U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17−cv−02202−RDM

TYPE I−FOIA

PROTECT DEMOCRACY PROJECT, INC. v. DEPARTMENT Date Filed: 10/24/2017

OF HOMELAND SECURITY et al

Jury Demand: None

Assigned to: Judge Randolph D. Moss

Nature of Suit: 895 Freedom of

Case: 1:17−cv−02118−RDM

Information Act

Cause: 05:552 Freedom of Information Act

Jurisdiction: U.S. Government Defendant

Plaintiff

PROTECT DEMOCRACY PROJECT, INC.

represented by Jennifer H. Saperstein COVINGTON & BURLING LLP 850 Tenth Street N.W. One City Center Washington, DC 20001 (202) 662−5682 Email: jsaperstein@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nikhil Vikas Gore COVINGTON & BURLING LLP 850 Tenth Street N.W. One City Center Washington, DC 20001 (202) 662−5918 Email: ngore@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David J. Iraola COVINGTON & BURLING LLP 850 Tenth Street, NW One City Center Washington, DC 20001 (202) 662−5904 Email: DIraola@cov.com ATTORNEY TO BE NOTICED

Kevin Travers Barnett COVINGTON & BURLING LLP 850 Tenth Street, NW One City Center Washington, DC 20001 (202) 662−5430 Fax: (202) 662−6291 Email: kbarnett@cov.com TERMINATED: 01/02/2018

V.
Defendant
DEPARTMENT OF HOMELAND SECURITY

represented by Peter C. Pfaffenroth U.S. ATTORNEY'S OFFICE for D.C. Civil Division 555 Fourth Street, NW Washington, DC 20530 (202) 252−2513 Fax: (202) 252−2599 Email: peter.pfaffenroth@usdoj.gov

Defendant
CUSTOMS AND BORDER PROTECTION

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Leeson Sroka U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252−7113 Fax: (202) 252−2599 Email: scott.sroka@usdoj.gov TERMINATED: 02/12/2020
represented by Peter C. Pfaffenroth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Leeson Sroka (See above for address) TERMINATED: 02/12/2020

Date Filed 10/24/2017
10/24/2017 10/24/2017 10/24/2017 10/25/2017 10/25/2017 10/27/2017 10/30/2017
11/08/2017

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090−5173166) filed by PROTECT DEMOCRACY PROJECT, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit, # 3 Exhibit, # 4 Related Case Notice, # 5 Summons Attorney General, # 6 Summons US Attorney DC, # 7 Summons Customs and Border Protection, # 8 Summons Dept of Homeland Security)(Barnett, Kevin) (Attachment 1 replaced on 10/25/2017) (zsth). (Entered: 10/24/2017)
2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by PROTECT DEMOCRACY PROJECT, INC. (Barnett, Kevin) (Entered: 10/24/2017)
Case Assigned to Judge Randolph D. Moss. (sth) (Entered: 10/25/2017)
3 NOTICE OF RELATED CASE by PROTECT DEMOCRACY PROJECT, INC.. Case related to Case No. 17cv2118. (sth) (Entered: 10/25/2017)
4 SUMMONS (4) Issued Electronically as to CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent)(sth) (Entered: 10/25/2017)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 10/25/2017. Answer due for ALL FEDERAL DEFENDANTS by 11/24/2017. (Barnett, Kevin) (Entered: 10/25/2017)
6 STANDING ORDER: The parties are hereby ORDERED to comply with the directives set forth in the Court's Standing Order. Signed by Judge Randolph D. Moss on 10/27/2017. (lcrdm1, ) (Entered: 10/27/2017)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CUSTOMS AND BORDER PROTECTION served on 10/30/2017; DEPARTMENT OF HOMELAND SECURITY served on 10/30/2017, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 10/30/2017. (Barnett, Kevin) (Entered: 10/30/2017)
8 NOTICE of Appearance by Nikhil Vikas Gore on behalf of PROTECT DEMOCRACY PROJECT, INC. (Gore, Nikhil) (Entered: 11/08/2017)

11/20/2017 11/22/2017 11/27/2017
11/27/2017 12/15/2017 12/15/2017
12/18/2017 12/22/2017 12/22/2017 01/02/2018 01/02/2018 01/04/2018
03/02/2018 03/12/2018 03/13/2018 03/14/2018
03/14/2018 04/13/2018 04/27/2018

9 NOTICE of Appearance by Scott Leeson Sroka on behalf of All Defendants (Sroka, Scott) (Entered: 11/20/2017)
10 Consent MOTION for Extension of Time to File Answer by CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY (Sroka, Scott) (Entered: 11/22/2017)
MINUTE ORDER: Upon consideration of Defendants' Motion for Extension of Time 10 , the motion is hereby GRANTED. Defendants shall respond to the Complaint on or before December 15, 2017. Signed by Judge Randolph D. Moss on 11/27/17. (lcrdm3, ) (Entered: 11/27/2017)
Set/Reset Deadlines: Defendants shall respond to the Complaint on or before 12/15/2017. (kt) (Entered: 11/27/2017)
11 ANSWER to Complaint by CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY.(Sroka, Scott) (Entered: 12/15/2017)
MINUTE ORDER: The parties are hereby ORDERED to appear for a status conference on January 19, 2018, at 10:15 a.m. in Courtroom 21. The parties are further ORDERED to meet and confer prior to the status conference to discuss scheduling for further proceedings. Signed by Judge Randolph D. Moss on 12/15/17. (lcrdm3, ) Modified on 12/18/2017 to correct date (kt). (Entered: 12/15/2017)
Set/Reset Hearings: Status Conference set for 1/19/2018, at 10:15 AM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 12/18/2017)
MINUTE ORDER: The status conference currently set for January 19, 2018, is hereby VACATED and RESCHEDULED for January 4, 2018, at 10:25 a.m. Signed by Judge Randolph D. Moss on 12/22/17. (lcrdm3, ) (Entered: 12/22/2017)
Set/Reset Hearings: The Status Conference set for 1/19/2018 is VACATED and RESCHEDULED to 1/4/2018, at 10:25 AM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 12/22/2017)
12 NOTICE of Appearance by Jennifer H. Saperstein on behalf of PROTECT DEMOCRACY PROJECT, INC. (Saperstein, Jennifer) (Entered: 01/02/2018)
13 NOTICE OF WITHDRAWAL OF APPEARANCE as to PROTECT DEMOCRACY PROJECT, INC.. Attorney Kevin Travers Barnett terminated. (Barnett, Kevin) (Entered: 01/02/2018)
Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 1/4/2018. Joint Status Report due by 3/3/2018. A further Status Conference is set for 3/13/2018, at 10:15 AM, in Courtroom 21, before Judge Randolph D. Moss. (Court Reporter: Jeff Hook.) (kt) (Entered: 01/04/2018)
14 Joint STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Gore, Nikhil) (Entered: 03/02/2018)
15 STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Gore, Nikhil) (Entered: 03/12/2018)
Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 3/13/2018. Defendants shall provide Plaintiffs and the Court with a production schedule by 4/13/2018. (Court Reporter: Jeff Hook.) (kt) (Entered: 03/13/2018)
MINUTE ORDER: It is hereby ORDERED that the parties shall submit a joint status report on or before April 27, 2018, identifying the issues remaining in this litigation and proposing a schedule for further proceedings. Signed by Judge Randolph D. Moss on 3/14/18. (lcrdm3, ) (Entered: 03/14/2018)
Set/Reset Deadlines: Joint Status Report due by 4/27/2018. (kt) (Entered: 03/14/2018)
16 STATUS REPORT and Proposed Production Schedule by CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY. (Sroka, Scott) (Entered: 04/13/2018)
17 Joint MOTION for Extension of Time to File Joint Status Report by CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY (Sroka,

04/27/2018
04/27/2018 05/04/2018 05/07/2018
05/07/2018 05/14/2018
07/05/2018 07/06/2018
08/17/2018 08/17/2018 08/17/2018
08/17/2018 08/24/2018 08/24/2018 08/27/2018
08/27/2018 08/30/2018

Scott) (Entered: 04/27/2018)
MINUTE ORDER: Upon consideration of the Joint Motion for Extension of Time 17 , it is hereby ORDERED that the motion is GRANTED. The parties shall file a joint status report on or before May 4, 2018. Signed by Judge Randolph D. Moss on 4/27/18. (lcrdm3, ) (Entered: 04/27/2018)
Set/Reset Deadlines: Joint Status Report due by 5/4/2018. (dot) (Entered: 04/30/2018)
18 Joint STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Gore, Nikhil) (Entered: 05/04/2018)
MINUTE ORDER: In light of the parties' Joint Status Report 18 , it is hereby ORDERED that the parties shall appear for a status conference on May 14, 2018, at 2:00 p.m. in Courtroom 21. Signed by Judge Randolph D. Moss on 5/7/18. (lcrdm3, ) (Entered: 05/07/2018)
Set/Reset Hearings: Status Conference set for 5/14/2018, at 2:00 PM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 05/07/2018)
Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 5/14/2018. Document productions shall proceed as ordered on the record. A further Status Conference is set for 7/6/2018, at 12:30 PM, in Courtroom 21, before Judge Randolph D. Moss. (Court Reporter: Jeff Hook.) (kt) (Entered: 05/14/2018)
19 STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Gore, Nikhil) (Entered: 07/05/2018)
Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 7/6/2018. The parties shall meet and confer regarding the scope and timing of the search. Joint Status Report due by 8/17/2018. A further Status Conference is set for 9/5/2018, at 10:15 AM, in Courtroom 21, before Judge Randolph D. Moss. (Court Reporter: Jeff Hook.) (kt) (Entered: 07/06/2018)
20 Unopposed MOTION for Extension of Time to File Status Report by CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Sroka, Scott) (Entered: 08/17/2018)
21 STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Gore, Nikhil) (Entered: 08/17/2018)
MINUTE ORDER: In light of Defendants' Unopposed Motion for Extension of Time to File Status Report 20 , it is ORDERED that the motion is hereby GRANTED. The parties shall file their joint status report on or before August 24, 2018. Signed by Judge Randolph D. Moss on 8/17/2018. (lcrdm3, ) (Entered: 08/17/2018)
Set/Reset Deadlines: Joint Status Report due by 8/24/2018. (dot) (Entered: 08/20/2018)
22 STATUS REPORT by CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY. (Sroka, Scott) (Entered: 08/24/2018)
23 Supplemental STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Gore, Nikhil) (Entered: 08/24/2018)
MINUTE ORDER: Upon consideration of the parties' joint status report 22 , it is hereby ORDERED that the Department of Homeland Security ("DHS") shall file a declaration on or before August 31, 2018, explaining why it cannot review and release responsive, non−exempt records at the rate proposed by Plaintiff. Signed by Judge Randolph D. Moss on 8/27/2018. (lcrdm3, ) (Entered: 08/27/2018)
Set/Reset Deadlines: Department of Homeland Security ("DHS") shall file a declaration on or before 8/31/2018. (kt) (Entered: 08/27/2018)
24 RESPONSE TO ORDER OF THE COURT re Order, Notice of Filing filed by DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Declaration of James V.M.L. Holzer)(Sroka, Scott) (Entered: 08/30/2018)

09/05/2018 09/10/2018
09/10/2018 10/05/2018 10/05/2018 10/10/2018
10/10/2018 10/24/2018 10/29/2018
11/16/2018 11/16/2018 11/25/2018
11/26/2018 12/14/2018 12/16/2018
12/17/2018 01/31/2019

Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 9/5/2018. Order forthcoming. (Court Reporter Jeff Hook.) (dot) (Entered: 09/06/2018)
MINUTE ORDER: In light of the status conference held on September 5, 2018, it is hereby ORDERED that Customs and Border Protection ("CPB") shall promptly conduct a new search narrowing the universe of documents to only those relating to the Arizona sector from October 2016 to present. It is further ORDERED that the Department of Homeland Security ("DHS") shall process records at a minimum rate of 350 pages per month. It is further ORDERED that the parties' shall file a joint status report on or before October 5, 2018, alerting the Court to CPB's and DHS's progress. Signed by Judge Randolph D. Moss on 9/10/2018. (lcrdm3, ) (Entered: 09/10/2018)
Set/Reset Deadlines: Joint Status Report due by 10/5/2018. (kt) (Entered: 09/10/2018)
25 STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Gore, Nikhil) (Entered: 10/05/2018)
26 STATUS REPORT by CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY. (Sroka, Scott) (Entered: 10/05/2018)
MINUTE ORDER: Upon consideration of Plaintiff's status report 25 , it is hereby ORDERED that the parties shall appear for a status conference on October 29, 2018, at 10:15 a.m. in Courtroom 21. Signed by Judge Randolph D. Moss on 10/10/2018. (lcrdm3, ) (Entered: 10/10/2018)
Set/Reset Hearings: Status Conference set for 10/29/2018, at 10:15 AM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 10/10/2018)
27 Supplemental STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Gore, Nikhil) (Entered: 10/24/2018)
Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 10/29/2018. On or before 11/5/2018, CBP shall provide Plaintiff with search taskers; The parties shall meet and confer, on or before 11/5/2018, about DHS providing Plaintiff with an informal redaction summary: On or before 11/12/2018, CBP shall provide Plaintiff with the number of items found in the second search; Joint Status Report due by 11/16/2018. (Court Reporter: Jeff Hook.) (kt) (Entered: 10/29/2018)
28 STATUS REPORT by CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY. (Sroka, Scott) (Entered: 11/16/2018)
29 STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Gore, Nikhil) (Entered: 11/16/2018)
MINUTE ORDER: Upon consideration of the parties' status reports 28 , 29 , it is hereby ORDERED that the parties shall meet and confer on the issues identified in Plaintiff's status report 29 . It is further ORDERED that the parties shall file a joint status report informing the Court of the outcome of these discussions on or before December 14, 2018. Signed by Judge Randolph D. Moss on 11/25/2018. (lcrdm3, ) (Entered: 11/25/2018)
Set/Reset Deadlines: Joint Status Report due by 12/14/2018. (kt) (Entered: 11/26/2018)
30 Joint STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Gore, Nikhil) (Entered: 12/14/2018)
MINUTE ORDER: Upon consideration of the parties joint status report 30 , it is hereby ORDERED that the parties shall file a further joint status report on or before January 31, 2019. Signed by Judge Randolph D. Moss on 12/16/2018. (lcrdm3, ) (Entered: 12/16/2018)
Set/Reset Deadlines: Joint Status Report due by 1/31/2019. (kt) (Entered: 12/17/2018)
31 Joint STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Iraola, David) (Entered: 01/31/2019)

02/03/2019
02/04/2019 02/15/2019 02/18/2019
02/19/2019 03/15/2019 03/20/2019
03/20/2019
04/01/2019 04/03/2019 04/03/2019
04/04/2019
04/04/2019 05/06/2019 05/09/2019
05/09/2019 06/21/2019 06/23/2019

MINUTE ORDER: Upon consideration of the parties' joint status report 31 , it is hereby ORDERED that the parties shall file a further joint status report on or before February 15, 2019. Signed by Judge Randolph D. Moss on 2/3/2019. (lcrdm3, ) (Entered: 02/03/2019)
Set/Reset Deadlines: Joint Status Report due by 2/15/2019. (kt) (Entered: 02/04/2019)
32 Joint STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Iraola, David) (Entered: 02/15/2019)
MINUTE ORDER: Upon consideration of the parties' joint status report 32 , it is hereby ORDERED that the parties shall file a further joint status report on or before March 15, 2019. Signed by Judge Randolph D. Moss on 2/18/2019. (lcrdm3, ) (Entered: 02/18/2019)
Set/Reset Deadlines: Joint Status Report due by 3/15/2019. (kt) (Entered: 02/19/2019)
33 Joint STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Iraola, David) (Entered: 03/15/2019)
MINUTE ORDER: In light of the parties' joint status report, it is hereby ORDERED that the parties shall appear for a status conference on April 8, 2019 at 10:00 a.m. in Courtroom 21. It is further ORDERED that Defendant DHS shall submit a declaration explaining tis reasons for failing to comply with the agreed−upon production schedule on or before April 1, 2019. Signed by Judge Randolph D. Moss on 3/20/2019. (lcrdm3, ) (Entered: 03/20/2019)
Set/Reset Deadlines/Hearings: Defendant DHS shall submit a declaration explaining it's reasons for failing to comply with the agreed−upon production schedule by 4/1/2019. Status Conference set for 4/8/2019 at 10:00 AM in Courtroom 21 before Judge Randolph D. Moss. (dot) (Entered: 03/20/2019)
34 NOTICE of Filing Declaration by DEPARTMENT OF HOMELAND SECURITY re Order, (Attachments: # 1 Declaration of James V.M.I. Holzer)(Sroka, Scott) (Entered: 04/01/2019)
35 Joint MOTION to Continue by PROTECT DEMOCRACY PROJECT, INC. (Iraola, David) (Entered: 04/03/2019)
NOTICE OF ERROR re 35 Motion to Continue; emailed to DIraola@cov.com, cc'd 7 associated attorneys −− The PDF file you docketed contained errors: 1. Do Not Refile. FYI, Signature on document must match to whomever is electronically filing. (ztd, ) (Entered: 04/03/2019)
MINUTE ORDER: Upon consideration of the joint motion to continue 35 , it is hereby ORDERED that the motion is GRANTED. The status conference scheduled for April 8, 2019, is hereby VACATED. It is further ORDERED that the parties shall submit a further joint status report on or before May 6, 2019. Signed by Judge Randolph D. Moss on 4/4/2019. (lcrdm3, ) (Entered: 04/04/2019)
Set/Reset Deadlines: Join Status Report due by 5/6/2019. (kt) (Entered: 04/04/2019)
36 Joint STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Iraola, David) (Entered: 05/06/2019)
MINUTE ORDER: Upon consideration of the parties' joint status report 33 , it is hereby ORDERED that the parties shall submit a further joint status report on or before June 21, 2019. Signed by Judge Randolph D. Moss on 5/9/2019. (lcrdm3, ) (Entered: 05/09/2019)
Set/Reset Deadlines: Joint Status Report due by 6/21/2019. (kt) (Entered: 05/09/2019)
37 Joint STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Iraola, David) (Entered: 06/21/2019)
MINUTE ORDER: Upon consideration of the parties' joint status report 37 , it is hereby ORDERED that the parties shall submit a further joint status report on or before July 31, 2019. Signed by Judge Randolph D. Moss on 6/23/2019. (lcrdm3, ) (Entered: 06/23/2019)

06/24/2019 07/31/2019 08/05/2019
08/06/2019 09/06/2019 09/06/2019
09/06/2019 11/22/2019 11/25/2019
01/06/2020 01/06/2020
02/12/2020
02/28/2020 03/02/2020
04/01/2020 04/02/2020
05/19/2020 05/20/2020

Set/Reset Deadlines: Joint Status Report due by 7/31/2019. (kt) (Entered: 06/24/2019)
38 Joint STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Gore, Nikhil) (Entered: 07/31/2019)
MINUTE ORDER: In light of the parties' joint status report 38 , it is hereby ORDERED that the parties shall file a further joint status report on or before September 6, 2019. Signed by Judge Randolph D. Moss on 8/5/2019. (lcrdm3, ) (Entered: 08/05/2019)
Set/Reset Deadlines: Joint Status Report due by 9/6/2019. (kt) (Entered: 08/06/2019)
39 Joint STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Iraola, David) (Entered: 09/06/2019)
MINUTE ORDER: In light of the parties' joint status report 39 , it is hereby ORDERED that the parties shall file a further status report on or before November 22, 2019 setting forth the parties' respective positions regarding the outstanding issues, if any, that may require briefing and resolution. Signed by Judge Randolph D. Moss on 09/06/19. (lcrdm3, ) (Entered: 09/06/2019)
Set/Reset Deadlines: Joint Status Report due by 11/22/2019. (kt) (Entered: 09/06/2019)
40 Joint STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Iraola, David) (Entered: 11/22/2019)
MINUTE ORDER: In light of the parties' joint status report 40 , it is hereby ORDERED that the parties shall file a further joint status report on or before January 6, 2020. Signed by Judge Randolph D. Moss on 11/25/19. (lcrdm3, ) (Entered: 11/25/2019)
41 Joint STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Gore, Nikhil) (Entered: 01/06/2020)
MINUTE ORDER: In light of the parties' joint status report 41 , it is hereby ORDERED that the parties shall submit a further joint status report on or before March 1, 2020. Signed by Judge Randolph D. Moss on 1/6/20. (lcrdm3, ) (Entered: 01/06/2020)
42 NOTICE OF SUBSTITUTION OF COUNSEL by Peter C. Pfaffenroth on behalf of CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY Substituting for attorney Scott Sroka (Pfaffenroth, Peter) (Entered: 02/12/2020)
43 Joint STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Iraola, David) (Entered: 02/28/2020)
MINUTE ORDER: Upon consideration of the parties' joint status report, Dkt. 43 , it is hereby ORDERED that the parties shall file a further joint status report on or before April 1, 2020. Signed by Judge Randolph D. Moss on 3/2/20. (lcrdm1) (Entered: 03/02/2020)
44 Joint STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Iraola, David) (Entered: 04/01/2020)
MINUTE ORDER: Upon consideration of the parties' joint status report, Dkt. 44 , it is hereby ORDERED that the parties shall submit a further joint status report on or before May 19, 2020. Signed by Judge Randolph D. Moss on 4/2/2020. (lcrdm1) (Entered: 04/02/2020)
45 Joint STATUS REPORT by CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY. (Pfaffenroth, Peter) (Entered: 05/19/2020)
MINUTE ORDER: Upon consideration of the parties' joint status report, Dkt. 45 , it is hereby ORDERED that the parties shall file a further joint status report on or before June 12, 2020. Signed by Judge Randolph D. Moss on 5/20/2020. (lcrdm1) (Entered: 05/20/2020)

06/12/2020 06/14/2020

46 Joint STATUS REPORT by PROTECT DEMOCRACY PROJECT, INC.. (Iraola, David) (Entered: 06/12/2020)
MINUTE ORDER: Upon consideration of the parties' joint status report, Dkt. 46 , it is hereby ORDERED that the parties shall submit a further joint status report on or before August 7, 2020. Signed by Judge Randolph D. Moss on 6/14/2020. (lcrdm1) (Entered: 06/14/2020)

 Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 1 of 29

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
vs.
DEPARTMENT OF HOMELAND SECURITY 3801 Nebraska Avenue NW Washington, DC 20016
CUSTOMS AND BORDER PROTECTION 1300 Pennsylvania Avenue NW Washington, DC 20229

Case No. __________

Defendants.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (Freedom of Information Act)
Plaintiff, The Protect Democracy Project, Inc., brings this action against Defendants, the Department of Homeland Security and Customs and Border Protection, to compel compliance with the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and for related declaratory and injunctive relief. Plaintiff’s underlying FOIA requests seek information concerning the extent to which Defendants cooperate with armed private militia groups along the United States-Mexico border. Plaintiff alleges as follows:
PARTIES 1. Plaintiff, The Protect Democracy Project, Inc., is a 501(c)(3) tax-exempt organization, incorporated under the laws of the District of Columbia, and headquartered at 2020 Pennsylvania Avenue NW, #163, Washington, DC 20006.

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 2 of 29
2. 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 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.
3. Plaintiff regularly requests information pursuant to FOIA. Consistent with its regular practice, Plaintiff intends to give the public access to documents obtained via these FOIA requests on its website, www.protectdemocracy.org, and to provide information about and analysis of those documents as appropriate.
4. Defendant Department of Homeland Security (“DHS”) is an agency of the United States of America under 5 U.S.C. § 552(f)(1) and 5 U.S.C. § 551(1). Defendant DHS is headquartered at 3801 Nebraska Avenue NW, Washington, DC 20016. Defendant DHS has possession, custody, and control of the documents that Plaintiff seeks in response to the FOIA request sent to DHS.
5. Defendant Customs and Border Protection (“CBP”) is a component of DHS. Defendant CBP is headquartered at 1300 Pennsylvania Avenue NW, Washington, DC 20229. Defendant CBP has possession, custody, and control of the documents that Plaintiff seeks in response to the FOIA requests sent to CBP and certain Sectors of CBP.
JURISDICTION & VENUE 6. This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §§ 2201-2202.
2

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 3 of 29
7. Venue is proper pursuant to 5 U.S.C. § 552(a)(4)(B). STATEMENT OF FACTS
8. On January 25, 2017, President Trump issued an Executive Order directing DHS to hire an additional 5,000 Border Patrol agents “as soon as is practicable” and stating that OPM “shall take appropriate action as may be necessary to facilitate hiring personnel to implement this order.”1 In a separate Executive Order issued on the same date, President Trump directed DHS to hire an additional 10,000 Immigration and Customs Enforcement (“ICE”) officers.2
9. On February 20, 2017, then-DHS Secretary John Kelly issued memoranda to CBP and ICE directing the agencies to begin the process of hiring 5,000 additional Border Patrol agents and 10,000 additional ICE officers3 – in effect, this was an order to increase the Border Patrol’s staff by 25% and to triple ICE’s workforce.4 To meet these hiring needs, Administration officials have suggested that they will seek to reduce what they view as overly restrictive hiring barriers, including with respect to polygraph examinations and background checks.
10. The Administration’s plans to hire additional Border Patrol agents and ICE officers have occurred against the backdrop of public reports suggesting that there has been an
1 Exec. Order No. 13767, 82 Fed. Reg. 8793 (Jan. 25, 2017). 2 Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017). 3 Dept. of Homeland Security, “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies” (Feb. 20, 2017); Dept. of Homeland Security, “Enforcement of the Immigrations Laws to Serve the National Interest” (Feb. 20, 2017). 4 See Greg Moran, Trump’s plans to rapidly expand Border Patrol comes with big risks, L.A. Times (Mar. 13, 2017), http://www.latimes.com/local/lanow/la-me-border-patrol-20170313story.html.
3

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 4 of 29
increase in the number of armed militia groups patrolling the United States-Mexico border.5
These groups are not legally authorized to perform border enforcement duties.
11. While the federal government claims not to “endorse or support” militia groups
active along the border,6 public reports suggest that such groups may in fact be working in
concert with CBP officers to police the border.7 In fact, at least one militia group – Arizona
Border Recon – describes its mission as to “provide intelligence and security services in
partnership with the United States Customs and Border Patrol.”8
12. The role played by militias on the border is an issue of substantial public interest
– the subject of, among other things, a recent feature article in the New York Times,9 a PBS
Newshour segment,10 and a special report on ABC’s Newsline.11
5 See, e.g., Shane Bauer, I Went Undercover with a Border Militia. Here’s What I Saw., Mother Jones (Nov./Dec. 2016), http://www.motherjones.com/politics/2016/10/undercover-bordermilitia-immigration-bauer; Maxwell Barna, ‘It’s an American Problem’: Meet the Militias Patrolling the US Border, Vice News (July 31, 2014), https://news.vice.com/article/its-anamerican-problem-meet-the-militias-patrolling-the-us-border. 6 See Nick Schifrin, Armed citizens patrol the Arizona-Mexico border, PBS Newshour (Feb. 4, 2017), http://www.pbs.org/newshour/bb/armed-citizens-patrol-arizona-mexico-border (quoting a written statement from CBP in which CBP stated that it “does not endorse or support any private group or organization from taking matters into their own hands, as it could have disastrous personal and public safety consequences”). 7 See Shane Bauer, I Went Undercover with a Border Militia. Here’s What I Saw., Mother Jones (Nov./Dec. 2016), http://www.motherjones.com/politics/2016/10/undercover-border-militiaimmigration-bauer (describing the interactions between CBP agents and the militia groups and quoting one member of a militia group as saying that “Border Patrol agents provide [us] with very useful information to help make our ops better”). 8 See Arizona Border Recon Homepage, https://www.arizonaborderrecon.org (last accessed Oct. 24, 2017). 9 See Fernanda Santos, At the Southern Border, a Do-It-Yourself Tack on Security, N.Y. Times (Dec. 21, 2016), https://www.nytimes.com/2016/12/21/us/at-the-southern-border-a-do-ityourself-tack-on-security.html?_r=1.
4

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 5 of 29
13. These reports have provided conflicting accounts of the extent of coordination between militias and federal authorities. A member of the Arizona Border Recon militia, for example, told an ABC reporter that he “assist[s]” CBP, adding that CBP’s “hands are tied [and] [t]hey’re not able to do what they really want to do.”12 Another member of the same militia told a PBS correspondent that he “works with” CBP.13 That militia member also answered a call from a CBP agent while on camera, allowing the PBS correspondent to record part of the call.14 A third reporter, a veteran investigative journalist who went undercover with the Three Percent United Patriots (“3UP”) militia, recounted: (i) a meeting between a CBP agent and a 3UP militia commander; (ii) a CBP intelligence officer advising 3UP militia members on optimal patrol routes and observation sites; (iii) an incident where three individuals were detained at gunpoint by 3UP pending the arrival of CBP agents; and (iv) an incident where CBP agents appear to have assisted in airlifting a 3UP member who had become ill.15 Yet, CBP denies cooperating with private militias.
10 See Nick Schifrin, Armed Citizens Patrol the Arizona-Mexico Border: Transcript, PBS Newshour (Feb. 4, 2017), http://www.pbs.org/newshour/bb/armed-citizens-patrol-arizonamexico-border/. 11 See Neal Karlinsky et al., Out on Patrol with Heavily Armed Civilian Vigilantes on Arizona’s Border with Mexico, ABC Newsline (Feb. 1, 2017), http://abcnews.go.com/US/patrol-heavilyarmed-civilian-vigilantes-arizonas-border-mexico/story?id=45201990. 12 Id. 13 See Nick Schifrin, Armed Citizens Patrol the Arizona-Mexico Border: Transcript, PBS Newshour (Feb. 4, 2017), http://www.pbs.org/newshour/bb/armed-citizens-patrol-arizonamexico-border/. 14 Id. 15 See Shane Bauer, I Went Undercover with a Border Militia. Here’s What I Saw., Mother Jones (Nov./Dec. 2016), http://www.motherjones.com/politics/2016/10/undercover-border-militiaimmigration-bauer.
5

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 6 of 29
14. The Administration’s border enforcement plans – and the increasingly prominent role of militia groups on the border – raise concerns about the extent to which the Administration intends to rely, whether formally or informally, on militia groups and other nongovernmental actors to implement its immigration policy.
15. Consistent with its mission, The Protect Democracy Project submitted FOIA requests to DHS and CBP seeking information about the role of unaffiliated border enforcement groups in the Trump Administration’s immigration policy. Specifically, and as described in further detail below, The Protect Democracy Project is requesting information regarding the Administration’s policies and practices relating to interactions with nongovernmental border enforcement groups, and the extent to which the federal government is relying on these groups to assist with implementing its immigration policy.
16. Defendants have failed to process these requests in the manner required by FOIA, and have failed to respond to the requests within the deadline mandated by FOIA. A tabular summary of the current status of each request is attached as Appendix A.
I. AUGUST 3, 2017 DHS REQUEST 17. On August 3, 2017, The Protect Democracy Project submitted a FOIA request to
DHS (“the August 3 DHS Request”) seeking 12 categories of records related to the agency’s interactions and involvement with unaffiliated border enforcement groups, including, among other requests: (i) “[a]ll communications between any Border Patrol field office, and any other component of DHS, relating to unaffiliated border enforcement groups”; and (ii) “[a]ll communications between any employee of DHS and any representative of any unaffiliated border enforcement group.”16
16 These particular categories correspond to items 2 and 3 in the August 3 DHS Request.
6

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 7 of 29
18. The August 3 DHS Request also sought a fee waiver and expedited processing. Citing over a dozen independent sources, The Protect Democracy Project certified that its request met the criteria for expedited processing under Defendant DHS’s regulations, 6 C.F.R. § 5.5(e)(ii), (iv), because there is an “urgency to inform the public about an actual or alleged Federal Government activity,” the request is “made by a person who is primarily engaged in disseminating information,” and the request concerns “[a] matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity that could affect public confidence.” A true and correct copy of the August 3 DHS Request is attached as Exhibit 1.
19. On August 15, 2017, The Protect Democracy Project received a written response from the DHS Privacy Office (“DHS PRIV”) acknowledging that DHS PRIV had received the August 3 DHS Request on August 3, 2017 and stating that the request had been assigned DHS FOIA number 2017-HQFO-01153. Further, DHS PRIV stated in its August 15 response that the August 3 DHS Request was “too broad in scope or did not specifically identify the [requested] records.”
20. On August 16, 2017, a representative from The Protect Democracy Project spoke by telephone with a representative from DHS PRIV. Following that conversation, on August 16, 2017, The Protect Democracy Project sent an email to DHS PRIV in which it perfected its request by providing search terms to assist DHS PRIV in locating responsive records.
21. On August 23, 2017, The Protect Democracy Project sent another email to DHS PRIV following up on its August 16 email and asking DHS PRIV to acknowledge receipt of the perfected August 3 DHS Request.
7

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 8 of 29
22. On August 29, 2017, The Protect Democracy Project received a written response from DHS PRIV acknowledging receipt of the perfected August 3 DHS Request. In its response, DHS PRIV also conditionally granted The Protect Democracy Project’s request for a fee waiver but denied its request for expedited processing. In connection with this denial, DHS PRIV stated that The Protect Democracy Project’s request was “conclusory in nature and did not present any facts to justify a grant of expedited processing under [6 C.F.R. Part 5 § 5.5(e)(1)].” DHS PRIV further stated in its August 29 response that it was invoking the 10-day extension to comply with the perfected request pursuant to 6 C.F.R. Part 5 § 5.5(c).17 DHS PRIV did not indicate the scope of the documents DHS PRIV would produce or the exemptions DHS PRIV would claim with respect to any withheld documents.
23. On September 14, 2017, The Protect Democracy Project received an email from DHS PRIV stating that “in order to conduct and [sic] adequate search for items 2 and 3 of your request, [DHS PRIV] need[s] either the email extension for the Border Patrol Field office and the unaffiliated border enforcement group or the name(s) of the individuals.”
24. On September 18, 2017, The Protect Democracy Project received a letter from the Office of the Inspector General at DHS (“DHS OIG”) stating that DHS PRIV had referred a portion of the perfected August 3 DHS Request to DHS OIG. In its September 18 letter, DHS OIG stated that it received this referral (of portions of the perfected August 3 DHS Request) on September 5, 2017, and that DHS OIG had assigned a separate DHS FOIA number to the request, 2017-IGFO-00143. DHS OIG also stated in the letter that it was invoking the 10-day extension to comply with the request pursuant to 5 U.S.C. § 552(a)(6)(B). Further, DHS OIG
17 6 C.F.R. Part 5 § 5.5(c) is the DHS regulation that implements the 10-day extension provided by 5 U.S.C. § 552(a)(6)(B)(i). This statutory provision and the corresponding regulation are referred to interchangeably throughout the Complaint.
8

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 9 of 29
stated that it was deferring rendering a decision regarding The Protect Democracy Project’s request for a fee waiver until after DHS OIG had determined “whether fees will be assessed for this request.” The letter did not address Plaintiff’s expedited processing request, and did not indicate the scope of the documents DHS OIG would produce or the exemptions DHS OIG would claim with respect to any withheld documents.
25. On October 10, 2017, The Protect Democracy Project sent an email to DHS PRIV responding to the September 14 email in which DHS PRIV had requested additional information regarding items 2 and 3 of the perfected August 3 DHS Request. In its October 10 correspondence, The Protect Democracy Project stated that it was “not in a position to know the names of the particular DHS employees or the email extensions of specific Sector offices” but that if CBP “share[d] information about the parameters of [its] search . . . [The Protect Democracy Project] would be happy to consider whether that information allows us to narrow our request.” With respect to item 3 of the perfected August 3 DHS Request, The Protect Democracy Project stated that its request “provides several illustrative examples” but that The Protect Democracy Project was “not in a position to know which groups DHS employees have been in contact with.”
26. Pursuant to FOIA, within 30 business days of receipt of Plaintiff’s perfected request, DHS was required to “determine . . . whether to comply with such request” and to “immediately notify” Plaintiff of “such determination and the reasons therefor,” and, in the case of an adverse determination, Plaintiff’s appeal rights. 5 U.S.C. § 552(a)(6)(A)(i); 5 U.S.C. § 552(a)(6)(B)(i). DHS received the perfected request on August 16, 2017. Thus, DHS was required to respond no later than September 28, 2017.
9

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 10 of 29
27. To date, The Protect Democracy Project has received no further response from DHS related to the perfected August 3 DHS Request. II. AUGUST 3, 2017 CBP REQUESTS
A. BIG BEND SECTOR TEXAS REQUEST 28. On August 3, 2017, The Protect Democracy Project submitted a FOIA request to Big Bend Sector Texas (“the August 3 Big Bend Request”) seeking 11 categories of records related to the Sector’s interactions and involvement with unaffiliated border enforcement groups. The August 3 Big Bend Request also sought a fee waiver and expedited processing on the same basis as the August 3 DHS Request (see paragraph 18). A true and correct copy of the August 3 Big Bend Request is attached as Exhibit 2. 29. On September 8, 2017, based on informal guidance from CBP employees, The Protect Democracy Project re-submitted the August 3 Big Bend Request to CBP Headquarters. On the same date, The Protect Democracy Project received an automated response from CBP confirming that the August 3 Big Bend Request had been submitted and assigning the request CBP FOIA number 2017-086562. 30. On September 12, 2017, The Protect Democracy Project received another automated notice from CBP acknowledging receipt of the August 3 Big Bend Request on September 8, 2017. CBP’s response did not indicate the scope of the documents CBP would produce or the exemptions CBP would claim with respect to any withheld documents. 31. On September 12, 2017, The Protect Democracy Project received a second email from CBP denying expedited processing, as requested in the August 3 Big Bend Request, and stating that the request “[did] not meet requirements per DHS regulations.”
10

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 11 of 29
32. On September 12, 2017, The Protect Democracy Project received a third email from CBP stating that the CBP FOIA number for the August 3 Big Bend Request had been revised from CBP-2017-086562 to CBP-OIT-2017-086562.
33. On September 27, 2017, The Protect Democracy Project received an email from CBP stating that the CBP FOIA number for the August 3 Big Bend Request had been revised from OIT-2017-086562 back to 2017-086562.
34. Pursuant to FOIA, within 20 business days of receipt of Plaintiff’s request, CBP was required to “determine . . . whether to comply with such request” and to “immediately notify” Plaintiff of “such determination and the reasons therefor,” and, in the case of an adverse determination, Plaintiff’s appeal rights. 5 U.S.C. § 552(a)(6)(A)(i); 5 U.S.C. § 552(a)(6)(B)(i). CBP received the re-submitted request on September 8, 2017. CBP’s response was due no later than October 6, 2017.
35. In its September 12 automated response (see paragraph 30), CBP referenced the potential availability, under 6 C.F.R. Part 5 § 5.5(c), of a 10 business day extension to FOIA’s 20 business day response deadline. However, CBP did not invoke this extension; nor did it specify any claimed “unusual circumstances” that would have permitted it to invoke the extension. Even if CBP had properly invoked the 10-day extension, its response would have been due no later than October 23, 2017.
36. To date, The Protect Democracy Project has received no further response from CBP related to the August 3 Big Bend Request and has been provided no information on the status of its fee waiver request.
11

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 12 of 29
B. DEL RIO SECTOR TEXAS REQUEST 37. On August 3, 2017, The Protect Democracy Project submitted a FOIA request to Del Rio Sector Texas (“the August 3 Del Rio Request”) seeking 11 categories of records related to the Sector’s interactions and involvement with unaffiliated border enforcement groups. The August 3 Del Rio Request also sought a fee waiver and expedited processing on the same basis as the August 3 DHS Request (see paragraph 18). A true and correct copy of the August 3 Del Rio Request is attached as Exhibit 2. 38. On September 8, 2017, based on informal guidance from CBP employees, The Protect Democracy Project re-submitted the August 3 Del Rio Request to CBP Headquarters. On the same date, The Protect Democracy Project received an automated response from CBP confirming that the August 3 Del Rio Request had been submitted and assigning the request CBP FOIA number 2017-086565. 39. On September 12, 2017, The Protect Democracy Project received a letter from a CBP office in Washington, DC acknowledging that it had received the August 3 Del Rio Request on September 8, 2017. In its September 12 correspondence, CBP stated that it had a right to invoke a 10-day extension to comply with the request pursuant to 6 C.F.R. Part 5 § 5.5(c); however, as with the August 3 Big Bend Request (see paragraph 35), CBP did not actually invoke the extension. Moreover, CBP did not indicate the scope of the documents CBP would produce or the exemptions CBP would claim with respect to any withheld documents. 40. On September 12, 2017, The Protect Democracy Project received an email from CBP denying expedited processing, as requested in the August 3 Del Rio Request, and stating that the request “[did] not meet requirements per DHS regulations.”
12

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 13 of 29
41. On September 12, 2017, The Protect Democracy Project received a second email from CBP stating that the CBP FOIA number for the August 3 Del Rio Request had been revised from 2017-086565 to OIT-2017-086565.
42. On September 27, 2017, The Protect Democracy Project received an email from CPB stating that the CBP FOIA number for the August 3 Del Rio Request had been revised from OIT-2017-086565 back to 2017-086565.
43. Pursuant to FOIA, within 20 business days of receipt of Plaintiff’s request, CBP was required to “determine . . . whether to comply with such request” and to “immediately notify” Plaintiff of “such determination and the reasons therefor,” and, in the case of an adverse determination, Plaintiff’s appeal rights. 5 U.S.C. § 552(a)(6)(A)(i); 5 U.S.C. § 552(a)(6)(B)(i). CBP received the re-submitted request on September 8, 2017. CBP’s response was due no later than October 6, 2017.
44. To date, The Protect Democracy Project has received no further response from CBP related to the August 3 Del Rio Request and has been provided no information on the status of its fee waiver request.
C. EL CENTRO SECTOR CALIFORNIA REQUEST 45. On August 3, 2017, The Protect Democracy Project submitted a FOIA request to El Centro Sector California (“the August 3 El Centro Request”) seeking 11 categories of records related to the Sector’s interactions and involvement with unaffiliated border enforcement groups. The August 3 El Centro Request also sought a fee waiver and expedited processing on the same basis as the August 3 DHS Request (see paragraph 18). A true and correct copy of the August 3 El Centro Request is attached as Exhibit 2.
13

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 14 of 29
46. On August 9, 2017, The Protect Democracy Project received an automated response from CBP confirming that the August 3 El Centro Request had been submitted and assigning it CBP FOIA number 2017-079151.
47. On August 10, 2017, The Protect Democracy Project received an email from CBP stating that its request for expedited processing for 2017-079151 was denied because the request “[was] closed as insufficient.” On the same date, The Protect Democracy Project received another email from CBP stating that its request for a fee waiver for 2017-079151 “has been determined to be not applicable as the request is not billable.”
48. On August 10, 2017, The Protect Democracy Project received a third email from CBP stating that 2017-079151 had been closed because it “[d]id not include a clear and detailed description of the records being requested.” In its email, CBP stated that “[t]here is nothing attached” and “it is unclear what information that you seek.” On the same date, August 10, 2017, The Protect Democracy Project forwarded the August 10 email that it received from CBP to a representative at CBP and asked for clarification regarding which request, or aspect of the request, had been closed.
49. Notwithstanding the CBP’s August 10 emails denying the August 3 El Centro Request, on August 31, 2017, The Protect Democracy Project received an automated response from CBP acknowledging receipt of the August 3 El Centro Request and assigning it CBP FOIA number 2017-084648.
50. Then, on September 7, 2017, The Protect Democracy Project received a letter from a CBP office in Washington, DC acknowledging that it had received the August 3 El Centro Request on August 9, 2017 and assigned it CBP FOIA number CBP-2017-079151. The response did not reference the previously assigned number from the August 31 email, 2017-
14

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 15 of 29
084648. In its September 7 correspondence, CBP also noted that it had a right to invoke a 10day extension to comply with the request pursuant to 6 C.F.R. Part 5 § 5.5(c); however, as with the August 3 Big Bend Request (see paragraph 35), CBP did not actually invoke the extension. Moreover, CBP not indicate the scope of the documents CBP would produce or the exemptions CBP would claim with respect to any withheld documents.
51. On September 12, 2017, The Protect Democracy Project received an email from CBP stating that its request for a fee waiver for 2017-084648 had been denied because the request was a “[d]uplicate request.”
52. On September 12, 2017, The Protect Democracy Project also received an email from CBP stating that “FOIA request CBP-2017-084648 has been closed as it is a duplicate of an earlier FOIA request that you submitted.” The email further stated that “[y]our earlier FOIA request [2017-079151] will be processed in the order it was received.”
53. Later on September 12, 2017, The Protect Democracy Project received another email from a representative of CBP explaining that CBP was “reopening request 2017-084648 as it was already being processed by our component office, and . . . closing 2017-079151 as it’s [a] duplicate.” The CBP representative further stated that the agency’s policy “is usually first in first out, but as request 2017-084648 is actually further along in the process than 2017-079151, it will be to your advantage for us to continue processing 2017-084648.”
54. Pursuant to FOIA, within 20 business days of receipt of Plaintiff’s request, CBP was required to “determine . . . whether to comply with such request” and to “immediately notify” Plaintiff of “such determination and the reasons therefor,” and, in the case of an adverse determination, Plaintiff’s appeal rights. 5 U.S.C. § 552(a)(6)(A)(i); 5 U.S.C. § 552(a)(6)(B)(i).
15

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 16 of 29
CBP received the request on August 3, 2017. CBP’s response was due no later than August 31, 2017.
55. To date, The Protect Democracy Project has received no further response from CBP related to the August 3 El Centro Request.
D. LAREDO SECTOR TEXAS REQUEST 56. On August 3, 2017, The Protect Democracy Project submitted a FOIA request to Laredo Sector Texas (“the August 3 Laredo Request”) seeking 11 categories of records related to the Sector’s interactions and involvement with unaffiliated border enforcement groups. The August 3 Laredo Request also sought a fee waiver and expedited processing on the same basis as the August 3 DHS Request (see paragraph 18). A true and correct copy of the August 3 Laredo Request is attached as Exhibit 2. 57. On September 8, 2017, based on informal guidance from CBP employees, The Protect Democracy Project re-submitted the August 3 Laredo Request to CBP Headquarters. On the same date, The Protect Democracy Project received an automated response from CBP confirming that the August 3 Laredo Request had been submitted and assigning the request CBP FOIA number 2017-086567. 58. On September 12, 2017, The Protect Democracy Project received a letter from a CBP office in Washington, DC acknowledging that it had received the August 3 Laredo Request on September 8, 2017. In its September 12 correspondence, CBP stated that it had a right to invoke a 10-day extension to comply with the request pursuant to 6 C.F.R. Part 5 § 5.5(c); however, as with the August 3 Big Bend Request (see paragraph 35), CBP did not actually invoke the extension. Moreover, CBP did not indicate the scope of the documents CBP would produce or the exemptions CBP would claim with respect to any withheld documents.
16

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 17 of 29
59. On September 12, 2017, The Protect Democracy Project also received an email from CBP stating that its request for expedited processing was denied because the request “[did] not meet requirements per DHS regulations.” Separately, on the same date, The Protect Democracy Project received an email from CBP stating that the CBP FOIA number for the August 3 Laredo Request had been revised from 2017-086567 to OIT-2017-086567.
60. On September 28, 2017, The Protect Democracy Project received an email from CBP stating that the CBP FOIA number for the August 3 Laredo Request had been revised from OIT-2017-086567 back to 2017-086567.
61. Pursuant to FOIA, within 20 business days of receipt of Plaintiff’s request, CBP was required to “determine . . . whether to comply with such request” and to “immediately notify” Plaintiff of “such determination and the reasons therefor,” and, in the case of an adverse determination, Plaintiff’s appeal rights. 5 U.S.C. § 552(a)(6)(A)(i); 5 U.S.C. § 552(a)(6)(B)(i). CBP received the re-submitted request on September 8, 2017. CBP’s response was due no later than October 6, 2017.
62. To date, The Protect Democracy Project has received no further response from CBP related to the August 3 Laredo Request and has been provided no information on the status of its fee waiver request.
E. RIO GRANDE VALLEY SECTOR TEXAS REQUEST 63. On August 3, 2017, The Protect Democracy Project submitted a FOIA request to Rio Grande Valley Sector Texas (“the August 3 Rio Grande Request”) seeking 11 categories of records related to the Sector’s interactions and involvement with unaffiliated border enforcement groups. The August 3 Rio Grande Request also sought a fee waiver and expedited processing on
17

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 18 of 29
the same basis as the August 3 DHS Request (see paragraph 18). A true and correct copy of the August 3 Rio Grande Request is attached as Exhibit 2.
64. On August 3, 2017, The Protect Democracy Project received an automated response from CBP confirming that the August 3 Rio Grande Request had been submitted and assigning the request CBP FOIA number 2017-077592.
65. On August 4, 2017, The Protect Democracy Projected received a letter from a CBP office in Washington, DC acknowledging that it had received the August 3 Rio Grande Request on August 3, 2017. In its August 4 correspondence, CBP stated that it had a right to invoke a 10-day extension to comply with the request pursuant to 6 C.F.R. Part 5 § 5.5(c); however, as with the August 3 Big Bend Request (see paragraph 35), CBP did not actually invoke the extension. Moreover, CBP did not indicate the scope of the documents CBP would produce or the exemptions CBP would claim with respect to any withheld documents.
66. On August 4, 2017, The Protect Democracy Project also received a letter from the same CBP office stating that the August 3 Rio Grande Request was “too broad in scope or did not specifically identify the records which you are seeking.” In its August 4 letter, CBP explained that “[t]he search terms, ‘all communications’, ‘any employee’, and ‘any unaffiliated border enforcement group’ are too broad in scope and would not result in an efficient search for records responsive to your request.” CBP also requested that The Protect Democracy Project “provide more specific items for which you wish us to search.” CBP did not state that it was seeking to toll its statutory timeline for making a determination as to The Protect Democracy Project’s request.
67. On August 9, 2017, a representative from The Protect Democracy Project spoke by telephone with a representative from CBP. Following that conversation, on August 10, 2017,
18

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 19 of 29
The Protect Democracy Project sent an email to CBP providing a list of proposed search terms. In addition, The Protect Democracy Project provided a list of functional descriptions of employees at CBP that were likely to have custody of responsive records.
68. On August 11, 2017, The Protect Democracy Project received an email from CBP granting its request for a fee waiver.
69. On August 24, 2017, The Protect Democracy Project received an email from CBP stating that the CBP FOIA number for the August 3 Rio Grande Request had been revised from 2017-077592 to OIT-2017-077592.
70. Pursuant to FOIA, within 20 business days of receipt of Plaintiff’s request, CBP was required to “determine . . . whether to comply with such request” and to “immediately notify” Plaintiff of “such determination and the reasons therefor,” and, in the case of an adverse determination, Plaintiff’s appeal rights. 5 U.S.C. § 552(a)(6)(A)(i); 5 U.S.C. § 552(a)(6)(B)(i). CBP received the request on August 3, 2017. CBP’s response was due no later than August 31, 2017.
71. To date, The Protect Democracy Project has received no further response from CBP related to the August 3 Rio Grande Request and has been provided no information on the status of its expedited processing request.
F. SAN DIEGO SECTOR CALIFORNIA REQUEST 72. On August 3, 2017, The Protect Democracy Project submitted a FOIA request to San Diego Sector California (“the August 3 San Diego Request”) seeking 11 categories of records related to the Sector’s interactions and involvement with unaffiliated border enforcement groups. The August 3 San Diego Request also sought a fee waiver and expedited processing on
19

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 20 of 29
the same basis as the August 3 DHS Request (see paragraph 18). A true and correct copy of the August 3 San Diego Request is attached as Exhibit 2.
73. On August 3, 2017, The Protect Democracy Project received an automated response from CBP confirming that the August 3 San Diego Request had been submitted and assigning the request CBP FOIA number 2017-077572.
74. On August 4, 2017, The Protect Democracy Project received a letter from a CBP office in Washington, DC acknowledging that it had received the August 3 San Diego Request on August 3, 2017. In its August 4 correspondence, CBP stated that it had a right to invoke a 10day extension to comply with the request pursuant to 6 C.F.R. Part 5 § 5.5(c); however, as with the August 3 Big Bend Request, CBP did not actually invoke the extension. Moreover, CBP did not indicate the scope of the documents CBP would produce or the exemptions CBP would claim with respect to any withheld documents.
75. On August 4, 2017, The Protect Democracy Project also received a letter from the same CBP office stating that the August 3 San Diego Request was “too broad in scope or did not specifically identify the records which you are seeking.” In its August 4 letter, CBP further stated that “[t]he search terms, ‘all communications’, ‘any employee’, and ‘any unaffiliated border enforcement group’ are too broad in scope and would not result in an efficient search for records responsive to your request.” CBP also requested that The Protect Democracy Project “provide more specific items for which you wish us to search.” CBP did not state that it was seeking to toll its statutory timeline for making a determination as to The Protect Democracy Project’s request.
76. On August 9, 2017, a representative from The Protect Democracy Project spoke by telephone with a representative from CBP. Following that conversation, on August 10, 2017,
20

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 21 of 29
The Protect Democracy Project sent an email to CBP providing a list of proposed search terms. In addition, The Protect Democracy Project provided a list of functional descriptions of employees at CBP that were likely to have custody of responsive records.
77. On August 11, 2017, The Protect Democracy Project received an email from CBP granting its request for a fee waiver.
78. Pursuant to FOIA, within 20 business days of receipt of Plaintiff’s request, CBP was required to “determine . . . whether to comply with such request” and to “immediately notify” Plaintiff of “such determination and the reasons therefor,” and, in the case of an adverse determination, Plaintiff’s appeal rights. 5 U.S.C. § 552(a)(6)(A)(i); 5 U.S.C. § 552(a)(6)(B)(i). CBP received the request on August 3, 2017. CBP’s response was due no later than August 31, 2017.
79. To date, The Protect Democracy Project has received no further response from CBP related to the August 3 San Diego Request and has been provided no information on the status of its expedited processing request.
G. TUCSON SECTOR ARIZONA REQUEST 80. On August 3, 2017, The Protect Democracy Project submitted a FOIA request to Tucson Sector Texas (“the August 3 Tucson Request”) seeking 11 categories of records related to the Sector’s interactions and involvement with unaffiliated border enforcement groups. The August 3 Tucson Request also sought a fee waiver and expedited processing on the same basis as the August 3 DHS Request (see paragraph 18). A true and correct copy of the August 3 Tucson Request is attached as Exhibit 2. 81. On September 8, 2017, based on informal guidance from CBP employees, The Protect Democracy Project re-submitted the August 3 Tucson Request to CBP Headquarters. On
21

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 22 of 29
the same date, The Protect Democracy Project received an automated response from CBP confirming that the August 3 Tucson Request had been submitted and assigning the request CBP FOIA number 2017-086572.
82. On September 12, 2017, The Protect Democracy Project received a letter from a CBP office in Washington, DC acknowledging that it had received the August 3 Tucson Request. In its September 12 correspondence, CBP stated that it had a right to invoke a 10-day extension to comply with the request pursuant to 6 C.F.R. Part 5 § 5.5(c); however, as with the August 3 Big Bend Request (see paragraph 35), CBP did not actually invoke the extension. Moreover, CBP did not indicate the scope of the documents CBP would produce or the exemptions CBP would claim with respect to any withheld documents.
83. On September 12, 2017, The Protect Democracy Project also received an email from CBP stating that its request for expedited processing was denied because the request “[did] not meet requirements per DHS regulations.”
84. On September 12, 2017, The Protect Democracy Project received a second email from CBP stating that the CBP FOIA number for the August 3 Tucson Request had been revised from 2017-086572 to OIT-2017-086572.
85. On September 27, 2017, The Protect Democracy Project received an email from CBP stating that it had revised the CBP FOIA number for the August 3 Tucson Request from OIT-2017-086572 back to 2017-086572.
86. Pursuant to FOIA, within 20 business days of receipt of Plaintiff’s request, CBP was required to “determine . . . whether to comply with such request” and to “immediately notify” Plaintiff of “such determination and the reasons therefor,” and, in the case of an adverse determination, Plaintiff’s appeal rights. 5 U.S.C. § 552(a)(6)(A)(i); 5 U.S.C. § 552(a)(6)(B)(i).
22

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 23 of 29
CBP received the re-submitted request on September 8, 2017. CBP’s response was due no later than October 6, 2017.
87. To date, The Protect Democracy Project has received no further response from CBP related to the August 3 Tucson Request and has been provided no information on the status of its fee waiver request.
H. YUMA SECTOR ARIZONA REQUEST 88. On August 3, 2017, The Protect Democracy Project submitted a FOIA request to Yuma Sector Arizona (“the August 3 Yuma Request”) seeking 11 categories of records related to the Sector’s interactions and involvement with unaffiliated border enforcement groups. The August 3 Yuma Request also sought a fee waiver and expedited processing on the same basis as the August 3 DHS Request (see paragraph 18). A true and correct copy of the August 3 Yuma Request is attached as Exhibit 2. 89. On September 8, 2017, based on informal guidance from CBP employees, The Protect Democracy Project re-submitted the August 3 Yuma Request to CBP Headquarters. On the same date, The Protect Democracy Project received an automated response from CBP confirming that the August 3 Yuma Request had been submitted and assigning the request CBP FOIA number 2017-086576. 90. On September 12, 2017, The Protect Democracy Project received an email from CBP stating that its request for expedited processing was denied because the request “[did] not meet requirements per DHS regulations.” On the same date, The Protect Democracy Project received another email from CBP stating that CBP FOIA number for the August 3 Yuma Request had been revised from 2017-086576 to OIT-2017-086576.
23

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 24 of 29
91. Later on September 12, 2017, The Protect Democracy Project received a third email from CBP acknowledging that it had received the August 3 Yuma Request on September 8, 2017. In its email, CBP stated that it had a right to invoke a 10-day extension to comply with the request pursuant to 6 C.F.R. Part 5 § 5.5(c); however, as with the August 3 Big Bend Request (see paragraph 35), CBP did not actually invoke the extension. Moreover, CBP did not indicate the scope of the documents CBP would produce or the exemptions CBP would claim with respect to any withheld documents.
92. On September 28, 2017, The Protect Democracy Project received an email from CBP stating that it had revised the CBP FOIA number for the August 3 Yuma Request from OIT-2017-086576 back to 2017-086576.
93. Pursuant to FOIA, within 20 business days of receipt of Plaintiff’s request, CBP was required to “determine . . . whether to comply with such request” and to “immediately notify” Plaintiff of “such determination and the reasons therefor,” and, in the case of an adverse determination, Plaintiff’s appeal rights. 5 U.S.C. § 552(a)(6)(A)(i); 5 U.S.C. § 552(a)(6)(B)(i). CBP received the re-submitted request on September 8, 2017. CBP’s response was due no later than October 6, 2017.
94. To date, The Protect Democracy Project has received no further response from CBP related to the August 3 Yuma Request and has been provided no information on the status of its fee waiver request.
COUNT I - FAILURE TO COMPLY WITH FOIA STATUTORY DEADLINE 95. The Protect Democracy Project incorporates paragraphs 1 through 94 of this Complaint. 96. Pursuant to FOIA, 5 U.S.C. § 552(a), The Protect Democracy Project has a statutory right to access requested agency records.
24

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 25 of 29
97. Defendants have failed to comply with the time limits prescribed by FOIA, 5 U.S.C. §§ 552(a)(6)(A)(i)-(ii) and 5 U.S.C. §§ 552(a)(6)(B)(i)-(ii).
COUNT II - FAILURE TO COMPLY WITH FOIA 98. The Protect Democracy Project incorporates paragraphs 1 through 94 of this Complaint. 99. Pursuant to FOIA, 5 U.S.C. § 552(a), The Protect Democracy Project has a statutory right to access requested agency records. 100. Defendants have failed to conduct a reasonable search for records responsive to Plaintiff’s record requests. 101. Defendants have failed to properly respond to The Protect Democracy Project’s record requests.
COUNT III - FAILURE TO PROCESS AND GRANT REQUESTS FOR FEE WAIVERS AND EXPEDITED PROCESSING
102. The Protect Democracy Project incorporates paragraphs 1 through 94 of this Complaint.
103. Pursuant to FOIA, 5 U.S.C. § 552(a)(4)(A), The Protect Democracy Project is entitled to a waiver of all fees, other than reasonable standard charges for document duplication.
104. Pursuant to 5 U.S.C. § 552(a)(6)(E), The Protect Democracy Project is entitled to expedited processing of the FOIA requests described in this complaint.
105. Defendant DHS has failed to respond to The Protect Democracy Project’s fee waiver request in respect of the portion of the August 3 DHS Request that was referred to DHS OIG.
25

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 26 of 29
106. Defendant CBP has failed to respond to The Protect Democracy Project’s fee waiver requests with respect to the August 3 Big Bend Request, Del Rio Request, El Centro Request, Laredo Request, Tucson Request, and Yuma Request.
107. Defendant DHS has failed to respond to The Protect Democracy Project’s expedited processing request in respect of the portion of the August 3 DHS Request that was referred to DHS OIG.
108. Defendant DHS has wrongfully denied The Protect Democracy Project’s expedited processing request in respect of the portion of the August 3 DHS Request that was referred to DHS PRIV.
109. Defendant CBP has failed to respond to The Protect Democracy Project’s expedited processing requests for the August 3 Rio Grande Request and San Diego Request.
110. Defendant CBP has wrongfully denied The Protect Democracy Project’s expedited processing requests for the August 3 Big Bend Request, Del Rio Request, El Centro Request, Laredo Request, Tucson Request, and Yuma Request.
PRAYER FOR RELIEF WHEREFORE, The Protect Democracy Project respectfully requests that this Court enter a judgment for Plaintiff and award the following relief: a. Order Defendants, by a date certain, to conduct searches that are reasonably likely
to lead to the discovery of any and all records responsive to Plaintiff’s requests; b. Order Defendants, by a date certain, to demonstrate that they have conducted
adequate searches; c. Order Defendants, by a date certain, to produce to Plaintiff any and all non-
exempt records or portions of records responsive to Plaintiff’s requests, as well as
26

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 27 of 29
Vaughn indices of any records or portions of records withheld due to a claim of exemption;18 d. Enjoin Defendants from withholding the requested records; e. Order Defendants to grant the fee waivers in Plaintiff’s August 3 DHS Request, Big Bend Request, Del Rio Request, El Centro Request, Laredo Request, Tucson Request, and Yuma Request; f. Issue a declaration that the failure of Defendants DHS and CBP to respond to and grant the aforementioned fee waiver requests violates 5 U.S.C. § 552(a)(4)(A); g. Order Defendants to expedite the processing of the August 3 DHS Request, Big Bend Request, Del Rio Request, El Centro Request, Laredo Request, Rio Grande Request, San Diego Request, Tucson Request, and Yuma Request; h. Issue a declaration that the failure of Defendants DHS and CBP to respond to and grant Plaintiff’s requests for expedited processing violates 5 U.S.C. § 552(a)(6)(E); i. Pursuant to 5 U.S.C. § 552(a)(4)(E), award Plaintiff its costs and attorney’s fees reasonably incurred in this action; and j. Grant Plaintiff such other and further relief as the Court may deem just and proper.
18 See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974) (agency opposing a FOIA request should provide an itemized index correlating each withheld document (or portion) with a specific exemption justification).
27

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 28 of 29

October 24, 2017

Respectfully submitted,
/s/ Kevin Barnett Kevin Barnett (D.C. Bar No. 1003410) Jennifer H. Saperstein (D.C. Bar No. 989743)* Nikhil V. Gore (D.C. Bar No. 1019777)* Covington & Burling LLP One CityCenter 850 Tenth Street NW Washington, DC 20001 (202) 662-5430 kbarnett@cov.com
Laurence M. Schwartztol* The Protect Democracy Project 10 Ware Street Cambridge, MA 02138 (202) 856-9191 larry.schwartztol@protectdemocracy.org
ATTORNEYS FOR PLAINTIFF
* Application pending for admission to the District Court Bar.

28

Case 1:17-cv-02202-RDM Document 1 Filed 10/24/17 Page 29 of 29

Appendix A Current Status of Each FOIA Request

Request Name Date of

Date of Re- Required

Submission Submission Response

/ Perfection Date

DHS

08/03/2017 08/16/2017 09/28/2017

Big Bend Del Rio El Centro Laredo Rio Grande San Diego Tucson Yuma

08/03/2017 09/08/2017 08/03/2017 09/08/2017 08/03/2017 -08/03/2017 09/08/2017 08/03/2017 -08/03/2017 -08/03/2017 09/08/2017 08/03/2017 09/08/2017

10/06/2017 10/06/2017 08/31/2017 10/06/2017 08/31/2017 08/31/2017 10/06/2017 10/06/2017

Fee Waiver Status
GUrnacnleteadr1/9 No Response No Response Unclear21 No Response Granted Granted No Response No Response

Expedited Processing Status DUenncileedar/20 Denied Denied Unclear22 Denied No Response No Response Denied Denied

10-Day Extension
Invoked
Not Invoked Not Invoked Not Invoked Not Invoked Not Invoked Not Invoked Not Invoked Not Invoked

19 Granted with respect to responsive records processed by DHS PRIV.
20 Denied with respect to responsive records processed by DHS PRIV; unclear whether this denial also applies to records processed by DHS OIG.
21 See Complaint, at ¶¶ 47, 51 (request was initially “determined to be not applicable as the request is not billable” but was subsequently “denied” as a “duplicate request”).
22 See Complaint, at ¶ 47 (request was “closed as insufficient”).

 Case 1:17-cv-02202-RDM Document 14 Filed 03/02/18 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY PROJECT, INC. Plaintiff
vs.
DEPARTMENT OF HOMELAND SECURITY CUSTOMS AND BORDER PROTECTION
Defendants.

17-cv-02202-RDM

JOINT STATUS REPORT Pursuant to this Court’s order dated January 4, 2018, Plaintiff The Protect Democracy Project, Inc., and Defendants, the Department of Homeland Security (“DHS”) and Customs and Border Protection (“CBP”), by and through their undersigned counsel, report as follows the status of this Freedom of Information Act (“FOIA”) case. Plaintiff initiated this action on October 24, 2017 in connection with FOIA requests that Plaintiff submitted to Defendants in August 2017 (the “August 2017 Requests”). Defendants filed an answer on December 15, 2017, and a status conference was held on January 4, 2018. At the status conference, the parties informed the Court of their agreement that no later than February 3, 2018: (1) Defendants would provide Plaintiff with a description of the searches conducted to identify responsive records and a production schedule; and (2) Defendants would begin making productions to Plaintiff on a rolling basis. The Court thereafter entered a minute order requiring the parties to file a joint status report no later than March 3, 2018 and to appear before the court for the next status conference on March 13, 2018.

Case 1:17-cv-02202-RDM Document 14 Filed 03/02/18 Page 2 of 4
Appendix A summarizes the information Defendants have thus far provided on searches conducted and on proposed production schedules. It also summarizes areas where the parties agree that Defendants will provide further information with respect to the scope of the offices, databases, and custodians searched, the search terms applied, and proposed production schedules.
Plaintiff has identified to Defendants questions regarding the scope of certain searches conducted by Defendants.
On February 2, 2018, Defendant DHS made a partial production of 184 pages of responsive documents identified by its Office of the Inspector General.
Plaintiff understands that Defendants are working to provide pending information shown in Appendix A prior to the status conference scheduled on March 13, 2018. Plaintiff expects Defendants to provide complete search descriptions and proposed production schedules by the date of the status conference, such that the parties are in a position to agree on a production schedule at the status conference. If Plaintiff’s expectation is not met, Plaintiff may request that the Court impose a production schedule by order.
Conclusion As noted above, the parties are continuing to engage in discussions to resolve any outstanding issues. The parties will provide the Court with an update to Appendix A prior to the status conference scheduled in this case on March 13, 2018.
2

Case 1:17-cv-02202-RDM Document 14 Filed 03/02/18 Page 3 of 4

March 2, 2018

Respectfully submitted,

Jessie K. Liu (D.C. Bar No. 472845) United States Attorney
Daniel F. Van Horn (D.C. Bar No. 924092) Chief, Civil Division
/s/ Scott Leeson Sroka Scott Leeson Sroka Member of the New York Bar Assistant United States Attorney 555 Fourth Street, N.W. Washington, D.C. 20530 (202) 252-7113 scott.sroka@usdoj.gov
Attorneys for Defendants

/s/ Nikhil V. Gore Jennifer H. Saperstein (D.C. Bar No. 989743) Nikhil V. Gore (D.C. Bar No. 1019777) Covington & Burling LLP One CityCenter 850 Tenth Street NW Washington, D.C. 20001 (202) 662-5918 ngore@cov.com
Laurence M. Schwartztol The Protect Democracy Project 10 Ware Street Cambridge, MA 02138 (202) 856-9191 larry.schwartztol@protectdemocracy.org
Attorneys for Plaintiff

3

Case 1:17-cv-02202-RDM Document 14 Filed 03/02/18 Page 4 of 4 Appendix A to Status Report on Case No. 17-cv-02202

I. DHS

Req. Custodians/Components or No. Databases Searched
1-8 The DHS Office of the Inspector General (“OIG”) has provided a description of search terms used and searches conducted.
Search descriptions from other components are pending. 9-12 Pending.

Search Terms

Productions and Proposed Production Schedule

DHS OIG has provided a description of search terms used and searches conducted.
Search descriptions from other components are pending.

DHS OIG has produced 184 pages of documents, some of which contained redactions. DHS OIG has referred additional materials to CBP and ICE for review and production.
Information from other components is pending.

Pending.

Pending.

II. CBP
Req. Custodians/Components or No. Databases Searched 1-11 Pending.

Search Terms

Productions and Proposed Production Schedule

San Diego, Rio Grande, El Centro, Big Bend, Del Rio, Tucson and Yuma Sectors
militia, armed patriot group, citizen defenders, citizen's border patrol, patriots, minutemen, patriots, three percent, tim foley, shane bauer, rusty\'s rangers, Arizona border recon, Arizona militia
Laredo Sector
militia, Texas Border Volunteers, Minutemen, Citizen Border Patrol, Armed Patriot Group, Arizona Militia, Citizen Defenders, Texas Militia, and Three percent United Patriots

Pending.

Note: Parties are discussing refinements to search terms.

 Case 1:17-cv-02202-RDM Document 16 Filed 04/13/18 Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

PROTECT DEMOCRACY

)

PROJECT, INC.,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 17-cv-02202 (RDM)

)

DEPARTMENT OF HOMELAND

)

SECURITY, et al.,

)

)

Defendants.

)

____________________________________)

STATUS REPORT AND PROPOSED PRODUCTION SCHEDULE

Pursuant to the Court’s order from the bench at the Parties’ March 13, 2018, status

conference, Defendants U.S. Department of Homeland Security (“DHS”) and U.S. Customs and

Border Protection (“CBP”) (collectively, “the Defendants”), hereby provide the Court with the

following Status Report and Proposed Production Schedule:

• DHS – DHS searches are complete as to five of the seven requested items. The

search was halted for the remaining two items after the search yielded over 15.5

gigabytes each. DHS was unable to complete this search because the Office of the

Chief Information Officer (“OCIO”) does not have the storage capacity to maintain

a response that large and the DHS Office of Privacy (“PRIV”) likewise does not

have capacity to receive the response. For the five searches completed, PRIV

located a total of 5,412 pages of potentially responsive documents. DHS proposes

to produce 250 pages per month, with production to begin on June 15, 2018.

Case 1:17-cv-02202-RDM Document 16 Filed 04/13/18 Page 2 of 3

• DHS/OIG – The DHS Office of the Inspector General (“DHS/OIG”) completed its processing and production of records to Plaintiff on March 26, 2018.

• CBP – CBP has completed its search for non-e-mail documents and is continuing to search for potentially responsive e-mail records. CBP’s search for non-e-mail documents has resulted in approximately 750 potentially responsive documents. CBP proposes to produce its non-e-mail documents to Plaintiff on June 22, 2018, and to process 500 e-mail records per month, with production of e-mails to begin on July 22, 2018.

Dated: April 13, 2018

Respectfully submitted,
JESSIE K. LIU, D.C. Bar No. 472845 United States Attorney
DANIEL F. VAN HORN, D.C. Bar No. 924092 Chief, Civil Division
By: /s/ Scott Leeson Sroka
SCOTT LEESON SROKA, Member of New York Bar Assistant United States Attorney 555 Fourth Street, N.W. Washington, D.C. 20530 Telephone: 202-252-7113 Scott.Sroka@usdoj.gov

2

Case 1:17-cv-02202-RDM Document 16 Filed 04/13/18 Page 3 of 3
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 13th day of April, 2018, that service of the foregoing Status Report and Proposed Production Schedule has been made on counsel of record through the Court’s ECF system.
/s/ Scott Leeson Sroka SCOTT LEESON SROKA Assistant United States Attorney 555 Fourth Street, N.W. Washington, D.C. 20530 Office: (202) 252-7113 Fax: (202) 252-2599 Email: Scott.Sroka@usdoj.gov

 Case 1:17-cv-02202-RDM Document 27 Filed 10/24/18 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY PROJECT, INC.
Plaintiff
vs.
DEPARTMENT OF HOMELAND SECURITY, et al.,

17-cv-02118-RDM 17-cv-02202-RDM

Defendants.

PLAINTIFF’S SUPPLEMENTAL STATUS REPORT Plaintiff The Protect Democracy Project, Inc., by and through its undersigned counsel, is submitting this supplemental status report to advise Defendants and the Court that, at the status conference scheduled for October 29, 2018, it intends to request that the Court direct Defendants OPM and DHS to provide an informal description of their redactions in Case Nos. 17-cv-2118 and 17-cv-2202, respectively.1 As described in Plaintiff’s recent Status Report for Case No. -2118 (ECF No. 23), Plaintiff has repeatedly requested that Defendants Customs and Border Protection (“CBP”) and Office of Personnel Management (“OPM”) provide an explanation for the extensive redactions in their productions. On October 12, Plaintiff also requested an explanation from Defendant Department of Homeland Security (“DHS”) in connection with redactions made in Case No. 2202. These requests were motivated by Plaintiff’s observation that each agency had redacted or
1 Plaintiff provided Defendants with a letter setting out the issues covered in this status report on October 24, 2018, and will continue to confer with counsel for the Defendants on these issues ahead of the October 29 status conference.

Case 1:17-cv-02202-RDM Document 27 Filed 10/24/18 Page 2 of 7
withheld two-thirds or more of the pages in its productions. Of particular note, Defendant DHS has redacted or withheld fully 96% of the pages in its productions to date in Case No. -2202.
Precedent in this district, and in other federal courts, recognizes Plaintiff’s right to obtain a Vaughn index or declaration from an agency prior to summary judgment in appropriate cases. See, e.g., Minute Order, American Oversight v. U.S. Dep’t of Homeland Security, Case No. 17cv-1187 (D.D.C. June 14, 2018) (Moss, J.); Memorandum Opinion, Alliance Defending Freedom v. I.R.S., Case No. 15-cv-0525, Dkt. No. 23 (D.D.C. Dec. 22, 2016). By obtaining this information before summary judgment, a plaintiff is able to adequately assess the propriety of an agency’s redactions and the parties are able to limit the issues that will need to be resolved by the court. See Hansen v. U.S. Dep’t of Air Force, Case No. 91-cv-0099, 1991 WL 199748, *1 (D.D.C. Apr. 15, 1991) (granting plaintiff’s motion to compel a Vaughn index prior to summary judgment and observing that “[i]t would be unfair to allow the Government months to prepare its case and then force the [plaintiff] to formulate their entire case within the two weeks they have to respond to that motion”). Here, Plaintiff does not seek a complete Vaughn index in advance of summary judgment, but instead simply is asking for an informal summary of the redactions made by Defendants OPM and DHS.
Defendant CBP has already consented to Plaintiff’s request for such a summary, and has provided a helpful preliminary explanation of its redactions in Case No. -2118 (appended to this letter). The preliminary explanation of redactions provided by CBP is significantly less detailed than a Vaughn index would be, but nevertheless provides useful information about the content of CBP’s redactions. The information provided by CBP will materially reduce the litigation burden on Plaintiff, the Court, and CBP itself, by allowing Plaintiff to consider the reasonableness of CBP’s redactions and begin negotiating their scope with CBP ahead of summary judgment.
2

Case 1:17-cv-02202-RDM Document 27 Filed 10/24/18 Page 3 of 7
Defendants OPM and DHS have not yet responded to Plaintiff’s request for a similar summary. To the extent no response is received by October 29, 2018, Plaintiff believes that a direction from the Court to these two agencies could significantly enhance the efficiency of this litigation.
Plaintiff would be happy to respond to any questions the Court or Defendants may have as to this request at the October 29, 2018 status conference.
Respectfully submitted,
/s/ Nikhil V. Gore Nikhil V. Gore (D.C. Bar No. 1019777) David J. Iraola (D.C. Bar No. 230254) Covington & Burling LLP One CityCenter 850 Tenth Street NW Washington, D.C. 20001 (202) 662-5918 ngore@cov.com Laurence M. Schwartztol The Protect Democracy Project 10 Ware Street Cambridge, MA 02138 (202) 856-9191 larry.schwartztol@protectdemocracy.org Attorneys for Plaintiff
3

Case 1:17-cv-02202-RDM Document 27 Filed 10/24/18 Page 4 of 7

CERTIFICATE OF SERVICE I, NIKHIL V. GORE, certify that on October 24, 2018, true and correct copies of Plaintiff’s Supplemental Status Report were served electronically on all registered counsel of record via ECF.

Dated: October 24, 2018

/s/ Nikhil V. Gore
Nikhil V. Gore (D.C. Bar No. 1019777) Covington & Burling LLP One CityCenter 850 Tenth Street NW Washington, D.C. 20001 (202) 662-5918 ngore@cov.com

4

Case 1:17-cv-02202-RDM DocAupmpeenndt i2x7 Filed 10/24/18 Page 5 of 7
June Documents
0001-0232_HRM Contract:
• Generally b(6) and b(7)(c): personal information (names, phone numbers, signatures) of individuals
• Page 27: all b(7)(e): information about technical capabilities • Page 28-32: b(7)(e): generally relates to processes and capabilities used by CBP and/or
Accenture in recruiting/hiring • Page 33-38: b(7)(e): names of models, systems, processes used by CBP and/or Accenture
in recruiting/hiring • Page 39: b(7)(e): names and information related to past Accenture work for other entities • Page 40, 41: b(7)(e) and b(6) at top: names of other entities that work with Accenture;
b(7)(e): relates to how Accenture will improve hiring • Page 42: b(6): names of other entities • Page 43, 44: generally processes/methods used by Accenture to improve hiring and past
successes with other clients • Page 45, 46, 47: b(7)(e): methods and processes used by Accenture; areas that Accenture
will help CBP improve in • Page 48-50: b(7)(e): suggested methods and processes used to improve CBP marketing,
candidate sourcing, candidate engagement • Page 50-52: b(7)(e): past analytic work and processes for analytic work; what type of
data would be analyzed and how it would be used • Page 52-55: b(7)(e): how the data analytics will be used to help CBP; application of the
analytics • Page 56, 57 58 (top): b(7)(e): Accenture’s plan overview and delineation of responsibility
for tasks between Accenture and CBP • Page 58-64 (bottom half): b(7)(e): technical capabilities • Page 65, 66, 67: b(7)(e): discussion of desired qualities for candidates; discussion of
Accenture methods to address CBP challenges • Page 67 (bottom half), 68, 69: b(7)(e): Description of how some Accenture tools function
or how Accenture will use tools to benefit CBP • Page 69, 70, 71-76: b(7)(e): description of determining qualified candidates; more about
technical capabilities • Page 77, 78-80: b(7)(e): description of tool that Accenture uses to support candidates
throughout the hiring process • Page 81: b(7)(e): description of tool used to compare candidates • Page 82-85: b(7)(e): technical capabilities discussion • Page 86, 87, 88: b(7)(e): description of how Accenture will improve the hiring process
including discussion of CBP hiring challenges; • Page 88, 89, 90, 91: b(7)(e): also mentions other members of Accenture’s team

Case 1:17-cv-02202-RDM Document 27 Filed 10/24/18 Page 6 of 7
• Page 92: members of Accenture’s team and the steps along the process where they will be working/how they will be working; also mentions Accenture employees by name (which are redacted)
• Page 93: b(7)(e): some financial information; discussion of responsibility between CBP and Accenture
• Page 94, 95: b(7)(e): discussion of responsibility; discussion of certain steps in hiring process
• Page 96, 97: b(7)(e): discussion of Accenture methods for addressing hiring challenges • Page 97-113: b(7)(e): discussion of steps in hiring process and related Accenture
method/tools as well as ways in which Accenture will address challenges CBP faces at each step • Page 113-126: b(7)(e): description of CBP hiring process, steps in process, entities who assist CBP in hiring process, challenges to CBP, and process by which Accenture will assist • Page 127: b(7)(e): discussion of a CBP hiring challenge and the ways in which Accenture can improve the challenge • Page 128-129: b(7)(e): discussion of a CBP hiring challenge and the ways in which Accenture can improve the challenge; other past Accenture client examples of success • Page 129: b(7)(e): description and depiction of tool related to reporting capabilities • Page 130, 131: b(7)(e): examples of how Accenture implements a tool; description of another hiring tool • Page 132-138: b(7)(e): depiction and description of Accenture tools/methods/processes to improve hiring • Page 138 (bottom)-144: b(7)(e): technical capabilities • Page 145-153: b(7)(e): description as well as depictions of how Accenture will protect data (including discussions of tools and how they function to protect data) • Page 153, 154: b(7)(e): discussion of how Accenture will work within the Enterprise Architecture; depiction of deliverables • Page 155, 156: b(7)(e): depiction of metadata; discussion of how Accenture will work with/improve/maintain metadata • Page 156-159: b(7)(e): how Accenture will work with a data management plan; depiction of plan • Page 159-165: b(7)(e): technical capabilities • Page 166-173: b(7)(e): description of methods/processes Accenture will employ in regards to systems interfaces; includes depictions of interfaces • Page 174-177: b(7)(e): technical capabilities discussion • Page 178-182: b(7)(e): methods and processes Accenture will use to manage the program; b(6) discussions of past work; discussion/names/depictions of team members who will be responsible for various parts of program management and descriptions of the members qualifications for the job • Page 182: b(7)(e): discussion of communication between CBP and Accenture • Page 183: b(6) names of team members and their responsibilities

Case 1:17-cv-02202-RDM Document 27 Filed 10/24/18 Page 7 of 7
• Page 184-189: technical capabilities • Page 190: pricing • Page 191-193: CBP’s past hiring numbers • Remainder of document: names are redacted; info related to pricing and deliverables is
redacted; security requirements of the agency are redacted; other requirements requested by the agency of the contractor that relate to agency needs/challenges are redacted; timelines as well as start/end dates are redacted
0233-0240_OPM:
• Page 1: names, signatures, emails, phone numbers of employees • Page 7: names, signatures of employees • Page 8: name of location where hiring is needed
0241-0329_emails:
• Generally: b(6) and b(7)(c) are used to redact the names, phone numbers, and email addresses of employees. This is personal information that does not shed light on the internal agency workings. We also generally do not redact the names of high ranking employees (i.e. the Commissioner).
• Page 15, 17, 21, 22, 24, 29, 30, 35, 89: attorney-client privileged information regarding the EO/immigration is redacted
0330-0514_email attachments
• Generally b(6) and b(7)(c) are used to redact the names, phone numbers, and email addresses of employees.
• Page 1: amounts of staffing at locations on the border—law enforcement sensitive, because , for example, it could indicate where we have weaknesses
July documents
001-106
• Generally b(6) and b(7)(c) are used to redact the names, phone numbers, and email addresses of employees.
• Page 81, 85, 95, 96, 97, 98, 99,100, 101: attorney-client privileged information regarding the EO/immigration is redacted

 Case 1:17-cv-02202-RDM Document 29 Filed 11/16/18 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY PROJECT, INC.
Plaintiff
vs.
DEPARTMENT OF HOMELAND SECURITY CUSTOMS AND BORDER PROTECTION

17-cv-02202-RDM

Defendants.

PLAINTIFF’S STATUS REPORT Plaintiff The Protect Democracy Project, Inc., by and through its undersigned counsel, reports as follows the status of this Freedom of Information Act (“FOIA”) case.1 Plaintiff initiated this action on October 24, 2017 in connection with FOIA requests that Plaintiff submitted to Defendants in August 2017. Following a status conference on October 29, 2018, the Court ordered that Defendant Customs and Border Protection (“CBP”) provide a description of the searches that the agency has conducted for the Tucson and Yuma Sectors by November 5, 2018. CBP also was ordered to provide hit counts for the Yuma Sector no later than November 12, 2018. As to Defendant The Department of Homeland Security (“DHS”), the Court ordered that DHS meet and confer with Plaintiff on or before November 5, 2018 to discuss Plaintiff’s request for an explanation of the agency’s redactions. See Minute Order (Oct. 29, 2018).

1 Plaintiff provided counsel for Defendants with a draft of this status report on November 14, 2018.

Case 1:17-cv-02202-RDM Document 29 Filed 11/16/18 Page 2 of 6
Overview of Current Status — CBP Defendant CBP provided a description of the searches conducted for the Tucson and Yuma Sectors on November 1, 2018. CBP provided hit counts for the Yuma Sector on November 16 (i.e., the day of this filing and not, as ordered, November 12). Concurrently, CBP provided updated hit counts for the Tuscon Sector. The updated hit counts are materially different — by more than an order of magnitude — from those previously provided by CBP on October 26, 2018, and no explanation has been offered for the discrepancy. Plaintiff has requested a telephone conference with CBP to discuss CBP’s hit counts. Overview of Current Status — DHS Plaintiff contacted counsel for DHS on October 31 and November 1 with Plaintiff’s availability to meet and confer on or before November 5, 2018, per the Court’s order. DHS did not respond and also did not respond to further attempts by Plaintiff to meet and confer, including on November 7 and November 12, 2018. Finally, on November 16 (i.e., on the day of this filing), DHS contacted Plaintiff to schedule a telephone conference, and the parties accordingly plan to speak on November 19, 2018. DHS’s failure to even coordinate on a time to discuss Plaintiff’s request until the day of this filing — and until after DHS received a draft of this status report describing its failure to meet and confer — demonstrates that DHS continues to be unwilling to cooperate reasonably with Plaintiffs, except when specifically required to do so by this Court. In view of that fact, Plaintiff renews its request that the Court order DHS to provide Plaintiff with an informal explanation of its redactions and withholdings to date, in substantially the same format as provided by CBP in Case No. 2118. Since July 5, 2018, Plaintiff has repeatedly raised concerns with DHS and the Court about the fact that DHS has redacted and
2

Case 1:17-cv-02202-RDM Document 29 Filed 11/16/18 Page 3 of 6
withheld approximately 96% of the pages in its productions. DHS has never provided a meaningful response to Plaintiff’s concerns.
As described in Plaintiff’s prior status report, the appropriate timing for a Vaughn index or other summary of an agency’s redactions is left to the court’s discretion. See generally Plaintiff’s Supplemental Status Report (ECF No. 27). In particular, as multiple cases recognize, courts hearing FOIA cases exercise their discretion to order a Vaughn index or declaration prior to summary judgment based on the equities of each particular case. See Providence Journal Co. v. U.S. Dep’t of Army, 769 F. Supp. 67, 68-69 (D.R.I. 1991) (citing Hansen v. U.S. Dep’t of Air Force, Case No. 91-0099, 1991 WL 199748, *1 (D.D.C. Apr. 15, 1991)) (granting plaintiff’s motion to compel a Vaughn index prior to summary judgment and “find[ing] defendant’s argument that this Court should wait until [defendant] files a dispositive motion insufficient and sterile”); People ex rel. Brown v. E.P.A., Case No. 07-02055, 2007 WL 2470159, *2 (N.D. Cal. Aug. 27, 2007); Keeper of Mountains Foundation v. U.S. Dep’t of Justice, *3 Case No. 0600098, 2006 WL 1666262 (S.D.W. Va. June 14, 2006).
Here, the equities militate in favor of granting Plaintiff’s request that DHS provide an explanation of its redactions and withholdings. It has been over a year since Plaintiff initiated this action and approximately six months since the Court set an initial production schedule for DHS.2 During this time period, DHS has produced a total of 492 pages of records. Of the 492 produced pages, approximately 472 pages (i.e., 96%) were redacted or withheld in full. DHS has
2 At the May 2018 status conference, the Court ordered DHS to produce a total of 500 pages per month across both cases. See Minute Order (May 14, 2018). Following the September 2018 status conference, the Court ordered DHS to increase its pace of production to 350 pages per month in each case. See Minute Order (Sept. 10, 2018). Even using the initial, lower production schedule established by the Court as a benchmark, DHS should have produced a total of 3,000 pages across both cases. To date, however, the agency only has produced 1,137 pages.
3

Case 1:17-cv-02202-RDM Document 29 Filed 11/16/18 Page 4 of 6
represented in the cover letters accompanying its productions that these pages are being redacted or withheld pursuant to Sections 552(b)(5) and (b)(6) of the FOIA, but the agency has not provided any further details despite repeated requests from Plaintiff for such information. The fact that only 4% of the records that the agency has produced are unredacted raises concerns about the scope and propriety of the agency’s redactions.
As Plaintiff explained at the prior status conference, the information that Plaintiff is seeking from DHS will materially reduce the litigation burden on Plaintiff, the Court, and DHS itself, by permitting Plaintiff to assess the reasonableness of DHS’s redactions and begin negotiating with DHS to narrow the issues that will need to be briefed at summary judgment. The information also will allow Plaintiff to determine whether the agency’s redactions are delaying the release of information that is of significant ongoing public interest.3
Separately, plaintiff notes that DHS has not yet made a production in this case for the month of November. Under the Court’s order of September 10, DHS is required to produce a further 350 pages in the month of November.
3 Plaintiff’s requests relate to interactions between armed civilian militia and the government on the U.S.-Mexico border, an issue that has again come to the fore in connection with the so-called “migrant caravans” approaching the border. See, e.g., Mary Papenfuss, Armed Militia Groups Head to the Border, Sparking Military Concerns, Huffington Post (Nov. 5, 2018), https://www.huffingtonpost.com/entry/american-militias-head-to-the-border-sparking-militaryconcerns_us_5bdfae33e4b04367a87ddc1f; Mary Lee Grant and Nick Miroff, U.S. militia groups head to border, stirred by Trump’s call to arms, Wash. Post (Nov. 3, 2018), https://www.washingtonpost.com/world/national-security/us-militia-groups-head-to-borderstirred-by-trumps-call-to-arms/2018/11/03/ff96826c-decf-11e8-b3f062607289efee_story.html?utm_term=.94150d088a05; Michael D. Shear and Thomas GibbonsNeff, Trump Sending 5,200 Troops to the Border in an Election-Season Response to Migrants, N.Y. Times (Oct. 29, 2018), https://www.nytimes.com/2018/10/29/us/politics/border-securitytroops-trump.html.
4

Case 1:17-cv-02202-RDM Document 29 Filed 11/16/18 Page 5 of 6
Conclusion For the reasons set forth above, Plaintiff respectfully requests that the Court enter an order directing that: 1. Defendant DHS provide Plaintiff with a summary of the basis for its redactions and withholdings and an explanation for its failure to respond to Plaintiff’s request to meet and confer until eleven days after the Court-ordered deadline; and 2. The parties submit a further status report on or before November 30, 2018.
Respectfully submitted,
/s/ Nikhil V. Gore Nikhil V. Gore (D.C. Bar No. 1019777) David J. Iraola (D.C. Bar No. 230254) Covington & Burling LLP One CityCenter 850 Tenth Street NW Washington, D.C. 20001 (202) 662-5918 ngore@cov.com Laurence M. Schwartztol The Protect Democracy Project 10 Ware Street Cambridge, MA 02138 (202) 856-9191 larry.schwartztol@protectdemocracy.org Attorneys for Plaintiff
5

Case 1:17-cv-02202-RDM Document 29 Filed 11/16/18 Page 6 of 6

CERTIFICATE OF SERVICE I, NIKHIL V. GORE, certify that on November 16, 2018, true and correct copies of Plaintiff’s Status Report were served electronically on all registered counsel of record via ECF.

Dated: November 16, 2018

/s/ Nikhil V. Gore
Nikhil V. Gore (D.C. Bar No. 1019777) Covington & Burling LLP One CityCenter 850 Tenth Street NW Washington, D.C. 20001 (202) 662-5918 ngore@cov.com

6

 Case 1:17-cv-02202-RDM Document 33 Filed 03/15/19 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY PROJECT, INC.
Plaintiff
vs.
DEPARTMENT OF HOMELAND SECURITY CUSTOMS AND BORDER PROTECTION

17-cv-02202-RDM

Defendants.

JOINT STATUS REPORT Plaintiff The Protect Democracy Project, Inc. and Defendants Department of Homeland Security (“DHS”) and Customs and Border Protection (“CBP”), by and through their undersigned counsel, report as follows the status of this Freedom of Information Act (“FOIA”) case. Plaintiff initiated this action on October 24, 2017 in connection with FOIA requests that Plaintiff submitted to Defendants in August 2017. The parties submitted a joint status report on February 15, 2019. See Joint Status Report (ECF No. 32). In the joint status report, Defendant CBP reported that the agency intended to continue reviewing the 26,000 pages of potentially responsive records that it had previously identified and to produce these records at the previously ordered rate of 500 pages per month. CBP further reported that the 500 pages per month that it produces will exclude non-responsive records and include only: (i) actually produced records; or (ii) records withheld on grounds of privilege rather than responsiveness.

Case 1:17-cv-02202-RDM Document 33 Filed 03/15/19 Page 2 of 4
Defendant DHS stated in the status report that the agency intended to provide Plaintiff with a summary of the remaining redactions in its productions to date on or before February 28, 2019. DHS also reported that it would be making a further production of documents on or before February 22, 2019 and would continue producing responsive records thereafter at the previously ordered rate of 350 pages per month.
Overview of Current Status – CBP Defendant CBP made a production of 269 pages of records on February 11, 2019, and a further production of 527 pages of records on February 28, 2019. Defendant CBP thus is on schedule for its productions. Overview of Current Status – DHS Defendant DHS provided Plaintiff with a summary of its remaining redactions on March 13, 2019, which Plaintiff is reviewing for completeness. Defendant DHS has not produced any records in this case since December 7, 2018. Conclusion The Parties respectfully request that the Court enter an order directing that: 1. Defendant DHS submit, by April 1, 2019, a declaration executed by an appropriate agency employee explaining the reasons for its failure to comply with the agreed and ordered production schedule in this case; and 2. The Parties appear for a status conference during the weeks of April 8 or 15, 2019.
2

Case 1:17-cv-02202-RDM Document 33 Filed 03/15/19 Page 3 of 4

Respectfully submitted,

JESSIE K. LIU, D.C. Bar No. 472845 United States Attorney
DANIEL F. VAN HORN, D.C. Bar No. 924092 Chief, Civil Division
By: /s/ Scott Leeson Sroka SCOTT LEESON SROKA Member of the New York Bar Assistant United States Attorney 555 Fourth Street, N.W. Washington, D.C. 20530 Telephone: 202-252-7113 Scott.Sroka@usdoj.gov
Attorneys for Defendants

/s/ Nikhil V. Gore Nikhil V. Gore (D.C. Bar No. 1019777) David J. Iraola (D.C. Bar No. 230254) Covington & Burling LLP One CityCenter 850 Tenth Street NW Washington, D.C. 20001 (202) 662-5918 ngore@cov.com
Laurence M. Schwartztol The Protect Democracy Project 10 Ware Street Cambridge, MA 02138 (202) 856-9191 larry.schwartztol@protectdemocracy.org

Attorneys for Plaintiff

3

Case 1:17-cv-02202-RDM Document 33 Filed 03/15/19 Page 4 of 4

CERTIFICATE OF SERVICE I, DAVID J. IRAOLA, certify that on March 15, 2019 true and correct copies of this Joint Status Report were served electronically on all registered counsel of record via ECF.

Dated: March 15, 2019

/s/ David J. Iraola
David J. Iraola (D.C. Bar No. 230254) Covington & Burling LLP One CityCenter 850 Tenth Street NW Washington, D.C. 20001 (202) 662-5904 diraola@cov.com

4

 Case 1:17-cv-02202-RDM Document 46 Filed 06/12/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY PROJECT, INC.
Plaintiff
vs.
DEPARTMENT OF HOMELAND SECURITY CUSTOMS AND BORDER PROTECTION

17-cv-02202-RDM

Defendants.

JOINT STATUS REPORT Plaintiff The Protect Democracy Project, Inc., and Defendants Department of Homeland Security (“DHS”) and Customs and Border Protection (“CBP”), by and through their undersigned counsel, report as follows the status of this Freedom of Information Act (“FOIA”) case. Plaintiff initiated this action on October 24, 2017 in connection with FOIA requests that Plaintiff submitted to Defendants in August 2017. In the joint status report submitted on May 19, 2020, the parties stated that they are working together to resolve the outstanding issues in this case. See Joint Status Report (ECF No. 45). The remaining substantive issues for resolution are: (i) the status of records that have been referred to other components or agencies for processing; (ii) a partial Vaughn index from Defendant DHS for the remaining pages identified by Plaintiff; and (iii) attorneys’ fees. Defendants reported that progress on these issues has been delayed due to the ongoing work disruptions arising from the COVID-19 pandemic. Counsel for the parties, however, have

Case 1:17-cv-02202-RDM Document 46 Filed 06/12/20 Page 2 of 4
remained in touch and have made significant efforts to reach closure on the remaining substantive issues in this case so that they can then focus on attorneys’ fees questions.
By joint request of the parties, the Court ordered that the parties file a further status report on or before June 12, 2020. See Minute Order (May 20, 2020).
Overview of Current Status Last week, Defendants produced to Plaintiff a subset of the records referred to other components or agencies for processing. Defendants report that they, like FOIA operations at other agencies, continue to experience work disruptions resulting from the COVID-19 pandemic, but they expect to complete their processing and release of remaining, non-exempt records by the end of July. Each of the remaining records has been referred to a third-party agency on account of that agency’s equities in the record in order to solicit that agency’s views before responding to Plaintiff. In addition, Defendant DHS anticipates that it will produce the remaining Vaughn index on or before July 2, 2020. The parties propose to submit a further joint status report on or before August 7, 2020, setting forth what further action, if any, is necessary.
2

Case 1:17-cv-02202-RDM Document 46 Filed 06/12/20 Page 3 of 4

Respectfully submitted,

MICHAEL R. SHERWIN Acting United States Attorney for the District of Columbia
DANIEL F. VAN HORN (D.C. Bar No. 924092) Chief, Civil Division
By: /s/ Peter C. Pfaffenroth Peter C. Pfaffenroth (D.C. Bar No. 496637) Assistant United States Attorney 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2513 peter.pfaffenroth@usdoj.gov
Attorneys for Defendants

/s/ David J. Iraola Nikhil V. Gore (D.C. Bar No. 1019777) David J. Iraola (D.C. Bar No. 230254) Covington & Burling LLP One CityCenter 850 Tenth Street NW Washington, D.C. 20001 (202) 662-5918 ngore@cov.com
Laurence M. Schwartztol The Protect Democracy Project 125 Walnut Street, Suite 202 Watertown, MA 02472 (202) 856-9191 larry.schwartztol@protectdemocracy.org

Attorneys for Plaintiff

3

Case 1:17-cv-02202-RDM Document 46 Filed 06/12/20 Page 4 of 4

CERTIFICATE OF SERVICE I, DAVID J. IRAOLA, certify that on June 12, 2020, true and correct copies of this Joint Status Report were served electronically on all registered counsel of record via ECF.

Dated: June 12, 2020

/s/ David J. Iraola
David J. Iraola (D.C. Bar No. 230254) Covington & Burling LLP One CityCenter 850 Tenth Street NW Washington, D.C. 20001 (202) 662-5904 diraola@cov.com

4


On Oct. 24, 2017, the Protect Democracy Project filed this lawsuit under the Freedom of Information Act (FOIA) in the U.S. District Court for the District of Columbia. According to the complaint, plaintiff is a nonprofit organization with a "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 ultimate sovereignty." As part of its activities, plaintiff aims to inform the public about executive branch activity, including by filing FOIA requests and releasing the results on its website. The law firm Covington & Burling represented plaintiff in this case.

Plaintiff sought disclosure of agency records by the Department of Homeland Security (DHS) and its component Customs and Border Protection (CBP) that would shed light on the extent to which defendants cooperated with armed private militia groups along the U.S.-Mexico border. In his Jan. 25, 2017 <a href="https://www.gpo.gov/fdsys/pkg/FR-2017-01-30/pdf/2017-02095.pdf">Executive Order 13767</a>, President Trump directed DHS to hire 5,000 additional CBP agents. According to plaintiff, public reports suggest that CBP agents may be informally working with unaffiliated militia groups to police the border.

The complaint alleged that on Aug. 3, 2017, plaintiff submitted a FOIA request to DHS seeking copies of records related to the following:
1. DHS's interactions and involvement with unaffiliated border enforcement groups, including all communications between CBP field officers and any other component of DHS relating to such groups, and all communications between any DHS employee and any representative of such group;
2. CBP's interactions and involvement with such groups at the Sectors of Big Bend, Del Rio, Laredo, and Rio Grande Valley, TX; Tuscon and Yuma, AZ; and El Centro and San Diego, CA.

The complaint further alleged that, to date, plaintiff had not received a substantive response from DHS or CBP.  Plaintiff sought an expedited disclosure order under FOIA and sought legal fees.

The case was filed in the U.S. District Court for the District of Columbia and was assigned to Judge Randolph D. Moss. 

Also on Oct. 24, plaintiff filed a notice that this case was related to another with the same name, <a href="https://www.clearinghouse.net/detail.php?id=16241"><i>Protect Democracy Project v. DHS</i></a>, No. 1:17-cv-02118 (D.D.C. Oct. 13, 2017).

Status reports filed from March through October 2018 indicated the parties continued to confer on the scope of the search and that the defendants produced responsive records periodically. 

A status conference was held on October 29, 2018, and the court ordered that CBP provide a description of the searches that the agency has conducted as well as hit counts for the searches by November 5 and 12, respectively. The court ordered DHS to meet and confer with the plaintiffs to discuss the plaintiff’s request for an explanation of the agency’s redactions.

In the status report dated Nov. 16, 2018, the plaintiffs claimed that DHS had failed to respond to the requests to meet and confer for eleven days after the imposed deadline, and asked the court to enter an order requiring DHS to provide them with a summary of the basis for its redactions and withholdings and an explanation for its failure to respond to the meet and confer request. The court ordered the parties to meet and confer. The plaintiffs further submitted in a later report dated March 15, 2019, that DHS had failed to comply with the agreed ordered production schedule. The court ordered DHS to submit a declaration. DHS submitted a declaration stating that they were unable to process any records temporarily due to the government shutdown at the time and the high workload that resulted afterward. 

In the latest joint status report filed by the parties on June 12, 2020 the defendants reported that they continued to experience work disruptions resulting from the COVID-19 pandemic, but that they expected to complete their processing and release of remaining, non-exempt records by the end of July. 

This case is ongoing.