JUDICIAL WATCH, INC. v. U.S. DEPARTMENT OF COMMERCE

Filing 1

COMPLAINT against UNITED STATES DEPARTMENT OF COMMERCE ( Filing fee $ 400 receipt number 0090-4334682) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons U.S. Attorney for D.C., # 3 Summons U.S. Attorney General, # 4 Summons Dept. of Commerce)(Burke, Lauren)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
425 Third Street SW, Suite 800
Washington, DC 20024,
Plaintiff,
v.
UNITED STATES DEPARTMENT
OF COMMERCE,
1401 Constitution Avenue, NW
Washington, DC 20230,
Defendant.

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Civil Action No.

COMPLAINT
Plaintiff Judicial Watch, Inc. brings this action against Defendant U.S. Department of
Commerce to compel compliance with the Freedom of Information Act, 5 U.S.C. § 552
(“FOIA”). As grounds therefor, Plaintiff alleges as follows:
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 28 U.S.C. § 1391(e).
PARTIES

3.

Plaintiff Judicial Watch, Inc. is a not-for-profit, educational organization

incorporated under the laws of the District of Columbia and headquartered at 425 Third Street
S.W., Suite 800, Washington, DC 20024. Plaintiff seeks to promote transparency, integrity, and
accountability in government and fidelity to the rule of law. As part of its mission, Plaintiff
regularly requests records from federal agencies pursuant to FOIA. Plaintiff analyzes the

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responses and disseminates its findings and the requested records to the American public to
inform them about “what their government is up to.”
4.

Defendant United States Department of Commerce is an agency of the United

States Government and is headquartered at 1401 Constitution Avenue, NW, Washington, D.C.
20230. Defendant has possession, custody, and control of records to which Plaintiff seeks
access.
STATEMENT OF FACTS
5.

On October 30, 2015, Plaintiff submitted a FOIA request to the National

Oceanographic and Atmospheric Administration, a component of Defendant, seeking access to:
1. Any and all documents and records of communications sent to
or from NOAA officials, employees and contractors regarding,
concerning or relating to the methodology and utilization of
Night Marine Air Temperatures to adjust ship and buoy
temperature data.
2. Any and all documents and records of communications sent to
or from NOAA officials, employees and contractors regarding,
concerning or relating to the use of other global temperature
datasets for both NOAA’s in-house dataset improvements and
monthly press releases conveying information to the public
about global temperatures.
3. Any and all documents and records of communications sent to
or from NOAA officials, employees and contractors regarding,
concerning or relating to the utilization and consideration of
satellite bulk atmospheric temperature readings for use in
global temperature datasets.
4. Any and all documents and records of communications sent to
or from NOAA officials, employees and contractors regarding,
concerning or relating to a subpoena issued for the
aforementioned information by Congressman Lamar smith on
October 13, 2015.
The time frame for the requested records is October 30, 2014
through October 30, 2015.

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6.

Plaintiff sent its request via U.S. Postal Service (“USPS”) Certified Mail, Receipt

No. 70150640000798544253. USPS provided Plaintiff a Domestic Return Receipt signed
showing that Defendant received the request by certified mail on November 3, 2015.
7.

Defendant has failed to acknowledge Plaintiff’s request and has provided no

information concerning the status of the request.
8.

Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), Defendant was required to determine

whether to comply with Plaintiff’s request within twenty (20) working days after receipt of the
request and to notify Plaintiff immediately of its determination, the reasons therefor, and the
right to appeal any adverse determination. Accordingly, Defendant’s determination was due by
November 23, 2015.
9.

As of the date of this Complaint, Defendant has failed to: (i) determine whether to

comply with Plaintiff’s request; (ii) notify Plaintiff of any such determination or the reasons
therefor; (iii) advise Plaintiff of the right to appeal any adverse determination; or (iv) produce the
requested records or otherwise demonstrate that the requested records are exempt from
production.
10.

Because Defendant has failed to comply with the time limit set forth in 5 U.S.C. §

552(a)(6)(A), Plaintiff is deemed to have exhausted any and all administrative remedies with
respect to its request, pursuant to 5 U.S.C. § 552(a)(6)(C).
COUNT 1
(Violation of FOIA, 5 U.S.C. § 552)
11.

Plaintiff realleges paragraphs 1 through 10 as if fully stated herein.

12.

Additionally, Defendant is violating FOIA by failing to search for and produce all

records responsive to Plaintiff’s request that are not lawfully exempt from production.

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13.

Plaintiff is being irreparably harmed by reason of Defendant’s violations of FOIA,

and Plaintiff will continue to be irreparably harmed unless Defendant is compelled to comply
fully with FOIA.
WHEREFORE, Plaintiff respectfully requests that the Court: (1) order Defendant to
search for any and all records responsive to Plaintiff’s FOIA request and demonstrate that it
employed search methods reasonably calculated to uncover all records responsive to the request;
(2) order Defendant to produce, by a date certain, any and all non-exempt records responsive to
Plaintiff’s FOIA request and a Vaughn index of any responsive records withheld under claim of
exemption; (3) enjoin Defendant from continuing to withhold any and all non-exempt records
responsive to Plaintiff’s FOIA request; (4) grant Plaintiff an award of attorneys’ fees and other
litigation costs reasonably incurred in this action pursuant to 5 U.S.C. § 552(a)(4)(E); and (5)
grant Plaintiff such other relief as the Court deems just and proper.
Dated: December 2, 2015

Respectfully submitted,
/s/ Lauren M. Burke
Lauren M. Burke
D.C. Bar No. 1028811
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, DC 20024
[phone]
Counsel for Plaintiff

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