WP COMPANY LLC v. SPECIAL INSPECTOR GENERAL OF AFGHANISTAN RECONSTRUCTION

Filing 1

COMPLAINT against SPECIAL INSPECTOR GENERAL OF AFGHANISTAN RECONSTRUCTION ( Filing fee $ 400 receipt number 0090-5156322) filed by WP COMPANY LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Civil Cover Sheet Civil Cover Sheet, # 6 Summons Summons - Special Inspector General of Afghanistan Reconstruction, # 7 Summons Summons - Jeff Sessions, # 8 Summons Summons - Jessie K. Liu)(Tobin, Charles)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

WP COMPANY LLC
d/b/a THE WASHINGTON POST,
1301 K Street, N.W.
Washington, D.C. 20071
Plaintiff,
v.
SPECIAL INSPECTOR GENERAL FOR
AFGHANISTAN RECONSTRUCTION
2530 Crystal Drive
Arlington, VA 22202,
Defendant.

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Civil Action No. 1:17-cv-2114

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiff WP Company LLC d/b/a The Washington Post (“the Post”) brings this suit
against Defendant Special Inspector General for Afghanistan Reconstruction (“SIGAR”). In
support thereof, the Post states as follows:
INTRODUCTION
1.

This is an action brought pursuant to the Freedom of Information Act (“FOIA”),

5 U.S.C. § 552, for declaratory, injunctive, and other appropriate relief. The Post seeks the
transcript of an interview of Lt. General Michael Flynn (U.S. Army, ret.), which was conducted
as part of SIGAR’s “Lessons Learned Program” relating to the war in and reconstruction of
Afghanistan.
2.

In violation of FOIA, SIGAR has denied the Post’s request for these records to

which no exemption properly applies.

PARTIES
3.

Plaintiff, the Post, is a news organization based in Washington, D.C. It publishes

the leading daily newspaper, by print circulation, in the nation’s capital, as well as the website
washingtonpost.com, which reaches more than 65 million unique visitors per month, according
to independent auditor comScore. The Post has won 47 Pulitzer Prizes.
4.

Defendant, SIGAR, was created under Section 1229 of the National Defense

Authorization Act for Fiscal Year 2008 (Pub. L. No. 110-181) to provide independent and
objective oversight of Afghanistan reconstruction projects and activities. SIGAR is an agency
within the meaning of 5 U.S.C. § 552(f)(1). SIGAR has possession and control of the records
requested by the Post.
JURISDICTION AND VENUE
5.

This action arises under FOIA. This Court has subject matter jurisdiction over

this action and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B) &
(a)(6)(C)(i). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331.
6.

Venue is proper in this judicial district under 5 U.S.C. § 552(a)(4)(B).
FACTUAL ALLEGATIONS

7.

The war in Afghanistan is the longest running armed conflict in U.S. history.

More than 1,800 U.S. service members have been killed in action in Afghanistan since 2001.
8.

According to SIGAR, the U.S. has appropriated more than $100,000,000,000 for

relief and reconstruction efforts in Afghanistan since 2002. These funds have been used to build
the Afghan National Security Forces, promote good governance, conduct development
assistance, and engage in counter-narcotics and anti-corruption efforts, among other purposes.
9.

Congress created SIGAR in 2008 to provide independent and objective oversight

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of Afghanistan reconstruction projects and activities. The Post has reported on SIGAR’s work
dozens of times since that office was created. 1
10.

According to its website, SIGAR carries out its congressionally-mandated

responsibilities in several ways. First, its Audits and Inspections Directorate “conducts audits
and inspections of reconstruction activities in Afghanistan.” Second, its Investigations
Directorate “conducts criminal and civil investigations relating to programs and operations
supported with U.S. reconstruction dollars.” Third, its Special Projects team “examine[s]
emerging issues and deliver[s] prompt, actionable reports to federal agencies and the Congress.”
And fourth, its Lessons Learned Program “identif[ies] and preserve[s] lessons from the U.S.
reconstruction experience in Afghanistan, and [makes] recommendations to Congress and
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See, e.g., Max Bearak, Afghan government controls just 57 percent of its territory, U.S.
watchdog says, The Washington Post (Feb. 2, 2017),
https://www.washingtonpost.com/news/worldviews/wp/2017/02/02/afghan-governmentcontrols-just-57-percent-of-its-territory-says-u-s-watchdog/; Erin Cunningham, The U.S. spent
billions building roads in Afghanistan. Now many of them are beyond repair, The Washington
Post (Oct. 30, 2016), https://www.washingtonpost.com/news/worldviews/wp/2016/10/30/the-us-spent-billions-building-roads-in-afghanistan-now-many-of-them-are-beyond-repair/; Dan
Lamothe, In Afghanistan, more multimillion-dollar buildings built and barely used by the U.S.
military, The Washington Post (July 20, 2015),
https://www.washingtonpost.com/news/checkpoint/wp/2015/07/20/in-afghanistan-more-multimillion-dollar-buildings-built-and-barely-used-by-the-u-s-military/; Ernesto Londono, Fireprone buildings to be left at Afghan bases, watchdog for reconstruction warns, The Washington
Post (July 17, 2014), https://www.washingtonpost.com/world/national-security/fire-pronebuildings-to-be-left-at-afghan-bases-watchdog-for-reconstruction-warns/2014/07/16/ba8659b40d2c-11e4-8341-b8072b1e7348_story.html; Tim Craig, U.S. contractors’ failure to pay Afghans
is causing grave problems, watchdog says, The Washington Post (June 20, 2013),
https://www.washingtonpost.com/world/asia_pacific/us-contractors-are-cheating-afghan-firmsworkers-watchdog-says/2013/06/20/3f646e76-d9d2-11e2-9df4-895344c13c30_story.html; Karen
DeYoung, U.S. finds Afghan anti-corruption efforts ‘deeply troubling’, The Washington Post
(Dec. 11, 2012), https://www.washingtonpost.com/world/national-security/us-finds-afghan-anticorruption-efforts-deeply-troubling/2012/12/11/e0c57b80-43b3-11e2-8061253bccfc7532_story.html; Richard Lardner, 2 deputies fired from Afghan watchdog group, The
Washington Post (Jan. 5, 2011), http://www.washingtonpost.com/wpdyn/content/article/2011/01/04/AR2011010405254.html; Karen DeYoung, Development aid in
key Afghan province lacking in oversight, audit finds, The Washington Post (Oct. 26, 2010),
http://www.washingtonpost.com/wp-dyn/content/article/2010/10/26/AR2010102607140.html.
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executive agencies on ways to improve our efforts in current and future operations.”
11.

SIGAR’s website further explains that the product of the Lessons Learned

Project’s efforts are the “Lessons Learned Reports,” which “focus on key aspects of the
reconstruction effort and document what the U.S. government sought to accomplish, assess what
it achieved, and evaluate the degree to which these efforts helped the United States reach its
strategic goals in Afghanistan.”
12.

To date, SIGAR has publicly released four Lessons Learned Reports, the most

recent of which is entitled “Reconstructing the Afghan National Defense and Security Forces:
Lessons from the U.S. Experience in Afghanistan,” published on September 21, 2017 (the “2017
Report”), and posted online at https://www.sigar.mil/pdf/lessonslearned/SIGAR-17-62-LL.pdf.
13.

The 2017 Report states that as part of SIGAR’s information-gathering process, its

“research team interviewed or held informal discussions with more than 100 individuals with
direct and indirect knowledge of facts on the ground,” including “U.S., Afghan, and other
international experts from academia, think tanks, NGOs, and government entities; current and
former U.S. civilian and military officials deployed to Afghanistan; and personnel from
intelligence agencies and the Departments of Defense, State, and Justice.” 2017 Report at 200.
The 2017 Report further explains that these “[i]nterviews provided valuable insights into the
rationale behind decisions, the debates within and between agencies, and the frustrations that
spanned the years, but often remained unwritten.” Id.
14.

One of the many individuals interviewed by SIGAR as part of its Lessons

Learned Project is Lt. General Michael Flynn (U.S. Army, ret.). Lt. Gen. Flynn was at one point
the senior U.S. military intelligence officer in Afghanistan before serving as head of the Defense
Intelligence Agency. Following his retirement from the military, Lt. Gen. Flynn became a senior

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figure on the Trump presidential campaign, and after President Trump took office, Lt. Gen.
Flynn briefly served as his National Security Advisor.
15.

On August 24, 2016, Post reporters Greg Miller and Craig Whitlock requested by

email to SIGAR senior investigative counsel Christopher Staszak the following records:
Transcripts, reports, audio recordings and video recordings of
interviews conducted by SIGAR’s Lessons Learned Program with
Lt. Gen. Michael Flynn (U.S. Army, retired). . . . Please include
any notes, tabs, emails, appendices or other documentation related
to the interviews.
The Post also sought expedited processing of the request and a fee waiver as a representative of
the news media. A true and correct copy of the Post’s August 24, 2016 request (the “Request”)
is attached hereto as Exhibit A.
16.

The Request explained why records of SIGAR’s interviews of Lt. Gen. Flynn (the

“Interviews”) were of significant interest and importance to the public. At the time the Request
was made, Lt. Gen. Flynn had become a top national security advisor to Donald Trump, who was
by that point the Republican nominee for president. Indeed, it was believed that Lt. Gen. Flynn
would be appointed to a high-ranking administration position if Mr. Trump were to win the
election. The Interviews, which could provide insight into Lt. Gen. Flynn’s experience with
foreign policy and national security issues – including those particularly relevant to Afghanistan,
such as counterterrorism strategy and U.S. relations with NATO – were therefore highly
newsworthy.
17.

As of November 8, 2016, when Mr. Trump won the presidential election, SIGAR

had not responded to the Request or to several follow-up inquiries about the Request, even
though the Request had by then been pending for more than 70 days, already well past the twenty
(20)-day deadline imposed by FOIA. See 5 U.S.C. § 552(a)(6)(A). Ten days later, Lt. Gen.

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Flynn was named as then-President-elect Trump’s National Security Advisor.
18.

In the weeks after the 2016 election, the Post repeatedly sought clarification from

SIGAR as to when the Request would be processed. At one point, in a December 6, 2016 email,
SIGAR public-affairs specialist Jennifer George-Nichol told the Post, “I expect you’ll have [a
response] within the next week or two.” See Ex. C at 2. But SIGAR did not officially respond
until after President Trump was sworn into office.
19.

On January 24, 2017 – less than a week after Inauguration Day, and five months

after the Request was submitted – SIGAR denied the Request in full. Public Information
Manager Stephen Kurylo, Jr. stated via email that a transcript of the Interview “is exempt from
disclosure by Exemption (b)(5) of the FOIA, 5 U.S.C. § 552.” SIGAR’s response did not
address the Post’s requests for expedited processing and a fee waiver, or provide any indication
why it had taken five months to reach the conclusion that the single document sought by the
Request was exempt from disclosure. A true and correct copy of SIGAR’s denial of the Request
is attached hereto as Exhibit B.
20.

The public interest in the Interviews has grown even greater since the Request

was denied. Lt. Gen. Flynn resigned as National Security Advisor on February 13, 2017, after
only 24 days of serving in that role. Lt. Gen. Flynn’s tenure as National Security Advisor was
accordingly the shortest in the 64-year history of the position. Lt. Gen. Flynn has since become
embroiled in various federal investigations into Russian interference in the 2016 election.
21.

Lt. Gen. Flynn’s impressions and experiences about Afghanistan, as captured in

the Interviews, are of particular interest to the public following President Trump’s August 2017
decision to boost U.S. troop levels in Afghanistan. That determination “to further commit to the
nation’s longest war, rather than withdraw, reflect[ed] a significant shift in [President Trump’s]

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approach to Afghanistan since taking office and mark[ed] a new willingness to take greater
ownership of a protracted conflict that he had long dismissed as a waste of time and resources.” 2
22.

Pursuant to 5 U.S.C. § 552(a)(6)(A)(ii), on April 24, 2017, the Post filed an

administrative appeal of the denial of the Request with SIGAR’s Office of Privacy, Records, and
Disclosures. As that administrative appeal stated:
SIGAR’s decision to withhold LTG Flynn’s interview in its
entirety is both legally unjustified and, in these circumstances,
contrary to public policy. Legally, SIGAR’s conclusory invocation
of Exemption 5 is insufficient to overcome the standing
presumption in favor of disclosure of public records under FOIA,
particularly with respect to records that shed light on important
government policies and actions. As a matter of public policy, the
failure to disclose the interview undermines the stated purposes of
the “Lessons Learned Program” and ultimately harms the public
interest.
A true and correct copy of the Post’s administrative appeal is attached hereto as Exhibit C.
23.

Despite FOIA’s requirement that a determination be made with respect to any

such appeal within 20 business days, 5 U.S.C. § 552(a)(6)(A)(ii), SIGAR did not respond to the
Post’s administrative appeal until May 24, 2017.
24.

By letter sent on May 24, 2017, Adam J. Weaver of SIGAR’s FOIA Appellate

Authority informed the Post that “[b]ased on the information contained in your appeal and in
response to your specific administrative request,” the Request was being remanded back to
SIGAR’s Office of Privacy, Records, and Disclosure “for reconsideration of the basis for its
determination concerning the requested interview, including specific applicable privileges.” The
letter further stated that SIGAR “should provide a new determination no later than June 22,

2

David Nakamura & Abby Phillip, Trump announces new strategy for Afghanistan that calls for
a troop increase, The Washington Post (Aug. 21, 2017), https://www.washingtonpost.com/
politics/trump-expected-to-announce-small-troop-increase-in-afghanistan-in-prime-time-address/
2017/08/21/eb3a513e-868a-11e7-a94f-3139abce39f5_story.html.
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2017.” A true and correct copy of this letter is attached hereto as Exhibit D.
25.

As of the date of this filing, SIGAR has not substantively responded to the Post’s

Request following that remand or produced any records responsive to the Request.
26.

There is no valid basis to withhold the records requested by the Post under FOIA.
CLAIM FOR RELIEF
COUNT I
(Declaratory and Injunctive Relief:
Violation of the Freedom of Information Act, 5 U.S.C. § 552)

27.

The Post realleges and incorporates by reference all previous paragraphs as if

fully set forth herein.
28.

FOIA provides this Court with “jurisdiction to enjoin [SIGAR] from withholding

agency records and to order the production of any agency records improperly withheld from [the
Post].” 5 U.S.C. § 552(a)(4)(B).
29.

The requested documents referenced above are agency records within SIGAR’s

control.
30.

FOIA requires that within 20 working days of receiving a FOIA request, absent

circumstances not present here, an agency must notify a requester of, inter alia, the scope of the
documents that the agency will produce and the scope of the documents that the agency plans to
withhold under any FOIA exemptions. See 5 U.S.C. § 552(a)(6)(A)(ii).
31.

SIGAR’s Office of Privacy, Records, and Disclosure received the Post’s Request

on remand from SIGAR’s FOIA Appellate Authority on May 24, 2017. See Ex. C.
32.

Pursuant to FOIA, SIGAR was required to respond to the Post’s Request by June

22, 2017. 5 U.S.C. § 552(a)(6)(A)(ii).
33.

Nearly five months later, SIGAR has not provided any further substantive

response to the Post’s Request. Moreover, it has not produced any of the requested documents
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or provided a timetable for production.
34.

There is no basis under FOIA to withhold the records requested by the Post, and

SIGAR has therefore wrongfully withheld agency records in violation of FOIA.
35.

The Post has exhausted its administrative remedies with respect to SIGAR’s

failure to make a determination as to its Request and failure to produce the requested public
records. 5 U.S.C. § 552(a)(6)(C)(i).
36.

The Post requests a declaratory judgment that SIGAR has violated FOIA and that

the Post is entitled to immediately receive the documents referenced above.
37.

The Post further requests that, pursuant to 5 U.S.C. § 552(a)(4)(B), the Court

issue an injunction to SIGAR to produce the requested agency records.
REQUEST FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Court:
A. Declare that SIGAR’s failure to provide responsive documents is unlawful under
FOIA;
B. Enter an injunction that directs SIGAR to make all requested records available to
the Post, unredacted, and without further delay;
C. Provide for expeditious proceedings in this action;
D. Award the Post its costs and reasonable attorneys’ fees incurred in this action
pursuant to 5 U.S.C. § 552(a)(4)(E); and
E. Grant such other and further relief as the Court may deem just and proper.

[SIGNATURE ON NEXT PAGE]

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Respectfully submitted,
By: /s/ Charles D. Tobin
Charles D. Tobin (#455593)
Adrianna C. Rodriguez (#1020616)
Maxwell S. Mishkin (#1031356)
BALLARD SPAHR LLP
1909 K St., N.W., 12th Floor
Washington, D.C. 20006-1157
Telephone: [phone]
Facsimile: 202-661-2299
Counsel for Plaintiff WP Company LLC
d/b/a The Washington Post
Dated: October 12, 2017

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