AFL v. Kerner

Case Number: 1:22-cv-03576 D.D.C.


AFL requested through FOIA that the Department of Justice’s (DOJ) Civil Division provide all email communications between its employees and the Legal Director at the American Civil Liberties Union, David Cole. DOJ refused to even conduct a search in response to the request, claiming that the search would be too burdensome because DOJ would have to get the consent from each of its employees in the Civil Division before searching their email accounts. Essentially, DOJ decided that each individual employee should get to have a veto over whether DOJ would respond to the FOIA request.


Federal law requires that the Office of Special Counsel “shall” investigate “any allegation” concerning arbitrary or capricious withholding of information under FOIA. Recognizing DOJ’s policy as the blatant violation of FOIA that it is, AFL filed a complaint with the Office of Special Counsel to request that they investigate the DOJ FOIA office. The Special Counsel refused, erroneously citing a lack of authority, so AFL sued OSC in federal court to compel them to fulfill their duty. AFL has sued and filed a Motion for Summary Judgment, asking the court to require the Office of Special Counsel to comply with its duties under the law.


AFL obtained a partial win at the district court level, but is appealing the decision to the Court of Appeals for the D.C. Circuit to obtain a full victory.

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