Case 1:17-cv-00814-APM Document 1 Filed 05/02/17 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
THE PROTECT DEMOCRACY PROJECT, )
INC., 2020 Pennsylvania Avenue, NW, #163, )
Washington, DC 20006 )
)
Plaintiff, )
) Civil Action No.
v. )
)
THE OFFICE OF MANAGEMENT AND )
th
BUDGET, 725 17 Street NW, Washington, )
DC 20503 )
)
Defendant. )
)

COMPLAINT

Plaintiff The Protect Democracy Project, Inc. brings this action against Defendant Office

of Management and Budget to compel compliance with the Freedom of Information Act (FOIA),

5 U.S.C. § 552. 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 5 U.S.C. § 552(a)(4)(B).

PARTIES

3. Plaintiff The Protect Democracy Project, Inc. is an organization awaiting

501(c)(3) status, incorporated under the laws of the District of Columbia, and headquartered at

2020 Pennsylvania Avenue, NW, #163, Washington, DC 20006. Plaintiff’s mission is to protect

our democracy from descending into a more autocratic form of government by preventing those

in power from depriving Americans of a free, fair, and fully-informed opportunity to exercise
 Case 1:17-cv-00814-APM Document 1 Filed 05/02/17 Page 2 of 5

ultimate sovereignty. As part of this mission, Plaintiff 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. Plaintiff regularly requests such information pursuant to FOIA. Plaintiff intends to

give the public access to documents transmitted via FOIA on its website,

www.protectdemocracy.org, and to provide information about and analysis of those documents

as appropriate.

4. Defendant Office of Management and Budget is a component of the Executive

Office of the President of the United States. Defendant is headquartered at 725 17th Street NW,

Washington, DC 20503. Defendant has possession, custody, and control of the documents that

Plaintiff seeks in response to its FOIA request.

STATEMENT OF FACTS

5. On February 15, 2017, Plaintiff sent a FOIA request to Defendant seeking the

following records:

Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552, The Protect Democracy
Project hereby requests that your office produce within 20 business days the following records
(see below for clarity on the types of records sought):

1) Any and all records created between January 20, 2017 and the present date indicating that
Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the
United States” was reviewed by any federal agency personnel prior to the Order’s
issuance on January 27, 2017, including but not limited to any record indicating that EO
13769 was reviewed for lawfulness, or deemed lawful or unlawful, by the Department of
Justice.

2) Any and all records created between January 20, 2017 and the present date transmitting
Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the
United States” to any federal agency for review, comment, or awareness, including but
not limited to the Department of Homeland Security or the Department of Justice.

2
 Case 1:17-cv-00814-APM Document 1 Filed 05/02/17 Page 3 of 5

3) Any and all records created between January 20, 2017 and the present date related to the
decision to seek or not seek input from federal agency personnel on the creation or
implementation of Executive Order 13769, “Protecting the Nation From Foreign Terrorist
Entry Into the United States,” including but not limited to the Department of Homeland
Security or the Department of Justice.

4) Any and all records created between January 20, 2017 and the present date related to the
process for obtaining agency input regarding Executive Order 13769, “Protecting the
Nation From Foreign Terrorist Entry Into the United States.”

See Exhibit A (FOIA request).

6. Plaintiff also requested a fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) or 5

U.S.C. § 552(a)(4)(A)(ii)(II). See Exhibit A.

7. Plaintiff submitted its request electronically on February 15, 2017. The next day,

Plaintiff received an email from Defendant acknowledging receipt of the request, assigning it a

case reference number, and indicating that it was being processed. See Exhibit B.

8. On April 14 and April 18, 2017, Allison F. Murphy, one of the undersigned

counsel for Plaintiff, left voicemails for the FOIA Officer of Defendant, which were not

returned, seeking to learn the status of Defendant’s response.

9. Pursuant to FOIA, within 20 business days of receipt of Plaintiff’s request – that

is, by March 16, 2017 – Defendant was required to “determine . . . whether to comply with such

request” and to “immediately notify” Plaintiff of “such determination and the reasons therefor,”

Plaintiff’s right “to seek assistance from the FOIA Public Liaison of the agency,” and, in the case

of an adverse determination, Plaintiff’s appeal rights. 5 U.S.C. § 552(a)(6)(A)(i).

10. To date, Defendant has failed to make the required determination and

notifications. Nor has Defendant made a determination regarding Plaintiff’s request for a fee

waiver.

3
 Case 1:17-cv-00814-APM Document 1 Filed 05/02/17 Page 4 of 5

COUNT I
(Violation of FOIA, 5 U.S.C. § 552)

12. Plaintiff re-alleges and incorporates by reference all preceding paragraphs.

13. Defendant is in violation of FOIA by failing to respond to Plaintiff’s request

within the statutorily prescribed time limit and by unlawfully withholding records responsive to

Plaintiff’s request.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that the Court:

(1) Order Defendant, by a date certain, to conduct a search that is reasonably likely to

lead to the discovery of any and all records responsive to Plaintiff’s request;

(2) Order Defendant, by a date certain, to demonstrate that it has conducted an adequate

search;

(3) Order Defendant, by a date certain, to produce to Plaintiff any and all non-exempt

records or portions of records responsive to Plaintiff’s request, as well as a Vaughn index of any

records or portions of records withheld due to a claim of exemption;

(4) Enjoin Defendant from improperly withholding records responsive to Plaintiff’s

request;

(5) Order Defendant to grant Plaintiff’s request for a fee waiver;

(6) Grant Plaintiff an award of attorney fees and other reasonable litigation costs pursuant

to 5 U.S.C. § 552(a)(4)(E);

(7) Grant Plaintiff such other relief as the Court deems appropriate.

4
 Case 1:17-cv-00814-APM Document 1 Filed 05/02/17 Page 5 of 5

Date: May 2, 2017 /s/ Allison F. Murphy

Allison F. Murphy (DC Bar No. 975494)
Counsel, The Protect Democracy Project
2020 Pennsylvania Ave., NW #163
Washington, DC 20006
Allison.Murphy@protectdemocracy.org
Phone: 202-599-0466
Fax: 929-777-8428

Counsel for Plaintiff

5
 Case 1:17-cv-00814-APM Document 1-1 Filed 05/02/17 Page 1 of 4

February 15, 2017

Dionne Hardy
FOIA Officer
Room 9026
725 17th Street, NW
Washington, DC 20503
(202) 395-3642 (P)
(202) 395-3504 (F)
OMBFOIA@omb.eop.gov

Re: Freedom of Information Act Request

Dear Official:

Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552, The Protect
Democracy Project hereby requests that your office produce within 20 business days the
following records (see below for clarity on the types of records sought):

1) Any and all records created between January 20, 2017 and the present date
indicating that Executive Order 13769, “Protecting the Nation From Foreign
Terrorist Entry Into the United States” was reviewed by any federal agency
personnel prior to the Order’s issuance on January 27, 2017, including but not
limited to any record indicating that EO 13769 was reviewed for lawfulness, or
deemed lawful or unlawful, by the Department of Justice.

2) Any and all records created between January 20, 2017 and the present date
transmitting Executive Order 13769, “Protecting the Nation From Foreign
Terrorist Entry Into the United States” to any federal agency for review, comment,
or awareness, including but not limited to the Department of Homeland Security
or the Department of Justice.

3) Any and all records created between January 20, 2017 and the present date related
to the decision to seek or not seek input from federal agency personnel on the
creation or implementation of Executive Order 13769, “Protecting the Nation
From Foreign Terrorist Entry Into the United States,” including but not limited to
the Department of Homeland Security or the Department of Justice.

4) Any and all records created between January 20, 2017 and the present date related
to the process for obtaining agency input regarding Executive Order 13769,
“Protecting the Nation From Foreign Terrorist Entry Into the United States.”
PO Box 170521, Brooklyn, New York 11217
FOIA.protectdemocracy@gmail.com
 Case 1:17-cv-00814-APM Document 1-1 Filed 05/02/17 Page 2 of 4

FEE WAIVER

FOIA provides that a waiver of fees associated with a request is waived if

“disclosure of the information is in the public interest because it is likely to contribute

significantly to public understanding of the operations or activities of the government and

is not primarily in the commercial interest of the requester.” 5 U.S.C 552(1)(4)(A)(iii).

The core mission of The Protect Democracy Project, a new organization awaiting

501(c)(3) status, is to inform public understanding on operations and activities of the

government. This request is submitted in consort with the organization’s mission to

gather and dissimilate information that is likely to contribute significantly to the public

understanding of executive branch operations and activities. The Protect Democracy

Project has no commercial interest, and releasing the contents of the requested documents

for public consumption is not in the financial interest of the organization.

In addition to satisfying requirements for a waiver of fees associated with the

search and processing of records, The Protect Democracy Project is entitled to a waiver

in duplication costs. Federal law mandates a waiver of document duplication costs for

requesters that qualify as a representative of the news media. The Protect Democracy

Project, a new organization formed in December 2016, emerges in the tradition of

501(c)(3) good government organizations that qualify under FOIA as “news media

organizations.” Like these organizations, the purpose of The Protect Democracy Project

is to “gather information of potential interest to a segment of the public, use its editorial

skills to turn the raw materials into distinct work, and distribute that work to an audience.”

Cf National Security Archive v. Department of Defense, 880 F.2d 1381, 1387 (D.C. Cir.

PO Box 170521, Brooklyn, New York 11217

FOIA.protectdemocracy@gmail.com
 Case 1:17-cv-00814-APM Document 1-1 Filed 05/02/17 Page 3 of 4

1989). We intend to give the public access to documents transmitted via FOIA on our

forthcoming website, www.protectdemocracyproject.org.

RESPONSIVE RECORDS

We ask that all types of records and all record systems be searched to discover

records responsive to our request. We seek records in all medium and format. This

includes, but is not limited to: agendas, manifests, calendars, schedules, notes, and any

prepared documentation for meetings, calls, tele-conferences, or otherwise discussions

responsive to our request; voicemails; e-mails; e-mail attachments; talking points; faxes;

facsimiles; training documents and guides; table of contents and content of binders;

documents pertaining to instruction and coordination of couriers; and any other

preservation of work product. We ask that you search all system of record, including

electronic, in use at your agency. The Protect Democracy Project would prefer records in

electronic format, saved as PDF documents, and transmitted via email or CD-rom.

If you make a determination that any responsive record, or any segment within a

record, is exempt from disclosure, we ask that you provide an index of those records at

the time you transmit all other responsive records. In the index, please include a

description of the record and the reason for exclusion with respect to each individual

exempt record or exempt portion of a record, as provided by Vaughn v. Rosen, 484 F.2d

820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). When you deem a portion of a

record exempt, we ask for the remainder of the record to be provided. 5 U.S.C. 552(b).

Given the 20-day statutory deadline, we hope to be as helpful as possible in

clarifying or answering questions about our request. Please contact us at

FOIA.protectdemocracy@gmail.com or (404) 819-1630 if you require any additional

PO Box 170521, Brooklyn, New York 11217

FOIA.protectdemocracy@gmail.com
 Case 1:17-cv-00814-APM Document 1-1 Filed 05/02/17 Page 4 of 4

information. We appreciate your cooperation, and look forward to hearing from you very

soon.

Sincerely,

Ian Bassin
Executive Director
The Protect Democracy Project

PO Box 170521, Brooklyn, New York 11217

FOIA.protectdemocracy@gmail.com
4/19/2017 Case 1:17-cv-00814-APMGmail ­ Freedom of Information Act Request
Document 1-2 Filed 05/02/17 Page 1 of 1

Caroline McKay <foia.protectdemocracy@gmail.com>

Freedom of Information Act Request 
FN­OMB­FOIA <OMBFOIA@omb.eop.gov> Thu, Feb 16, 2017 at 4:38 PM
To: Caroline McKay <foia.protectdemocracy@gmail.com>

Good Afternoon:

This email acknowledges receipt of your Freedom of Information Act (FOIA) request to the Office of Management and
Budget (OMB) dated and received in OMB’s FOIA office on February 15, 2017.  Your request has been logged in and is
being processed.  For your reference, the OMB FOIA number is 2017­076.

Sincerely, 
Dionne Hardy

­­­­­Original Message­­­­­
From: Caroline McKay [mailto:foia.protectdemocracy@gmail.com]
Sent: Wednesday, February 15, 2017 11:10 AM 
To: FN­OMB­FOIA <OMBFOIA@omb.eop.gov> 
Subject: Freedom of Information Act Request

Hello:

Please find a letter requesting records attached.

Thank you for your timely assistance on this matter. If you have any questions or need any additional information, don't
hesitate to reach out.

Sincerely, 

Caroline
(404) 819­1630

https://mail.google.com/mail/u/0/?ui=2&ik=6aea53db48&view=pt&msg=15a48de261a696e8&search=sent&dsqt=1&siml=15a48de261a696e8 1/1