416 F. Supp. 2d 30, 37 (D.D.C. 2006). Defendant has demonstrated that it has the ability to act quickly when a deadline is imposed upon it — here, to demonstrate progress, Defendant “retriev[ed]” the responsive documents before its deadline to oppose Plaintiff’s motion to expedite. See also Decl. of E. Stein ¶¶ 9-10 (“Only court-ordered deadlines in FOIA litigation cases take precedence over expedited FOIA cases.”).
As outlined in the Complaint, the public’s need for the requested reports is intense and urgent. See Dkt. 1 ¶¶ 36-50; see also Mem. at 6-8. This urgency has only grown now that the travel ban is in full effect following the Supreme Court’s stay of the preliminary injunctions entered by two different district courts — categorically barring entry of approximately 150
5 See In re Wade, 969 F.2d 241, 247-48 (7th Cir. 1992) (“All records in an agency’s possession, whether created by the agency itself or by other bodies covered by the [FOIA], constitute ‘agency records.’ The United States Attorney is obligated to produce nonexempted documents pursuant to the Act. The agency cannot avoid the request or withhold the documents by referring them[.]” (citation omitted)); Grove v. DOJ, 802 F. Supp. 506, 518 (D.D.C. 1992) (“The FBI may refer documents to their originating agencies and enlist the agencies’ assistance in making a release determination. However, the FBI cannot avoid its own obligation to respond to the FOIA request with respect to these forwarded documents. The FBI must therefore provide the supplemental declaration and either assert applicable exemptions or release the forwarded documents.” (citation omitted)).
6

Case 1:17-cv-07520-PGG Document 27 Filed 12/21/17 Page 8 of 11
million people from six predominantly Muslim countries, including those with family members, other loved ones, and business or academic colleagues in this country. See Trump v. Int’l Refugee Assistance Proj., — S. Ct. —, 2017 WL 5987435 (Dec. 4. 2017); Trump v. Hawaii, — S. Ct. —, 2017 WL 5987406 (Dec. 4, 2017); IRAP IV, 2017 WL 4674314. Expedition is in the interest of justice and is consistent with the purposes of the FOIA. See Mem. at 4-6, 8-9. II. Defendant Is Not Entitled To Delay Written Justifications For Non-Disclosed
Records Or Portions Of Those Records. Defendant is also incorrect that Plaintiff’s request for a Vaughn index is premature. See Opp’n at 4-5. Although Defendant cites to cases where courts have held otherwise, id. at 5, it ignores that courts have held that written justifications for withholdings should be made promptly and separately from summary judgment briefing. See People ex rel. Brown v. EPA, 2007 WL 2470159 (N.D. Cal. Aug. 27, 2007); Keeper of Mountains Found. v. DOJ, 2006 WL 1666262 (S.D. W.Va. June 14, 2006); Schulz v. Hughes, 250 F. Supp. 2d 470 (E.D. Pa. 2003); Prov. Journal Co. v. U.S. Dep’t of Army, 769 F. Supp. 67 (D.R.I. 1991); Ferguson v. FBI, 729 F. Supp. 1009 (S.D.N.Y. 1990); Knight Pub. Co. v. DOJ, 608 F. Supp. 747 (W.D.N.C. 1984). These courts have reached the conclusion that early production of a Vaughn index is an effective way to address the power imbalance present in each FOIA action. As the U.S. District Court for the District of Rhode Island explained: “Ordinarily, rules of discovery give each party access to the evidence upon which the court will rely in resolving the dispute between them. In a FOIA case, however, because the issue is whether one party will disclose documents to the other, only the party opposing disclosure will have access to all of the facts.” Prov. Journal Co., 769 F. Supp. at 68. “It would be unfair,” the court continued, “to allow the [defendant] months to prepare its case and then force the [plaintiffs] to formulate their
7

Case 1:17-cv-07520-PGG Document 27 Filed 12/21/17 Page 9 of 11
entire case within [the short time] they have to respond to that motion.” Id. at 69 (quotation marks and citation omitted).
The reality of FOIA litigation is that Vaughn indices are prepared by the agency and precede and drive the drafting of a summary judgment motion. Defendant offers no explanation as to why it would be impractical or unreasonable to require it to prepare an index of the withholdings before briefing a summary judgment motion. Nor can it provide such an explanation — especially where only six documents are at issue and, under Plaintiff’s proposed schedule, Defendant will have made withholding determinations at least a week in advance.6
Defendant also seeks to introduce further delay when it asserts that, after production of documents, Plaintiff would “then challenge[] . . . the government’s withholdings” and only then will it produce a Vaughn index. Opp’n at 4. By failing to comply with the statutory deadlines for responding to Plaintiff’s request, Plaintiff is deemed to have exhausted its administrative remedies and is entitled to bring this lawsuit. See 5 U.S.C. § 552(a)(6)(C)(i). The time has passed for Defendant to make administrative releases, which Plaintiff is then required to decide whether to challenge in court. Defendant is in court now, Plaintiff has already challenged all of Defendant’s improper withholdings, see Dkt. ¶¶ 51-61, and the next required step is the production of a Vaughn index.
CONCLUSION For the foregoing reasons and those set forth in Plaintiff’s memorandum of law in support of its motion the Court should grant Plaintiff’s motion to expedite.
6 It is also of no moment that Defendant apparently takes issue with the form of the Vaughn index. See Opp’n at 4. As courts have recognized, “it is the function, not the form, of the index that is important,” Halpern v. FBI, 181 F.3d 279, 291 (2d Cir. 1999) (quoting Keys v. DOJ, 830 F.2d 337, 349 (D.C. Cir. 1987)); see also Mem. at 5 n.3, 9 (using “Vaughn index” and “written justifications” interchangeably).
8

Case 1:17-cv-07520-PGG Document 27 Filed 12/21/17 Page 10 of 11

New York, New York December 21, 2017
Neil K. Roman COVINGTON & BURLING LLP The New York Times Building 620 Eighth Avenue New York, NY 10018-1405 (212) 841-1000 nroman@cov.com
Mark H. Lynchi Jaclyn E. Martínez Reslyi COVINGTON & BURLING LLP One CityCenter 850 Tenth St. NW Washington, DC 20001-4956 (202) 662-6000 mlynch@cov.com jmartinezresly@cov.com

Respectfully submitted,
s/ Neil K. Roman Neil K. Roman
Johnathan Smith Sirine Shebayaii MUSLIM ADVOCATES P.O. Box 66408 Washington, DC 20035 (202) 897-1897 johnathan@muslimadvocates.org sirine@muslimadvocates.org
Richard B. Katskeei Eric Rothschildi Andrew L. Nellisi* AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE 1310 L St. NW, Suite 200 Washington, DC 20005 (202) 466-3234 katskee@au.org rothschild@au.org nellis@au.org
i Admitted pro hac vice ii Admission pending * Admitted in New York. Supervised by Richard B. Katskee, a member of the D.C. Bar.

Attorneys for Plaintiff Brennan Center for Justice at New York University School of Law

9

Case 1:17-cv-07520-PGG Document 27 Filed 12/21/17 Page 11 of 11

 
 Case 1:17-cv-07520-PGG Document 30 Filed 01/10/18 Page 1 of 17

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW,
Plaintiff,

USDC SDNY DOCUMENT ELECTRONICALLY FILED DDAOTECF#-:IL_E_D_:_l~,,-0~,I-~~~-
MEMORANDUM OPINION & ORDER

- against -

17 Civ. 7520 (PGG)

UNITED STATES DEPARTMENT OF STATE,

Defendant.

PAUL G. GARDEPHE, U.S.D.J.: Plaintiff Brennan Center for Justice brings this action against Defendant U.S.
Department of State to compel compliance with the Freedom of Information Act ("FOIA"), 5
U.S.C. § 552. (Cmplt. (Dkt. No. 1) ii 1) Plaintiff seeks documents referell:ced in President
Trump's September 24, 2017 Proclamation1 entitled "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public
Safety Threats[.]" (Id. iI 2, Ex. A (Proclamation) (Dkt. No. 1-1); see also Proclamation No.
9,645, 82 Fed. Reg. 45,161(Sept.24, 2017)) Only six documents are at issue: "two reports (and
associated attachments)." (Stein Deel. (Dkt. No. 26) ii 9)

1 "While an executive order constitutes perhaps the most widely discussed form in which a presidential directive may be issued, it is not the only type of presidential order. Presidents may also issue proclamations.... In general, however, the difference is typically one of form, not substance," and "the Supreme Court has held that there is no difference between the two in terms oflegal effect." Tara L. Branum, President or King? The Use and Abuse of Executive Orders in Modem-Day America, 28 J. Legis. 1, 6-7, 86 n. 16 (2002) (citing Wolsey v. Chapman, 101 U.S. 755, 770 (1879)).

Case 1:17-cv-07520-PGG Document 30 Filed 01/10/18 Page 2 of 17
On December 22, 2017, Plaintiff moved to expedite this action pursuant to 28 U.S.C. § 1657. (Mot. (Dkt. No. 22)) Plaintiff seeks an order requiring Defendant "to produce the [requested] documents (or all segregable non-exempt portions thereof) within 21 days[,]" and to provide "written justification for any withheld documents or portions of documents" commonly referred to as a Vaughn index - within 28 days. (Pltf. Reply (Dkt. No. 27) at 2; Pltf. Br. (Dkt. No. 23) at 13)
BACKGROUND
On January 27, 2017, President Trump issued Executive Order No. 13,769 "Protecting the Nation from Foreign Terrorist Entry into the United States" ("E0-1 "), 82 Fed. Reg. 8977 (Jan. 27, 2017) - which bars entry into the United States of individuals from seven Muslim-majority countries for 90 days, suspends the United States Refugee Admission Program for 120 days, and bans the entry of Syrian refugees indefinitely. See E0-1, 82 Fed. Reg. 8,977, §§ 3(c), 5(a), 5(c). Shortly thereafter, several courts enjoined implementation of this executive order. See,~. Washington v. Trump, No. Cl 7-0141 (JLR), 2017 WL 462040, at *3 (W.D. Wash. Feb. 3, 2017), appeal dismissed, No. 17-35105, 2017 WL 3774041 (9th Cir. Mar. 8, 2017); Aziz v. Trump, 234 F. Supp. 3d 724, 739 (E.D. Va. 2017).
On March 6, 2017, President Trump issued Executive Order 13,780 ("E0-2"), "Protecting the Nation From Foreign Terrorist Entry Into the United States," 82 Fed. Reg. 13,209 (Mar. 6, 2017). E0-2 revokes E0-1 and suspends entry into the United States of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days. See E0-2, 82 Fed. Reg. 13,209, § 2(c). E0-2 also directs a "worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the [Immigration and Nationality
2

Case 1:17-cv-07520-PGG Document 30 Filed 01/10/18 Page 3 of 17
Act] ... in order to determine that the individual is not a security or public-safety threat." Id. §
2(a). E0-2 instructs the "Secretary of Homeland Security, in consultation with the Secretary of
State and the Director of Intelligence ... [to] submit to the President a report on the results of
worldwide review[.]" Id. § 2(b). Several courts also issued nationwide injunctions enjoining
implementation of this executive order. See,~. Hawai'i v. Trump, 245 F. Supp. 3d 1227, 1237
(D. Haw.); Int'l Refugee Assistance Project v. Trump, 857 F.3d 554, 606 (4th Cir. 2017). On
June 26, 2017, the U.S. Supreme Court granted the Government's petition for certiorari to review
lower courts' grant of injunctive relief related to E0-2. (Cmplt. (Dkt. No. 1) ~ 15)
On July 20, 2017, Plaintiff submitted a FOIA request to Defendant for "23
categories of records related to the [Government's] travel bans." (Cmplt. (Dkt. No. 1) ~ 25;
Cmplt., Ex. B (FOIA Request) (Dkt. No. 1-2)) The FOIA request seeks:
All records pertaining to the worldwide review process conducted under Section 2 of Executive Order 13 780 and 17 STATE 72000, including the Report that was submitted to President Trump, copies of instructions to foreign governments regarding the requirements that must be met to avoid travel restrictions, and a list of all countries that have:
i. been designated as providing adequate information to the U.S. government; ii. been designated as providing inadequate information to the U.S. government; and/or iii. been designated as being at risk of providing inadequate information to the U.S. government.
(Cmplt. (Dkt. No. 1) ~ 26)
On July 24, 2017, the State Department granted Plaintiffs request for expedited
processing and for a fee waiver:
After consideration of your request for expedited processing under the Department's rules governing Freedom of Information Act requests, we have determined that your request does warrant expedited processing. We have considered your request for a fee waiver. Based upon the information provided in your letter, your request for a fee waiver has been granted[.]
(Cmplt., Ex. C (State Department Initial Response) (Dkt. No. 1-3) at 2)
3

Case 1:17-cv-07520-PGG Document 30 Filed 01/10/18 Page 4 of 17
On August 18, 2017, the State Department informed Plaintiff that it expected to make production by October 31, 2017. (Cmplt. (Dkt. No. 1) ~ 32) To date, however, Plaintiff has received no documents in response to its FOIA request. (Id.~ 35)
On September 24, 2017, President Trump issued Proclamation 9,645 (the "Proclamation"). (Id.~ 17; Proclamation No. 9,645, 82 Fed. Reg. 45,161 (Sept. 24, 2017)) The Proclamation restricts entry into the United States of individuals from "six Muslim-majority countries (and two non-Muslim majority countries)": Chad, Iran, Libya, Syria, Yemen, Somalia, Venezuela, and North Korea. (Cmplt. ~ 18; Proclamation No. 9,645, 82 Fed. Reg. 45, 161, §§ 2(a)-(g))
The Proclamation justifies these entry restrictions on the basis of the "worldwide review" of the "information-sharing practices, policies, and capabilities of foreign governments" directed in E0-2 (See Proclamation No. 9,645, 82 Fed. Reg. 45,161, §§ l(c), (i)) The Proclamation states that - after conducting this "worldwide review" - the Secretary of State "engaged with the countries reviewed in an effort to address deficiencies and achieve improvements." (Proclamation No. 9,645, 82 Fed. Reg. 45, 161) However, "a small number of countries ... remain deficient ... with respect to their identity-management and informationsharing capabilities, protocols, and practices[ and i]n some cases, these countries also have a significant terrorist presence within their territory." (IQJ Accordingly, the Proclamation announces "certain conditional restrictions and limitations ... on entry into the United States of nationals of the countries identified [as deficient.]" (IQJ
The Proclamation cites several reports on which Executive Branch officials relied, including July 9, 2017 and September 15, 2017 reports submitted by the Secretary of Homeland Security to President Trump. (See id.§§ l(c), (h))
4

Case 1:17-cv-07520-PGG Document 30 Filed 01/10/18 Page 5 of 17
On October 10, 2017, Plaintiff filed this action, which seeks a subset of the documents sought in its FOIA request-namely, the July 9, 2017 and September 15, 2017 reports, as well as "any other reports detailing the conclusions of [any] 'worldwide review' for the eight countries covered by the Proclamation and the sixteen countries that the Secretary of Homeland Security identified as being 'inadequate,' to the extent not included in the July and September reports." (Cmplt. (Dkt. No. I)~ 2; see also Pltf. Br. (Dkt. No. 23) at 6.) Defendant has identified six responsive documents: "the two reports (and associated attachments) submitted by the Secretary of the Department of Homeland Security ("DHS") to the President." (Stein Deel. (Dkt. No. 26) ~ 9)
On November 10, 2017, Jaclyn Martinez Resly- an attorney representing the Brennan Center - sent an email to Assistant U.S. Attorney ("AUSA") Chris Connelly stating that Plaintiff believed that "a rolling production of responsive records and a rolling 'draft' Vaughn index are appropriate [because, f]or example, the July 9 and September 15 reports ... are readily identifiable and are reasonably discrete documents that can be reviewed quickly[.]" (Resly Deel. (Dkt. No. 24) ~~ 3-4; Resly Deel., Ex. F (November 15, 2017 email chain) (Dkt. No. 24-6) at 2) Resly proposed that the July 9 and September 15 reports be produced first, "along with the justification for withholding any parts of them that are claimed to be exempt." (Resly Deel., Ex. F (November 15, 2017 email chain) (Dkt. No. 24-6) at 2)
In a November 15, 2017 email response, AUSA Connelly states: We would like to agree to a reasonable schedule for processing the records responsive to your request, producing any non-exempt information, and briefing the government's claimed exemptions. Right now, however, we are still working on determining dates that we can propose. The records in question are highly classified and subject to handling controls that complicate their dissemination and review. Further, the documents contain equities belonging to several different agencies, all of whom will need to be involved in the review process. We are working to coordinate this process so that we can discuss a schedule with you, but unfortunately aren't able to propose a firm date today.
5

Case 1:17-cv-07520-PGG Document 30 Filed 01/10/18 Page 6 of 17
(Id.) On December 21, 2017, Plaintiff moved to expedite this action. (See Mot. (Dkt.
No. 22)) As noted above, Defendant opposes Plaintiffs request, arguing that Plaintiffs proposed schedule is not "practicable." (See Def. Br. (Dkt. No. 25)) Defendant proposed no alternative schedule in its briefing, however. (See id.)
On January 4, 2018, this Court conducted a telephone conference with the parties.2 This Court expressed concern about the amount of time that had passed since Plaintiff first filed its FOIA request - nearly six months - and asked the Government how much time it believed was necessary to make production of non-exempt materials, and provide justification for any materials withheld. The Government stated that it required an additional 90 days to make production of non-exempt materials. The Government also reiterated its position that production of a Vaughn index should not be required until the parties had filed cross-motions for summary judgment. (See Def. Br. (Dkt. No. 25) at 5) Plaintiff objected to the Government's request for an additional 90 days, noting that its FOIA request had been pending for nearly six months, and that nothing had been produced during that time.
2 No transcript of this conference is available, because the courthouse was closed due to
inclement weather.
6

Case 1:17-cv-07520-PGG Document 30 Filed 01/10/18 Page 7 of 17
DISCUSSION I. MOTION TO EXPEDITE
In contending that Defendant should be required "to produce the [requested] documents (or all segregable non-exempt portions thereof) within 21 days[,]" and to provide "written justification for any withheld documents or portions of documents within 28 days" (Pltf. Reply (Dkt. No. 27) at 2; Pltf. Br. (Dkt. No. 23) at 13), Plaintiff argues that FOIA actions are "especially appropriate for expedition." Plaintiff also contends that there is enormous public interest in the travel bans, and notes that the State Department has acknowledged that Plaintiffs FOIA request warrants expedited processing. (Pltf. Br. (Dkt. No. 23) at 8-13 (quoting Cmplt., Ex. C (State Department Initial Response) (Dkt. No. 1-3))
Defendant reiterates that Plaintiffs proposed schedule for production is "not practicable[,]" and that no Vaughn index should be required until the filing of cross-motions for summary judgment. (Def. Br. (Dkt. No. 25) at 3-6)
A. Applicable Law "Congress enacted FOIA to ... provide a means of accountability, to allow
Americans to know what their government is doing." Am. Civil Liberties Union ("ACLU") v. Dep't of Def., 339 F. Supp. 2d 501, 504 (S.D.N.Y. 2004) (citing Halpern v. FBI, 181F.3d279, 284-85 (2d Cir. 1999)); Elec. Privacy Info. Ctr. v. Dep't of Justice, 416 F. Supp. 2d 30, 36 (D.D.C. 2006) ("The purpose of providing information to the public is 'to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold governors accountable to the governed."') (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1976)). In amending FOIA in 1974, "Congress evinced an increasing concern over the timeliness of disclosure, recognizing that delay in complying with FOIA
7

Case 1:17-cv-07520-PGG Document 30 Filed 01/10/18 Page 8 of 17
requests may be 'tantamount to denial."' ACLU, 339 F. Supp. 2d at 504 (quoting H. Rep. No. 876, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Admin. News, 6267, 6271). The FOIA statute reflects a "preference for the fullest possible agency disclosure of such information consistent with a responsible balancing of competing concerns[.]" Halpern, 181 F.3d at 284.
National security is an example of one such competing concern. ACLU, 339 F. Supp. 2d at 504 (citing 5 U.S.C. § 552(b)(l) (exempting matters that are "established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... are in fact properly classified pursuant to such Executive order")). However, "[m]erely raising national security concerns cannot justify unlimited delay," and "[i]t is the duty of the court to uphold FOIA by striking a proper balance between plaintiffs' right to receive information on government activity in a timely manner and the government's contention that national security concerns prevent timely disclosure or identification." Id.
FOIA "requires the executive, in response to duly made demands, [to] promptly ... produce requested documents, or to provide justification why the documents may be exempt from production." Id. at 503 (citing 5 U.S.C. § 552 (2004)). More specifically, FOIA requires an agency to determine, "within twenty working days, whether or not to comply with a FOIA request." Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 36; 5 U.S.C. § 552(a)(6)(A)(i) ("Each agency, upon any request for records ... shall determine within 20 days ... after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor. ..."). "An agency's failure to comply with [the statute's] time limits may be treated as 'constructive exhaustion' of administrative remedies," and authorizes "the requester to seek judicial review immediately." Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 36 (citing 5 U.S.C § 552(a)(6)(C)(i)).
8

Case 1:17-cv-07520-PGG Document 30 Filed 01/10/18 Page 9 of 17

Recognizing the "difficulties in processing all FOIA requests within 20 days,
[courtsJhave permitted the executive to process requests on a first-in-first-out basis[,]" except

where there is exceptional need or urgency for the information. ACLU, 339 F. Supp. 2d at 503

(citing Open Am. v. Watergate Special Prosecution Force, 547 F.2d 605, 616 (D.C. Cir. 1976)

("The good faith effort and due diligence of the agency to comply with all lawful demands under

the Freedom of Information Act in as short a time as is possible by assigning all requests on a

first-in, first-out basis, except those where exceptional need or urgency is shown, is compliance

with the Act.")); Bloomberg, LP. v. United States Food & Drug Admin., 500 F. Supp. 2d 371,

376 (S.D.N.Y. 2007) ("While a general showing of an agency processing FOIA requests on a

first-in, first-out basis, coupled with a multitrack processing system may be consistent with due

diligence in some instances, this determination should not be automatic, and fails if extraordinary

need is demonstrated."). To ensure timely review in cases where exceptional need or urgency is

demonstrated, FOIA includes an additional "requirement that agencies provide for expedited

processing ofrequests" under certain circumstances. Elec. Privacy Info. Ctr., 416 F. Supp. 2d at

36 (citing 5 U.S.C. § 552(a)(6)(E)).

In this regard, 5 U.S.C. § 552(a)(6)(E) provides:

(E)(i) Each agency shall promulgate regulations ... providing for expedited processing of requests for records -

(I) in cases in which the person requesting the records demonstrates a compelling need; and

(II) in other cases determined by the agency.

(v) For purposes of this subparagraph, the term "compelling need" means -

(I) that a failure to obtain requested records on an expedited basis under this

paragraph could reasonably be expected to pose an imminent threat to the life or

physical safety of an individual; or

·

9

Case 1:17-cv-07520-PGG Document 30 Filed 01/10/18 Page 10 of 17
(II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity. U.S.C. § 552(a)(6)(E). Where expedition is appropriate under 5 U.S.C. § 552(a)(6)(E), an agency must process the request "as soon as practicable." See 5 U.S.C. § 552(a)(6)(E)(iii); Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 37; ACLU, 339 F. Supp. 2d at 503 (S.D.N.Y. 2004). "[F]ailure by an agency to respond in a timely manner to [an expedited] request shall be subject to judicial review[.]" 5 U.S.C. § 552(a)(6)(E)(iii); see also 5 U.S.C. § 552(a)(4)(B) ("the district court ... has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld"). Courts "review[] agency decisions, including those regarding expedited processing of FOIA requests, de novo," Bloomberg, 500 F. Supp. 2d at 374, and "[s]peed is an essential element in this process of de novo review[.]" Ferguson v. F.B.I., 722 F. Supp. 1137, 1144 (S.D.N.Y. 1989) (citing H.R. Rep. No. 985, 98th Cong., 2d Sess. 6, reprinted in 1984 U.S. Code Cong. & Admin. News 5708, 5779, 5783 ("Civil Priorities Act Report") ("Prompt review of decisions denying access to government information is critical to FOIA users and to the purposes of the Act.")). Under the Civil Priorities Act, district courts must expedite the consideration of any action . . . if "good cause" therefor is shown. For purposes of this subsection, "good cause" is shown if a right under . . . a Federal Statute (including rights under section 552 of title 5) would be maintained in a factual context that indicates that a request for expedited consideration has merit. 28 U.S.C. § 1657(a). Congress intended for the "good cause" provision to "'be liberally construed by the courts in granting requests for expedited consideration under [FOIA]. '" Ferguson, 722 F. Supp. at 1144 (quoting Civil Priorities Act Report at 5784). A court may also order expedited compilation and production of a Vaughn index. "A Vaughn index 'require[s] agencies to itemize and index the documents requested, segregate
10

Case 1:17-cv-07520-PGG Document 30 Filed 01/10/18 Page 11 of 17
their disclosable and non-disclosable portions, and correlate each non-disclosable portion with the FOIA provision which exempts it from disclosure.'" Ferguson, 722 F. Supp. at 1144 (quoting Brown v. Fed. Bureau oflnvestigation, 658 F.2d 71, 73 (2d Cir. 1981)). This is often a "necessary aspect of FOIA litigation because, in the typical case, only the agency knows the exact nature of the documents ... being withheld[, and] ... [t]he party seeking to obtain documents usually can only speculate on their contents." Brown, 658 F.2d at 73-74. The "procedure is intended to restore the adversarial balance needed to allow the court to reach a just and fair result." Id. at 74. Accordingly, courts have interpreted the Civil Priorities Act's "expedition mandate to [similarly] apply to the scheduling of Vaughn index preparation, because an index is an integral component of trial court review of FOIA challenges to non-disclosure of information." Ferguson, 722 F. Supp. at 1144
B. Analysis Here, "there is no dispute that [Plaintiffs] FOIA requests are entitled to expedited
processing," because the State Department conceded that Plaintiffs FOIA request "warrant[s] expedited processing." (Cmplt., Ex. C (State Department Initial Response) (Dkt. No. 1-3) at 2); Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 34, 37 (Plaintiffs FOIA requests were entitled to expedited processing because the relevant Department of Justice components "conceded that expedited processing was appropriate" by granting Plaintiffs request for expedited processing). Moreover, given the "great public and media attention that the Government's [entry restrictions] have garnered[,]" the public interest is served "by the expedited release of the requested documents[.]" See Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 42 (holding that public interest was served by timely public disclosure of records related to warrantless surveillance program, given public and media attention). Accordingly, what remains in dispute is (1) whether
11

Case 1:17-cv-07520-PGG Document 30 Filed 01/10/18 Page 12 of 17
Plaintiffs proposed 21-day production schedule is "practicable" under 5 U.S.C. § 552(a)(6)(E)(iii), and (2) whether Plaintiffs request for production of a Vaughn index within 28 days is premature. (See Def. Br. (Dkt. No. 25) at 3-6)
Defendant argues that Plaintiffs proposed schedule is not "practicable" because (1) the State Department referred the FOIA request to the Department of Homeland Security ("DHS") for review, and release of the requested records is now in the hands of DHS; (2) the State Department has been expeditious in its processing given its FOIA case load and the "broad and complex" nature of Plaintiffs request; and (3) the records Plaintiff seeks contain national security information, and the White House and several other agencies must be consulted about their possible release. (Def. Br. (Dkt. No. 25) at 4-6) Defendant further contends that Plaintiffs request for a Vaughn index - prior to the filing of dispositive motions - is premature. (h:h at 5-6)
"The legislative history of the amendments [to FOIA] makes clear that, although Congress opted not to impose a specific deadline on agencies processing expedited requests, its intent was to 'give the request priority for processing more quickly than otherwise would occur."' Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 39 (quoting S. Rep. No. 104-272, at 17 (1996)) (emphasis in original). Accordingly, "the phrase 'as soon as practicable,' in the context of a provision of FOIA allowing for expedited processing, cannot be interpreted to impose a lower burden on the agency" than the twenty day statutory period that would otherwise be required for standard FOIA requests. See id. (emphasis in original); 5 U.S.C. § 552(a)(6)(A)(i). Courts have therefore concluded that a "prima facie showing of agency delay exists when an agency fails to process an expedited FOIA request within the [twenty day] time limit applicable to standard FOIA requests." Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 39. An agency may
12

Case 1:17-cv-07520-PGG Document 30 Filed 01/10/18 Page 13 of 17
rebut this "presumption of agency delay," however, by "present[ing] credible evidence that disclosure within such time period is truly not practicable." Id.
Here, Plaintiff submitted its FOIA request seeking records related to the Government's travel bans on July 20, 2017, and the State Department granted Plaintiffs request
for expedited processing on July 24, 2017. (See Stein Deel. (Dkt. No. 26) ifif 1, 4-5; Cmplt. (Dkt. No.1) ifif 25, 28) It has now been nearly six months since Plaintiffs FOIA request was
submitted, and nothing has been produced. Nor is there any schedule for production. Accordingly, the presumption of agency delay applies.
Moreover, Defendant has not offered evidence rebutting the presumption of agency delay. As an initial matter, Defendant cannot evade responsibility for failing to produce the requested records by referring the request to DHS or other Executive Branch components for review. It is well-settled that the referring agency "is ultimately responsible for processing responsive records in its custody and control at the time of the FOIA request, [and that] a referral of records could constitute an improper withholding if the 'net effect [of the referral procedure] is significantly to impair the requester's ability to obtain the records or significantly to increase the amount of time he must wait to obtain them."' Plunkett v. Dep't of Justice, 924 F. Supp. 2d 289, 305 (D.D.C. 2013) (quoting Peralta v. U.S. Attorney's Office, 136 F.3d 169, 175 (D.C. Cir. 1998)); see also Hall v. CJ.A., 881 F. Supp. 2d 38, 56 (D.D.C. 2012) ("The CIA goes on to state that it 'has fulfilled its obligation and has no power or control over the actions of another federal agency.... [T]he CIA's response is not only baffling, but the failure to produce the documents amounts to an improper withholding."); Grove v. Dep't of Justice, 802 F. Supp. 506, 518 (D.D.C. 1992) ("The FBI may refer documents to their originating agencies and enlist the agencies' assistance in making a release determination[, but] the FBI cannot avoid its own obligation to
13

Case 1:17-cv-07520-PGG Document 30 Filed 01/10/18 Page 14 of 17
respond to the FOIA request with respect to these forwarded documents.... [T]he FBI must either release the information or explain to plaintiff which exemption applies.").
Moreover, Defendant's claim that Plaintiffs request is "broad and complex," and "burdensome" in light of the State Department's backlog of FOIA requests, (see Def. Br. (Dkt. No. 25) at 4), is not supported by the record. Although Defendant argues that Plaintiffs FOIA request contains twenty-three sub-parts, Defendant has conceded that Plaintiff is seeking "only a subset of [these] records in this litigation," and that only "six ... documents" are actually in dispute. (See Stein Deel. (Dkt. No. 26) ~ 9; Def. Br. (Dkt. No. 25) at 4) As to the State Department's backlog of generalized FOIA requests, Defendant has acknowledged that "[p]rocessing expedited FOIA cases takes precedence over processing other non-expedited FOIA cases," and that there are only 130 expedited requests currently pending. (See Stein Deel. (Dkt. No. 26) ~~ 10, 12) Accordingly, Defendant has not demonstrated that production of the nonexempt portions of the six documents at issue - with an explanation as to which exemptions apply to material that is withheld - would be overly burdensome. See Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 40 (defendant's "vague assertions [that Plaintiffs request was broad], unsupported by credible evidence, are insufficient to demonstrate that further delay is currently necessitated").
Although Defendant has invoked national security concerns as a reason for its delay, "courts often find that one to two months is sufficient time for an agency to process broad FOIA requests that may involve classified or exempt material." Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 40 (citing ACLU. 339 F. Supp. 2d at 504-05 (ordering production of all responsive documents within one month); Judicial Watch, Inc. v. Dep't of Energy, 191 F.Supp.2d 138, 14041 (D.D.C. 2002) (ordering agencies to process over 6000 pages of material within 60
14

Case 1:17-cv-07520-PGG Document 30 Filed 01/10/18 Page 15 of 17
days); NRDC v. Dep't of Energy, 191F.Supp.2d41, 43 (D.D.C. 2002) (ordering the "vast majority" of the processing of 7500 pages to be completed within 32 days)).
Here, the State Department has had nearly six months to respond to Plaintiffs FOIA request. Given that the documents at issue "have been produced to others, [and] ... are known to exist, degrees of classification have [presumably] been determined for many of them." See ACLU, 339 F. Supp. 2d at 505. Moreover, "before it can be determined if [the] documents requested by plaintiffs fall under [any national security] exemptions, the documents must first be identified, by some form of log, to enable a specific claim of exemption to be asserted and justified." Id. at 504. In this context, "to permit further delays in disclosure or providing justification for not disclosing would subvert the intent of FOIA." Id. at 505.
Defendant's argument that production of a Vaughn index is premature prior to summary judgment is not persuasive. While some courts have held that the production of a Vaughn index is not required until after dispositive motions are filed, "these cases state no rule and other courts have not followed this procedure[.]" Providence Journal Co. v. U.S. Dep't of Army, 769 F. Supp. 67, 69 (D.R.I. 1991). Indeed, it is well-established that "[a]gainst the backdrop of the anti-delay policy of FOIA, district courts ... balance[] the same equities pertinent to the timing of a response to a FOIA document request in their determinations of the appropriate timing of a response to a Vaughn index request." Ferguson, 722 F. Supp. at 1144; see also Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 42-43 (directing production of all responsive records within 20 days, and compilation of a Vaughn index within 30 days); ACLU, 339 F. Supp. 2d at 505 (ordering production of all non-exempt responsive documents within 30 days, and production of a Vaughn index at the same time); Ferguson v. F.B.I., 729 F. Supp. 1009, 1012 (S.D.N.Y. 1990) (finding "no merit to defendant's contentions that plaintiffs request for an index
15

Case 1:17-cv-07520-PGG Document 30 Filed 01/10/18 Page 16 of 17
is premature and that a detailed Vaughn index is unnecessary ... [where t]he defendant ha[d already] made the decision to refuse to disclose certain documents").
Moreover, given that "[D]efendant has not even indicated when it plans to file [a dispositive] motion[,] '[i]t would be unfair to allow [Defendant] months to prepare its case and then force [Plaintiff] to formulate [its] entire case within [the short time it would) have to respond to that motion.'" Providence Journal Co., 769 F. Supp. at 69 (quoting Hansen v. U.S. Dep'tofAirForce,No.CIV.A.91-0099-LFO, 1991WL199748,at*l (D.D.C.Apr.15, 1991)); see also Keeper of Mountains Found. v. U.S. Dep't of Justice, No. 2:06-CV-00098, 2006 WL 1666262, at *3 (S.D.W. Va. June 14, 2006). While "a Vaughn Index is not ... required ... 'where it is not [necessary] to restore the traditional adversary process" - because the "requestor ha[s) acquired sufficient facts to permit the adversary process to function" -here the State Department has provided no information regarding the exemptions it plans to claim. See Providence Journal Co., 769 F. Supp. at 69. Accordingly, directing production of a Vaughn index is a "more efficient and fair approach." See, e.g., Keeper of Mountains Found., 2006 WL 1666262, at *3.
Because (1) Plaintiff has demonstrated that its FOIA request merits expedited treatment, and (2) Defendant has not rebutted the presumption of agency delay, Plaintiff's motion to expedite will be granted.
CONCLUSION For the reasons stated above, Plaintiff's motion to expedite is granted. Defendant will produce all non-exempt materials and a declaration - consistent with Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) - explaining what exemptions apply to any materials withheld. Both
16

Case 1:17-cv-07520-PGG Document 30 Filed 01/10/18 Page 17 of 17 the production of non-exempt materials and the Vaughn index will be produced by February 9, 2018. The Clerk of the Court is directed to terminate the motion (Dkt. No. 22). Dated: New York, New York
January l.Q, 2018 SO ORDERED. Paul G. Gardephe United States District Judge
17

 
 Case 1:17-cv-07520-PGG Document 37 Filed 04/16/18 Page 1 of 7

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

USDCSDNY DOCUMENT ELECTRONICALLY FILED DOC#: ______~~~----
DATE FILED: 'iII(; 118

BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW,
Plaintiff,
-against-
UNITED STATES DEPARTMENT OF STATE,
Defendant.

ORDER 17 Civ. 7520 (PGG)

PAUL G. GARDEPHE, U.S.D.J.: The Brennan Center for Justice brings this action against the U.S. Department of
State to compel compliance with the Freedom ofinformation Act ("FOIA"), 5 U.S.C. § 552. (Cmplt. (Dkt. No. I)~ 1) On January 10,2018, this Court granted Plaintiffs motion to expedite, and directed Defendant to "produce all non-exempt materials and a declaration- consistent with Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)- explaining what exemptions apply to any materials withheld." (Order (Dkt. No. 30) at 16-17) 1 On March 15,2018, Plaintiff moved to compel production of a Vaughn index, contending that the Vaughn index that Defendant produced is insufficient. (Mot. (Dkt. No. 34); Pltf Br. (Dkt. No. 35) at 2)

1 Unless otherwise indicated, the page numbers of documents referenced in this Order correspond to the page numbers designated by this District's Electronic Case Filing system.

Case 1:17-cv-07520-PGG Document 37 Filed 04/16/18 Page 2 of 7
BACKGROUND2 On July 20, 2017, Plaintiff submitted a FOIA request to Defendant for "23 categories of records related to the [Government's] travel bans." (Cmplt. (Dkt. No. I)~ 25; Cmplt., Ex. B (FOIA Request) (Dkt. No. 1-2)) On October 10, 2017, Plaintiff filed this action, which seeks a subset of the documents sought in its FOIA request- namely, the July 9, 2017 and September 15,2017 reports referenced in President Tmmp's September 24, 2017 Proclamation entitled "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public Safety Threats." (See Cmplt. (Dkt. No. I)~ 2, Ex. A (Proclamation) (Dkt. No. 1-1); see also Proclamation No. 9,645, 82 Fed. Reg. 45,161 (Sept. 24, 2017)) On December 21, 2017, Plaintiff moved to expedite this action. (See Mot. (Dkt. No. 22)) On January 10,2018, this Comi granted Plaintiffs motion, and directed Defendant to "produce all non-exempt materials and a declaration- consistent with Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)- explaining what exemptions apply to any materials withheld" by Febmary 9, 2018. (Order(Dkt. No. 30) at 16-17) In directing Defendant to produce a Vaughn index prior to summary judgment, this Court noted that courts "'balance[] the same equities pertinent to the timing of a response to a FOIA document request in their determinations of the appropriate timing of a response to a Vaughn index request."' (Id. at 15 (citations omitted)) "[G]iven that '[D]efendant ha[d] not even indicated when it plans to file [a dispositive] motion,"' this Court found that ""[i]t would be unfair to allow [Defendant] months to prepare its case and then force [Plaintiff] to formulate [its] entire case within [the short time it would] have to respond to that motion."" (Id. at 16
2 Familiarity with the facts set forth in the January I 0, 2018 order is presumed. 2

Case 1:17-cv-07520-PGG Document 37 Filed 04/16/18 Page 3 of 7
(quoting Providence Journal Co., 769 F. Supp. at 69 (quoting Hansen v. U.S. Dep't of Air Force, No. CIV. A. 91-0099-LFO, 1991 WL 199748, at *l (D.D.C. Apr. 15, 1991))). Moreover, because Defendant had "provided no information regarding the exemptions it plans to claim," this Court determined that a Vaughn index was necessary '"to restore the traditional adversary process."' (Id. (citations omitted)).
On February 9, 2018, Defendant produced a Vaughn index to Plaintiff, setting fmih the exemptions it plans to claim. (Vaughn Index (Dkt. No. 31-1) at 1-3) On Febmary 23, 2018, Defendant filed a pre-motion letter requesting leave to file a motion for summary judgment. (Feb. 23,2018 Def. Ltr. (Dkt. No. 31))
In a February 28, 2018 letter, Plaintiff agrees that the action "should proceed to summary judgment," and states that the briefing schedule proposed by the Government is acceptable. (Feb. 28, 2013 Pltf. Ltr. (Dkt. No. 32)) Plaintiff contends, however, that "Defendant's Vaughn index is facially deficient because it does not comply with FOIA case law," and requests that this Comi order Defendant to "serve a sufficient index" before· proceeding to summary judgment briefing. (Id. at 2)
Briefing on Plaintiffs motion to compel is now complete. Plaintiff complains that Defendant's Vaughn index is "conclusory" and "simply lists the claimed exemptions without explaining the factual basis for their application or the specific pmiions of the documents to which the exemptions correspond." (Pltf. Br. (Dkt. No. 25) at 6) The Government argues that (I) its Vaughn index is sufficient to allow Plaintiff to prepare for summary judgment, because it "gives [P]laintiff a picture of the scope of the responsive records identified, the nature of those records, and the nature of and basis for the exemptions applied"; and (2) it is entitled to supplement its Vaughn index with declarations and/or affidavits of agency officials at summary
3

Case 1:17-cv-07520-PGG Document 37 Filed 04/16/18 Page 4 of 7
judgment, and that accordingly the sufficiency of its Vaughn index is properly determined at summary judgment. (Def. Br. (Dkt. No. 36) at 4-8) Defendant requests that this Court deny Plaintiffs motion to compel, and set a schedule for summary judgment briefing. (Id. at 3)
DISCUSSION I. SUFFICIENCY OF VAUGHN INDEX
A. Applicable Law "A Vaughn index 'require[s] agencies to itemize and index the documents
requested, segregate their disclosable and non-disclosable portions, and correlate each non-
disclosable portion with the FOIA provision which exempts it from disclosure."' Ferguson v.
F.B.I., 722 F. Supp. 1137, 1144 (S.D.N.Y. 1989) (alteration in original) (quoting Brown v. Fed. Bureau ofinvestigation, 658 F.2d 71,73 (2d Cir. 1981)). This is often a "necessary aspect of FOIA litigation because, in the typical case, only the agency knows the exact nature of the documents ... being withheld[, and] ... [t]he party seeking to obtain documents usually can only speculate on their contents." Brown, 658 F.2d at 73-74.
A Vaughn index thus "serves three functions": [1] it forces the government to analyze carefully any material withheld, [2] it enables the trial court to fulfill its duty of ruling on the applicability of the exemption, [3] and it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court. Halpern v. F.B.I., 181 F.3d 279,291 (2d Cir. 1999) (quoting Keys v. U.S. Dep't of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987)).
In order to serve its intended purpose, a Vaughn index must meet two requirements: (l) "the documentation must include 'a relatively detailed analysis [of the withheld material] in manageable segments' without resort to 'conclusory and generalized allegations of exemptions'"; and (2) "the documentation must also provide 'an indexing system
4

Case 1:17-cv-07520-PGG Document 37 Filed 04/16/18 Page 5 of 7
[that] would subdivide the [withheld) document under consideration into manageable parts crossreferenced to the relevant portion of the Government's justification."' Id. at 290 (quoting Vauglm, 484 F.2d at 826-27). By requiring this type of detailed disclosure, a Vaughn index helps "con·ect the adversarial imbalance of information" and "permit[s] more effective factual review." Id. (citing Vaughn, 484 F.2d at 826).
When analyzing the sufficiency of a Vaughn index, '"it is the function, not the form, of the index that is important."' Halpern, 181 F.3d at 291 (quoting Keys, 830 F.2d at 349); Judicial Watch, Inc. v. Food & Drug Admin., 449 F. 3d 141, 146 (D.C. Cir. 2006) ("[W)e focus on the functions of the Vaughn index, not the length of the document descriptions, as the touchstone of our analysis."). Indeed, the Second Circuit has "eschewed rigid adherence to any particular indexing format under the Vaughn standard," id., and- although commonly referred to as a Vaughn index- Vaughn documentation may also take the form of, or be supplemented by, affidavits. See,~' New York Times Co. v. U.S. Dep't of Justice, 758 F.3d 436, 439 (2d Cir. 20 14) ("In some cases detailed affidavits from agency officials may suffice to indicate that requested documents are exempt from disclosure."); Halpern, 181 F.3d at 291 (evaluating the sufficiency of a Vaughn affidavit). Ultimately, the "hallmark test" for determining whether a
Vaughn index is sufficient is whether '"the requester and the trial judge [areJ able to derive from
the index a clear explanation of why each document or portion of a document withheld is putatively exempt from disclosure."' Ajluni v. Fed. Bureau oflnvestigation, No. 94 Civ. 325, 1996 WL 776996, at *3 (N.D.N.Y. July 16, 1996) (quoting Davin v. U.S. Dep'tofJustice, 60 F.3d I 043, 1050 (3d Cir. 1995)).
5

Case 1:17-cv-07520-PGG Document 37 Filed 04/16/18 Page 6 of 7
B. Analysis Here, both sides agree that Defendant is entitled to supplement its Vaughn index
at summary judgment, and Defendant has represented that it intends to file declarations to suppmts its claimed exemptions. (See Def. Br. (Dkt. No. 36) at 5; Pltf. Br. (Dkt. No. 35) at 8 n. 6 ("Plaintiff does not assert that, on summary judgment, Defendant is limited to defend itself solely based on the Vaughn index.")) Absent these supporting declarations and the parties' legal
memoranda, it is not possible to assess whether Defendant's Vaughn index complies with Vaughn's "reasonable specificity" standard.3 See Halpern, 181 F.3d at 291. Indeed, all ofthe cases cited by Plaintiff suggest that summary judgment is the proper context in which to evaluate the sufficiency of a Vaughn index. See id. (holding, at summary judgment, that the agency's Vaughn affidavit "fail[ed) to fulfill the functional purposes" of Vaughn, because the agency's "conclusory statement[s) completely fail[ed] to provide the kind offact-specific justification that either (a) would permit appellant to contest the affidavit in adversarial fashion, or (b) would permit a reviewing court to engage in effective de novo review of the FBI's redactions"); Ailuni v. Fed. Bureau of Investigation, No. 94 Civ. 325, 1996 WL 776996, at *3 (N.D.N.Y. July 16, 1996) (holding, at summary judgment, that a Vaughn index was not sufficiently specific because
3 The Court expects that Defendant's declarations will provide additional information conceming the authors and recipients of the documents, along with an explanation as of why these reports fall within the claimed exemptions. See Halpem, 181 F.3d at 291 (To satisfy the Vaughn standard, the agency must "describe with reasonable specificity the nature ofthe documents at issue and the justification for nondisclosure; the description provided in the affidavits must show that the information logically falls within the claimed exemption." (internal quotation marks and citations omitted)); Am. Civil Liberties Union v. Dep't of Justice, No. 15 Civ. 1954 (CM), 2016 WL 889739, at *5 (S.D.N.Y. Mar. 4, 2016) ("The widespread dissemination of documents, to persons well beyond the circle of close presidential advisors, will eviscerate the presidential communications privilege.... [I]t is certainly possible that the claimed privilege applies. But the court does not know how widely the document has been distributed, or to whom, or for what purposes it has been used.").
6

Case 1:17-cv-07520-PGG Document 37 Filed 04/16/18 Page 7 of 7

it did not "provide[] a basis for plaintiff to meaningfully object," or "allow[] the Conrt to fulfill

its duty of ruling on the applicability of the exemptions).

Defendant has provided Plaintiff with an index specifying the natnre of the

documents withheld, the originating agency, and the exemptions Defendant plans to claim. (See

Vaughn Index (Dkt. No. 31-1)) Moreover, Defendant has consented to an adjusted briefing

schedule, affording Plaintiff additional time to respond to Defendant's summary judgment

motion upon receipt of Defendant's motion papers and supporting declarations. (See Def. Br.

(Dkt. No. 36) at 8 n. 1) Under these circumstances, this Court will reserve judgment on the

sufficiency of Defendant's Vaughn index, and will instead set a brieting schedule.

It is hereby ORDERED that the following schedule will apply to the parties'

respective cross-motions for summary judgment:

1.

Defendant's motion is due on May 14, 2018.

2.

Plaintiffs opposition and cross-motion is due on June 28, 2018.

3.

Defendant's opposition and reply is due on July 12,2018.

4.

Plaintiffs reply in support of its motion for summary judgment is due on

July 22, 2018.

CONCLUSION

For the reasons stated above, Plaintiff's motion to compel is denied. The Clerk of

the Court is directed to terminate the motion (Dkt. No. 34).

Dated: New York, New York

April

2018

SO ORDERED.

Paul G. Gardephe '7 United States District Judge
7

 
 Case 1:17-cv-07520-PGG Document 71 Filed 03/29/19 Page 1 of 14

Case 1:17-cv-07520-PGG Document 71 Filed 03/29/19 Page 2 of 14

Case 1:17-cv-07520-PGG Document 71 Filed 03/29/19 Page 3 of 14

Case 1:17-cv-07520-PGG Document 71 Filed 03/29/19 Page 4 of 14

Case 1:17-cv-07520-PGG Document 71 Filed 03/29/19 Page 5 of 14

Case 1:17-cv-07520-PGG Document 71 Filed 03/29/19 Page 6 of 14

Case 1:17-cv-07520-PGG Document 71 Filed 03/29/19 Page 7 of 14

Case 1:17-cv-07520-PGG Document 71 Filed 03/29/19 Page 8 of 14

Case 1:17-cv-07520-PGG Document 71 Filed 03/29/19 Page 9 of 14

Case 1:17-cv-07520-PGG Document 71 Filed 03/29/19 Page 10 of 14

Case 1:17-cv-07520-PGG Document 71 Filed 03/29/19 Page 11 of 14

Case 1:17-cv-07520-PGG Document 71 Filed 03/29/19 Page 12 of 14

Case 1:17-cv-07520-PGG Document 71 Filed 03/29/19 Page 13 of 14

Case 1:17-cv-07520-PGG Document 71 Filed 03/29/19 Page 14 of 14

 
 Case 1:17-cv-07520-PGG Document 79 Filed 07/30/20 Page 1 of 2

By ECF

July 30, 2020

The Honorable Paul G. Gardephe United States District Judge
Thurgood Marshall United States Courthouse 40 Foley Square New York, NY 10007

Re: Brennan Center for Justice at New York University School of Law v. United States Department of State, 17 Civ. 7520 (PGG)

Dear Judge Gardephe,

We write on behalf of Plaintiff Brennan Center for Justice at New York University School of Law in the above-captioned Freedom of Information Act litigation.

Pursuant to the Court’s April 1, 2019 Order (ECF No. 71), Defendant produced the
following five records for the Court’s ex parte, in camera review on April 15, 2019 (see ECF No. 74):

• “20-day Report to the President on Section 2(b) of Executive Order 13780: Protecting the Nation from Foreign Terrorist Entry in the United States,” dated July 9, 2017 (the “Report”);
• Attachment A to the Report; • Attachment B to the Report; • Memorandum from the Acting Secretary of the Department of Homeland Security to the
President concerning Section 2(e) of Executive Order 13780, dated Sept. 14, 2017 (the “Memorandum”); and
• Attachment A to the Memorandum.

With respect, we write to note that, as the Court has recognized, FOIA cases are by statute
entitled to expedition. See 28 U.S.C. § 1657(a); ECF No. 30; Elec. Privacy Info. Ctr. v. Dep’t of
Justice, 416 F. Supp. 2d 30, 38-39 (D.D.C 2006). Moreover, as we have explained in our motion
for summary judgment, ECF 49 at 2, the subject matter of this FOIA suit is of particularly great public interest and importance. Accordingly, and cognizant of the Court’s full docket, we respectfully request that the Court proceed with this case as soon as possible, consistent with the Court’s other responsibilities. We thank the Court for its consideration of this matter.

Case 1:17-cv-07520-PGG Document 79 Filed 07/30/20 Page 2 of 2

The Honorable Paul G. Gardephe July 30, 2020 Page 2
cc: Counsel of Record (by ECF)

Sincerely,
s/Neil K. Roman____ Neil K. Roman COVINGTON & BURLING LLP One City Center 850 Tenth Street, NW Washington, DC 20001-4956 (202) 662-5695 nroman@cov.com
Attorney for Plaintiff Brennan Center for Justice at New York University School of Law