JUDICIAL WATCH, INC. v. DEPARTMENT OF HOMELAND SECURITY

Filing 1

COMPLAINT against DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 400 receipt number 0090-4840414) 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 Department of Homeland Security)(Aldrich, Jason)

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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.
U.S. DEPARTMENT OF
HOMELAND SECURITY,
Office of the General Counsel
245 Murray Lane, SW
Washington, DC 20528,
Defendants.

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Civil Action No.

COMPLAINT
Plaintiff Judicial Watch, Inc. brings this action against Defendant U.S. Department of
Homeland Security 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 that

seeks to promote transparency, integrity, and accountability in government and fidelity to the
rule of law. As part of its educational mission, Plaintiff regularly requests records under FOIA,
analyzes the responses and any records it receives, and disseminates its findings and the records

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to the American public to inform them about “what their government is up to.” U.S. Dep’t of
Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 795 (1989). Plaintiff is
incorporated under the laws of the District of Columbia and is headquartered at 425 Third Street
SW, Suite 800, Washington, DC 20024.
4.

Defendant U.S. Department of Homeland Security is an agency of the United

States Government and is headquartered at 245 Murray Lane, SW, Washington, DC 20528.
Defendant has possession, custody, and control of records to which Plaintiff seeks access.
STATEMENT OF FACTS
5.

On October 11, 2016, Plaintiff submitted a FOIA request to Defendant’s Office

of Inspector General, by certified mail, seeking access to the following:
1.
Any and all records regarding, concerning, or related to
the Office of Inspector General’s investigation of Mr. William
Craig Fugate for potential offenses involving the solicitation of
prostitution and/or other related offenses. For purposes of
clarification, Mr. Fugate is currently the Director of the
Federal Emergency Management Agency.
This request
includes, but is not limited to, any and all investigative reports,
assessments, analyses, memoranda, statements, and other
investigative records, as well as any and all records of
communications between any official, employee, or
representative of the Department of Homeland Security and
any official, employee, or representative of any other federal
branch, agency, bureau, or office regarding, concerning, or
related to the investigation.
As part of this request, Judicial Watch specifically requests
that the Office of Inspector General conduct a search for
potentially responsive records among investigative files and
data management systems created, maintained, or utilized by
the OIG’s offices in Orlando and Miami, Florida.
Additionally, it is specifically requested that the Office of the
Inspector General conduct a search for potentially responsive
records among the investigative files of DHS OIG Agent James
DiPalma.

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2.
Any and all records regarding, concerning, or related to
the transfer of responsibility for the aforementioned
investigation from the Orlando, Florida office of the OIG to
any other federal, state, or local law enforcement or
investigative agency.
3.
Any and all records regarding Ms. Aubree E. Alles, an
alleged victim of Mr. Fugate’s offenses. This request includes,
but is not limited to, any and all investigative reports,
assessments, analyses, and records of communications
regarding or referencing Ms. Alles by name or implication.
Attached to Plaintiff’s request was a Privacy Act waiver and authorization of release of records
signed by Ms. Alles. The time frame of the request was identified as “January 1, 2010 to the
present.”
6.

By letter dated October 11, 2016, Defendant acknowledged receiving Plaintiff’s

FOIA request on August 18, 2016 and informed Plaintiff that it had assigned the request
“Freedom of Information Act Request No. 2016-185.”
7.

As of the date of this Complaint, Defendant has failed to:

(i) produce the

requested records or demonstrate that the requested records are lawfully exempt from
production; (ii) notify Plaintiff of the scope of any responsive records Defendant intends to
produce or withhold and the reasons for any withholdings; or (iii) inform Plaintiff that it may
appeal any adequately specific, adverse determination.
COUNT I
(Violation of FOIA, 5 U.S.C. § 552 – Defendant DHS)
8.

Plaintiff realleges paragraphs 1 through 7 as if fully stated herein.

9.

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

responsive to Plaintiff’s request or demonstrate that the requested records are lawfully exempt
from production.

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10.

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

and Plaintiff will continue to be irreparably harmed unless Defendant is compelled to comply
with FOIA.
11.

To trigger FOIA’s administrative exhaustion requirement, Defendant was

required to determine whether to comply with Plaintiff’s request within the time limits required
by FOIA. Because Defendant invoked FOIA’s 10-day extension of time provision, Defendant’s
determination was due on or about September 30, 2016. At a minimum, Defendant was required
to: (i) gather and review the requested documents; (ii) determine and communicate to Plaintiff
the scope of any responsive records Defendant intended to produce or withhold and the reasons
for any withholdings; and (iii) inform Plaintiff that it may appeal any adequately specific,
adverse determination. See, e.g., Citizens for Responsibility and Ethics in Washington v. Federal
Election Commission, 711 F.3d 180, 188-89 (D.C. Cir. 2013).
12.

Because Defendant failed to determine whether to comply with Plaintiff’s request

within the time period required by FOIA, Plaintiff is deemed to have exhausted its administrative
appeal remedies. 5 U.S.C. § 552(a)(6)(C)(i).
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

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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: February 13, 2017

Respectfully submitted,
/s/Jason B. Aldrich
JASON B. ALDRICH
D.C. Bar No. 495488
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, DC 20024
Tel: [phone]
Email: [e-mail]
Counsel for Plaintiff

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