On October 2, 2017, the Brennan Center for Justice at New York University School of Law brought this suit in the U.S. District Court for the Southern District of New York. Represented by Muslim Advocates and private counsel, the Brennan Center sued the Department of State (DOS) under the Freedom of Information Act (FOIA).

The Brennan Center is an organization with a mission "to advance effective national security policies that respect the rule of law and constitutional values." They sought information about President Trump's September 24, 2017 Proclamation restricting entry of persons into the United States from six Muslim-majority countries (and two non-Muslim majority countries), including those with bona-fide relationships with U.S. citizens and lawful permanent residents. (More detail is in the Hawaii litigation.)

The Proclamation stated that it had emerged from a provision of Executive Order 13780 of March 6, 2017, which directed the Secretary of the Department of Homeland Security (DHS), in consultation with the Secretary of State and the Director of National Intelligence, to "identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat." The Proclamation specified that the DHS Secretary had submitted this information to President Trump on July 9 and September 15, 2017.

The complaint arose from the Brennan Center's July 20, 2017 FOIA request to the State Department seeking copies of certain records relating to the worldwide review process mandated by Executive Order 13780 and the Trump Administration's "extreme vetting practices." In the complaint, the Brennan Center claimed that, to date, they had not received a substantive response from DOS.

In the complaint, the Brennan Center sought:
1. The report that the DHS Secretary submitted to President Trump on July 9, 2017, referred to in Section 1(c) of the Proclamation;
2. The report that the DHS Secretary submitted to President Trump on Sept. 15, 2017, referred to in Section 1(h) of the Proclamation;
3. If not included in the above items (1) and (2), the final reports that the DHS Secretary submitted to President Trump on each of the eight countries identified in Section 2 of the Proclamation, i.e., Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia; and
4. If not included in the above items (1) and (2), the final reports that the DHS Secretary submitted to President Trump on the 16 countries that the Secretary identified as "inadequate," referred to in Section 1(e) of the Proclamation, to the extent that they were not included in the list of seven countries in Section 1(h)(ii) of the Proclamation.

They sought a disclosure order under FOIA, legal fees, and expedited action, because the Proclamation contained portions that had already gone into effect immediately and others that would go into effect on October 18, 2017. They also wanted to secure the requested documents so that it and the public could become more informed about and evaluate the Proclamation for unconstitutionality.

On October 3, 2017, the case was assigned to Judge John G. Koeltl and designated to Magistrate Judge Kevin Nathaniel Fox. The case was then reassigned to Judge Paul G. Gardephe on October 17, 2017.

On December 21, 2017, both parties filed a series of motions. The Brennan Center moved to expedite the case and claimed that DOS had not properly informed them whether it would grant or deny the FOIA request. They argued that expedition was proper because of the public interest in the topic. DOS opposed the motion to expedite, arguing that it had already produced six responsive records and referred the request to DHS, which needed time to process records containing classified information. The Brennan Center replied, asking for production of the six responsive records within 21 days.

The Court held a pretrial conference on January 4, 2018 and followed with a January 10 order, compelling DOS to produce all non-exempt materials and an explanation of exemptions by February 9, 2018. 300 F. Supp. 3d 540. Judge Gardephe wrote that the Brennan Center had shown that its FOIA request merited expedited treatment, given the strong public interest in the subject and the time that had already passed since the initial FOIA request.

On March 15, 2018 the Brennan Center moved to compel DOS's compliance with the Jan. 10 order, but the government moved to oppose. On April 16, 2018, Judge Gardephe denied the motion, finding it premature to assess DOS's index, and instead set a briefing schedule for summary judgment, to be completed by July 22, 2018.

On June 29, 2018, Judge Gardephe granted the parties' joint motion for a time extension on their cross-briefing for summary judgment. On August 2, 2018, DOS filed their summary judgment motion, arguing that the government had adequately searched responsive records and properly withheld certain records exempt from FOIA. On the same date, the Brennan Center filed their summary judgment motion and reply in opposition to the government's summary judgment motion. They argued that the government overstated the breadth of the Presidential-Communication Privilege and failed to show that its records search was adequate. In support of these requests, they submitted a memorandum of undisputed facts regarding President Trump's history of statements against Muslims, the histories of the three travel bans, and an unclassified cable that was sent to consular posts in 191 countries detailing the implementation of the second travel ban.

Judge Gardephe granted the plaintiffs' motion for partial summary judgment to the extent it requested that the court order in camera review of the requested records to determine the applicability of the presidential communication privilege. The remainder of the plaintiffs' motion was denied without prejudice, pending the court's in camera review. 2019 WL 10984173. Defendant's motion for summary judgment was denied without prejudice to renewal of the motion following the court's in camera review. The order also required the defendants to provide the court with copies of the five documents in question by April 8, 2019. They were later granted an extension of time to file and filed the documents on April 15, 2019.

The Court continued to review the documents in camera to determine if and to what documents the presidential communications privilege applied. On July 30, 2020, the plaintiffs requested that the Court act expeditiously and proceed with the case as soon as possible. The plaintiffs reiterated that FOIA cases were entitled to expedition by statute and that the subject matter of this FOIA request was of great public interest. As of February 24, 2021, there was no response to plaintiffs’ request. This case is ongoing.

Ava Morgenstern - 04/20/2018
Veronica Portillo Heap - 11/11/2018
Alex Moody - 05/20/2020
Emily Kempa - 02/24/2021


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