UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS ...

Case 1:22-cv-00430-JMS-TAB Document 1 Filed 03/04/22 Page 1 of 21 PageID #: 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

STATE OF INDIANA, STATE OF ARIZONA, STATE OF ARKANSAS, STATE OF GEORGIA, STATE OF KANSAS, COMMONWEALTH OF KENTUCKY, STATE OF LOUISIANA, STATE OF MISSOURI, STATE OF MONTANA, STATE OF OHIO, STATE OF OKLAHOMA, STATE OF SOUTH CAROLINA, STATE OF TEXAS, STATE OF UTAH,

Plaintiffs,

v.

PRESIDENT JOSEPH R. BIDEN, JR., THE EXECUTIVE OFFICE OF THE PRESIDENT, ATTORNEY GENERAL MERRICK B. GARLAND, THE UNITED STATES DEPARTMENT OF JUSTICE, SECRETARY OF EDUCATION MIGUEL A. CARDONA, and THE UNITED STATES DEPARTMENT OF EDUCATION,

Defendants.

CASE NO. 1:22-cv-430

COMPLAINT Come now the Plaintiffs, the State of Indiana, State of Arizona, State of Arkansas, State of Georgia, State of Kansas, Commonwealth of Kentucky, State of Louisiana, State of Missouri, State of Montana, State of Ohio, State of Oklahoma, State of South Carolina, State of Texas, and State of Utah for their Complaint against the Defendants, President Joseph R. Biden, Jr., the Executive Office of the

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President ("EOP"), Attorney General Merrick B. Garland, the United States Department of Justice ("DOJ"), Secretary of Education Miguel A. Cardona, and the United States Department of Education ("ED"), and would state as follows:

I. INTRODUCTION. 1. The Freedom of Information Act ("FOIA"), 5 U.S.C. ? 552, enacted in 1966, provides the public with a right of access to federal agency records. 2. The people must know what the government is doing. "In enacting the FOIA 23 years ago, Congress sought `to open agency action to the light of public scrutiny.' Congress did so by requiring agencies to adhere to `a general philosophy of full agency disclosure.' Congress believed that this philosophy, put into practice, would help `ensure an informed citizenry, vital to the functioning of a democratic society.'"1 Our Founding Fathers' commitment to open government and the public's right to information can be seen in the First Amendment, which "protects not only the right of citizens to speak and publish, but also to receive information."2 The FOIA is "an affirmative congressional effort to give meaningful content to constitutional freedom of expression." See S. Rep. No. 93-854, at 153-54 (May 16, 1974). The statutory exceptions to the FOIA "do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act[.]"3 3. This is an action brought pursuant to the FOIA to compel the Defendants to produce records responsive to an outstanding FOIA request

1 U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (internal citations and quotation marks omitted). 2 Providence Journal Co. v. FBI, 460 F. Supp. 762, 776 (D.R.I. 1978) (overturned on other grounds). 3 Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 7-8 (2001) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)).

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submitted to each of them by the State of Indiana and sixteen other states (hereinafter collectively "States") on October 26, 2021.

II. THE PARTIES. 4. The State of Indiana, State of Arizona, State of Arkansas, State of Georgia, State of Kansas, Commonwealth of Kentucky, State of Louisiana, State of Missouri, State of Montana, State of Ohio, State of Oklahoma, State of South Carolina, State of Texas, and State of Utah are each sovereign states of the United States of America. 5. The Defendant President Joseph R. Biden, Jr. heads the Defendant Executive Office of the President, a component of which is the Domestic Policy Council, both of which are located in the Eisenhower Executive Office Building at 1650 17th Street NW, Washington, D.C. On information and belief, the Defendants have possession, custody, and control of the records to which the States seek access. 6. The Defendant Department of Justice is a federal agency with its principal headquarters located in the Robert F. Kennedy Department of Justice Building, 950 Pennsylvania Avenue, NW, Washington, D.C. The Defendant, Attorney General Merrick B. Garland, heads the United States Department of Justice. On information and belief, the Defendants have possession, custody, and control of the records to which States seek access. 7. The Defendant United States Department of Education is a federal agency with its principal headquarters located in the Lyndon Baines Johnson Department of Education Building, 400 Maryland Avenue SW, Washington, DC. The Defendant Secretary of Education, Miguel A. Cardona, heads the Department

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of Education. On information and belief, the Defendants have possession, custody, and control of the records to which States seek access.

III. JURISDICTION AND VENUE. 8. The States bring this lawsuit pursuant to the FOIA: "The FOIA confers jurisdiction on the district courts `to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld.' ? 552(a)(4)(B). Under this provision, `federal jurisdiction is dependent on a showing that an agency has (1) `improperly' (2) `withheld' (3) `agency records.'' Kissinger v. Reporters Committee for Freedom of Press, 445 U.S. 136, 150 (1980)." U.S. Dep't of Just. v. Tax Analysts, 492 U.S. 136, 142 (1989). 9. This Court has jurisdiction pursuant to 5 U.S.C. ? 552(a)(4)(B) because the Defendants are federal agencies that have improperly withheld agency records. 10. Because the Defendants have not responded in a timely fashion to the States' FOIA requests, the States are deemed to have constructively exhausted any applicable administrative exhaustion requirements. See e.g. Manivannan v. Dep't of Energy, Nat'l Energy Tech. Lab'y, 843 F. App'x 481, 484 (4th Cir. 2021) ("In setting a time limit for agencies to respond to initial requests and establishing constructive exhaustion as a means to enforce that limit, Congress expressed a clear intent to ensure that FOIA requests receive prompt attention from the applicable agencies."); Calhoun v. F.B.I., 546 F. App'x 487, 490 (5th Cir. 2013) ("Where an agency fails to respond to a FOIA request in a timely manner, however, the requester is deemed to have exhausted his remedies and may bring an action in federal court. ? 552(a)(6)(C).).

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11. This Court has jurisdiction because this action is brought in the Southern District of Indiana where the State of Indiana is located, and pursuant to 28 U.S.C. ? 1331, because the resolution of disputes under the FOIA presents a federal question.

12. Venue is proper in this district pursuant to 5 U.S.C. ? 552(a)(4)(B), because this action is brought in the Southern District of Indiana where the State of Indiana is located, and pursuant to 28 U.S.C. ? 1391(e), because a substantial part of the events or omissions giving rise to the claim occurred in the Southern District of Indiana.

IV. FACTUAL BACKGROUND. 13. In an October 4, 2021, Memorandum entitled Office of the Attorney General Memorandum, Re: Partnership Among Federal, State, Local, Tribal, and Territorial Law Enforcement to Address Threats Against School Administrators, Board Members, Teachers, and Staff, 4 Attorney General Garland sought to turn the full power of the Federal government on parents lawfully exercising their First Amendment rights to raise concerns about their children's education. A true, accurate, authentic and complete copy of the October 4, 2021, Memorandum is attached under Exhibit "A". 14. Attorney General Garland testified in Congress that his Memorandum was based on a now debunked and rescinded letter drafted by individuals in the Federal Government (EOP, ED, and DOJ) working with the National School Boards

4 Office of the Attorney General Memorandum, Re: Partnership Among Federal, State, Local, Tribal, and Territorial Law Enforcement to Address Threats Against School Administrators, Board Members, Teachers, and Staff, (October 4, 2021), .

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