Case 1:18-cv-00379 Document 1 Filed 02/20/18 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
PROTECT DEMOCRACY PROJECT, INC. )
2020 Pennsylvania Avenue, NW, #163 )
Washington, DC 20006. )
Plaintiff )
)
V. ) Civil Action No. 18-379
)
THE OFFICE OF MANAGEMENT AND BUDGET )
725 17th Street NW, Washington DC 20503; and THE U.S.)
DEPARTMENT OF COMMERCE 1401 Constitution )
Ave NW, Washington DC 20230 )
)
Defendants )
)
)
)
)
)
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COMPLAINT

1. Plaintiff The Protect Democracy Project, Inc. (“Protect Democracy”) brings this

action against Defendants Office of Management and Budget (“OMB”) and the U.S.

Department of Commerce (“DOC”) to compel compliance with the Freedom of Information

Act (“FOIA”), 5 U.S.C. § 552. Plaintiff alleges as follows:

2. The integrity of the 2020 Census—and, critically, of its leadership—goes

directly to the heart of public confidence in our government. Any political interference with the

leadership, content, or conduct of the Census Bureau or 2020 Census poses a grave risk of

corrupting our election process by creating an inaccurate and partisan congressional

apportionment base. For this reason, on November 29, 2017, Plaintiff filed suit against OMB

and DOC based on a set of Freedom of Information Act (“FOIA”) requests dealing with the

unexpected resignation of former Census Director John Thompson, as well as political

interference with the Census Bureau and the 2020 Census. See Protect Democracy Project, Inc.

v. Office of Mgmt. and Budget et al., Case No. 1:17-cv-02561 (D.D.C. Nov. 29, 2017).

3. No facts collected by the federal government are more critical to the basic

functioning of our democracy than the data collected by the Census Bureau. The census has

therefore historically and rightly been conducted on an independent basis by non-political,

professional staff and isolated from interference by the White House and other political

officials. Any politicization of the most important and complex data collection performed by

the federal government would represent a significant threat to the accuracy of the 2020 Census

and the independence of an agency that must, for the sake of our democracy, remain

nonpartisan.

4. Maintaining the independence and integrity of the Census Bureau is particularly

crucial because the 2020 Census is already at risk. U.S. Government Accountability Office, 2020

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Decennial Census (Feb. 15, 2017), available at http://www.gao.gov/highrisk/2020_decennial

_census/why_did_study (“GAO Report”); Robert Shapiro, The 2020 Census May be Wildly

Inaccurate—and It Matters More Than You Think, Brookings (Aug. 31, 2017), available at

https://www.brookings.edu/blog/fixgov/2017/08/31/the-2020-census-may-be-wildly-

inaccurate-and-it-matters-more-than-you-think/.

5. There continue to be indications of White House and other political interference

with the Census Bureau and the 2020 Census. As explained below, Plaintiff submitted follow-

up FOIA requests on rumored deputy director appointee Thomas Brunell, as well as

communications between the White House, Congressional staff, DOC, OMB, and the Census

Bureau.

6. Plaintiff has learned that although Brunell has since withdrawn from

consideration, he was scheduled to begin work at the Bureau on November 29, 2017. Ari

Berman, Trump’s Controversial Pick to Run the 2020 Census Withdraws, Mother Jones (Feb.

12, 2018), available at https://www.motherjones.com/politics/2018/02/trumps-controversial-

pick-to-run-the-2020-census-withdraws/; E-mail from Latasha F. Ellis, Senior Executive

Service Program Manager, Human Resources Division, United States Census Bureau, to

Enrique Lamas, Associate Director for Demographic Programs, United States Census Bureau

(Nov. 13, 2017, 2:45 p.m.), available at https://protectdemocracy.org/resource-

library/document/foia-response-census-bureau-census-leadership-january-12-2018/.

7. Brunell also received approval from the Office of Personnel Management

(OPM) and DOC. E-mail from Latasha F. Ellis, Senior Executive Service Program Manager,

Human Resources Division, United States Census Bureau, to Ron S. Jarmin, Associate Director

for Economic Programs and Performing the Non-Exclusive Functions and Duties of the

Director, United States Census Bureau et al. (Nov. 29, 2017, 10:11 a.m.), available at

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https://protectdemocracy.org/resource-library/document/foia-response-census-bureau-census-

leadership-january-12-2018/; E-mail from Latasha F. Ellis, Senior Executive Service Program

Manager, Human Resources Division, United States Census Bureau, to Enrique Lamas,

Associate Director for Demographic Programs, United States Census Bureau et al. (Nov. 21,

2017, 5:58 p.m.) available at https://protectdemocracy.org/resource-library/document/foia-

response-census-bureau-census-leadership-january-12-2018/.

8. Further, Brunell’s start date appears to have been selected by the White House.

E-mail from Latasha F. Ellis, Senior Executive Service Program Manager, Human Resources

Division, United States Census Bureau, to Enrique Lamas, Associate Director for Demographic

Programs, United States Census Bureau (Nov. 13, 2017, 4:21 p.m.) available at

https://protectdemocracy.org/resource-library/document/foia-response-census-bureau-census-

leadership-january-12-2018/.

9. Political decision-making regarding the census has serious implications: the

Census Bureau is now reviewing a request from the Department of Justice that a citizenship

question be added to the census. Census experts have made clear that the inclusion of such

questions would have a significant negative impact on the accuracy of the 2020 Census. See,

e.g., The Leadership Conference Education Fund, Factsheet: Citizenship and Legal Status

Questions on the 2020 Census: Preventing a Decennial Disaster (Aug. 28, 2017), available at

http://civilrightsdocs.info/pdf/census/2020/Fact-sheet-2020citizenshiplegalstatusquestion.pdf;

Danny Vinik, Trump’s Threat to the 2020 Census, Politico (April 9, 2017), available at

https://www.politico.com/agenda/story/2017/04/trumps-threat-to-the-2020-census-000404.

10. The stakes of an accurate census could not be higher. The American public must

know whether there has been any inappropriate interference with this most essential of

democratic functions.

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JURISDICTION AND VENUE

11. The Court has jurisdiction over this action pursuant to 5 U.S.C. §

552(a)(4)(B) and 28 U.S.C. § 1331.

12. Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B).

PARTIES

13. Plaintiff Protect Democracy is an organization with 501(c)(3) status,

incorporated under the laws of the District of Columbia, and headquartered at 2020

Pennsylvania Avenue, NW, #163, Washington, D.C. 20006. Plaintiff’s mission is to prevent

our democracy from declining into a more authoritarian form of government by holding the

President and the Executive Branch accountable to the laws and longstanding practices that

have protected our democracy through both Democratic and Republican administrations. As

part of this mission, Plaintiff seeks to inform public understanding of operations and activities

of the government by gathering and disseminating information that is likely to contribute

significantly to the public understanding of executive branch operations and activities. Plaintiff

regularly requests such information pursuant to FOIA. Plaintiff intends to give the public access

to documents transmitted via FOIA on its website, www.protectdemocracy.org, and to provide

information about and analysis of those documents as appropriate.

14. Defendant OMB is a component of the Executive Office of the President of the

United States. OMB is headquartered at 725 17th Street NW, Washington, D.C. 20503. OMB

has possession, custody, or control of the documents that Plaintiff seeks in response to its FOIA

request.

15. Defendant DOC is an agency of the executive branch of the federal government

of the United States. DOC is headquartered at 1401 Constitution Ave NW, Washington, D.C.

20230. DOC has possession, custody, or control of the documents that Plaintiff seeks in

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response to its FOIA request.

STATEMENT OF FACTS

16. Political interference with the proper collection and analysis of the data that

forms the basis of our representative form of government is a matter of extreme public

concern. The public must be able to hold the Administration accountable to its responsibility

to conduct a nonpartisan, accurate, and fair census. It is therefore critical to know whether

there has been any political inference with the leadership or implementation of the 2020

Census.

17. To that end, on November 22, 2017, Plaintiff sent a FOIA request to OMB

requesting the following records:

1) All records, including but not limited to emails, notes, and memoranda,

reflecting, discussing, or otherwise relating to the possible appointment of Thomas

Brunell as deputy director of the Census Bureau, including but not limited to:

a. Communications between the Office of Management and Budget and the

Executive Office of the President,

b. Communications between the Office of Management and Budget and the

Office of the Secretary of Commerce,

c. Communications between the Office of Management and Budget and the

Census Bureau, and

d. Communications between the Office of Management and Budget and

members of Congress or their staffs.

The timeframe for this item is January 20, 2017 through the date that searches are

conducted for records responsive to this FOIA request.

2) All records, including but not limited to emails, notes, and memoranda,
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reflecting, discussing, or otherwise relating to communications between the Office of

Management and Budget and

a. The Executive Office of the President,

b. The Office of the Secretary of Commerce,

c. The Census Bureau, and/or

d. Members of Congress or their staffs

regarding the 2020 census. The timeframe for this item is May 23, 2017 through the

date that searches are conducted for records responsive to this FOIA request.

3) In addition to the records requested above, we also request records

describing the processing of this request, including records sufficient to identify search

terms used and locations and custodians searched, and any tracking sheets used to

track the processing of this request. If your agency uses FOIA questionnaires or

certifications completed by individual custodians or components to determine whether

they possess responsive materials or to describe how they conducted searches, we also

request any such records prepared in connection with the processing of this request.

See Exhibit A.

18. Also on November 22, 2017, Plaintiff sent a FOIA request to DOC requesting the

following records:

1) All records, including but not limited to emails, notes, and memoranda,

reflecting, discussing, or otherwise relating to the possible appointment of Thomas

Brunell as deputy director of the Census Bureau, including but not limited to:

a. Communications between the Office of the Secretary of Commerce and the

Executive Office of the President,

b. Communications between the Office of the Secretary of Commerce and the

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Census Bureau, and

c. Communications between the Office of the Secretary of Commerce and

members of Congress or their staffs.

The timeframe for this item is January 20, 2017 through the date that searches are

conducted for records responsive to this FOIA request.

2) All records, including but not limited to emails, notes, and memoranda,

reflecting, discussing, or otherwise relating to communications between the Office of the

Secretary of Commerce and

a. The Executive Office of the President,

b. The Census Bureau, and/or

c. Members of Congress or their staffs

regarding the 2020 census. The timeframe for this item is June 1, 2017 through the date

that searches are conducted for records responsive to this FOIA request.

3) In addition to the records requested above, we also request records describing

the processing of this request, including records sufficient to identify search terms used

and locations and custodians searched, and any tracking sheets used to track the

processing of this request. If your agency uses FOIA questionnaires or certifications

completed by individual custodians or components to determine whether they possess

responsive materials or to describe how they conducted searches, we also request any

such records prepared in connection with the processing of this request.

See Exhibit B.

19. Plaintiff requested fee waivers pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) or 5

U.S.C. § 552(a)(4)(A)(ii)(II). See Exhibits A, B. Plaintiff also requested expedited processing

pursuant to 5 U.S.C. § 552(a)(6)(E) and 28 C.F.R. § 16.5(e)(1)(ii), (iv). Id.

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20. Plaintiff submitted its FOIA request to OMB via email and its FOIA request to

DOC via FOIAonline on November 22, 2017.

21. On November 22, 2017, Plaintiff received an email from DOC confirming

receipt of Plaintiff’s request on November 22, 2017 and noting that the request had been

recorded as request DOC-IOS-2018-000339. See Exhibit C. On December 5, 2017, Plaintiff

received a letter from DOC denying Plaintiff’s request for expedited processing for lack of

sufficient information and failure to attach a certified statement. See Exhibit D. On December

8, 2017, Plaintiff received an email from DOC granting Plaintiff’s fee waiver request in full.

See Exhibit E.

22. On November 29, 2017, Plaintiff received an email from OMB acknowledging

receipt of Plaintiff’s request on November 28, 2017 and noting that the request had been

recorded as request 2018-071. See Exhibit F.

23. Pursuant to FOIA, within twenty business days of receipt of Plaintiff’s

request—that is, by December 21, 2017 for DOC and December 27, 2017 for OMB—

Defendants were required to “determine . . . whether to comply with such request” and to

“immediately notify” Plaintiff of “such determination and the reasons therefor,” Plaintiff’s

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

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

24. To date, Defendants have failed to make the required determination and

notifications. Defendant OMB has also failed to make a determination regarding Plaintiff’s

requests for a fee waiver and expedited processing.

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

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

26. Defendants are in violation of FOIA by failing to respond to Plaintiff’s request

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

to Plaintiff’s request.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that the Court:

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

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

(2) Order Defendants, by a date certain, to demonstrate that it has conducted

an adequate search;

(3) Order Defendants, by a date certain, to produce to Plaintiff any and all non-
exempt records or portions of records responsive to Plaintiff’s request, as well
as a Vaughn index of any records or portions of records withheld due to a claim
of exemption;

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

request;

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

(6) Grant Plaintiff an award of attorney fees and other reasonable litigation costs
pursuant to 5 U.S.C. § 552(a)(4)(E);

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

Date: February 20, 2018 /s/ Justin Florence

Justin Florence (DC Bar No. 988953)
Jamila G. Benkato*
The Protect Democracy Project
2020 Pennsylvania Ave., NW #163
Washington, DC 20006
justin.florence@protectdemocracy.org
jamila.benkato@protectdemocracy.org
Phone: (202) 751-4058
Fax: (929) 777-8428

Counsel for Plaintiff

*Not admitted to D.C.; supervised by

licensed member of D.C. Bar

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EXHIBIT A
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November 22, 2017

Dionne Hardy, FOIA Officer

Office of Management and Budget
1800 G Street NW, Room 9026
Washington, DC 20503
Fax: (202) 395-3504

Via Email

Re: Freedom of Information Act Request (Expedited Processing Requested)

To Whom It May Concern:

Pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, the Protect
Democracy Project hereby requests that your office produce within 20 business days the
following records:

1) All records, including but not limited to emails, notes, and memoranda, reflecting,
discussing, or otherwise relating to the possible appointment of Thomas Brunell as
deputy director of the Census Bureau, including but not limited to:

a. Communications between the Office of Management and Budget and the

Executive Office of the President,

b. Communications between the Office of Management and Budget and the

Office of the Secretary of Commerce,

c. Communications between the Office of Management and Budget and the

Census Bureau, and

d. Communications between the Office of Management and Budget and

members of Congress or their staffs.

The timeframe for this item is January 20, 2017 through the date that searches are
conducted for records responsive to this FOIA request.

2020 Pennsylvania Avenue NW, #163, Washington, DC 20006 • FOIA@protectdemocracy.org

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2) All records, including but not limited to emails, notes, and memoranda, reflecting,
discussing, or otherwise relating to communications between the Office of Management
and Budget and

a. The Executive Office of the President,

b. The Office of the Secretary of Commerce,

c. The Census Bureau, and/or

d. Members of Congress or their staffs

regarding the 2020 census. The timeframe for this item is May 23, 2017 through the date
that searches are conducted for records responsive to this FOIA request.

3) In addition to the records requested above, we also request records describing the
processing of this request, including records sufficient to identify search terms used and
locations and custodians searched, and any tracking sheets used to track the processing of
this request. If your agency uses FOIA questionnaires or certifications completed by
individual custodians or components to determine whether they possess responsive
materials or to describe how they conducted searches, we also request any such records
prepared in connection with the processing of this request.

EXPEDITED PROCESSING REQUEST

We request that you expedite the processing of this request pursuant to 5 U.S.C.
§ 552(a)(6)(E) and 28 C.F.R. § 16.5(e)(1)(ii), (iv). This request meets the criteria for expedited
processing because there is “[a]n urgency to inform the public about an actual or alleged Federal
Government activity, if made by a person who is primarily engaged in disseminating
information;” and this 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.” 28 C.F.R. § 16.5(e)(1)(ii), (iv).

The Protect Democracy Project intends to disseminate the information obtained in

response to this request. As the District Court for the District of Columbia “easily” determined in
recent litigation in a separate FOIA request, “Protect Democracy satisfied these standards” of
being “primarily engaged in disseminating information.” Protect Democracy Project, Inc. v. U.S.
Dep’t of Def., No. 17-CV-00842 (CRC), 2017 WL 2992076, at *5 (D.D.C. July 13, 2017). The
Protect Democracy Project operates in the tradition of 501(c)(3) good government organizations
that qualify under FOIA as “news media organizations.” Like those organizations, the purpose of
The Protect Democracy Project is to “gather information of potential interest to a segment of the
public, use its editorial skills to turn the raw materials into distinct work, and distribute that work
to an audience.” Nat’s Sec. Archive v. Dep’t of Defense, 880 F.2d 1381, 1387 (D.C. Cir. 1989).
Indeed, The Protect Democracy Project has routinely demonstrated the ability to disseminate

2020 Pennsylvania Avenue NW, #163, Washington, DC 20006 • FOIA@protectdemocracy.org

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information about its FOIA requests to a wide audience.1 The Protect Democracy Project will
disseminate information and analysis about this request—and any information obtained in
response—through its website (protectdemocracy.org); its Twitter feed
(https://twitter.com/protctdemocracy), which has more than 10,000 followers; its email list of
approximately 20,000 people; and sharing information with other members of the press.

Moreover, the integrity of the 2020 Census, and its leadership, is unquestionably a matter
of widespread media interest that goes directly to the heart of public confidence in our
government.2 The decennial census determines how to apportion the House of Representatives
among the states. As the drafters of the Constitution knew, a representative government must
know who it is representing. Similarly, the American public must have confidence that their
representation in Congress is based on a fair and accurate census. Thomas Brunell, President
Trump’s reported pick for deputy director of Census Bureau, has testified in support of
Republican redistricting efforts, and has published a book entitled, “Redistricting and
Representation: Why Competitive Elections are Bad for America.”3 There is therefore an urgent
need for public awareness of any improper machinations regarding Mr. Brunell’s appointment,
and of any attempt to politicize the 2020 Census.

The 2020 Census has already been labeled a “high risk program” by the U.S. Government
Accountability Office due to rising costs and increased fraud and cyber-security risks.4 In
addition, the accuracy of the census is threatened by significantly inadequate funding, resulting
in cancelled testing and fears that hard-to-count populations will be undercounted.5 The political
appointment of a partisan deputy director, rather than a non-partisan statistical expert, to lead the
most important and complex data collection performed by the federal government represents a

1
See, e.g., Lisa Rein, Watchdog group, citing “integrity of civil service,” sues Trump to find out if feds are being
bullied, Wash. Post, Apr. 27, 2017, https://www.washingtonpost.com/news/powerpost/wp/2017/
04/27/watchdog-group-citing-integrity-of-civil-service-sues-trump-to-find-out-if-feds-are-being-
bullied/?utm_term=.8647ab128f3e; Ben Berwick, Going to Court for Civil Servants, Take Care, April 28, 2017,
https://takecareblog.com/blog/going-to-court-for-civil-servants; Charlie Savage, Watchdog Group Sues Trump
Administration, Seeking Legal Rationale Behind Syria Strike, N.Y. Times, May 8, 2017, https://nyti.ms/2pX82OV;
Justin Florence, What’s the Legal Basis for the Syria Strikes? The Administration Must Acknowledge Limits on its
Power to Start a War, Lawfare, May 8, 2017, https://www.lawfareblog.com/whats-legal-basis-syria-strikes-
administration-must-acknowledge-limits-its-power-start-war.
2
See, e.g., The Editorial Board, Save the Census, N.Y. Times (July 17, 2017), available at
https://www.nytimes.com/2017/07/17/opinion/census-trump-budget-cuts html; Charlie May, Trump’s pick for
Census position wrote a book saying “competitive elections are bad for America”, Salon (Nov. 21, 2017), available
at https://www.salon.com/2017/11/21/trumps-pick-for-census-position-wrote-a-book-saying-competitive-elections-
are-bad-for-america/; Danny Vinik, Is the Census Heading for a Crisis?, Politico (May 13, 2017), available at
https://www.politico.com/agenda/story/2017/05/13/head-of-census-bureau-resigns-2020-problems-000441.
3
Rebecca Shabad, Report: Trump Considering Political Pick for Key Sport at Census Bureau, CBS News (Nov. 22,
2017), available at https://www.cbsnews.com/news/report-trump-considering-political-pick-for-key-spot-at-census-
bureau/.
4
U.S. Government Accountability Office, 2020 Decennial Census, available at
http://www.gao.gov/highrisk/2020_decennial_census/why_did_study.
5
Ryan McCrimmon, Congressional Funding an Issue for 2020 Census, Roll Call (Sept. 8, 2017), available at
https://www.rollcall.com/news/policy/2020-census-congress-funding.

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significant threat to the accuracy of the 2020 Census6—and a major step toward politicizing an
agency that must, for the sake of our democracy, remain nonpartisan.7

The integrity of the decennial census, and the imminent appointment of Mr. Brunell, is a
matter of widespread and exceptional media interest. And the public’s confidence in a core
tenant of our democracy—that the United States is a government for, by, and of the people—will
be greatly affected by whether the administration is attempting to politicize the census. The
administration is reportedly planning on naming Mr. Brunell as early as this week.8 This is an
urgent matter that qualifies for expedited processing under 5 U.S.C. § 552(a)(6)(E) and 28 C.F.R.
§ 16.5(e)(1)(ii), (iv).

FEE WAIVER

FOIA provides that any fees associated with a request are waived if “disclosure of the
information is in the public interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is not primarily in the
commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). The core mission of The
Protect Democracy Project, a 501(c)(3) organization, is to inform public understanding on
operations and activities of the government. This request is submitted in consort with the
organization’s mission to gather and disseminate information that is likely to contribute
significantly to the public understanding of executive branch operations and activities. The
Protect Democracy Project has no commercial interests.

In addition to satisfying the requirements for a waiver of fees associated with the search
and processing of records, The Protect Democracy Project is entitled to a waiver of all fees
except “reasonable standard charges for document duplication.” 5 U.S.C. § 552(a)(4)(A)(ii)(II).
Federal law mandates that fees be limited to document duplication costs for any requester that
qualifies as a representative of the news media. Id. The Protect Democracy Project operates in
the tradition of 501(c)(3) good government organizations that qualify under FOIA as “news
media organizations.” Like those organizations, the purpose of The Protect Democracy Project is
to “gather information of potential interest to a segment of the public, use its editorial skills to
turn the raw materials into distinct work, and distribute that work to an audience.” Nat’s Sec.
Archive v. Dep’t of Defense, 880 F.2d 1381, 1387 (D.C. Cir. 1989). As the District Court for the
District of Columbia “easily” determined in recent litigation in a separate FOIA request, The
Protect Democracy Project is “primarily engaged in disseminating information.” Protect
Democracy Project, Inc. v. U.S. Dep’t of Def., No. 17-CV-00842 (CRC), 2017 WL 2992076, at
*5 (D.D.C. July 13, 2017). Indeed, The Protect Democracy Project has routinely demonstrated

6
Tim Fernholz, The U.S. is On the Verge of Abandoning a Key Global Advantage: Accurate Data About Itself,
Quartz (Nov. 22, 2017), available at https://qz.com/1136006/us-census-the-us-may-abandon-a-key-global-
advantage-honest-data-about-itself/.
7
Abigail Tracy, How Trump’s New Census Nominee Could Rig Future Elections, Vanity Fair (Nov. 21, 2017),
available at https://www.vanityfair.com/news/2017/11/donald-trump-thomas-brunell-census-bureau.
8
Danny Vinick and Andrew Restuccia, Leading Trump Census Pick Causes Alarm, Politico (Nov. 21, 2017),
available at https://www.politico.com/story/2017/11/21/trump-census-pick-causes-alarm-252571.

2020 Pennsylvania Avenue NW, #163, Washington, DC 20006 • FOIA@protectdemocracy.org

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the ability to disseminate information about its FOIA requests to a wide audience.9 The Protect
Democracy Project will disseminate information and analysis about this request—and any
information obtained in response—through its website (protectdemocracy.org); its Twitter feed
(https://twitter.com/protctdemocracy), which has more than 10,000 followers; its email list of
approximately 20,000 people; and by sharing information with other members of the press.

RESPONSIVE RECORDS

We ask that all types of records and all record systems be searched to discover records
responsive to our request. We seek records in all media and formats. This includes, but is not
limited to: agendas, manifests, calendars, schedules, notes, and any prepared documentation for
meetings, calls, teleconferences, or other discussions responsive to our request; voicemails; e-
mails; e-mail attachments; talking points; faxes; training documents and guides; tables of
contents and contents of binders; documents pertaining to instruction and coordination of
couriers; and any other materials. However, you need not produce press clippings and news
articles that are unaccompanied by any commentary (e.g., an email forwarding a news article
with no additional commentary in the email thread).

We ask that you search for records from all components of the Office of Management
and Budget that may be reasonably likely to produce responsive results. We also ask that you
search all systems of record, including electronic and paper, in use at your agency, as well as
files or emails in the personal custody of your employees, such as personal email accounts, as
required by FOIA and to the extent that they are reasonably likely to contain responsive
records. The Protect Democracy Project would prefer records in electronic format, saved as
PDF documents, and transmitted via email or CD-ROM.

If you make a determination that any responsive record, or any segment within a record,
is exempt from disclosure, we ask that you provide an index of those records at the time you
transmit all other responsive records. In the index, please include a description of the record and
the reason for exclusion with respect to each individual exempt record or exempt portion of a
record, as provided by Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S.
977 (1974). When you deem a portion of a record exempt, we ask that the remainder of the
record to be provided, as required by 5 U.S.C. § 552(b).

9
See, e.g., Lisa Rein, Watchdog group, citing “integrity of civil service,” sues Trump to find out if feds are being
bullied, Wash. Post (Apr. 27, 2017), https://www.washingtonpost.com/news/powerpost/wp/2017/
04/27/watchdog-group-citing-integrity-of-civil-service-sues-trump-to-find-out-if-feds-are-being-bullied/; Ben
Berwick, Going to Court for Civil Servants, Take Care (April 28, 2017), https://takecareblog.com/
blog/going-to-court-for-civil-servants; Charlie Savage, Watchdog Group Sues Trump Administration, Seeking Legal
Rationale Behind Syria Strike, N.Y. Times (May 8, 2017), https://nyti.ms/2pX82OV; Justin Florence, What’s the
Legal Basis for the Syria Strikes? The Administration Must Acknowledge Limits on its Power to Start a War,
Lawfare (May 8, 2017), https://www.lawfareblog.com/whats-legal-basis-syria-strikes-administration-must-
acknowledge-limits-its-power-start-war; Allison Murphy, Ten Questions for a New FBI Director, Take Care (June
6, 2017), https://takecareblog.com/blog/ten-questions-for-a-new-fbi-director.

2020 Pennsylvania Avenue NW, #163, Washington, DC 20006 • FOIA@protectdemocracy.org

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 Case 1:18-cv-00379 Document 1-2 Filed 02/20/18 Page 7 of 7

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

answering questions about our request. Please contact me at FOIA@protectdemocracy.org or
(202) 751-4058 if you require any additional information. We appreciate your cooperation, and
look forward to hearing from you very soon.

Sincerely,

Jamila Benkato
Counsel
Protect Democracy

2020 Pennsylvania Avenue NW, #163, Washington, DC 20006 • FOIA@protectdemocracy.org

6
Case 1:18-cv-00379 Document 1-3 Filed 02/20/18 Page 1 of 7

EXHIBIT B
Case 1:18-cv-00379 Document 1-3 Filed 02/20/18 Page 2 of 7
 Case 1:18-cv-00379 Document 1-3 Filed 02/20/18 Page 3 of 7

2) All records, including but not limited to emails, notes, and memoranda, reflecting,
discussing, or otherwise relating to communications between the Office of the Secretary
of Commerce and

a. The Executive Office of the President,

b. The Census Bureau, and/or

c. Members of Congress or their staffs

regarding the 2020 census. The timeframe for this item is June 1, 2017 through the date
that searches are conducted for records responsive to this FOIA request.

3) In addition to the records requested above, we also request records describing the
processing of this request, including records sufficient to identify search terms used and
locations and custodians searched, and any tracking sheets used to track the processing of
this request. If your agency uses FOIA questionnaires or certifications completed by
individual custodians or components to determine whether they possess responsive
materials or to describe how they conducted searches, we also request any such records
prepared in connection with the processing of this request.

EXPEDITED PROCESSING REQUEST

We request that you expedite the processing of this request pursuant to 5 U.S.C.
§ 552(a)(6)(E) and 28 C.F.R. § 16.5(e)(1)(ii), (iv). This request meets the criteria for expedited
processing because there is “[a]n urgency to inform the public about an actual or alleged Federal
Government activity, if made by a person who is primarily engaged in disseminating
information;” and this 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.” 28 C.F.R. § 16.5(e)(1)(ii), (iv).

The Protect Democracy Project intends to disseminate the information obtained in

response to this request. As the District Court for the District of Columbia “easily” determined in
recent litigation in a separate FOIA request, “Protect Democracy satisfied these standards” of
being “primarily engaged in disseminating information.” Protect Democracy Project, Inc. v. U.S.
Dep’t of Def., No. 17-CV-00842 (CRC), 2017 WL 2992076, at *5 (D.D.C. July 13, 2017). The
Protect Democracy Project operates in the tradition of 501(c)(3) good government organizations
that qualify under FOIA as “news media organizations.” Like those organizations, the purpose of
The Protect Democracy Project is to “gather information of potential interest to a segment of the
public, use its editorial skills to turn the raw materials into distinct work, and distribute that work
to an audience.” Nat’s Sec. Archive v. Dep’t of Defense, 880 F.2d 1381, 1387 (D.C. Cir. 1989).
Indeed, The Protect Democracy Project has routinely demonstrated the ability to disseminate

2020 Pennsylvania Avenue NW, #163, Washington, DC 20006 • FOIA@protectdemocracy.org

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 Case 1:18-cv-00379 Document 1-3 Filed 02/20/18 Page 4 of 7

information about its FOIA requests to a wide audience.1 The Protect Democracy Project will
disseminate information and analysis about this request—and any information obtained in
response—through its website (protectdemocracy.org); its Twitter feed
(https://twitter.com/protctdemocracy), which has more than 10,000 followers; its email list of
approximately 20,000 people; and sharing information with other members of the press.

Moreover, the integrity of the 2020 Census, and its leadership, is unquestionably a matter
of widespread media interest that goes directly to the heart of public confidence in our
government.2 The decennial census determines how to apportion the House of Representatives
among the states. As the drafters of the Constitution knew, a representative government must
know who it is representing. Similarly, the American public must have confidence that their
representation in Congress is based on a fair and accurate census. Thomas Brunell, President
Trump’s reported pick for deputy director of Census Bureau, has testified in support of
Republican redistricting efforts, and has published a book entitled, “Redistricting and
Representation: Why Competitive Elections are Bad for America.”3 There is therefore an urgent
need for public awareness of any improper machinations regarding Mr. Brunell’s appointment,
and of any attempt to politicize the 2020 Census.

The 2020 Census has already been labeled a “high risk program” by the U.S. Government
Accountability Office due to rising costs and increased fraud and cyber-security risks.4 In
addition, the accuracy of the census is threatened by significantly inadequate funding, resulting
in cancelled testing and fears that hard-to-count populations will be undercounted.5 The political
appointment of a partisan deputy director, rather than a non-partisan statistical expert, to lead the
most important and complex data collection performed by the federal government represents a

1
See, e.g., Lisa Rein, Watchdog group, citing “integrity of civil service,” sues Trump to find out if feds are being
bullied, Wash. Post, Apr. 27, 2017, https://www.washingtonpost.com/news/powerpost/wp/2017/
04/27/watchdog-group-citing-integrity-of-civil-service-sues-trump-to-find-out-if-feds-are-being-
bullied/?utm_term=.8647ab128f3e; Ben Berwick, Going to Court for Civil Servants, Take Care, April 28, 2017,
https://takecareblog.com/blog/going-to-court-for-civil-servants; Charlie Savage, Watchdog Group Sues Trump
Administration, Seeking Legal Rationale Behind Syria Strike, N.Y. Times, May 8, 2017, https://nyti.ms/2pX82OV;
Justin Florence, What’s the Legal Basis for the Syria Strikes? The Administration Must Acknowledge Limits on its
Power to Start a War, Lawfare, May 8, 2017, https://www.lawfareblog.com/whats-legal-basis-syria-strikes-
administration-must-acknowledge-limits-its-power-start-war.
2
See, e.g., The Editorial Board, Save the Census, N.Y. Times (July 17, 2017), available at
https://www.nytimes.com/2017/07/17/opinion/census-trump-budget-cuts html; Charlie May, Trump’s pick for
Census position wrote a book saying “competitive elections are bad for America”, Salon (Nov. 21, 2017), available
at https://www.salon.com/2017/11/21/trumps-pick-for-census-position-wrote-a-book-saying-competitive-elections-
are-bad-for-america/; Danny Vinik, Is the Census Heading for a Crisis?, Politico (May 13, 2017), available at
https://www.politico.com/agenda/story/2017/05/13/head-of-census-bureau-resigns-2020-problems-000441.
3
Rebecca Shabad, Report: Trump Considering Political Pick for Key Sport at Census Bureau, CBS News (Nov. 22,
2017), available at https://www.cbsnews.com/news/report-trump-considering-political-pick-for-key-spot-at-census-
bureau/.
4
U.S. Government Accountability Office, 2020 Decennial Census, available at
http://www.gao.gov/highrisk/2020_decennial_census/why_did_study.
5
Ryan McCrimmon, Congressional Funding an Issue for 2020 Census, Roll Call (Sept. 8, 2017), available at
https://www.rollcall.com/news/policy/2020-census-congress-funding.

2020 Pennsylvania Avenue NW, #163, Washington, DC 20006 • FOIA@protectdemocracy.org

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 Case 1:18-cv-00379 Document 1-3 Filed 02/20/18 Page 5 of 7

significant threat to the accuracy of the 2020 Census6—and a major step toward politicizing an
agency that must, for the sake of our democracy, remain nonpartisan.7

The integrity of the decennial census, and the imminent appointment of Mr. Brunell, is a
matter of widespread and exceptional media interest. And the public’s confidence in a core
tenant of our democracy—that the United States is a government for, by, and of the people—will
be greatly affected by whether the administration is attempting to politicize the census. The
administration is reportedly planning on naming Mr. Brunell as early as this week.8 This is an
urgent matter that qualifies for expedited processing under 5 U.S.C. § 552(a)(6)(E) and 28 C.F.R.
§ 16.5(e)(1)(ii), (iv).

FEE WAIVER

FOIA provides that any fees associated with a request are waived if “disclosure of the
information is in the public interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is not primarily in the
commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). The core mission of The
Protect Democracy Project, a 501(c)(3) organization, is to inform public understanding on
operations and activities of the government. This request is submitted in consort with the
organization’s mission to gather and disseminate information that is likely to contribute
significantly to the public understanding of executive branch operations and activities. The
Protect Democracy Project has no commercial interests.

In addition to satisfying the requirements for a waiver of fees associated with the search
and processing of records, The Protect Democracy Project is entitled to a waiver of all fees
except “reasonable standard charges for document duplication.” 5 U.S.C. § 552(a)(4)(A)(ii)(II).
Federal law mandates that fees be limited to document duplication costs for any requester that
qualifies as a representative of the news media. Id. The Protect Democracy Project operates in
the tradition of 501(c)(3) good government organizations that qualify under FOIA as “news
media organizations.” Like those organizations, the purpose of The Protect Democracy Project is
to “gather information of potential interest to a segment of the public, use its editorial skills to
turn the raw materials into distinct work, and distribute that work to an audience.” Nat’s Sec.
Archive v. Dep’t of Defense, 880 F.2d 1381, 1387 (D.C. Cir. 1989). As the District Court for the
District of Columbia “easily” determined in recent litigation in a separate FOIA request, The
Protect Democracy Project is “primarily engaged in disseminating information.” Protect
Democracy Project, Inc. v. U.S. Dep’t of Def., No. 17-CV-00842 (CRC), 2017 WL 2992076, at
*5 (D.D.C. July 13, 2017). Indeed, The Protect Democracy Project has routinely demonstrated

6
Tim Fernholz, The U.S. is On the Verge of Abandoning a Key Global Advantage: Accurate Data About Itself,
Quartz (Nov. 22, 2017), available at https://qz.com/1136006/us-census-the-us-may-abandon-a-key-global-
advantage-honest-data-about-itself/.
7
Abigail Tracy, How Trump’s New Census Nominee Could Rig Future Elections, Vanity Fair (Nov. 21, 2017),
available at https://www.vanityfair.com/news/2017/11/donald-trump-thomas-brunell-census-bureau.
8
Danny Vinick and Andrew Restuccia, Leading Trump Census Pick Causes Alarm, Politico (Nov. 21, 2017),
available at https://www.politico.com/story/2017/11/21/trump-census-pick-causes-alarm-252571.

2020 Pennsylvania Avenue NW, #163, Washington, DC 20006 • FOIA@protectdemocracy.org

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 Case 1:18-cv-00379 Document 1-3 Filed 02/20/18 Page 6 of 7

the ability to disseminate information about its FOIA requests to a wide audience.9 The Protect
Democracy Project will disseminate information and analysis about this request—and any
information obtained in response—through its website (protectdemocracy.org); its Twitter feed
(https://twitter.com/protctdemocracy), which has more than 10,000 followers; its email list of
approximately 20,000 people; and by sharing information with other members of the press.

RESPONSIVE RECORDS

We ask that all types of records and all record systems be searched to discover records
responsive to our request. We seek records in all media and formats. This includes, but is not
limited to: agendas, manifests, calendars, schedules, notes, and any prepared documentation for
meetings, calls, teleconferences, or other discussions responsive to our request; voicemails; e-
mails; e-mail attachments; talking points; faxes; training documents and guides; tables of
contents and contents of binders; documents pertaining to instruction and coordination of
couriers; and any other materials. However, you need not produce press clippings and news
articles that are unaccompanied by any commentary (e.g., an email forwarding a news article
with no additional commentary in the email thread).

We request that you search for records from all components of the Department of
Commerce's Office of the Secretary that may be reasonably likely to produce responsive results.
We also ask that you search all systems of record, including electronic and paper, in use at your
agency, as well as files or emails in the personal custody of your employees, such as personal
email accounts, as required by FOIA and to the extent that they are reasonably likely to contain
responsive records. The Protect Democracy Project would prefer records in electronic format,
saved as PDF documents, and transmitted via email or CD-ROM.

If you make a determination that any responsive record, or any segment within a record,
is exempt from disclosure, we ask that you provide an index of those records at the time you
transmit all other responsive records. In the index, please include a description of the record and
the reason for exclusion with respect to each individual exempt record or exempt portion of a
record, as provided by Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S.
977 (1974). When you deem a portion of a record exempt, we ask that the remainder of the
record to be provided, as required by 5 U.S.C. § 552(b).

9
See, e.g., Lisa Rein, Watchdog group, citing “integrity of civil service,” sues Trump to find out if feds are being
bullied, Wash. Post (Apr. 27, 2017), https://www.washingtonpost.com/news/powerpost/wp/2017/
04/27/watchdog-group-citing-integrity-of-civil-service-sues-trump-to-find-out-if-feds-are-being-bullied/; Ben
Berwick, Going to Court for Civil Servants, Take Care (April 28, 2017), https://takecareblog.com/
blog/going-to-court-for-civil-servants; Charlie Savage, Watchdog Group Sues Trump Administration, Seeking Legal
Rationale Behind Syria Strike, N.Y. Times (May 8, 2017), https://nyti.ms/2pX82OV; Justin Florence, What’s the
Legal Basis for the Syria Strikes? The Administration Must Acknowledge Limits on its Power to Start a War,
Lawfare (May 8, 2017), https://www.lawfareblog.com/whats-legal-basis-syria-strikes-administration-must-
acknowledge-limits-its-power-start-war; Allison Murphy, Ten Questions for a New FBI Director, Take Care (June
6, 2017), https://takecareblog.com/blog/ten-questions-for-a-new-fbi-director.

2020 Pennsylvania Avenue NW, #163, Washington, DC 20006 • FOIA@protectdemocracy.org

5
 Case 1:18-cv-00379 Document 1-3 Filed 02/20/18 Page 7 of 7

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

answering questions about our request. Please contact me at FOIA@protectdemocracy.org or
(202) 751-4058 if you require any additional information. We appreciate your cooperation, and
look forward to hearing from you very soon.

Sincerely,

Jamila Benkato
Counsel
Protect Democracy

2020 Pennsylvania Avenue NW, #163, Washington, DC 20006 • FOIA@protectdemocracy.org

6
Case 1:18-cv-00379 Document 1-4 Filed 02/20/18 Page 1 of 2

EXHIBIT C
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EXHIBIT D
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EXHIBIT E
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EXHIBIT F
Case 1:18-cv-00379 Document 1-7 Filed 02/20/18 Page 2 of 2