ELECTRONIC FRONTIER FOUNDATION v. DEPARTMENT OF COMMERCE et al
Filing
1
COMPLAINT against DEPARTMENT OF COMMERCE, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-5227047) filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Dept. of Commerce, # 3 Summons Dept. of Justice, # 4 Summons US Attorney General, # 5 Summons US Attorney, # 6 Summons Dept. Homeland Security)(Sobel, David)
Case 1:17-cv-02567-ABJ Document 1 Filed 11/30/17 Page 1 of 16
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109,
)
)
)
)
Plaintiff,
)
)
v.
)
)
DEPARTMENT OF COMMERCE
)
1401 Constitution Avenue, N.W.
)
Washington, DC 20230,
)
)
Defendant.
)
)
DEPARTMENT OF JUSTICE
)
950 Pennsylvania Avenue, N.W.
)
Washington, DC 20530,
)
)
Defendant.
)
)
DEPARTMENT OF HOMELAND SECURITY )
245 Murray Lane, S.W.
)
Washington, DC 20528,
)
)
Defendant.
)
__________________________________________)
COMPLAINT FOR INJUNCTIVE RELIEF
1.
This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. Sec.
552, for injunctive and other appropriate relief. Plaintiff seeks the expedited processing and
release of records that Plaintiff requested from Defendants Department of Commerce,
Department of Justice, and Department of Homeland Security concerning the agencies’ creation,
participation, and support of the federal Tattoo Recognition Technology program.
Case 1:17-cv-02567-ABJ Document 1 Filed 11/30/17 Page 2 of 16
PARTIES
2.
Plaintiff Electronic Frontier Foundation (EFF) is a not-for-profit corporation
established under the laws of the State of California, with offices in San Francisco, California
and Washington, DC. EFF is a donor-supported membership organization that works to inform
policymakers and the general public about civil liberties issues related to technology, and to act
as a defender of those liberties. In support of its mission, EFF uses the FOIA to obtain and
disseminate information concerning the activities of federal agencies.
3.
Defendant Department of Commerce (DOC) is a Department of the Executive
Branch of the United States Government. DOC is an “agency” within the meaning of 5 U.S.C.
§ 552(f). The National Institute of Standards and Technology (NIST) is a component of
Defendant DOC.
4.
Defendant Department of Justice (DOJ) is a Department of the Executive Branch of
the United States Government. DOJ is an “agency” within the meaning of 5 U.S.C. § 552(f). The
Federal Bureau of Investigation (FBI) is a component of Defendant DOJ.
5.
Defendant Department of Homeland Security (DHS) is a Department of the
Executive Branch of the United States Government. DHS is an “agency” within the meaning of
5 U.S.C. § 552(f).
JURISDICTION AND VENUE
6.
This Court has both subject matter jurisdiction over this action and personal
jurisdiction over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(C)(i). This
Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331.
7.
Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C.
§ 1391(e).
2
Case 1:17-cv-02567-ABJ Document 1 Filed 11/30/17 Page 3 of 16
BACKGROUND
A.
Law Enforcement Efforts to Build an Automated Tattoo Recognition Tool
Raise Civil Liberties and Ethical Concerns.
8.
Defendants are developing technology for police to rapidly scan anyone’s tattoos
and make a myriad of assumptions about them, including falsely associating them with criminal
activity. Although law enforcement have in the past used pictures of tattoos to identify criminal
suspects and victims, Defendants are working to create and promote the development of
automated tattoo recognition tools that would go far beyond that technique. NIST is working in
conjunction with the FBI, DHS, public universities, private industry, and state and local law
enforcement to develop a series of algorithms that would detect tattoos on people’s skin, identify
them by their tattoos, match them with others who have similar tattoos, and flag them as being
similar to prominent religious, ethnic, and expressive symbols.1
9.
The government’s efforts raise profound religious, expressive, and privacy
concerns. Moreover, the limited information EFF has already obtained about the program
revealed a range of potentially unethical behavior, including conducting research on prisoners
without approval, much less adequate oversight and appropriate safeguards. Through its FOIA
requests and this lawsuit, EFF seeks to uncover more information about this controversial
program and to inform the public about the government’s efforts to create automated tattoo
recognition technology.
B. Tattoos Have a Long History as Symbols of Expression and Belief.
10. For thousands of years tattoos have served as an expression of the self and one’s
beliefs: “These permanent designs – sometimes plain, sometimes elaborate, always personal –
have served as amulets, status symbols, declarations of love, signs of religious beliefs,
1
Aaron Mackey, Dave Maass, & Soraya Okuda, Five Ways Law Enforcement Will Use Tattoo
Recognition Technology, EFF DEEPLINKS (June 2, 2016),
https://www.eff.org/deeplinks/2016/05/5-ways-law-enforcement-will-use-tattoo-recognitiontechnology.
3
Case 1:17-cv-02567-ABJ Document 1 Filed 11/30/17 Page 4 of 16
adornments and even forms of punishment.”2 Archeology’s famous “Iceman,” a 5,200 year-old
mummy preserved in snow along the Italian-Austrian border, was tattooed with dots and small
crosses believed to have once been administered to alleviate joint pain, and influential Egyptian
women may have been tattooed as an amulet against the dangers of childbirth.3
11. In Four Indian Kings, painted in 1710, the King of the Maquas (Mohawk, native to
Upstate New York and Canada) is depicted with black lines of tattoos covering his chest and
lower face.4 Native American tattoos depicted in early exploration of the United States represent
military conquests and protective spirits – and many tribes across the Americas and their
descendants carry on this practice today.5
12. Eighteenth century European sailors began tattooing their arms and chests to mark
their ships, famous voyages, and the crossing of the Equator, drawing from practices witnessed
in Polynesia.6 Soon after, tattoos became popular in port cities and spread to the point that
England’s King Edward VII got a tattoo in 1862 in Jerusalem, and his sons Prince Albert and the
future King George V received dragons from the widely-regarded Japanese artist Hori Chyo.7
13. Tattoos are used as artistic representations of an individual’s innermost thoughts,
closely-held beliefs, and significant moments. Traditions for tattoo artistry are not limited to a
particular sex, race, culture, religion, economic status, or country of origin. Tattoos have been
and remain speech, thought, and art.
C. Federal Tattoo Recognition Programs are Designed to Track Free Speech.
14. Seizing on the highly expressive nature of tattoos and their links to historic, cultural,
religious, and other iconography and shared meaning, federal researchers have begun developing
2
Cate Lineberry, Tattoos: The Ancient and Mysterious History, SMITHSONIAN (Jan. 1, 2001),
https://www.smithsonianmag.com/history/tattoos-144038580/.
3
Id.
4
Olivia B. Waxman, See Rare Images From the Early History of Tattoos in America, TIME (Feb.
28, 2017), http://time.com/4645964/tattoo-history/.
5
Id.
6
Id.
7
Id.
4
Case 1:17-cv-02567-ABJ Document 1 Filed 11/30/17 Page 5 of 16
algorithmic recognition technology to “crack the code” of tattoos and speech. This raises serious
concerns for the First Amendment – tracking tattoos disadvantages them as a form of free speech
and also creates freedom of association concerns when people are matched with others for
government surveillance and investigative purposes, sometimes incorrectly.8 What makes tattoos
unique compared to other biometric identifiers is that they are elective – individuals choose to
put tattoos on their bodies to express themselves, in both visible and non-visible locations.
15. Defendants have created a program to research tattoo recognition algorithms and
their effectiveness without the consent of persons studied and without regard to their First
Amendment rights.
16. In 2014, NIST began an initiative to refine automated tattoo recognition technology,
the Tattoo Recognition Technology program, with sponsorship from the FBI’s Biometric Center
for Excellence.9 In addition to research in using tattoos as tools for identity-verification, NIST
began programs to map the connections between individuals, their tattoos, and individuals with
similar tattoos to make inferences about their connection and predict ideological affiliations.
Many of these experiments were based on categorizing tattoos depicting Christian and other
religious iconography, and could easily be applied to group and track people based on issues as
sensitive as sexual identity, the participation in political campaigns, and grassroots movements.
17. NIST’s first major publically announced tattoo project was the Tattoo Recognition
Technology Challenge – what it called Tatt-C – which allowed private institutions and public
universities to access a database of 15,000 pictures of tattoos and other images, supplied in part
8
In the immigration context, there are a number of stories of Mexican, Central, and South
American immigrants who were raised in the United States and married to U.S. citizens but who
are denied reentry into the U.S. because their tattoos are deemed gang affiliated. In the case of
Hector Villalobos, his theater mask tattoos, while a common symbol, were incorrectly identified
as gang affiliated. Miriam Jordan, Tattoo Checks Trip Up Visas, THE WALL STREET JOURNAL
(July 11, 2012), https://finance.yahoo.com/news/tattoo-checks-trip-up-visas.html.
9
NAT’L INST. FOR STAN. AND TECH., Tattoo Recognition Technology (May 8, 2014),
https://www.nist.gov/programs-projects/tattoo-recognition-technology (last visited Nov. 29,
2017).
5
Case 1:17-cv-02567-ABJ Document 1 Filed 11/30/17 Page 6 of 16
by the FBI, to perform algorithmic experiments.10 Five research institutions, six universities, and
eight private companies signed up for this challenge and accessed this dataset. To gain access,
these entities filed an initial request with NIST and submitted a follow-up form to the FBI. Once
the FBI approved the entity to join the program, officials then mailed the dataset to the
participants on a CD-Rom.11
18. One participant in the Tatt-C program, Purdue University, has also paired with DHS
in another program for the mobile recognition of both graffiti and tattoos called Gang Graffiti
Automatic Recognition and Interpretation (GARI).12 DHS has recommended that GARI be used
at the U.S. border for intelligence and enforcement purposes, and the Indianapolis Police have
endorsed GARI saying, “I’m really excited about the possibility of using it with the prison
population to identify tattoos. Tattoos are more specific because you can identify an actual
person.”13
19. In March 2016, NIST began a subsequent tattoo recognition challenge – Tattoo
Recognition Technology Evaluation, or Tatt-E – which is designed to improve the accuracy of
tattoo recognition as well as identify patterns in subsections of tattoos.14 Participants can submit
algorithms to the challenge to test against a much larger database of 100,000 tattoos and other
photographs supplied by the Pinellas County Sheriff’s Department in Florida, the Michigan State
10
The dataset of 15,000 images is not entirely comprised of tattoo photographs. To “train” an
algorithm, researchers supply non-matching data so that the program can better distinguish
matching data. NAT’L INST. FOR STAN. AND TECH., Tattoo Recognition Technology-Challenge
(Tatt-C) (July 17, 2014), https://www.nist.gov/programs-projects/tattoo-recognition-technologychallenge-tatt-c (last visited Nov. 29, 2017).
11
Researchers can now email tatt-e@nist.gov to access the Tatt-C dataset. Id.
12
DEPT. OF HOMELAND SEC., ENHANCING COMMUNITY SAFETY: GANG GRAFFITI AUTOMATIC
RECOGNITION AND INTERPRETATION SYSTEM, available at
https://www.dhs.gov/sites/default/files/publications/Enhancing%20Community%20SafetyGang%20Graffiti%20Automatic%20Recognition%20and%20Interpretation%20System-GARIJan2014_2.pdf.
13
Id.
14
NAT’L INST. FOR STAN. AND TECH., Tattoo Recognition Technology-Evaluation (Tatt-E) (Mar.
10, 2016), https://www.nist.gov/programs-projects/tattoo-recognition-technology-evaluation-tatte (last visited Nov. 29, 2017).
6
Case 1:17-cv-02567-ABJ Document 1 Filed 11/30/17 Page 7 of 16
Police, and the Tennessee Department of Corrections.15 During the spring and summer of 2017,
participants in the Tatt-E program finalized and submitted their algorithms and research to NIST
to publish the results of the challenge.16
20. These developments are particularly concerning because law enforcement are
already using people’s tattoos to potentially falsely associate them with criminal activity. For
example, Defendant DHS earlier this year began deportation proceedings against a 23-year-old
man enrolled in the Deferred Action for Childhood Arrivals (DACA) program based in large part
on the fact that he has a tattoo that they associate with gang activity.17 These types of false
associations have led an increasing number of people to remove their tattoos.18 Further, just
because a tattoo may be currently associated with criminal activity does not mean that the owner
intended such association,19 and individuals who have renounced former criminal activity may
still carry criminally affiliated tattoos because removal is time-intensive, painful, expensive, and
highly dependent on individual beliefs.20
15
Aaron Mackey and Dave Maass, Tattoo Recognition Research Threatens Free Speech and
Privacy, EFF DEEPLINKS (June 2, 2016), https://www.eff.org/deeplinks/2016/06/tattoorecognition-research-threatens-free-speech-and-privacy.
16
Supra, note 14.
17
Nina Shapiro, Do feds have evidence that detained Dreamer is a gang member beyond tattoo?,
SEATTLE TIMES (Feb. 15, 2017), https://www.seattletimes.com/seattle-news/feds-says-detaineddreamer-is-gang-member-lawyer-denies-it/; Suzanne Gamboa, Was It Legal for ICE to Arrest
Young Immigrant with DACA Status?, NBC NEWS (Feb. 15, 2017),
https://www.nbcnews.com/news/latino/was-it-legal-ice-arrest-young-immigrant-daca-statusn721261.
18
Tattoo Removal Business Booming As Fears For Deportation Mount, CBS SF BAY AREA
(March 18, 2017), http://sanfrancisco.cbslocal.com/2017/03/18/tattoo-removal-businessbooming-as-fears-of-deportation-mount/.
19
Cecilia Saixue Watt, Are these clowns really gang members? Juggalos protest FBI’s label,
THE GUARDIAN (Sept. 11, 2017), https://www.theguardian.com/music/2017/sep/11/juggalosprotest-fbi-label-gang-report-insane-clown-posse.
20
Victoria St. Martin, Former gang members remove tattoos to break from past, THE
WASHINGTON POST (July 10, 2015), https://www.washingtonpost.com/local/gang-membersremove-tattoos-to-break-from-past/2015/07/10/3bd54ae8-266d-11e5-b72c2b7d516e1e0e_story.html?utm_term=.8da0e18385be.
7
Case 1:17-cv-02567-ABJ Document 1 Filed 11/30/17 Page 8 of 16
D. NIST’s Automated Tattoo Recognition Research Did Not Follow Ethical
Standards for Performing Research on Human Subjects and Prisoners.
21. The dataset provided to research institutions by the FBI and NIST through the TattC challenge was largely collected from prisoners without their knowledge or consent for the
research. Documents released to EFF in a partial FOIA productions show that government
officials handed over these images to third-parties with little restriction on how they could be
used or shared.21 Many of the images reviewed by Plaintiff contained personally identifying
information, including people’s names, faces, and birth dates, and did not contain privacy
protections.22
22. EFF’s investigation showed that NIST also failed to follow ethical standards in
creating the Tatt-C program and sharing these prisoners’ photos with third parties. According to
U.S. Health and Human Services policy for all federal agency research involving human
subjects, researchers must receive approval from an Institutional Review Board prior to any
human-subjects research. The Common Rule, 45 C.F.R. § 46. Data that is public or stripped of
identifying information may be exempt from this review process, except for when the research is
based on prisoners because it is acknowledged that prisoners are a uniquely vulnerable
population. 45 C.F.R. § 46.101, footnote 1. Instead, NIST researchers did not inquire about the
ethical standards of the research until after the Tatt-C program had begun and did not tell their
supervisors that the data set included photographs of prisoners.23
23. A NIST supervisor retroactively determined that the research did not include human
subjects;24 however, the data set includes photographs of human bodies; some of the tattoos
themselves include personal information, such as birthdates and names; and the research intends,
in part, to identify individuals based on their tattoos.
21
Supra, note 15.
Id.
23
Id.
24
NIST PRODUCTION, DETERMINATION FOR ITL PROJECT # ITL-0002, ENTITLED, ‘TATTOO
RECOGNITION TECHNOLOGY RESEARCH AND EVALUATIONS WITH FEDERAL BUREAU OF
INVESTIGATION (FBI) OPERATIONALLY COLLECTED TATTOO DATA’ (Apr. 10, 2015), available at
https://www.eff.org/document/nist-tattoo-recognition-foia.
22
8
Case 1:17-cv-02567-ABJ Document 1 Filed 11/30/17 Page 9 of 16
24. Additionally, the photographs supplied by the FBI for the tattoo recognition dataset
were presumably obtained from arrest and imprisonment procedures, and may be able to be
linked to specific individuals and criminal records. The FBI’s methodology in selecting
photographs for this program raises additional ethical questions, including the extent of FBI
involvement in the research and whether FBI personnel could be considered “investigators” for
human-subjects research purposes.
25. The fact that NIST researchers, the FBI, and downstream institutions who partnered
with NIST and used the Tatt-C dataset, did not properly follow human subjects research rules
was discovered in a partial production in response to Plaintiff’s FOIA requests. Plaintiff believes
that a complete response to our request will shine a spotlight on how the U.S. government treats
artistic speech, expression, and assembly as well as protocols for research involving prisoners.
EFF’S FOIA REQUESTS
A.
EFF FOIA Request NIST 2016-000922
26. In an email dated April 8, 2016, Plaintiff filed a FOIA request with NIST for
records describing the creation and administration of the Tattoo Recognition Technology
Program (April 8 FOIA).
27. Specifically, the request sought:
•
documents describing the ethical standard and administrative process used for
human subjects research in the creation of the Tattoo Recognition Technology
program,
•
a list of entities who received tattoos datasets from NIST during the Tatt-C
challenge,
•
correspondence between NIST and the FBI regarding the Tatt-C and Tatt-E
datasets, and
•
NIST presentations on tattoo recognition described on the Tatt-C website.
28. Plaintiff’s April 8 FOIA sought expedited processing of the request and also
9
Case 1:17-cv-02567-ABJ Document 1 Filed 11/30/17 Page 10 of 16
formally requested that it not be charged search or review fees for its request because EFF
qualifies as a representative of the news media pursuant to the FOIA and 15 C.F.R. §§ 4.6(f),
4.11(b)(6). Plaintiff further requested that it be granted a waiver of all fees related to its request
because disclosure of the requested information is in the public interest within the meaning of 5
U.S.C. § 552(a)(4)(A)(iii) and 15 C.F.R. § 4.11(l).
29. By letter dated April 15, 2016, NIST acknowledged receipt of the April 8 FOIA. On
April 27, 2016, NIST granted Plaintiff’s request for a waiver of all fees and agreed to expedite
processing of the request.
30. By letter dated May 4, 2016, NIST provided an interim response to Plaintiff,
identifying six agency records totaling seventy-seven pages that it released in full. The interim
response indicated that NIST was continuing to process and review additional records responsive
to Plaintiff’s April 8 FOIA.
31. On August 10, 2016 NIST provided its final response to the April 8 FOIA. NIST
identified five agency records totaling 180 pages responsive to this request and released 144
pages in full. The remaining pages were withheld in full and in part under FOIA Exemptions 4,
6, 7(A), 7(B), 7(C), and 7(F) of 5 U.S.C. § 552(b).
32. On August 10, 2016, NIST also identified eight other records totaling 142 pages that
were referred to other agencies. NIST referred 117 pages to the FBI, a component of Defendant
DOJ, and 25 pages to Defendant DHS.
33. On September 8, 2016, Plaintiff filed an administrative appeal with the Department
of Commerce challenging NIST’s withholdings under Exemptions 4, 7(A), 7(B), and 7(F), as
well as its failure to properly segregate exempt records. Plaintiff did not challenge NIST’s
withholdings under Exemptions 6 and 7(C).
34. Plaintiff’s administrative appeal also challenged NIST’s decision to refer responsive
records to Defendants DHS and the DOJ’s component, FBI.
35. On October 27, 2016, Plaintiff emailed Defendant DOC to confirm receipt of
Plaintiff’s September 8 administrative appeal. DOC stated, “Your appeal has been received and
10
Case 1:17-cv-02567-ABJ Document 1 Filed 11/30/17 Page 11 of 16
reviewed and is in the queue behind some others that were filed before EFF’s.”
36. On April 4, 2017, Plaintiff emailed Defendant DOC to check the status of its
administrative appeal. No response was received.
37. To date, Defendant DOC has not responded in substance to Plaintiff’s
administrative appeal.
38. To date, neither Defendant DHS nor Defendant DOJ’s component FBI have
responded in substance to the requested records referred to both agencies by NIST.
39. Plaintiff has exhausted the applicable administrative remedies with respect to its
April 8 FOIA.
40. Defendants DOC, DOJ, and DHS have wrongfully withheld the requested records
from Plaintiff.
B. EFF FOIA Request NIST 2016-001340
41. In an email dated June 22, 2016, Plaintiff filed a FOIA request with NIST, a
component of Defendant DOC, referencing Plaintiff’s earlier request (NIST 2016-000922) and
requesting additional records relating to the Tattoo Recognition Technology program (June 22
FOIA).
42. Specifically, Plaintiff’s June 22 FOIA sought:
•
all documentation of ethical oversight of tattoo research, including materials
sent to the Human Subjects Review group and the Human Subjects Protection
Office,
•
records identifying entities and individuals who received the Tatt-C dataset,
•
correspondence between FBI and NIST about the creation of Tatt-C dataset,
•
processing noted for EFF’s earlier FOIA request NIST 2016-000922,
•
NIST emails referencing EFF or Dave Maass,
•
emails sent and received by tattoo_comment@nist.gov, and
•
all communications between NIST and Health and Human Services about
11
Case 1:17-cv-02567-ABJ Document 1 Filed 11/30/17 Page 12 of 16
human subjects review of tattoo recognition research.
43. Plaintiff’s June 22 FOIA requested expedited processing of its request pursuant to
5 U.S.C. § 552(a)(6)(E) and 15 C.F.R. Sec. 4.6(f). It also sought “news media” fee status and a
public interest waiver of all processing fees pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) and 15
C.F.R. §§ 4.11(b)(6), (l).
44. On June 24, 2016, NIST acknowledged receipt of Plaintiff’s June 22 FOIA request
by letter. The letter did not mention any determination with regard to Plaintiff’s requests for
expedited processing, to be treated as a “news media” requester, or for a waiver of all processing
fees.
45. On September 8, 2016, EFF filed an administrative appeal with Defendant DOC
arguing that NIST failed to timely process and respond to the June 22 FOIA Request within
FOIA’s statutory deadline.
46. To date, Defendant DOC has not responded in substance to Plaintiff’s initial
request, nor its administrative appeal.
47. Plaintiff has exhausted the applicable administrative remedies with respect to its
June 22 FOIA.
48. Defendant has wrongfully withheld the requested records from Plaintiff.
C. EFF FOIA Request NIST 2017-001137
49. In an email dated May 2, 2017, Plaintiff filed a FOIA Request with NIST, a
component of Defendant DOC, requesting all applications and agreements to participate in
NIST’s Tatt-E testing program along with all emails sent and received by tatt-e@nist.gov (May 2
FOIA).
50. Plaintiff’s May 2 FOIA requested expedited processing of its request pursuant to
5 U.S.C. Sec. 552(a)(6)(E) and 15 C.F.R. Sec. 4.6(f). The request also sought “news media” fee
status and a public interest waiver of all processing fees pursuant to 5 U.S.C. § 552(a)(4)(A)(iii)
and 15 C.F.R. §§ 4.11(b)(6), (l).
12
Case 1:17-cv-02567-ABJ Document 1 Filed 11/30/17 Page 13 of 16
51. On May 5, 2017, NIST acknowledged receipt of Plaintiff’s May 2 FOIA by letter.
52. By letter dated May 16, 2017, NIST provided a status update to Plaintiff’s May 2
FOIA. The letter stated that NIST determined that Plaintiff is a media requester and, as a result,
would not be charged duplication fees for the first 100 pages of responsive records. The letter did
not make any determination regarding Plaintiff’s request for a waiver of all fees or expedited
processing of the request.
53. By letter dated July 3, 2017, NIST provided an interim response to Plaintiff,
releasing in full two emails consisting of three pages from NIST employee Mei Lee Ngan to tatte@nist.gov regarding a Tatt-E evaluation test and the Tatt-E Phase 1 submission deadline.
54. To date, Defendant DOC has not responded to Plaintiff’s initial request beyond its
July 3 interim response.
55. Plaintiff has exhausted the applicable administrative remedies with respect to its
May 2 FOIA.
56. Defendant has wrongfully withheld the requested records from Plaintiff.
CAUSES OF ACTION
Count 1
Violation of the Freedom of Information Act for Wrongful
Withholding of Agency Records – April 8 FOIA
57.
Plaintiff repeats and realleges paragraphs 1-56.
58.
Defendants DOC, DOJ, and DHS have wrongfully withheld agency records
requested by Plaintiff by failing to disclose records responsive to the April 8 FOIA to Plaintiff.
59.
Plaintiff has exhausted the applicable administrative remedies with respect to
Defendants’ wrongful withholding of the requested records.
60.
Plaintiff is entitled to injunctive relief with respect to the release and disclosure of
the requested documents.
13
Case 1:17-cv-02567-ABJ Document 1 Filed 11/30/17 Page 14 of 16
Count 2
Violation of the Freedom of Information Act for Wrongful
Withholding of Agency Records – June 22 FOIA
61. Plaintiff repeats and realleges paragraphs 1-60.
62. Defendant DOC has wrongfully withheld agency records requested by Plaintiff in
its June 22 FOIA by:
a. failing to comply with the statutory time limit for responding to Plaintiff’s initial
request and subsequent administrative appeal, and
b. failing to disclose records responsive to the June 22 FOIA.
63. Plaintiff has exhausted the applicable administrative remedies with respect to
Defendant’s wrongful withholding of the requested records.
64. Plaintiff is entitled to injunctive relief with respect to the release and disclosure of
the requested documents.
Violation of the Freedom of Information Act for Wrongful Denial of Requests for
“News Media” Treatment and a Waiver of All Processing Fees – June 22 FOIA
65. Plaintiff repeats and realleges paragraphs 1-64.
66. Defendant DOC has wrongfully denied Plaintiff’s requests for treatment as a “news
media” requester and for a waiver of all processing fees by failing to comply with the statutory
time limit for responding to Plaintiff’s requests.
67. Plaintiff has exhausted the applicable administrative remedies with respect to
Defendant’s wrongful denial of Plaintiff’s requests for treatment as a “news media” requester
and for a waiver of all processing fees.
68. Plaintiff is entitled to injunctive relief with respect to its requests for “news media”
treatment and a waiver of all processing fees.
14
Case 1:17-cv-02567-ABJ Document 1 Filed 11/30/17 Page 15 of 16
Count 3
Violation of the Freedom of Information Act for Wrongful
Withholding of Agency Records – May 2 FOIA
69. Plaintiff repeats and realleges paragraphs 1-68.
70. Defendant DOC has wrongfully withheld agency records requested by Plaintiff by
failing to comply with the statutory time limit for responding to Plaintiff’s FOIA request.
71. Plaintiff has exhausted the applicable administrative remedies with respect to
Defendant’s wrongful withholding of the requested records.
72. Plaintiff is entitled to injunctive relief with respect to the release and disclosure of
the requested documents.
Violation of the Freedom of Information Act for Wrongful Denial
of Requests for a Waiver of All Processing Fees – May 2 FOIA
73. Plaintiff repeats and realleges paragraphs 1-72.
74. Defendant DOC has wrongfully denied Plaintiff’s request for a waiver of all
processing fees by failing to comply with the statutory time limit for responding to Plaintiff’s
requests.
75. Plaintiff has exhausted the applicable administrative remedies with respect to
Defendant’s wrongful denial of Plaintiff’s requests for a waiver of all processing fees.
76. Plaintiff is entitled to injunctive relief with respect to its requests for a waiver of all
processing fees.
REQUESTED RELIEF
WHEREFORE, Plaintiff prays that this Court:
1.
Order Defendants DOC, its component NIST, DHS, and DOJ, and its component
FBI, to process immediately the requested records in their entirety;
2.
Order Defendants DOC, its component NIST, DHS, and DOJ, and its component
FBI, upon completion of such processing, to disclose the requested records in their entirety and
make copies available to Plaintiff;
3.
Order Defendants and their components to grant Plaintiff’s requests for treatment
15
Case 1:17-cv-02567-ABJ Document 1 Filed 11/30/17 Page 16 of 16
as a “news media” requester and for a waiver of all processing fees;
4.
Provide for expeditious proceedings in this action;
5.
Award Plaintiff its costs and reasonable attorneys fees incurred in this action; and
6.
Grant such other relief as the Court may deem just and proper.
DATED: November 30, 2017
Respectfully submitted,
DAVID L. SOBEL
D.C. Bar No. 360418
Electronic Frontier Foundation
5335 Wisconsin Avenue, N.W.
Suite 640
Washington, D.C. 20015
(202) 246-6180
AARON MACKEY
D.C. Bar No. 1017004
CAMILLE FISCHER
(admitted in Maryland)
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
(415) 436-9333
Attorneys for Plaintiff
ELECTRONIC FRONTIER FOUNDATION
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?