Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

HERITAGE FOUNDATION )
214 Massachusetts Ave. N.E. )
Washington, D.C. 20002 )
)
MIKE HOWELL )
214 Massachusetts Ave. N.E. )
Washington, D.C. 20002 )
)
Plaintiffs, )
v. ) Case No. 24-cv-2526
)
U.S. DEPARTMENT OF JUSTICE )
950 Pennsylvania Ave. N.W. )
Washington, D.C. 20530 )
)
FEDERAL BUREAU OF INVESTIGATION )
U.S. DEPARTMENT OF JUSTICE )
935 Pennsylvania Ave. N.W. )
Washington, D.C. 20535 )
)
U.S. DEPARTMENT OF HOMELAND )
SECURITY )
2707 Martin Luther King Jr. Ave. S.E )
Washington, D.C. 20528 )
)
CENTRAL INTELLIGENCE AGENCY )
Office of General Counsel )
Washington, D.C. 20505 )
)
NATIONAL SECURITY AGENCY/ )
CENTRAL SECURITY SERVICE )
Office of General Counsel )
9800 Savage Road, Suite 6932 )
Fort George G. Meade, MD 20755 )
)
U.S. DEPARTMENT OF STATE )
2201 C Street NW )
Washington, DC 20520 )
)

1
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 2 of 36

DEFENSE INTELLIGENCE AGENCY )

7400 Pentagon )
Washington, DC 20301, )
)
Defendants. )
)

COMPLAINT AND PRAYER FOR DECLARATORY

AND INJUNCTIVE RELIEF

Plaintiffs THE HERITAGE FOUNDATION and MIKE HOWELL (collectively

“Plaintiffs”) for their complaint against Defendants U.S. DEPARTMENT OF JUSTICE (“DOJ”

or “Department” or “DOJ Defendant”), FEDERAL BUREAU OF INVESTIGATION (“FBI”

or “FBI Defendant”), U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS” or “DHS

Defendant”), CENTRAL INTELLIGENCE AGENCY (“CIA” or “CIA Defendant”),

NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE (“NSA” or “NSA

Defendant”), U.S. DEPARTMENT OF STATE (“State Department” or “State Dept.” or “State

Defendant”), and DEFENSE INTELLIGENCE AGENCY (“DIA” or “DIA Defendant”)

(collectively “Defendants”), allege on knowledge as to Plaintiffs, and on information and belief

as to all other matters, follows:

BACKGROUND

1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C § 552,

to compel the production of certain records related to two FOIA requests Plaintiffs submitted to

each Defendant.

2. The first group of requests sought records sufficient to show whether President

Joseph R. Biden or members of his family received defensive briefings referring or relating to the

business activities of any member of the Biden family (“Biden Family Defensive Briefing

Requests”).

2
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 3 of 36

3. The second group of requests sought records sufficient to show whether President

R. Biden or members of his family received defensive briefings referring or relating to the business

activities of Kevin Morris (“Kevin Morris Defensive Briefing Requests”).

4. The foreign business dealings of President Biden’s son, Robert Hunter Biden, have

been the subject of immense public scrutiny. The House of Representatives has initiated an

impeachment inquiry into President Biden because of Hunter Biden’s foreign business dealings.

See H. Res. 918 (118th Cong.).

5. Hunter Biden is set to stand trial in the Central District of California in September

on tax-related charges stemming from Special Counsel David C. Weiss’s investigation.

See United States v. Robert Hunter Biden, 23-cr-00599-MCS (C.D. Cal). On August 7, 2024,

Special Counsel Weiss wrote the following in response to Hunter Biden’s Motion in Limine to

exclude certain pieces of evidence related to improper influence or corruption:

The first category of evidence the defendant seeks to exclude is “any reference to
allegations that Mr. Biden (1) acted on behalf of a foreign principal to influence
U.S. policy and public opinion . . . .” The government does not intend to reference
allegations at trial. Rather, the government will introduce the evidence described
above, including that the defendant and Business Associate 1 received
compensation from a foreign principal who was attempting to influence U.S. policy
and public opinion and cause the United States to investigate the Romanian
investigation of [Romanian oligarch Gabriel Popoviciu].

Government’s Response to Defendant’s Fourth Motion in Limine to Exclude Reference to

Alleged Improper Political Influence and/or Corruption, United States v. Biden, 23-cr-

00599-MCS (C.D. Cal.) (ECF No. 181) at 3 (emphasis added).

6. Hunter Biden’s former business associate, Devon Archer, testified in a transcribed

interview before the House Committee on Oversight and Accountability on July 31, 2023.

Transcribed Interview of Devon Archer, before the H. Comm. on Oversight and Accountability,

3
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 4 of 36

118th Cong. (July 31, 2023) (Ex. 1). In that interview, he told Congressional investigators his and

Hunter Biden’s business associates in Ukraine were under investigation by Ukrainian Prosecutor-

General, Viktor Shokin, and that their Ukrainian associates put “pressure” on Mr. Biden to use his

connections to his father to take measures to stop the investigation. Mr. Archer testified:

[House Judiciary Committee Chairman Jim] Jordan: The request from Mr. – from
Mykola Zlochevsjy and Vadym to Mr. Biden and/or if you said it was to you, the
request for help from whom to deal with what pressure?
Mr. Archer: The request—you know, basically the request was like, can D.C. help?
But there were not -- you know, I’m not going to—there were not—it wasn't like -
- there weren't specific, you know, can the big guy help? It was—it’s always this
amorphous, can we get help in D.C.?
Mr. Jordan: The request was help from the United States Government to deal with
the pressure they were under from their prosecutor, and that entailed the freezing
of assets at the London bank and other things that were going on in Ukraine?
Mr. Archer: Correct.

Id. at 34–35.

CEFC China Energy Company Limited (“CEFC”)

7. Hunter Biden’s business dealings with CEFC China Energy Company Limited

(“CEFC”) also raise national security concerns. See generally, Memorandum from the Heritage

Oversight Project to the Public (Sept. 13, 2023) (Ex. 2). In his business dealings with CEFC,

Hunter Biden worked with Dr. Patrick Ho (“Ho”) and CEFC Chairman Ye Jianming (“Ye”), two

individuals with known connections to the Chinese government’s intelligence apparatus. Id. Ho

and his associates paid millions of dollars to Biden family members. Id.

8. CEFC is a foreign influence operation. CEFC’s Chairman, Ye, served as “deputy

secretary of a Chinese Military organization . . . that congressional researchers called a front for

the People’s Liberation Army unit that has ‘dual roles of intelligence collection and conducting

[People’s Republic of China] propaganda.’” Alexandra Stevenson, et al, A Chinese Tycoon Sought

4
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 5 of 36

Power and Influence. Washington Responded., N.Y. Times (Dec. 12, 2018),

https://www.nytimes.com/2018/12/12/business/cefc-biden-china-washington-ye-jianming.html.

9. On December 2, 2015, the S. Rajaratnam School of International Studies (“RSIS”),

a Singapore-based thinktank published an article entitles “Hybrid Warfare with Chinese

Characteristics.” Michael Raska, Hybrid Warfare with Chinese Characteristics, RSIS, (Dec. 2,

2015) found at https://web.archive.org/web/20200602133351/https://www.rsis.edu.sg/wp-

content/uploads/2015/12/CO15262.pdf. This article explained that a core activity of elements of

the Chinese intelligence apparatus was to identify “potential friendly contacts” among “foreign

political, business, and military elites and organizations abroad.” Id. The article named CEFC as

a civilian front company for Chinese intelligence and specifically named Ye in a case study where

CEFC used a series of business transactions in the Czech Republic to access “the highest political

elites in the country.” Id. Ye was later named a chief advisor to the Czech President. Id.

10. Ho, a Ye lieutenant and head of a CEFC United States-based non-governmental

organization, served as a member of the People’s Republic of China Chinese People’s Political

Consultative Conference (“CPPCC”) from 1993-2012. See Web Archive of Patrick Ho’s Personal

website, found at https://web.archive.org/web/20230724192502/https://www.cpho.hk/a/96299-

cht. The CPPCC is the leadership body which sets out and coordinates Chinese Communist Party

(“CCP”) influence activities carried out by the CCP’s United Front Work Department. See U.S.-

China Economic and Security Review Commission, China’s Overseas United Front Work (Aug.

24, 2018) found at https://www.uscc.gov/sites/default/files/Research/China%27s%20Overseas%

20United%20Front%20Work%20-

%20Background%20and%20Implications%20for%20US_final_0.pdf.

5
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 6 of 36

11. Ho’s nonprofit hosted an article on its website entitled, “How to Resolve the China-

threat Theory.” See, Web Archive, How to resolve the China-threat Theory, Jun. 26, 2016, found

at https://web.archive.org/web/20160624053733/http:/cefc-

ngo.co/en/expert.php?cid=20&act=con&id=98. The article calls for China to engage in “media

warfare” by identifying “influential media in targeted areas” and establish a “mechanism for

guiding foreign public opinion on China.” Id. The article explained that the end goal was to

establish a “coherent mechanism in guiding overseas public opinion on China.” Id. This article,

which articulates the methodology for a foreign influence and propaganda operation by the

Chinese government, appeared on the CEFC non-government organization’s website while CEFC

engaged in business dealings with members of the Biden family.

12. Hunter Biden’s former business partner, Tony Bobulinski, testified to

Congressional investigators, “James Gillar [another Hunter Biden business associate] and, I

believe, Hunter Biden . . . had multiple message exchanges and discussions that, sort of, Chairman

Ye was President Xi’s guy, that CEFC was sort of a donned company by the Chinese government.”

Transcribed interview of Tony Bobulinski, before the H. Comm. on the Judiciary and H. Comm.

on Oversight and Accountability, at 133 (Feb. 13, 2024) found at https://oversight.house.gov/wp-

content/uploads/2024/02/Bobulinski-Transcript.pdf (“Bobulinski Interview”).

Biden Family Connections to CEFC Officials

13. Hunter Biden reportedly made $5.8 million between 2013 and 2018 from his work

with Ye and Ho. See Tom Winter, et al, Analysis of Hunter Biden’s hard drive shows he, his firm

took in about $11 million from 2013 to 2018, spent it fast, NBC News, May 19, 2022, found at

https://www.nbcnews.com/politics/national-security/analysis-hunter-bidens-hard-drive-shows-

firm-took-11-million-2013-2018-rcna29462. The House Committee on Oversight and

6
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 7 of 36

Accountability found the Biden family made more than $8 million from their connections with

Chinese entities, including CEFC. H. Comm. on Oversight and Accountability, The Bidens’

Influence Peddling Timeline, (“Oversight Committee Timeline”) found at

https://oversight.house.gov/the-bidens-influence-peddling-timeline/.

14. The Biden family’s business relationship with CEFC began while Vice President

Biden was in office and was “highly valuable to CEFC and the CCP [Chinese Community Party].”

Majority Staff Report of the H. Comm. on Oversight and Accountability, H. Comm on the

Judiciary, & H. Comm. on Ways and Means, Report on the Impeachment Inquiry of Joseph R.

Biden, Jr., President of the United States of America, at 100 (Aug. 19, 2024), found at https://ove

rsight.house.gov/wp-content/uploads/2024/08/2024.08.19-Report-of-the-Impeachment-Inquiry-

of-Joseph-R.-Biden-Jr.-President-of-the-United-States.pdf (“House Biden Impeachment Report”).

15. Hunter Biden’s contemporaneous communications demonstrate his understanding

of connections between CEFC and the Chinese government and intelligence apparatus. In a May

11, 2018 recording, Hunter Biden described Ho as the “spy chief of China.” Andrew Kerr and

Jerry Dunleavy, ‘Spy chief of China’ laptop recording sheds light on Hunter Biden’s overseas

business, Wash. Examiner (May 27, 2022) found at https://www.washingtonexaminer.com/news/

1592295/spy-chief-of-china-laptop-recording-sheds-light-on-hunter-bidens-overseas-business/.

In December 2018, Hunter Biden messaged his sister-in-law, Hallie Biden, describing Ho as “the

chief of intelligence of the people’s republic of China” and stated that Ho’s arrest and conviction

resulted in “the retaliation of the Chinese in the ouster and arrest of US suspected CIA operatives

in China.” Marco Polo, Biden Laptop Messages, found at https://www.marcopolo501c3.org/api/

v1/file/7622b539-6144-461c-8de7-758728e81371.pdf at 124.

7
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 8 of 36

16. On September 18, 2017 Hunter Biden signed an attorney engagement letter to serve

as Ho’s attorney. House Biden Impeachment Report at 144. Hunter Biden agreed to represent Ho

because Ye expressed concern that Ho was under criminal investigation and that under the terms

of the agreement, Hunter Biden agreed to counsel Ho on “matters related to US law and advice

pertaining to the hiring and legal analysis of any US Law Firm or Lawyer.” Id. CEFC paid Hunter

Biden $1 million, but the House “identified no substantiative legal services provided by Hunter

Biden” to Ho in exchange for that payment. Id. at 145–46.

17. Federal authorities arrested Ho on November 18, 2017. See United States v. Chi

Ping Patrick Ho, 1:17-cr-00779 (LAP) (S.D.N.Y.) (ECF. No. 73-2) at 22. Ho reportedly called

James Biden, President Biden’s brother, the day he was arrested. Alexandra Stevenson, et al, A

Chinese Tycoon Sought Power and Influence. Washington Responded., N.Y. Times (Dec. 12,

2018) found at https://www.nytimes.com/2018/12/12/business/cefc-biden-china-washington-ye-

jianming.html. Hunter Biden reportedly spoke to FBI agents about whether Ho and Ye were the

targets of an FBI investigation. Miranda Devine, Hunter Biden’s link to disgraced ex-FBI official

Charles McGonigal, N.Y. Post (Feb. 15, 2023) found at https://nypost.com/2023/02/15/hunter-

bidens-link-to-disgraced-ex-fbi-official-charles-mcgonigal/. Hunter Biden said in a news

interview that in the summer of 2017 he had been engaged by Ye to “figure out whether Ho was

in legal jeopardy” in the United States. Adam Entous, Will Hunter Biden Jeopardize His Father’s

Campaign?, The New Yorker (July 1, 2019) found at https://www.newyorker.com/magazine/201

9/07/08/will-hunter-biden-jeopardize-his-fathers-campaign. Both James and Hunter Biden

traveled to Hong Kong to meet with Ho weeks before Ho’s arrest. Transcribed Interview of James

Biden, before the H. Comm. on the Judiciary and H. Comm. on Oversight and Accountability (Feb.

8
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 9 of 36

21, 2024) found at https://oversight.house.gov/wp-content/uploads/2024/03/James-Biden-

Transcript.pdf at 151–60.

18. On or about late evening of November 18, 2017 or early morning of November 19,

2017, Joe Biden, James Biden, and Hunter Biden initiated a group chat on WhatsApp, an encrypted

messaging service. See H. Comm. on Ways and Means, production of Joseph Ziegler, Ex. 802,

Chat 11, https://gop-waysandmeans.house.gov/wp-content/uploads/2024/05/11-Exhibit-802-

Chat-17_WMRedacted.pdf. Upon information and belief, this discussion was about Ho’s arrest

hours earlier.

19. Prior to his November 2017 arrest, Ho was the subject of FISA surveillance.

See United States v. Chi Ping Patrick Ho, 1:17-cr-00779 (LAP) (S.D.N.Y.) (ECF. No. 45). This

surveillance coincided with periods of regular communication between CEFC affiliates, the Biden

family, and their business partners. See Ex. 2 at 4–6. In the Ho prosecution, it appears that the

Department of Justice took steps to prevent the introduction of evidence mentioning Hunter Biden

to avoid introducing a “political dimension” to the case. United States v. Chi Ping Patrick Ho,

1:17-cr-00779-LAP (S.D.N.Y.) (ECF. No. 204) at 125.

20. On December 5, 2018, Ho was convicted in the Southern District of New York of

violating the Foreign Corrupt Practices Act, money laundering, and conspiracy to commit the same

and received three-year prison sentence and a $400,000 fine. See Judgement in a Criminal Case,

United States v. Chi Ping Patrick Ho, 1:17-cr-00779-LAP (S.D.N.Y.) (ECF No. 226).

Hunter Biden’s Chinese Business Activities Implicated Joe Biden

21. April 18, 2017 email correspondence between CEFC officials indicated they

understood themselves to be working with “the B family.” Email from James Gilliar to Hunter

9
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 10 of 36

Biden and James Biden (April 18, 2017) found at https://www.documentcloud.org/documents/23

891916-299567partialemlx-export.

22. A May 13, 2017 email from James Gilliar to Hunter Biden, Bobulinski, and Rob

Walker proposed the division of shares in a business venture with CEFC to include “10[%] held

by [Hunter] for the big guy.” Bobulinski Interview at Ex. 14. Bobulinski testified to Congressional

investigators that “the big guy—100 percent—is Joe Biden.” Bobulinski Interview at 116.

23. On May 19, 2017, Hunter Biden messaged Bobulinski, “my Chairman gave an

emphatic NO” regarding a current proposal for a potential transaction with CEFC. Bobulinski

Interview at Ex. 16. Hunter Biden business associate Rob Walker informed Bobulinski that same

day clarifying that “when he [Hunter Biden] said his chairman he was talking about his dad.”

Bobulinski Interview at Ex. 17.

24. On May 20, 2017, another Hunter Biden business associate, James Gillar, messaged

Bobulinski “don’t mention Joe being involved, its only when u (sic) are face to face, I know u (sic)

know but they are paranoid.” Bobulinski Interview at Ex. 19.

25. On July 30, 2017, Hunter Biden sent a WhatsApp message to a Chinese business

associate that read:

I am sitting here with my father and we would like to understand why the
commitment made has not been fulfilled. Tell the director that I would like to
resolve this not before it gets out of hand, and now means tonight. And, Z, if I get
a call or text from anyone involved in this other than you, Zhang, or the Chairman,
I will make certain that between the man sitting next to me and every person he
knows and by ability to hold a grudge that you will regret not following my
direction. I am sitting here waiting for the call with my father.

See, Press Release, ICYMI: New Evidence CONFIRMS Hunter Biden’s Statement to Congress

Regarding Infamous WhattsApp Message was a lie, DOJ Must Act, H. Comm. on Ways and Means

(June 18, 2024) (Ex. 3). Days after that message, on August 8, 2017, a Chinese entity affiliated

10
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 11 of 36

with CEFC wired $5 million to an entity associated with Hunter and James Biden.

See Memorandum from the Majority Staff of the House Committee, Fourth Bank Records

Memorandum from the Oversight Committee’s Investigation into the Biden Family’s Influence

Peddling and Business Schemes, at 5 (Nov. 1, 2023) (Ex. 4).

26. On August 27, 2017, Hunter Biden messaged Gongwin Dong, a representative of

Ye, that “my uncle [James Biden] will be here with his BROTHER who would like to say hello to

the Chairman.” Affidavit 3 of Joseph Ziegler, delivered to the H. Comm on Ways and Means

(Sept. 8, 2023) Ex. 300 at 9, https://gop-waysandmeans.house.gov/wp-

content/uploads/2023/09/T35-Exhibit-300-All-Relevant-Backup-Messages_Redacted.pdf.

27. On September 21, 2017, Hunter Biden requested keys made at his office shared

with his Chinese partners for Joe Biden, Jill Biden, Jim Biden, Gongwen Dong (Ye’s CEFC

emissary) and to adjust his business signage listing the Biden Foundation and Hudson West (CEFC

US) on the sign. See Oversight Committee Timeline.

28. Less than three weeks after Ho’s arrest, Hunter Biden resumed arranging meetings

between CEFC and Joe Biden. See, H. Comm. on Ways and Means, production of Joseph Ziegler,

Ex. 802, Chat 3, found at https://gop-waysandmeans.house.gov/wp-content/uploads/2024/05/9-

Exhibit-802-Chat-3-with-attachments_WMRedacted.pdf at 4.

29. Rob Walker testified to Congressional investigators that Joe Biden met with Ye at

some point in 2017, but could not recall the exact date. Transcribed interview of John Robinson

Walker, before the H. Comm on Oversight and Accountability H. Comm on the Judiciary at 40–

42 (Feb. 26, 2024) https://oversight.house.gov/wp-content/uploads/2024/02/Walker-

Transcript.pdf; see also House Biden Impeachment Report at 99.

11
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 12 of 36

The Intelligence Community’s Other Uses of Defensive Briefings

30. Federal law enforcement and the Intelligence Community have offered defensive

briefings to high-ranking U.S. government officials for far fewer entanglements with foreign

entities. On August 6, 2020, the Federal Bureau of Investigation reportedly issued a defensive

briefing to Senators Chuck Grassley and Ron Johnson during their investigation into Hunter

Biden’s business dealings. See The Editorial Board, The FBI’s Dubious Briefing, Wall Street

Journal (May 4, 2021) (Ex. 5). The Senators allege that the briefing was “unconnected to [their]

investigation” and that the existence of the briefing was leaked in The Washington Post for the

purposes of discrediting their Hunter Biden investigation. Id.

31. Plaintiffs’ FOIA Requests seek records that go to the heart of whether President

Biden or his family were, at a minimum, made aware of the potential Kompromat that could have

been developed against the then-Vice President and future President of the United States as a result

of his son’s foreign business dealings.

PARTIES

32. Plaintiff, The Heritage Foundation is a Washington, D.C.-based nonpartisan public

policy organization with a national and international reputation whose mission is to “formulate

and promote public policies based on the principles of free enterprise, limited government,

individual freedom, traditional American values, and a strong national defense.” Heritage

Foundation, About Heritage, https://www.heritage.org/about-heritage/mission (last visited Sep. 3,

2024). Heritage is a not-for-profit section 501(c)(3) organization which engages in substantial

dissemination of information to the public.

33. Plaintiff Mike Howell leads The Heritage Foundation’s Oversight Project and is an

author for The Daily Signal. The Oversight Project is an initiative aimed at obtaining information

12
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 13 of 36

via FOIA requests and other means in order to best inform the public and Congress for the purposes

of Congressional oversight. “The requests and analyses of information are informed by Heritage’s

deep policy expertise. By its nature, the Oversight Project is primarily engaged in disseminating

information to the public.” Oversight Project, found at https://www.heritage.org/oversight (last

visited Sep. 3, 2024); Oversight Project (@OversightPR), X (last visited Sep. 3, 2024),

https://twitter.com/OversightPR. Staff for the Oversight Project routinely appear on television,

radio, print, and other forms of media to provide expert commentary on salient issues in the

national debate.

34. Defendant DOJ is a federal agency of the United States within the meaning of

5 U.S.C. § 552(f)(1) whose mission statement is to “uphold the rule of law, to keep our country

safe, and to protect civil rights.” About DOJ; Our Mission, found at https://www.justice.gov/about

(last visited Sep. 3, 2024).

35. NSD is a component of whose mission statement is to “to protect the United States

from threats to our national security by pursuing justice through the law.” National Security

Division; Mission, found at https://www.justice.gov/nsd (last visited Sep. 3 2024)

36. Defendant FBI is a federal agency of the United States within the meaning of 5

U.S.C. § 552(f)(1) whose mission statement is “to protect the American people and uphold the

Constitution of the United States.” Federal Bureau of Investigation, About,

https://www.fbi.gov/about/mission (last visited Sep. 3, 2024).

37. Defendant DHS is a federal agency of the United States within the meaning of

5 U.S.C. § 552(f)(1) whose mission statement is “[w]ith honor and integrity, we will safeguard he

American people, our homeland, and our values.” Department of Homeland Security, About DHS,

https://www.dhs.gov/mission (last visited Sep. 3, 2024).

13
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 14 of 36

38. Defendant CIA is a federal agency of the United States within the meaning of 5

U.S.C. § 552(f)(1), whose mission “is to gather and share intelligence to protect our Nation from

threats.” About CIA—Mission and Vision, found at https://www.cia.gov/about/mission-vision/

(last visited Sep. 3, 2024).

39. Defendant NSA is a federal agency of the United States within the meaning of

5 U.S.C. § 552(f)(1) whose mission statement is to “lead[] the U.S. Government in cryptology that

encompasses both signals intelligence (SIGINT) insights and cybersecurity products and services,

and enables computer network operations to gain a decisive advantage for the nation and our

allies.” About NSA; Mission & Combat Support, found at https://www.nsa.gov/about/ (last visited

Sep. 3, 2024).

40. Defendant State Department is a federal agency of the United States within the

meaning of 5 U.S.C. § 552(f)(1) whose mission statement is “[t]o protect and promote U.S.

security, prosperity, and democratic values and shape an international environment in which all

Americans can thrive.” Mission; About the U.S. Department of State, found at

https://www.state.gov/about/ (last visited Sep. 3, 2024).

41. Defendant DIA is a federal agency of the United States within the meaning of

5 U.S.C. § 552(f)(1) whose mission statement is to “[p]rovide intelligence on foreign militaries to

prevent and decisively win wars.” Home; Defense Intelligence Agency, https://www.dia.mil (last

visited Sep. 3, 2024).

JURISDICTION AND VENUE

42. This Court has jurisdiction pursuant to 5 U.S.C. § 552(a)(4)(B) because this action

is brought in the District of Columbia and 28 U.S.C. § 1331 because the resolution of disputes

under FOIA presents a federal question.

14
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 15 of 36

43. Venue is proper in this Court under 28 U.S.C. § 1391(b) because Defendants’

principal place of business is in the District of Columbia.

BIDEN FAMILY DEFENSIVE BRIEFING REQUESTS

44. Plaintiffs submitted the Biden Family Defensive Briefing Requests on April 17,

2024 to all Defendants. See Plaintiffs’ FOIA Request, No. 2024-01749 (Apr. 17, 2024) (“DOJ

Biden Family Request”) (Ex. 6); Plaintiffs’ FOIA Request, No. FOIA/PA #24-335 (Apr. 17, 2024)

(“NSD Biden Family Request”) (Ex. 7); Plaintiffs’ FOIA Request, Nos. 1630097 and 1630164

(“FBI Biden Family Request”) (Ex. 8) Plaintiffs’ FOIA Request, No. 2024-HQFO-01261 (Apr.

17, 2024) (“DHS Biden Family Request”) (Ex. 9); Plaintiffs’ FOIA Request, No. XXXX (Apr. 17,

2024) (“CIA Biden Family Request”) (Ex. 10); Plaintiffs’ FOIA Request (Apr. 17, 2024);

Plaintiffs’ FOIA Request, No. 118420 (Apr. 17, 2024) (“NSA Biden Family Request”) (Ex. 11);

Plaintiffs’ FOIA Request, No. F-2024-09992 (Apr. 17, 2024) (“State Dept. Biden Family

Request”) (Ex. 12); Plaintiffs’ FOIA Request, No. FOIA-00164-2024 Apr. 17, 2024) (“DIA Biden

Family Request”) (Ex. 13).

45. The text of the Biden Family Defensive Briefing Request was identical for each

Defendant and specifically sought:

1. Records sufficient to show the time, date, and subject of any defensive
briefing delivered to Joseph R. Biden, Jr referring or relating to the
business activities of any member of his family.

2. Records sufficient to show the time, date, and subject of any defensive
briefing delivered to any of the following individuals referring to
relating to the business activities of any member of the Biden family:

a. Robert Hunter Biden;

b. James Biden;
c. Ashley Biden;
d. Sara Biden
e. Hallie Biden
f. Caroline Biden
g. James Biden, Jr.

15
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 16 of 36

h. Nicholas Biden
i. Kathleen Buhle
j. Melissa Cohen

Ex. 6–13 at 1.

46. The Biden Family Defensive Briefing Request sought a fee waiver based on

Heritage’s status as a not-for-profit and the fact that a purpose of the Request was to allow Heritage

to gather information on a matter of public interest for (among other things) use by authors of The

Daily Signal, which is a major news outlet. Id. at 4–5.

47. The Request also sought production of records in partial responses as soon as they

became available. Id. at 4

48. Plaintiffs requested Expedited Processing for the Biden Family Defensive Briefing

Request with each agency. The factual and legal basis for the Application was explained in a four-

page submission that explained how the Requests met each agency’s regulatory requirements for

Expedited Processing. Each application attached five appendices totaling 1,512 pages that

included three oversight requests from House Committee Chairmen, media reports, and an

Oversight Project Memorandum on Ho. The foregoing coverage was “widespread and

exceptional” and surfaces “questions about the Government’s integrity that affect public

confidence.” 1

DEFENDANT DOJ HAS CONSTRUCTIVELY DENIED THE DOJ BIDEN

FAMILY REQUEST

49. DOJ’s Office of Information Policy (“OIP”) acknowledged receipt of the DOJ

Biden Family Request on Friday, April 26, 2024 and assigned it tracking number FOIA-2024-

1
Each Expedited Processing Request conformed to the appropriate Code of Federal Regulation
for each corresponding agency.

16
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 17 of 36

01749. See Letter from Douglas Hibbard to Mike Howell (Apr. 26, 2024) (“DOJ Biden Family

Acknowledgment Letter”) (Ex. 14).

50. The DOJ Biden Family Acknowledgment Letter invoked unusual circumstances

pursuant to 5 U.S.C. 552 § (a)(6)(B)(i)-(iii).

51. On May 8, 2024, Defendant DOJ submitted a supplemental acknowledgment letter

for the DOJ Biden Family Request granting Expedited Processing. See Letter from Douglas

Hibbard to Mike Howell (May 8, 2024) (Ex. 15).

52. Defendant DOJ has not passed on Plaintiffs’ request for a fee waiver.

53. Plaintiffs have not received any other communications since May 8, 2024.

54. Defendant has not made a determination on the Request.

55. Thirty working days from April 26, 2024, is June 10, 2024.

56. NSD acknowledged receipt of the DOJ Biden Family Request on Tuesday, May

28, 2024, and assigned it tracking number FOIA/PA #24-335. See Email from Arnetta Mallory to

Mike Howell (May 28, 2024) (“NSD Biden Family Acknowledgment Letter”) (Ex. 16).

57. Defendant NSD stated that Plaintiffs’ expedited processing request was “under

consideration” and that Defendant NSD would notify Plaintiffs “once a decision has been made.”

Id. at 2.

58. Defendant NSD has not passed on Plaintiffs’ request for a fee waiver.

59. Defendant NSD has not passed on Plaintiffs’ application for expedited processing.

60. Plaintiffs have not received any other communications about this request since

May 28, 2024.

61. NSD has not made a determination on the Request.

62. Twenty calendar days from May 28, 2024, is June 26, 2024.

17
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 18 of 36

DEFENDANT FBI HAS CONSTRUCTIVELY DENIED THE FBI BIDEN

FAMILY REQUEST

63. Defendant FBI “split” Plaintiffs’ Biden Family Request into two separate requests.

64. On May 8, 2024, Defendant FBI acknowledged receipt of Specification 1 of the

Biden Family Request, assigned it tracking number 1630097, and granted Plaintiffs’ request for

expedited processing. See Specification 1 Letter from Michael Seidel to Mike Howell (May 8,

2024) (Ex. 17).

65. On July 11, 2024, Defendant FBI acknowledged receipt of Specification 2 of the

Biden Family Request and assigned it tracking number 1630134. See Specification 2 Letter from

Michael Seidel to Mike Howell (July 11, 2024) (Ex. 18). This letter issued a Glomar response,

explaining “the FBI will neither confirm nor deny the existence of such records pursuant to FOIA

exemptions (b)(6) and (b)(7)(C).” Id.

66. On July 11, 2024, Defendant FBI denied the split request for Specification 1

(Request No. 1630097) stating the Request was overly broad and that the agency was not required

to answer inquiries, create records, conduct research, or draw conclusions concerning queried data.

See Specification 1 Denial Letter from Michael Seidel to Mike Howell (July 11, 2024) (Ex. 19).

67. On July 30, 2024, Plaintiffs appealed both decisions to the Department of Justice’s

Office of Information Policy. See Appeal Letter from Mike Howell to Bobak Talebain (July 30,

2024) (Ex. 20).

68. The administrative appeal for Specification 1 (Request No. 1630097) was given

tracking number A-2024-02272 and the administrative appeal for Specification 2 (Request No.

1630134) was given tracking number A-2024-02273. See FOIA Star Portal, Request Nos. A-2024-

02272 & A-2024-02273 (last accessed Aug. 29, 2024) (Ex. 21). Both appeals are marked “in

progress.”

18
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 19 of 36

69. Plaintiffs have received no communication from Defendant FBI about the split

Requests since July 11, 2024.

70. Defendant has not ruled on Plaintiffs’ administrative appeals.

71. 20 business days from July 30, 2024, is August 27, 2024.

DEFENDANT DHS HAS CONSTRUCTIVELY DENIED THE DHS BIDEN FAMILY

REQUEST

72. Defendant DHS acknowledged the Request on April 19, 2024, and assigned it

tracking number 2024-HQFO-01261. See Letter to Mike Howell from DHS FOIA Officer (Apr.

19, 2024) (“DHS Biden Family Acknowledgment Letter”) (Ex. 22).

73. Defendant DHS determined that the “request is too broad in scope or did not

specifically identify the records” sought. Id. Defendant DHS requested Plaintiffs “resubmit your

request containing a reasonable description of the records you are seeking” while noting “this is

not a denial of your request.” Id. The DHS Biden Family Acknowledgment Letter does not

constitute a “determination” within the meaning of CREW v. Fed. Elec. Comm’n, 711 F.3d 180,

188 (D.C. Cir. 2013) (“Rather, in order to make a ‘determination’ and thereby trigger the

administrative exhaustion requirement, the agency must at least: (i) gather and review the

documents; (ii) determine and communicate the scope of the documents it intends to produce and

withhold, and the reasons for withholding any documents; and (iii) inform the requester that it can

appeal whatever portion of the ‘determination’ is adverse.”).

74. Plaintiffs have not received any other communications since April 19, 2024.

75. Defendant DHS has not made a determination on the Request.

76. Defendant DHS has not ruled on Plaintiffs’ application for expedited processing.

77. Twenty calendar days from April 19, 2024, is May 17, 2024.

19
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 20 of 36

DEFENDANT CIA HAS CONSTRUCTIVELY DENIED THE CIA BIDEN FAMILY

REQUEST

78. Plaintiffs have received no correspondence from the CIA about the CIA Biden

Family Request.

79. After receiving a letter in the mail regarding the Kevin Morris CIA Request, see

infra, Counsel for Plaintiffs attempted to contact CIA about the CIA Biden Family Request on

multiple occasions via telephone. Those attempts were unsuccessful.

80. Twenty working days from April 17, 2024, is May 15, 2024.

DEFENDANT NSA HAS CONSTRUCTIVELY DENIED THE NSA BIDEN FAMILY

REQUEST

81. Defendant NSA acknowledged receipt of the Request on April 26, 2024 and

assigned it Request No. 118420. See Letter to Mike Howell from NSA FOIA Officer (Apr. 26,

2024) (“NSA Biden Family Acknowledgment Letter”) (Ex. 23).2

82. Defendant NSA asserted a categorical Glomar withholding after construing the

Request in an atextual manner. Id.

83. Plaintiffs have not received any other communications since April 26, 2024.

84. Defendant NSA has not made a determination on the Request.

85. Defendant NSA has not made a determination on fees.

86. Defendant NSA has not ruled on Plaintiffs’ application for expedited processing.

87. Twenty calendar days from April 26, 2024, is May 24, 2024.

2
NSA Defendant assigned the Requests FOIA Case Numbers 118420, 118421 to each
corresponding request date. Plaintiffs interpret these assignments to be 118420 for the Biden
Family Request and 118421 for the Kevin Morris Request.

20
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 21 of 36

DEFENDANT DIA HAS CONSTRUCTIVELY DENIED THE DIA BIDEN FAMILY

REQUEST

88. Defendant DIA acknowledged receipt of the Request via email May 6, 2024

attaching a letter dated April 18, 2024 and assigned it tracking number FOIA-00164-2024.

See Letter to Mike Howell from DIA FOIA Officer (Apr. 18, 2024) (“DIA Biden Family

Acknowledgment Letter”) (Ex. 24).

89. The DIA Biden Family Acknowledgment Letter invoked unusual circumstances

pursuant to 5 U.S.C. 552 § (a)(6)(B)(i)-(iii) and 32 C.F.R. 1700.6(f).

90. Plaintiffs have not received any other communications since May 6, 2024.

91. Defendant DIA has not made a determination on the Request.

92. Defendant DIA has not ruled on Plaintiffs’ fee waiver request.

93. Nor has Defendant DIA ruled on Plaintiffs’ application for expedited processing.

94. Ten calendar days from April 18, 2024, is May 18, 2024.

95. Thirty business days from April 18, 2024, is May 31, 2024.

DEFENDANT STATE DEPT. HAS CONSTRUCTIVELY DENIED THE STATE DEPT.

BIDEN FAMILY REQUEST

96. Defendant State Dept. acknowledged receipt of the Request on April 17, 2024 and

assigned it tracking number F-2024-09992. See Email to Mike Howell from State Dept. FOIA

Officer (Apr. 18, 2024) (“State Dept. Biden Family Acknowledgment”) (Ex. 25).

97. Defendant State Dept. only acknowledged receipt of the Request.

98. Plaintiffs have not received any other communications since April 17, 2024.

99. A review of the State Department FOIA Portal for Request No. F-2024-09992

indicates the Request is “assigned for processing.” See Dep’t of State FOIA Portal, Request No.

F-2024-09992 (accessed Aug. 29, 2024) (Ex. 26).

21
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 22 of 36

100. Defendant State Dept. has not made a determination on the Request.

101. Defendant State Dept. has not ruled on Plaintiffs’ application for expedited

processing.

102. Twenty calendar days from April 17, 2024, is May 15, 2024.

KEVIN MORRIS DEFENSIVE BRIEFING REQUESTS

103. Plaintiffs submitted the Kevin Morris Defensive Briefing Requests on April 17,

2024, to all Defendants. See Plaintiffs’ FOIA Request, FOIA-2024-01874 (May 6, 2024) (“DOJ

Kevin Morris Request”)3 (Ex. 27); Plaintiffs’ FOIA Request, No. FOIA/PA #24-337 (Apr. 17,

2024) (“NSD Kevin Morris Request”) (Ex. 28); Plaintiffs’ FOIA Request, Nos. 1630135 and

1630139 (“FBI Kevin Morris Request”) (Ex. 29); Plaintiffs’ FOIA Request, 2024-HQFO-01262

(Apr. 17, 2024) (“DHS Kevin Morris Request”) (Ex. 30); Plaintiffs’ FOIA Request, F-2024-01724

(Apr. 17, 2024) (“CIA Kevin Morris Request”) (Ex. 31); Plaintiffs’ FOIA Request, No. 118421

(Apr. 17, 2024) (“NSA Kevin Morris Request”) (Ex. 32); Plaintiffs’ FOIA Request, No. F-2024-

09994 (Apr. 17, 2024) (“State Dept Kevin Morris Request”) (Ex. 33); Plaintiffs’ FOIA Request,

No. FOIA-00165-2024 Apr. 17, 2024) (“DIA Kevin Morris Request”) (Ex. 34) (collectively

“Kevin Morris Requests”).

104. The Kevin Morris Request sought:

1. Records sufficient to show the time, date, and subject of any defensive
briefing delivered to Joseph R. Biden, Jr referring or relating to the
business practices of Kevin Morris.
2. Records sufficient to show the time, date, and subject of any defensive
briefing delivered to any of the following individuals referring to
relating to the business practices of Kevin Morris:

a. Robert Hunter Biden;

b. James Biden;
c. Ashley Biden;
3
Plaintiffs originally attached the wrong document for the Kevin Morris DOJ Request. Plaintiffs
submitted the correct document to the DOJ Office of Information Policy on May 6, 2024.

22
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 23 of 36

d. Sara Biden;
e. Hallie Biden;
f. Caroline Biden;
g. James Biden, Jr.;
h. Nicholas Biden;
i. Kathleen Buhle;
j. Melissa Cohen.

Kevin Morris Request at 1.

105. The Request sought a fee waiver based on Heritage’s status as a not-for-profit and

the fact that a purpose of the Request was to allow Heritage to gather information on a matter of

public interest for (among other things) use by authors of The Daily Signal, which is a major news

outlet. Id. at 4–5.

106. The Request also sought production of records in partial responses as soon as they

became available. Id. at 4

107. Plaintiffs requested Expedited Processing for the Request with each agency. See

Exs. 1–9. The factual and legal basis for the Application was explained in a four-page submission.

108. The Application attached five appendices totaling 1,512 pages that included three

oversight requests from House Committee Chairmen, media reports, and an Oversight Project

Memorandum on Patrick Ho. The foregoing coverage was “widespread and exceptional” and

surfaces “questions about the Government’s integrity that affect public confidence.” 28 C.F.R.

§ 16.5(e)(1)(iv).4

4
Each Expedited Processing Request conformed to the appropriate Code of Federal Regulation
for each corresponding agency.

23
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 24 of 36

DEFENDANT DOJ HAS CONSTRUCTIVELY DENIED THE DOJ KEVIN MORRIS

REQUEST

109. DOJ OIP acknowledged receipt of the Request on May 9, 2024, and assigned it the

tracking number FOIA-2024-01874. See Letter to Mike Howell from DOJ FOIA Officer (May 9,

2024) (“DOJ Kevin Morris Acknowledgment Letter”) (Ex. 35).

110. The DOJ Kevin Morris Acknowledgment Letter invoked unusual circumstances

pursuant to 5 U.S.C. § 552 (a)(6)(B)(i)–(iii), et seq., and informed Plaintiffs that their request for

expedited processing was granted. Id.

111. Plaintiffs have not received any other communications since May 9, 2024.

112. Defendant DOJ has not made a determination on the Request.

113. Defendant DOJ has failed to effectuate expedited processing.

114. Thirty calendar days from April 17, 2024, is Saturday, June 8, 2024.

115. NSD acknowledged receipt of the Request on August 7, 2024 and assigned it the

tracking number FOIA/PA #24-337. See Letter to Mike Howell from Arnetta Mallory (“NSD

Kevin Morris Acknowledgment Letter”) (Ex. 36).

116. NSD invoked unusual circumstances pursuant to 5 U.S.C. § 552 (a)(6)(B)(i)–(iii),

et seq., and informed Plaintiffs that their request for expedited processing was granted. Id.

117. Plaintiffs have not received any other communications since August 7, 2024.

118. Defendant NSD has not made a determination on the Request.

119. Thirty calendar days from April 17, 2024, is May 30 2024.

DEFENDANT FBI HAS CONSTRUCTIVELY DENIED THE FBI KEVIN MORRIS

REQUEST

120. Defendant FBI “split” Plaintiffs’ Kevin Morris Request into two separate requests.

24
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 25 of 36

121. On July 11, 2024, Defendant FBI acknowledged receipt of Specification 1 of the

Kevin Morris Request, assigned it tracking number 1630135. See Specification 1 Letter from

Michael Seidel to Mike Howell (July 11, 2024) (Ex. 37). This letter issued a Glomar response,

explaining “the FBI will neither confirm nor deny the existence of such records pursuant to FOIA

exemptions (b)(6) and (b)(7)(C).” Id.

122. On July 11, 2024, Defendant FBI acknowledged receipt of Specification 2 of the

Kevin Morris Request and assigned it tracking number 1630139. See Specification 2 Letter from

Michael Seidel to Mike Howell (July 11, 2024) (Ex. 38). This letter issued a Glomar response,

explaining “the FBI will neither confirm nor deny the existence of such records pursuant to FOIA

exemptions (b)(6) and (b)(7)(C).” Id.

123. On July 30, 2024, Plaintiffs appealed both decisions to the Department of Justice’s

Office of Information Policy. See supra, Ex. 20.

124. The administrative appeal for Specification 1 (Request No. 1630135) was given

tracking number A-2024-02274 and the administrative appeal for Specification 2 (Request No.

1630139) was given tracking number A-2024-02275. See FOIA Star Portal, Request Nos. A-2024-

02274 & A-2024-02275 (last accessed Aug. 29, 2024) (Ex. 39). Both appeals are marked “in

progress.”

125. Plaintiffs have received no communication from Defendant FBI about the split

Requests since July 11, 2024.

126. Defendant has not ruled on Plaintiffs’ administrative appeals.

127. 20 business days from July 30, 2024 is August 27, 2024.

25
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 26 of 36

DEFENDANT DHS HAS CONSTRUCTIVELY DENIED THE DHS KEVIN MORRIS

REQUEST

128. Defendant DHS acknowledged the Request on April 19, 2024, and assigned it

tracking number 2024-HQFO-01262. See Letter to Mike Howell from DHS FOIA Officer (Apr.

19, 2024) (“DHS Kevin Morris Acknowledgment Letter”) (Ex. 40).

129. Defendant DHS determined that the “request is too broad in scope or did not

specifically identify the records” sought. Id. Defendant DHS requested Plaintiffs “resubmit your

request containing a reasonable description of the records you are seeking” while noting “this is

not a denial of your request.” Id. The DHS Kevin Morris Acknowledgment Letter does not

constitute a “determination” within the meaning of CREW v. Fed. Elec. Comm’n, 711 F.3d 180,

188 (D.C. Cir. 2013) (“Rather, in order to make a ‘determination’ and thereby trigger the

administrative exhaustion requirement, the agency must at least: (i) gather and review the

documents; (ii) determine and communicate the scope of the documents it intends to produce and

withhold, and the reasons for withholding any documents; and (iii) inform the requester that it can

appeal whatever portion of the ‘determination’ is adverse.”).

130. Plaintiffs have not received any other communications since April 19, 2024.

131. Defendant DHS has not made a determination on the Request.

132. Nor has Defendant DHS ruled on Plaintiffs’ application for expedited processing.

133. Twenty calendar days from April 19, 2024 is May 17, 2024.

DEFENDANT CIA HAS CONSTRUCTIVELY DENIED THE CIA KEVIN MORRIS

REQUEST

134. Defendant CIA acknowledged receipt of the Request on June 20, 2024, confirmed

receipt on April 18, 2024, and assigned it the tracking number F-2024-01724. See Letter to Mike

Howell from Stephen Glenn (Jun. 20, 2024) (CIA Kevin Morris Acknowledgment Letter”)

26
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 27 of 36

(Ex. 41). The CIA Kevin Morris Acknowledgment Letter informed Plaintiffs that “during a recent

shelf review we discovered we had not acknowledged receipt of the request. We apologize for

this administrative oversight, and assure you we that we have placed your request in our queue in

the order in which it was received.” Id.

135. Defendant CIA denied expedited processing. Id.

136. Plaintiffs have not received any other communications since June 20, 2024.

137. Defendant CIA has not made a determination on the Request.

138. Twenty calendar days from April 18, 2024, is May 8, 2024.

DEFENDANT NSA HAS CONSTRUCTIVELY DENIED THE NSA KEVIN MORRIS

REQUEST

139. Defendant NSA acknowledged receipt of the Request on April 26, 2024. See Letter

to Mike Howell from NSA FOIA Officer (Apr. 26, 2024) (“NSA Kevin Morris Acknowledgment

Letter”) (Ex. 42). 5

140. Defendant NSA asserted a categorical Glomar withholding after construing the

Request in an atextual manner. Id.

141. Plaintiffs have not received any other communications since April 26, 2024.

142. Defendant NSA has not made a determination on the Request.

143. Defendant NSA has not made a determination on fees.

144. Defendant NSA has not ruled on Plaintiffs’ expedited processing request.

145. Twenty calendar days from April 26, 2024, is May 24, 2024.

5
NSA Defendant assigned the Requests FOIA Case Numbers 118420, 118421 to each
corresponding request date. Plaintiffs interpret these assignments to be 118420 for the Biden
Family Request and 118421 for the Kevin Morris Request.

27
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 28 of 36

DEFENDANT DIA HAS CONSTRUCTIVELY DENIED THE DIA KEVIN MORRIS

REQUEST

146. Defendant DIA acknowledged receipt of the Request on April 18, 2024 and

assigned it the tracking number FOIA-00165-2024. See Letter to Mike Howell from DIA FOIA

Officer (Apr. 18, 2024) (“DIA Kevin Morris Acknowledgment Letter”) (Ex. 43).

147. The DIA Kevin Morris Acknowledgment Letter invoked unusual circumstances

pursuant to 5 U.S.C. 552 § (a)(6)(B)(i)-(iii) and 32 C.F.R. 1700.6(f).

148. Plaintiffs have not received any other communications since April 18, 2024.

149. Defendant DIA has not made a determination on the Request.

150. Defendant DIA has not ruled on Plaintiffs’ fee waiver request.

151. Nor has Defendant DIA ruled on Plaintiffs’ expedited processing request.

152. Thirty calendar days from April 18, 2024, is May 30, 2024.

DEFENDANT STATE DEPT. HAS CONSTRUCTIVELY DENIED THE STATE DEPT.

KEVIN MORRIS REQUEST

153. Defendant State Dept. acknowledged receipt of the Request on April 17, 2024 and

assigned it tracking number F-2024-09994. See Email to Mike Howell from State Dept. FOIA

Officer (Apr. 18, 2024) (“State Dept. Kevin Morris Acknowledgment Letter”) (Ex. 44).

154. Defendant State Dept. only acknowledged receipt of the Request.

155. A review of the State Department FOIA Portal for Request No. F-2024-09994

indicates the Request is “assigned for processing.” See Dep’t of State FOIA Portal, Request No.

F-2024-09994 (accessed Aug. 29, 2024) (Ex. 45).

156. Plaintiffs have not received any other communications since April 17, 2024.

157. Defendant State Dept. has not made a determination on the Request.

158. Defendant State Dept. has not ruled Plaintiffs’ application for expedited processing.

28
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 29 of 36

159. Thirty calendar days from April 17, 2024, is May 29, 2024.

FIRST CLAIM FOR RELIEF

Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Searches for Responsive Records

160. Plaintiffs re-allege the foregoing paragraphs as if fully set out herein.

161. FOIA requires all doubts to be resolved in favor of disclosure. “Transparency in

government operations is a priority of th[e Biden] . . . Administration.” Attorney General,

Memorandum for Heads of Executive Departments and Agencies: Freedom of Information Act

Guidelines, at 4 (Mar. 15, 2022).

162. Plaintiffs properly requested records within the possession, custody, and control of

Defendants.

163. Defendants are subject to FOIA and therefore must make reasonable efforts to

search for requested records.

164. Defendants have failed to promptly review agency records for the purpose of

locating and collecting those records that are responsive to Plaintiffs’ FOIA Request.

165. Defendants’ failure to conduct searches for responsive records violates FOIA and

DOJ regulations.6

166. Plaintiffs have a statutory right to the information they seek.

167. Defendant is in violation of FOIA.

168. Plaintiffs are being irreparably harmed by reason of Defendants’ violation of FOIA.

Plaintiffs are being denied information to which they are statutorily entitled and that is important

to carrying out Plaintiffs’ functions as a non-partisan research and educational institution and

6
The same applies to each corresponding agencies regulations in relevant part.

29
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 30 of 36

publisher of news. Plaintiffs will continue to be irreparably harmed unless Defendants are

compelled to comply with the law.

169. Plaintiffs have no adequate remedy at law.

170. Plaintiffs have constructively exhausted their administrative remedies.

SECOND CLAIM FOR RELIEF

Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records

171. Plaintiffs re-allege the foregoing paragraphs as if fully set out herein.

172. FOIA requires all doubts to be resolved in favor of disclosure. “Transparency in

government operations is a priority of th[e Biden] . . . Administration.” Attorney General,

Memorandum for Heads of Executive Departments and Agencies: Freedom of Information Act

Guidelines, at 4 (Mar. 15, 2022).

173. Plaintiffs properly requested records within the possession, custody, or control of

Defendants.

174. Defendants are subject to FOIA, and therefore must release to a FOIA requester

any non-exempt records and provide a lawful reason for withholding any records.

175. Defendants are wrongfully withholding non-exempt records requested by Heritage

by failing to produce any records responsive to Plaintiffs’ FOIA Request.

176. Defendants are wrongfully withholding non-exempt agency records requested by

Plaintiffs by failing to segregate exempt information in otherwise non-exempt records responsive

to Plaintiffs’ FOIA Request.

177. Defendants’ failure to provide all non-exempt responsive records violates FOIA

and DOJ regulations.7

7
The same applies to each corresponding agency’s regulations in relevant part.

30
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 31 of 36

178. Plaintiffs have a statutory right to the information they seek.

179. Defendants are in violation of FOIA.

180. Plaintiffs are being irreparably harmed by reason of Defendant’s violation of FOIA.

Plaintiffs are being denied information to which they are statutorily entitled and that is important

to carrying out Plaintiffs’ functions as a non-partisan research and educational institution and

publisher of news. Plaintiffs will continue to be irreparably harmed unless Defendant is compelled

to comply with the law.

181. Plaintiffs have no adequate remedy at law.

182. Plaintiffs have constructively exhausted their administrative remedies.

THIRD CLAIM FOR RELIEF

Violation of FOIA, 5 U.S.C. § 552
Wrongful Denial of Fee Waiver

183. Plaintiffs re-allege the foregoing paragraphs as if fully set out herein.

184. FOIA requires all doubts to be resolved in favor of disclosure. “Transparency in

government operations is a priority of th[e Biden] . . . Administration.” Attorney General,

Memorandum for Heads of Executive Departments and Agencies: Freedom of Information Act

Guidelines, at 4 (Mar. 15, 2022).

185. Plaintiffs properly requested records within the possession, custody, or control of

Defendants.

186. Defendants have constructively denied Plaintiffs’ application for a fee waiver

pursuant to 5 U.S.C. § 552(a)(4)(A)(ii) & (iii) and 28 C.F.R. § 16.10(k).

187. The Request does not have a commercial purpose because Heritage is a 501(c)(3)

nonprofit, Howell acts in his capacity as a Heritage employee, and release of the information

sought does not further Plaintiffs’ commercial interest.

31
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 32 of 36

188. Plaintiffs are members of the news media as they “gather[] information of potential

interest to a segment of the public, use[] . . . [their] editorial skills to turn the raw materials into a

distinct work, and distribute[] that work to an audience” via the major news outlet, The Daily

Signal. 5 U.S.C. § 552(a)(4)(a)(ii).

189. Disclosure of the information sought by the Request also “is in the public interest

because it is likely to contribute significantly to public understanding of the operations or activities

of the government.” 5 U.S.C. § 552(a)(4)(A)(iii).

190. Defendants have “failed to comply with a[]time limit under paragraph (6)” as to the

Request. 5 U.S.C. § 552(a)(4)(A)(viii)(I).

191. Plaintiffs have a statutory right to a fee waiver.

192. Defendants are in violation of FOIA by denying a fee waiver.

193. Plaintiffs are being irreparably harmed by reason of Defendants’ violation of FOIA.

Plaintiffs are being denied a fee waiver to which they are statutorily entitled and that is important

to carrying out Plaintiffs’ functions as a non-partisan research and educational institution and

publisher of news. Plaintiffs will continue to be irreparably harmed unless Defendants are

compelled to comply with the law.

194. Plaintiffs have no adequate remedy at law.

195. Plaintiffs have constructively exhausted their administrative remedies.

FOURTH CLAIM FOR RELIEF

Violation of FOIA, 5 U.S.C. § 552
Statutory Bar Against Charging Fees

196. Plaintiffs re-allege the foregoing paragraphs as if fully set out herein.

197. FOIA requires all doubts to be resolved in favor of disclosure. “Transparency in

government operations is a priority of th[e Biden] . . . Administration.” Attorney General,

32
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 33 of 36

198. Memorandum for Heads of Executive Departments and Agencies: Freedom of

Information Act Guidelines, at 4 (Mar. 15, 2022).

199. Plaintiffs properly requested records within the possession, custody, or control of

Defendants.

200. The Request does not have a commercial purpose because Heritage is a 501(c)(3)

nonprofit, Mike Howell acts in his capacity as a Heritage employee, and release of the information

sought does not further Plaintiffs’ commercial interest.

201. Plaintiffs are members of the news media as they “gather[] information of potential

interest to a segment of the public, use[] . . . [their] editorial skills to turn the raw materials into a

distinct work, and distribute[] that work to an audience” via the major news outlet, The Daily

Signal. 5 U.S.C. § 552(a)(4)(a)(ii).

202. Disclosure of the information sought by the Request also “is in the public interest

because it is likely to contribute significantly to public understanding of the operations or activities

of the government.” 5 U.S.C. § 552(a)(4)(A)(iii).

203. Defendants have “failed to comply with a[]time limit under paragraph (6)” as to the

Request. 5 U.S.C. § 552(a)(4)(A)(viii)(I).

204. Defendants are currently statutorily barred from charging fees related to Plaintiffs’

FOIA Request. Therefore, Plaintiffs have a statutory right to have their request processed without

being charged any fees.

205. Plaintiffs are being irreparably harmed by reason of Defendant’s violation of FOIA.

Plaintiffs will continue to be irreparably harmed unless Defendant is compelled to comply with

the law.

33
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 34 of 36

206. Plaintiffs have no adequate remedy at law. Plaintiffs have constructively exhausted

their administrative remedies.

FIFTH CLAIM FOR RELIEF

Violation of FOIA, 5 U.S.C. § 552
Wrongful Denial of Expedited Processing

207. Plaintiffs re-allege the foregoing paragraphs as if fully set out herein.

208. FOIA requires all doubts to be resolved in favor of disclosure. “Transparency in

government operations is a priority of th[e Biden] . . . Administration.” Attorney General,

Memorandum for Heads of Executive Departments and Agencies: Freedom of Information Act

Guidelines, at 4 (Mar. 15, 2022).

209. Plaintiffs properly requested records within the possession, custody, or control of

all Defendants.

210. Plaintiffs properly asked that Defendants expedite the processing of Plaintiffs’

FOIA Request, based upon Plaintiffs’ showing that the Request concerns “[a] matter of widespread

and exceptional media interest in which there exist possible questions that affect public confidence

in the Government’s integrity that affect public confidence.” 28 C.F.R. § 16.5(e)(1)(iv).8

211. Defendant DOJ granted Plaintiffs’ Application for Expedited Processing on

February 26, 2024. See Ex. 7 at 1.

212. The remaining Defendants are in violation of FOIA.

213. Defendants have failed to actually expedite the Request by processing it “as soon

as possible.” Id. at 1.

214. Plaintiffs are being irreparably harmed by reason of Defendant’s violation of FOIA.

Plaintiffs are being denied information to which they are statutorily entitled to on an expedited

8
The same applies to each corresponding agency’s regulations in relevant part.

34
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 35 of 36

basis and that is important to carrying out Plaintiffs’ functions as a non-partisan research and

educational institution and publisher of news. Plaintiffs will continue to be irreparably harmed

unless Defendant is compelled to comply with the law.

215. Plaintiffs have no adequate remedy at law.

216. Plaintiffs have exhausted all required administrative remedies with respect to

Defendant’s failure to make a determination on Plaintiffs’ request for expedition.

WHEREFORE as a result of the foregoing, Plaintiffs pray that this Court:

A. Order Defendants to conduct a search or searches reasonably calculated to

uncover all records responsive to Plaintiffs’ FOIA Request;

B. Order Defendants to produce, within twenty days of the Court’s order, or by

such other date as the Court deems appropriate, any and all non-exempt records responsive to

Plaintiffs’ FOIA Request and indexes justifying the withholding of any responsive records

withheld in whole or in part under claim of exemption;

C. Enjoin Defendants from continuing to withhold any and all non-exempt

records responsive to Plaintiffs’ FOIA Requests;

D. Retain jurisdiction over this matter as appropriate;

E. Award Plaintiffs their costs and reasonable attorneys’ fees in this action as

provided by 5 U.S.C. § 522(a)(4)(E); and

F. Grant such other and further relief as this Court may deem just and proper.

35
 Case 1:24-cv-02526 Document 1 Filed 09/03/24 Page 36 of 36

Dated: September 3, 2024 Respectfully submitted,

/s/ Eric Neal Cornett

ERIC NEAL CORNETT
(No. 1660201)
Law Office of Eric Neal Cornett
Telephone: (606) 275-0978
Email: [email protected]

SAMUEL EVERETT DEWEY

(No. 999979)
Chambers of Samuel Everett Dewey, LLC
Telephone: (703) 261-4194
Email: [email protected]

DANIEL D. MAULER
(No. 977757)
The Heritage Foundation
Telephone: (202) 617-6975
Email: [email protected]

KYLE BROSNAN
(No. 90021475)
The Heritage Foundation
Telephone: (202) 608-6060
Email: [email protected]

MAX TAYLOR MATHEU

(No. 90019809)
Telephone: (727) 249-5254
Email: [email protected]

Counsel for Plaintiffs

36