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UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

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NOELLE LLAMAS and KEN KLIPPENSTEIN, :

Plaintiffs, :

- v. - : 6:20-cv-2264

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, :

U.S. CUSTOMS AND BORDER PROTECTION,
U.S. DEPARTMENT OF STATE, FEDERAL BUREAU OF :
INVESTIGATION, DEFENSE INTELLIGENCE AGENCY,
OFFICE OF INTELLIGENCE AND ANALYSIS, :
U.S. DEPARTMENT OF ENERGY, and CYBERSECURITY
AND INFRASTRUCTURE SECURITY AGENCY, :

Defendants. :

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COMPLAINT

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

the production of records from U.S. Immigration and Customs Enforcement, U.S. Customs

and Border Protection, U.S. Department of State, Federal Bureau of Investigation, Defense

Intelligence Agency, Office of Intelligence and Analysis, U.S. Department of Energy and

Cybersecurity and Infrastructure Security Agency related to finished intelligence products

possessed and/or produced by the agencies. Defendants have withheld these records despite

properly filed FOIA requests.

PARTIES

2. Defendants U.S. Immigration and Customs Enforcement (“ICE”), U.S. Customs and Border

Protection (“CBP”), U.S. Department of State (“STATE”), Federal Bureau of Investigation

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(“FBI”), Defense Intelligence Agency (“DIA”), Office of Intelligence and Analysis (“I&A”),

U.S. Department of Energy (“DOE”) and Cybersecurity and Infrastructure Security Agency

(“CISA”) are agencies of the United States with possession and control of the records sought

by Plaintiffs.

3. Plaintiff Noelle Llamas is a Florida resident who, as a student, has a permanent address of

32333 Okaloosa Trail, Sorrento, Florida 32776, and who also resides at 4420 Leola Lane,

Orlando, Florida 32812. Plaintiff Ken Klippenstein is the D.C. Correspondent for The Nation

magazine reporting on national security matters and the conduct of federal agencies; his work

has been referenced by The New York Times, The Washington Post, The Los Angeles

Times, The Atlantic and other major media outlets. Plaintiff Klippenstein’s work has also

been referenced by Congress.

4. Klippenstein intends to use the records to create a distinct work, educating the public about

the conduct of government agencies and the intelligence gathered and disseminated by these

agencies in the interests of national security. Klippenstein intends to disseminate this

information, which is of interest to a segment of the public, in the form of a news article.

JURISDICTION AND VENUE

5. This court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §

552(a)(4)(B).

6. Plaintiff Noelle Llamas’ residence is in the Middle District of Florida and therefore venue is

appropriate under 5 U.S.C. § 552(a)(4)(B).

FACTS

The FOIA Requests

7. Multiple government agencies comprise the Intelligence Community working both in

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coordination and independently to engage in intelligence activities in the interest of our

national security. All Defendants are agencies that focus on national security matters and

engage in such intelligence activities, and Defendants STATE, FBI, DIA, I&A, and DOE are

formal members of the Intelligence Community.

8. Defendants gather information from various sources as part of the intelligence cycle. The

information is processed by analysts into a manner suitable for production and dissemination

as a finished intelligence product, which is then assigned a descriptive title that allows the

reader to discern the general nature and content of the finished intelligence product.

9. There is a great deal of public interest in the activities of the Defendants related to keeping

the nation secure, and the titles of finished intelligence products are instructive with respect

to potential threats to national security, the relative intensity of these threats, and where

government resources are being allocated to respond to these threats.

10. Intelligence products’ titles provide significant insight about the nature of the intelligence

contained therein, which is crucial to the general public’s ability to discern threats to our

national security and the means and manner in which the federal government responds to

these threats. All of the Defendants are tasked safeguarding our national security and

generate intelligence products in order to do so.

11. The intelligence products’ titles provide significant insight about the nature of the

intelligence contained therein, which is critical to the general public’s ability to comprehend

how our national security agencies work together.

12. Both FOIA requests sought a media fee category based upon Plaintiff Klippenstein’s

employment and history of reporting on national security, and additionally sought a fee

waiver as disclosure of the information is in the public interest because it is likely to

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contribute significantly to public understanding of the operations or activities of the

government as mentioned above and is not primarily in the commercial interest of the

requesters.

13. The first FOIA request (“Request 1”) sought the following records:

I respectfully request titles of all intelligence products and corresponding metadata (e.g.
document date, control code/number, etc.) in whatever manner the titles and metadata
are stored by your agency: whether the manner is a catalog, list, table, chart, log or
some other manner, inclusive of all intelligence products generated by or for your
agency, transmitted to your agency, acquired by your agency from other agencies, or
otherwise in the possession of your agency regardless of whether your agency’s
possession was temporary or your agency was merely used as a pass-through of
intelligence products from one agency to another.

Please include all intelligence products that may be, but are not limited to, intelligence
enterprise products, threat assessments, significant incident reports, joint reports,
intelligence notes, intelligence bulletins, spotlights, situation reports, Guardian reports,
situational awareness reports, situational awareness bulletins, tactical intelligence
reports, briefs, after action reports, reports, summaries, etc.

You may limit your search to January 1, 2017 through October 7, 2020.

14. The second FOIA request (“Request 2”) sought the following records, along with

background information:

I respectfully request the titles of all intelligence products generated by or for your
agency. Please provide copies of each intelligence product’s title as it first appears in
the document. You may limit your search to titles for all intelligence products dated
from January 1, 2017 through October 13, 2020.

BACKGROUND

Please include in your search titles of all intelligence products transmitted to your
agency, acquired by your agency from other agencies, or otherwise in the possession of
your agency, regardless of whether your agency’s possession was temporary or your
agency was merely used as a pass-through of intelligence products from one agency to
another.

Please note that in an effort to facilitate the timely production of records, this request
does not seek raw or otherwise unfinished intelligence, nor even the general contents of
intelligence products. Rather, this request seeks only each intelligence product’s title as

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it first appears in the document. In the unlikely event that no such title exists or if the
title is not descriptive (e.g. “20-DHS-418”), please include a copy of the intelligence
product’s descriptive summary.

Intelligence products include, but are not limited to, intelligence enterprise products,
threat assessments, significant incident reports, joint reports, intelligence notes,
intelligence bulletins, spotlights, situation reports, Guardian reports, situational
awareness reports, situational awareness bulletins, tactical intelligence reports, briefs,
after action reports, reports, summaries, etc.

As part of the intelligence cycle, intelligence agencies routinely collect information or

data that form the basis of what is commonly called intelligence products. Information
is gathered from various sources, which include human intelligence (HUMINT), signals
intelligence (SIGINT), imagery intelligence (IMINT), measurement and signatures
intelligence (MASINT), geospatial intelligence (GEOINT), and open source
intelligence (OSINT), etc. The collected intelligence is processed by analysts into a
manner suitable for production into finished intelligence products that are then
disseminated within an agency or to other agencies. Intelligence products might be a
bulletin, a situational awareness report, a tactical intelligence report, a joint report, a
threat assessment, or some other similar document type. These intelligence products
typically have a “title” or short descriptive statement that summarizes the nature and
content of the finished intelligence product.

U.S. Immigration and Customs Enforcement (“ICE”) Requests and Constructive Denials

15. Request 1 was emailed as a PDF attachment to ICE on October 8, 2020. The email addresses

it was sent to are ice-foia@ice.dhs.gov and ICE-FOIA@dhs.gov.

16. Request 2 was emailed as a PDF attachment to ICE on October 15, 2020, to the same two

email addresses in the preceding paragraph.

17. On November 12, 2020, ICE acknowledged receipt of Request 1 on October 8, 2020,

invoked a 10 day extension, and provided tracking number 2021-ICFO-09676. The

acknowledgement did not specifically address the request for a fee waiver but stated there

may be duplication fees charged at a media rate as well as fees for search time.

18. On November 24, 2020, ICE acknowledged receipt of Request 2 on October 15, 2020,

invoked a 10 day extension, and provided tracking number 2021-ICFO-11724. The

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acknowledgement did not specifically address the request for a fee waiver but stated there

may be duplication fees charged at a media rate as well as fees for search time.

19. To date, Plaintiffs have received no further response from ICE related to Request 1 or

Request 2.

20. ICE has failed to provide - or formally deny - documents within twenty working days and the

invoked extension, and therefore has constructively denied Request 1 and Request 2 under 5

U.S. Code § 552(a)(6)(A)(i).

21. ICE is charged with the duty to provide public access to records in its possession consistent

with the requirements of the FOIA. ICE’s refusal to provide Plaintiffs with the records

requested or make a determination on Plaintiffs’ FOIA requests within 20 working days plus

the invoked extension of October 8, 2020, and October 15, 2020, is a violation of FOIA.

U.S. Customs and Border Protection (“CBP”) Requests and Constructive Denials

22. Request 1 was filed with CBP on October 8, 2020, via an online form, and a PDF of the

request was uploaded with the form.

23. On October 9, 2020, CBP acknowledged receipt of Request 1, assigned tracking number

CBP-2021-001761, and then additionally emailed stating the records were not reasonably

described.

24. On October 12, 2020, an amended request was submitted to CBP via an online form, and a

PDF of the amended request was submitted with the form. The amended request added a

background section that described the intelligence cycle, the various sources of intelligence,

that finished intelligence products have metadata such as titles, the date of the document and

a document or control code number, and clarified that the request does not seek collected

intelligence nor the finished intelligence products.

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25. Request 2 was filed with CBP on October 15, 2020, via an online form, and a PDF of the

request was uploaded with the form.

26. On October 15, 2020, CBP confirmed submission of Request 2 on October 15, 2020, and

provided tracking number CBP-2021-003748. The confirmation did not address the request

for fee waiver and merely recited the information contained in the form.

27. Also On October 15, 2020, CBP acknowledged receipt of the amended request on October

12, 2020, invoked a 10 day extension, and provided tracking number CBP-2021-002591.

The acknowledgement did not specifically address the request for a fee waiver but stated

there may be duplication fees charged at a media rate as well as fees for search time.

28. CBP emailed again on October 15, 2020, to change the tracking number of the amended

request from CBP-2021-002591 to CBP-OIIL-2021-002591.

29. To date, Plaintiffs have received no further response from CBP related to the amended

request or Request 2.

30. CBP has failed to provide - or formally deny - documents within twenty working days or

within the invoked extension for the amended request, and therefore has constructively

denied the amended request and Request 2 under 5 U.S. Code § 552(a)(6)(A)(i).

31. CBP is charged with the duty to provide public access to records in its possession consistent

with the requirements of the FOIA. CBP’s refusal to provide Plaintiffs with the records

requested or make a determination on Plaintiffs’ FOIA requests within 20 working days plus

the invoked extension of October 12, 2020, and October 15, 2020, is a violation of FOIA.

U.S. Department of State (“STATE”) Request and Constructive Denial

32. Request 2 was emailed as a PDF attachment to STATE’s Bureau of Intelligence and

Research bureau on October 15, 2020. The email address it was sent to is

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FOIARequest@state.gov.

33. To date, Plaintiffs have received no response from STATE related to Request 2.

34. STATE has failed to provide - or formally deny - documents within twenty working days and

therefore has constructively denied Request 2 under 5 U.S. Code § 552(a)(6)(A)(i).

35. STATE is charged with the duty to provide public access to records in its possession

consistent with the requirements of the FOIA. STATE’s refusal to provide Plaintiffs with the

records requested or make a determination on Plaintiffs’ FOIA request within 20 working

days of October 15, 2020, is a violation of FOIA.

Federal Bureau of Investigation (“FBI”) Requests and Constructive Denials

36. Request 1 was submitted as a PDF upload to the FBI on October 8, 2020 via the FBI’s online

portal.

37. Request 2 was submitted as a PDF upload to the FBI on October 15, 2020, also via the FBI’s

online portal.

38. On October 15, 2020, the FBI provided a letter on Request 1 assigning it FBI FOIPA Request

number NFP-124434. The letter stated the request was overly broad and did not “comport

with the requirements of 28 CFR §16.3(b),” as it does not provide enough detail to enable

personnel to locate records with a “reasonable amount of effort.” The letter provided an

administrative remedy to appeal to the Office of Information Policy (OIP).

39. An Appeal of NFP-124434 was filed with OIP on October 16, 2020, and OIP acknowledged

the appeal the same date and assigned it appeal number A-2021-00004.

40. On October 22, 2020, the FBI provided a letter on Request 2 assigning it FBI FOIPA Request

number NFP-124657. The letter stated the request was overly broad and did not “comport

with the requirements of 28 CFR §16.3(b),” as it does not provide enough detail to enable

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personnel to locate records with a “reasonable amount of effort.” The letter provided an

administrative remedy to appeal to the Office of Information Policy (OIP).

41. An Appeal of NFP-124657 was filed with OIP on October 23, 2020, and OIP acknowledged

the appeal the same date and assigned it appeal number A-2021-00111.

42. To date, Plaintiffs have received no further response from the FBI or OIP related to Request

1 or Request 2 and the subsequent appeals for both requests.

43. The FBI and OIP have failed to provide documents within twenty working days of the

appeals, and therefore has constructively denied the appeals of Request 1 and Request 2

under 5 U.S. Code § 552(a)(6)(A)(ii).

44. The FBI is charged with the duty to provide public access to records in its possession

consistent with the requirements of the FOIA. FBI’s refusal to provide Plaintiffs with the

records requested and OIP’s failure to make a determination on Plaintiffs’ appeals within 20

working days of October 16, 2020, and October 23, 2020, is a violation of FOIA.

Defense Intelligence Agency (“DIA”) Requests and Constructive Denials

45. Request 1 was emailed as a PDF attachment to DIA on October 8, 2020. The email address

it was sent to is Brittley.Timmons@dodiis.mil.

46. Request 2 was emailed as a PDF attachment to DIA on October 15, 2020, to the same email

address in the preceding paragraph.

47. To date, Plaintiffs have received no response from DIA related to Request 1 or Request 2.

48. DIA has failed to provide - or formally deny - documents within twenty working days and

therefore has constructively denied Request 1 and Request 2 under 5 U.S. Code §

552(a)(6)(A)(i).

49. DIA is charged with the duty to provide public access to records in its possession consistent

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with the requirements of the FOIA. DIA’s refusal to provide Plaintiffs with the records

requested or make a determination on Plaintiffs’ FOIA requests within 20 working days of

October 8, 2020, and October 15, 2020, is a violation of FOIA.

Office of Intelligence and Analysis (“I&A”) Requests and Constructive Denials

50. Request 1 was emailed as a PDF attachment to I&A on October 8, 2020. The email address

it was sent to is I&AFOIA@hq.dhs.gov.

51. Request 2 was emailed as a PDF attachment to I&A on October 15, 2020, to the same email

address in the preceding paragraph.

52. To date, Plaintiffs have received no response from I&A related to Request 1 or Request 2.

53. I&A has failed to provide - or formally deny - documents within twenty working days and

therefore has constructively denied Request 1 and Request 2 under 5 U.S. Code §

552(a)(6)(A)(i).

54. I&A is charged with the duty to provide public access to records in its possession consistent

with the requirements of the FOIA. I&A’s refusal to provide Plaintiffs with the records

requested or make a determination on Plaintiffs’ FOIA requests within 20 working days of

October 8, 2020, and October 15, 2020, is a violation of FOIA.

U.S. Department of Energy (“DOE”) Requests and Constructive Denials

55. Request 1 was emailed as a PDF attachment to DOE on October 8, 2020. The email address

it was sent to is FOIA-Central@hq.doe.gov.

56. On October 13, 2020, DOE acknowledged receipt of Request 1 on October 8, 2020, and

assigned it control number HQ-2021-00048-F. DOE’s acknowledgment stated it was

reviewing the request to determine if it addresses all the requirements of a proper request and

a subsequent letter would be sent if additional information is needed or to state where the

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response has been assigned to conduct a search for responsive documents.

57. Additionally on October 13, 2020, DOE emailed seeking information as to a particular

program office at DOE that should be searched for responsive records. Plaintiff Klippenstein

responded that same date, informing DOE to search DOE’s Office of Intelligence and

Counterintelligence.

58. Request 2 was emailed as a PDF attachment to DOE’s Office of Intelligence and

Counterintelligence on October 15, 2020, to the same email address in paragraph 55.

59. On October 15, 2020, DOE emailed Plaintiff Klippenstein requesting time to speak via phone

on October 16, 2020, regarding Request 1.

60. On October 16, 2020, DOE emailed again regarding Request 1, noting the specific program

office to be searched and stating Request 1 is still too broad due to a 3 year time period and

asking for a specific incident or DOE employee name or private company name or email to

search.

61. That same date, Plaintiff Klippenstein attempted to contact DOE via phone and the call went

to voicemail. In lieu of leaving a voicemail, Plaintiff Klippenstein replied to DOE’s October

16, 2020 email stating the request is not too broad and provided a screenshot of a log from a

fusion center in Florida as an example of the records requested, to show what titles of

intelligence products and corresponding metadata may look like if stored as a log by DOE.

62. To date, Plaintiffs have received no further response from DOE related to Request 1 and have

never received a response related to Request 2.

63. DOE has failed to provide - or formally deny - documents within twenty working days and

therefore has constructively denied Request 1 and Request 2 under 5 U.S. Code §

552(a)(6)(A)(i).

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64. DOE is charged with the duty to provide public access to records in its possession consistent

with the requirements of the FOIA. DOE’s refusal to provide Plaintiffs with the records

requested or make a determination on Plaintiffs’ FOIA requests within 20 working days of

October 8, 2020, and October 15, 2020, is a violation of FOIA.

Cybersecurity and Infrastructure Security Agency (“CISA”) Requests and Constructive Denials

65. Request 1 was emailed as a PDF attachment to CISA on October 8, 2020. The email address

it was sent to is foia@hq.dhs.gov.

66. On October 8, 2020, CISA acknowledged receipt of Request 1, assigned tracking number

2021-HQFO-00039, and stated the request was too broad in scope or did not specifically

identify the records sought.

67. On October 12, 2020, an amended request was emailed as a PDF attachment to CISA via the

email address in paragraph 65. The amended request added a background section that

described the intelligence cycle, the various sources of intelligence, that finished intelligence

products have metadata such as titles, the date of the document and a document or control

code number, and clarified that the request does not seek collected intelligence nor the

finished intelligence products.

68. Request 2 was emailed as a PDF attachment to CISA on October 15, 2020. The email address

it was sent to is the same as in paragraph 65.

69. To date, Plaintiffs have received no further response from CISA related to the amended

request and have received no response related to Request 2.

70. CISA has failed to provide - or formally deny - documents within twenty working days and

therefore has constructively denied the amended request and Request 2 under 5 U.S. Code §

552(a)(6)(A)(i).

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71. CISA is charged with the duty to provide public access to records in its possession consistent

with the requirements of the FOIA. CISA’s refusal to provide Plaintiffs with the records

requested or make a determination on Plaintiffs’ FOIA requests within 20 working days of

October 12, 2020, and October 15, 2020, is a violation of FOIA.

CAUSE OF ACTION

Violation of the Freedom of Information Act for Wrongful Withholding of Agency Records

72. Plaintiffs repeat and reallege paragraphs 1-71.

73. Defendants have wrongfully withheld agency records requested by Plaintiffs.

74. Plaintiffs have exhausted all administrative remedies.

REQUESTED RELIEF

WHEREFORE, Plaintiffs request this Court:

(A) Order Defendants to provide access to the requested documents in their entirety;

(B) Expedite this proceeding as provided for in 28 U.S.C. § 1657;

(C) Award Plaintiffs costs and reasonable attorney fees in this action, as provided in 5

U.S.C. § 552(a)(4)(E); and

(D) Grant such other and further relief as the Court may deem just and proper.

Dated: December 13, 2020.

By:
_____________________________

Elizabeth E. Bourdon, B.C.S.

Florida Bar No. 946591
435 N. Orange Ave., Suite 400
Orlando, FL 32801
(407) 797-1012
bbourdon@me.com
Pro Bono Counsel for Plaintiffs
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