Case 1:15-cv-00996 Document 1 Filed 06/24/15 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CAUSE OF ACTION INSTITUTE
1919 Pennsylvania Avenue, NW, Suite 650
Washington, DC 20006,

)
)
)
)
Plaintiff,
)
)
v.
)
)
EXPORT-IMPORT BANK OF THE
)
UNITED STATES
)
811 Vermont Avenue, NW
)
Washington, DC 20571,
)
)
and
)
)
NATIONAL ARCHIVES AND RECORDS
)
ADMINISTRATION
)
8601 Adelphi Road
)
College Park, MD 20740,
)
)
Defendants.
)
__________________________________________ )
COMPLAINT
This is an action seeking a judicial declaration that the Export-Import Bank of the United
States (“Ex-Im Bank”) engaged in the unlawful destruction of federal records based on Ex-Im
Bank notifying plaintiff Cause of Action Institute (“Cause of Action”), more than four months
after the destruction took place, that its Senior Vice President and Chief of Staff deleted text
messages properly requested by Cause of Action. In addition, Cause of Action seeks a judicial
order forcing Ex-Im Bank and the National Archives and Records Administration (“NARA”;
collectively, with Ex-Im Bank, “Defendants”) to comply with federal law (the Federal Records
Act, 44 U.S.C. §§ 2101, et seq., 2901, et seq., 3101, et seq., 3301, et seq. (the “FRA”)), by

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providing notice to the Attorney General and/or Congress for the initiation of action to recover
the deleted records.
NATURE OF ACTION
1.

The FRA prohibits the unauthorized destruction of federal records.

2.

Emails and text messages of government employees are federal records subject to

the FRA and, therefore, must be properly preserved.
3.

Given the rampant use of electronic communications by government employees

(e.g., emails and text messages), it is no surprise that Congress has expressed concern with the
destruction of any such records:
Transparency and accountability are critical to a functioning
democracy. We have worked together for years to improve the Freedom
of Information Act (FOIA) with the goal of making our government more
open and transparent. . . . In an era when critically important government
activities and decisions are conducted via email, a plan to delete the
majority of emails at any agency should raise great concern.
See Letter from Patrick Leahy, U.S. Senator, and John Cornyn, U.S. Senator, to David Ferriero,
Archivist of the United States (Dec. 1, 2014) (emphasis added), available at
http://www.leahy.senate.gov/press/leahy-and-cornyn-press-for-cia-to-retain-email-records.
4.

In part due to this concern, Cause of Action has been conducting an investigation

into whether federal agencies comply with their obligation to preserve text messages for a period
of time. As a part of this investigation, Cause of Action lawfully requested that Ex-Im Bank
produce the text message records of five high-ranking agency officials for a one week period in
which text messaging likely would have been used to conduct agency business (November 2-8,
2014, or election week).

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5.

Six weeks after receiving Cause of Action’s request for these records, Scott P.

Schloegel, Senior Vice President and Chief of Staff of Ex-Im Bank, deleted his text messages.
Ex-Im Bank waited another four and one-half months to notify Cause of Action about this
deletion.
6.

To date, however, no action has been taken to attempt to recover the records, or

otherwise cause the Attorney General or Congress to investigate this matter, despite Defendants’
obligations to do so.
7.

An order directing Defendants to notify the Attorney General and/or Congress for

the initiation of action to recover the deleted federal records should issue.
JURISDICTION AND VENUE
8.

This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 701, et

9.

The Court has authority to grant declaratory relief pursuant to the Declaratory

seq.

Judgment Act, 28 U.S.C. §§ 2201 and 2202.
10.

Venue is proper in this district pursuant to 28 U.S.C. § 1391(e).

11.

Cause of Action has standing because it has been injured by the deletion of the

records sought. Due to Ex-Im Bank’s deletion of the aforementioned records and Defendants’
failure to comply with the FRA’s non-discretionary enforcement scheme, Cause of Action
cannot obtain access to records it is entitled to have under the law. Also, an order from this
Court likely will redress Cause of Action’s injury. Finally, Cause of Action falls within the
FRA’s zone of interests because it engages in research and makes extensive use of government
records.

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PARTIES
12.

Cause of Action is a non-profit government accountability organization

committed to ensuring that the regulatory process is transparent, fair, and accountable. In
furtherance of its mission, Cause of Action regularly requests access to the public records of
federal agencies, entities, and offices, and disseminates its research, findings, analysis, and
commentary to the general public.
13.

Ex-Im Bank is a federal agency within the meaning of 5 U.S.C. § 551(1).

14.

NARA is a federal agency within the meaning of 5 U.S.C. § 551(1). Headed by

the Archivist of the United States, NARA generally is responsible for enforcing the FRA and
issues government-wide guidance and directives. 44 U.S.C. §§ 2904(a), 3105, 3106.
FACTS
A.

Cause of Action’s FOIA Request to Ex-Im Bank.
15.

On November 14, 2014, Cause of Action submitted a FOIA request to Ex-Im

Bank, seeking access to all “text messages, Blackberry messenger chat, and SMS messages” sent
or received by the following five agency officials and/or the person currently holding that
position from November 2, 2014 through November 8, 2014:






Fred P. Hochberg, Chairman and President;
Scott P. Schloegel, Senior Vice President and Chief of Staff;
Bradley Carroll, Senior Vice President, Communications;
Erin Gulick, Senior Vice President, Congressional Affairs; and
Gaurab Bansal, Deputy Chief of Staff.

See Exhibit 1 (the “FOIA Request”).
16.

By letter dated November 21, 2014, Ex-Im Bank acknowledged that it received

the FOIA Request via U.S. Certified Mail on November 20, 2014. See Exhibit 2.

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17.

Approximately six months later, on May 12, 2015, Ex-Im Bank responded to the

FOIA Request. See Exhibit 3 (“Ex-Im Bank’s FOIA Response”), with Declaration of Scott
Schloegel (the “Schloegel Declaration”) and 3-page production of documents (converted from
Excel files to .pdf).
18.

On June 11, 2015, Cause of Action filed a timely appeal of Ex-Im Bank’s FOIA

Response, challenging the adequacy of the agency’s search. That appeal is pending.
B.

The Unlawful Destruction of Federal Records at Ex-Im Bank.
19.

In relevant part, Ex-IM Bank’s FOIA Response states that “the messages for Scott

P. Schloegel were accidentally deleted on approximately January 1, 2015.” See Ex. 3 at 1.
20.

To this end, attached to Ex-Im Bank’s FOIA Response is an executed Declaration

from Mr. Schloegel dated March 27, 2015. See id., Schloegel Decl.
21.

Mr. Schloegel (Senior Vice President and Chief of Staff of Ex-Im Bank) admits

that on or about January 1, 2015, six weeks after Ex-Im Bank received the FOIA Request, he
deleted the messages on his agency-issued mobile telephone for at least the requested time
period. See id.
22.

Ex-Im Bank’s FOIA Response includes text message records for two of the

requested individuals, including Fred. P. Hochberg (Chairman and President). See id., charts
produced by Ex-Im Bank. The first entry in the charts reflects a text message from Mr.
Schloegel to Mr. Hochberg on November 4, 2014 at 8:06 a.m., thus confirming that Mr.
Schloegel did in fact send/receive text messages, which, according to Ex-Im Bank, since have
been disposed. See id.

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COUNT I
(Ex-Im Bank)
Declaratory Relief: Ex-Im Bank Engaged in the Unlawful Destruction of Federal Records
23.

Cause of Action hereby incorporates by reference paragraphs 1 through 22, as if

set forth fully herein.
24.

Ex-Im Bank received the FOIA Request on November 20, 2014.

25.

Accordingly, Ex-Im Bank was under a duty to preserve responsive records,

including Mr. Schloegel’s text messages. 5 U.S.C. § 552; c.f. Ashland Oil v. Fed. Trade
Comm’n, 548 F.2d 977, 980-81 (D.C. Cir. 1976).
26.

Records produced by Ex-Im Bank indicate that Mr. Schloegel did in fact

send/receive text messages responsive to the FOIA Request.
27.

Ex-Im Bank admits that its Senior Vice President and Chief of Staff deleted these

responsive records (and potentially others) on or about January 1, 2015, approximately six weeks
after receipt of the FOIA Request.
28.

Accordingly, Ex-Im Bank wrongly engaged in the unlawful destruction of federal

records. See 36 C.F.R. § 1230.3(b) (defining “[u]nlawful or accidental destruction (also called
unauthorized destruction)” of a record as “disposal of a record subject to a FOIA request,
litigation hold, or any other hold requirement to retain the records”).
COUNT II
(Ex-Im Bank and NARA)
APA: Failure to Comply with FRA’s Non-Discretionary Enforcement Scheme
29.

Cause of Action hereby incorporates by reference paragraphs 1 through 28, as if

set forth fully herein.
30.

The FRA, in relevant part, provides:

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(a) Federal agency notification.--The head of each Federal agency shall
notify the Archivist of any actual, impending, or threatened unlawful
removal, defacing, alteration, corruption, deletion, erasure, or other
destruction of records in the custody of the agency, and with the assistance
of the Archivist shall initiate action through the Attorney General for the
recovery of records the head of the Federal agency knows or has reason to
believe have been unlawfully removed from that agency, or from another
Federal agency whose records have been transferred to the legal custody
of that Federal agency.
(b) Archivist notification.--In any case in which the head of a Federal
agency does not initiate an action for such recovery or other redress within
a reasonable period of time after being notified of any such unlawful
action described in subsection (a), or is participating in, or believed to be
participating in any such unlawful action, the Archivist shall request the
Attorney General to initiate such an action, and shall notify the Congress
when such a request has been made.
44 U.S.C. § 3106.
31.

Records produced by Ex-Im Bank indicate that Mr. Schloegel did in fact

send/receive text messages responsive to the FOIA Request.
32.

Ex-Im Bank and Mr. Schloegel admit that these and other text messages have

been deleted.
33.

Upon information and belief, to date (nearly six months after the unlawful

destruction of federal records) no action has been initiated by the Attorney General at the behest
of Ex-Im Bank and/or NARA for the recovery of these records.
34.

Upon information and belief, to date (nearly six months after the unlawful

destruction of federal records) the Attorney General has not been requested to initiate any action
for the recovery of these records, nor has Congress been notified of any such request.
35.

Thus, Defendants have failed to comply with their non-discretionary obligations

under the FRA.

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36.

Under the Administrative Procedure Act, 5 U.S.C. § 706 (the “APA”), then,

Defendants should be ordered to immediately notify and initiate action through the Attorney
General and Congress for the recovery of such records.
RELIEF REQUESTED
WHEREFORE, Cause of Action respectfully requests that this Court:
a.

Declare that Ex-Im Bank engaged in the unlawful destruction of federal records;

b.

Order Defendants to notify and initiate action through the Attorney General and
Congress for the recovery of records;

c.

Award Cause of Action its costs and reasonable attorney fees incurred in this
action; and,

d.

Grant such other relief as the Court may deem just and proper. 

Dated: June 24, 2015

Respectfully submitted,
/s/ Daniel Z. Epstein
Daniel Z. Epstein
D.C. Bar No. 1009132
daniel.epstein@causeofaction.org
/s/ Prashant K. Khetan
Prashant K. Khetan
D.C. Bar No. 477636
prashant.khetan@causeofaction.org
/s/ Aram A. Gavoor
Aram A. Gavoor
D.C. Bar No. 1023440
aram.gavoor@causeofaction.org
CAUSE OF ACTION INSTITUTE
1919 Pennsylvania Ave., NW, Suite 650
Washington, DC 20006
Telephone: (202) 499-4232
Facsimile: (202) 330-5842
Counsel for Plaintiff

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