The Trump administration is refusing to provide tens of thousands of documents related to newly-announced Supreme Court nominee Brett Kavanaugh. In turn, lawsuits have now been filed.
On September 5, 2017, non-partisan legal watchdog group Fix the Court submitted a Freedom of Information Act request to the Department of Justice for all “correspondence sent by the Assistant Attorney General in charge of the Office of Legal Counsel and his or her primary deputy to Brett M. Kavanaugh and all correspondence sent by Brett M. Kavanaugh to the Assistant Attorney General in charge of the Office of Legal Counsel and his or her primary deputy from January 20, 2001, to May 30, 2006.”
In other words, the group requested all correspondence directly involving Kavanaugh while he worked for the George W. Bush administration from 2001-2006. To date, Fix the Court has yet receive any substantive response from DOJ about those requests. Instead, the agency has repeatedly stated that the Kavanaugh document requests are “in the queue.”
On April 4, 2018, Fix the Court submitted an additional FOIA request to the National Archives and Records Administration for all “ Complaints regarding Mr. Kavanaugh received from within the [Office of Independent Counsel (OIC)] Department of Justice or from members of the public;  Digital (e-mail), print or other correspondence and attachments involving Mr. Kavanaugh, including instances where he is merely carbon copied (CC’d);  Performance reviews of Mr. Kavanaugh and [his] service with the OIC or Department of Justice; and  Warnings or reprimands issued regarding Mr. Kavanaugh and [his] service with the OIC or Department of Justice.”
That is, Fix the Court requested all documents related to Kavanaugh during his time working with former independent counsel Kenneth Starr. In response, NARA notified Fix the Court that they had roughly 20,000 such documents in their possession but claimed that reproducing such documents would take anywhere from “approximately 22 months” to five years or more.
Under current FOIA laws, agencies are required to timely and substantively respond to requests and are legally bound to comply with such requests under specific timelines contained in federal statutes. Fix the Court’s lawsuits contend that both agencies failed to abide by those timelines and to conduct adequate document searches and are therefore wrongfully withholding information about Kavanaugh’s lengthy time in government.
On Tuesday morning, Fix the Court, along with co-plaintiffs American Oversight, filed a lawsuit against each agency with the U.S. District Court for the District of Columbia. In a press release announcing the lawsuits, Fix the Court’s Executive Director Gabe Roth said:
As we learned with the Gorsuch nomination, federal agencies seem determined to make it as difficult as possible to obtain public records from judicial nominees. With heightened interest in Judge Kavanaugh’s eventful time in government, the National Archives and the Justice Department should seek to resolve these complaints quickly and release the documents so the American public and their representatives in the Senate can make a more informed judgment ahead of a confirmation vote.
In their filings, Fix the Court alleges the DOJ and NARA unlawfully failed to adequately respond to their prior FOIA requests. Citing the FOIA statute–located at 5 U.S.C. § 552(a)(6)–Fix the Court specifically alleges that DOJ and NARA violated the aforementioned statutory timelines imposed on federal agencies under FOIA laws and therefore argue that the group is entitled to an injunction barring the agencies from continuing to frustrate the nation’s FOIA regime.
In alleging the above violations, Fix the Court is seeking a court order that would force the Department of Justice and the National Archives and Records Administration to fully respond to the group’s records requests. Fix the Court is also seeking injunctive relief ordering the DOJ and NARA to process and release the requested records within twenty days and in their entirety.
[image via MANDEL NGAN/AFP/Getty Images]