~ 14 ~ 15 VOICE OF SAN DIEGO, Case No.

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1 Case 3:18-cv-0220-JLS-BLM Document 1 Filed 11/15/18 PageID.1 Page 1 of 7 1 THOMAS R. BURKE (State Bar No ) DA VIS WRIGHT TREMAINE LLP Montgomery Street_, Suite 800 San Francisco, Califorma Telephone: (415) Facsimile: (415) thornasburke@dwt.com 5 HOW ARD LORING ROSE (State Bar No ) DA VIS WRIGHT TREMAINE LLP 85 S. Figueroa Street_, Suite 00 Los Angeles, California Telephone: (3) Facsimile: (3) loringrose@dwt.com 9 Attorneys for Plaintiff VOICE OF SAN DIEGO j IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA VOICE OF SAN DIEGO, Case No v. Plaintiff, VJ 18 UNITED STATES DEPARTMENT OF THE ARMY, 19 0 Defendant. 20 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATION OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C. 552 et seq. 22 Plaintiff VOICE OF SAN DIEGO, a California corporation ("VOSD"), by its undersigned attorneys, alleges as follows: INTRODUCTION VOSD brings this action under the Freedom of Information Act, 5 2 U.S.C. 552 et seq., as amended ("FOIA"), to enjoin the United States Department 27 of the Army, Corps of Engineers (the "Army") from continuing to improperly withhold agency records that are responsive to a FOIA request made by VOSD to 1 COMPLAINT FOR DECLARATORY RELIEF FOR VIOLATING FOIA v '18CV220 JLS BLM

2 Case 3:18-cv-0220-JLS-BLM Document 1 Filed 11/15/18 PageID.2 Page 2 of < ::c 1 d CZ VJ > 19 < Q the Army via on December 4, 2017, seeking documents regarding United States/Mexico border fences (existing or planned) that have been discussed, proposed, or are in planning stages in San Diego and/or Imperial Counties (the "Request"), and to promptly disclose the records sought by the Request. The Army is in violation of its duties under FOIA. Its nearly year-long delay and constructive denial of VOSD's FOIA Request is improper. 2. The Freedom of Information Act "focuses on the citizens' right to be informed about 'what their government is up to,'" by requiring the release of "[ o] fficial information that sheds light on an agency's performance of its statutory duties." DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 750, 773 (1989) (citation omitted). "[D]isclosure, not secrecy, is the dominant objective" of FOIA. Dep't of Interior v. Klamath Water Users Protective Ass 'n, 532 U.S. 1, 8, (2001) (internal quotation marks and citations omitted). VOSD plays a critical role in providing information to citizens about "what their government is up to." Indeed, the First Amendment's guarantee of freedom of the press is meant to enable journalists to play an "essential role in our democracy," to "bare the secrets of government and inform the people." New York Times. Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J. concurring). 3. Through its FOIA Request, VOSD seeks to fulfill its journalistic function and to shine a public light on the operations of the Army. 4. San Diego and Imperial County, which are located on the U.S.-Mexico border, will be directly impacted by any infrastructure built along the.border. For example, the San Diego community of San Ysidro, where the San Ysidro Port of Entry is located, has long struggled with air pollution related to the idling cars waiting to cross the border. 5. During the planning and proposal process for previously constructed portions of border fencing, concerns about the environmental impact were raised by both California state agencies and advocates. In a 2004 report, the California Coastal v

3 Case 3:18-cv-0220-JLS-BLM Document 1 Filed 11/15/18 PageID.3 Page 3 of 7 j 12 1 Commission laid out some of those concerns after a back-and-forth with U.S. 2 Customs and Border Protection about the project. For example, certain areas where 3 the infrastructure was proposed threatened "to weaken the overall credibility and 4 effectiveness of the entire [Multiple Species Conservation Program], as these lands 5 were carefully and scientifically evaluated to provide regional ecological benefits to meet regional preservation goals and to mitigate the cumulative impacts of other 7 development in the region." See California Coastal Commission, Revised Staff 8 Report and Recommendation on Consistency Determination, Report No. W13a , at p. 5 (available at pdf, last visited Nov. 14, 2018). 11. There was also litigation against the project from local environmental advocates, which laid out the ecosystems along San Diego's border that would be 13 impacted, including the Tijuana estuary, which is one of California's last wetlands. 14 See, e.g., Sierra Club, et al. v. Ashcroft, et al., U.S. District Court, Southern District 15 of California Case No. 04-CV-0272 (filed February 10, 2004) The Department of Homeland Security issued a waiver in August, d absolving it from both federal and state environmental rules for land that stretches miles inland from the Pacific Ocean for new border wall constructions, repairs 19 and replacements. O VOSD believes these records are essential to its San Diego readers and the public to understand the potential impacts on their communities from the federal 22 project. 9. PARTIES VOSD is a non-profit news organization organized under the laws of 25 the State of California with its principal place of business in San Diego County. 2 VOSD was founded in 2005 by San Diego Union-Tribune columnist Neil Morgan 27 and entrepreneur Buzz Woolley. VOSD is known for both its news coverage and 3 COMPLAINT FOR DECLARATORY RELIEF FOR VIOLATING FOIA v

4 Case 3:18-cv-0220-JLS-BLM Document 1 Filed 11/15/18 PageID.4 Page 4 of 7 1 local investigative reporting. It has been the recipient of a number of journalism 2 awards The Army is a federal agency within the meaning of 5 U.S.C. 552(±). 4 Plaintiffs are informed and believe that the Army has possession and control of the 5 records sought by the Request. j JURISDICTION This Court has subject-matter jurisdiction over this action and personal 8 jurisdiction over the parties under 5 U.S.C. 552(a)(4)(B), 5 U.S.C , 9 and U.S.C VENUE Venue in the Southern District of California is proper under 5 U.S.C. 552(a)(4)(B) as VOSD has its principal place of business in San Diego County and 13 the Request was made in San Diego County. For the same reason, venue also is <C 14 proper under U.S.C. 15 FACTS Through the Request to the Los Angeles District of the Army sent by CJ 17 on December 4, 2017, VOSD sought access to and copies of the following 18 records: 19 "records dating from January 1, 201 through the present O pertaining to consultations, interactions, reports, meetings, and discussions regarding both existing and proposed border fences that have been discussed, proposed, or are in planning stages in San Diego and/ or Imperial Counties"; "documents and discussion that occurred within the US Army Corps of Engineers, as well as between the US Army Corps of Engineers and the Department of the Interior, US Fish and Wildlife, the International Boundary and Water Commission, Baker Engineering, Dannenbaum Engineering, Customs and v

5 Case 3:18-cv-0220-JLS-BLM Document 1 Filed 11/15/18 PageID.5 Page 5 of Border Protection, the Border Patrol, and/or the Department of Homeland Security regarding the aforementioned subject"; "internal documents and reports, powerpoint presentations, maps, briefings, s, contracts (both draft and final), designs, flood and hydrological models, and memorandum of understanding pertaining to this issue"; " s, letters, call logs, and other communications regarding this topic." Attached as Exhibit A is a true and correct copy of the Request VOSD offered to "pay for the reasonable reproduction costs of 11 documents requested pursuant to law." (See Exhibit A at p. 2.) j On December, 2017, the Army acknowledged receipt ofvosd's 13 request. 15 handled by its Dallas-Ft. Worth District. t On January 3, 2018, the Army notified VOSD that the request would be 18. In a letter sent by Katherine Denzel, District Counsel for the Army on 17 April 27, 2018, Denzel estimated that the request would be fulfilled by June 29, r/ In a letter sent by Ms. Denzel dated August 14 (the "Response"), Ms. O 20 Denzel advised that the Army "need[ ed] an extension of time to process the request," and that the Army "estimat[ ed] another six ( ) months to coordinate, 22 review and provide you with a response to your request which would mean that you can expect a response to this request around March, 2019." Attached as Exhibit B is the Army's Response. After receiving the Response, on September 18, 2018, 25 VOSD sent an appeal letter to the Secretary of the Corps of Engineers. Attached as 2 Exhibit C is the appeal. No response to the appeal has been received. 27 Ill /// I v

6 Case 3:18-cv-0220-JLS-BLM Document 1 Filed 11/15/18 PageID. Page of VOSD sent an identical request to the International Boundary and 2 Water Commission ("IBWC"), which fulfilled the request with the documents it 3 deemed releasable on February 2, VOSD appealed the decision to exempt certain documents from the 5 IBWC, which was received by the agency on May 5, The IBWC released additional documents on June, U.S. Customs and Border Protection was referred several documents 8 from IBWC to review and release. Those were also released to VOSD on November 9 5, Two agencies responded to an identical request as the Army continued to 10 delay its response for what is now nearly a year. 11. As of the filing of this Complaint, over eleven months have elapsed 12 since VOSD transmitted the Request, eleven months have elapsed since the Army 13 acknowledged the Request, and nearly 45 days have elapsed since VOSD appealed. ::B 14 Because the Army failed to comply with the 20-business-day time limit provision of 15 FOIA, 5 U.S.C. 552(a)()(A)(i), VOSD is deemed to have exhausted its ffi 1 administrative remedies with respect to the Request under 5 U.S.C (a)()(C)(i). r/j 18 FIRST CLAIM FOR RELIEF io---i 19 (Violation of FOIA) Q VOSD incorporates by reference the foregoing paragraphs of this Complaint as though fully set forth herein The Army has a legal duty under FOIA to determine whether to comply with a request within 20 days after receiving the request, and also has a legal duty to immediately notify the requester of the agency's determination and the reasons 25 therefor. VOSD has a legal right under FOIA to obtain the agency records they 2 sought in their Request, and there exists no legal basis for the Army's failure to 27 make these records available v

7 Case 3:18-cv-0220-JLS-BLM Document 1 Filed 11/15/18 PageID.7 Page 7 of The Army's failure to make promptly available the records sought by 2 the Request violates FOIA, 5 U.S.C. 552(a)(3)(A) and (a)()(a)(ii), and applicable 3 regulations promulgated thereunder. 4 PRAYER FOR RELIEF 5 WHEREFORE, VOSD requests the Court award them the following relief: A. Declare that the Army violated FOIA in its response to VOSD's FOIA 7 request; 8 B. Order the Army to immediately disclose the requested records to 9 VOSD and enter an injunction prohibiting the Army from continuing to withhold the 1 O requested records; 11 C. Award VOSD its reasonable costs and attorney's fees; j 12 D. Grant such further relief as the court may deem just and proper Dated: November 15, d C2 17 VJ Respectfully submitted, DA VIS WRIGHT TREMAINE LLP By: /s/ Thomas R. Burke THOMAS R. BURKE Attorneys for Plaintiff VOICE OF SAN DIEGO v