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Lambda Legal, Windy City Times file FOIA request on Kavanaugh's records
2018-08-30

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Lambda Legal and Windy City Times have filed a Freedom of Information Act ( FOIA ) request with the U.S. Office of Special Counsel in Washington, D.C. for records relating to Supreme Court nominee Brett Kavanaugh and LGBTQ issues.

The FOIA requests the following to be produced within 20 business days and seeks expedited review of this request for the reasons identified below:

"All records reflecting communications ( including emails, email attachments, text messages, instant messages ( such as AOL Instant Messenger ), telephone call logs, calendar invitations/entries, meeting notices, meeting agendas, informational material, draft legislation, talking points, any handwritten or electronic notes taken during any oral communications, summaries of any oral communications, or other materials ) regarding the termination or reassignment of OSC employees from the Washington D.C. office to the Detroit, Michigan office or other office locations based solely or partly because of their sexual orientation or gender identity, or interpretations of language extending or revoking employment protections for LGBT employees generally between Brett Kavanaugh and former Special Counsel Scott Bloch or former Deputy Special Counsel James Renne."

The search should include all locations likely to yield responsive records but should, at a minimum, include the following search terms: Trefry, Clay, Homosexual, "sexual orientation", "ship out", license. The letter additionally stated: "You should institute a preservation hold on information responsive to this request. Lambda Legal and Windy City Times intend to pursue all legal avenues to enforce its right of access under FOIA, including litigation if necessary. Accordingly, OSC is on notice that litigation is reasonably foreseeable. ...

"While judicial opinions reflecting Judge Kavanaugh's tenure as a federal judge are readily available, equally important records reflecting his credentials and conduct prior to his appointment to the federal bench are not. In particular, Judge Kavanaugh served as President George W. Bush's staff secretary from 2003—2006, a role in which he would have had access to 'nearly every document that reached the Oval Office' during that timeframe. But Senate Judiciary Committee Chairman Chuck Grassley, over objections from Senate Democrats, has refused to request documents from Judge Kavanaugh's tenure as staff secretary, claiming such records would provide little insight into Judge Kavanaugh's fitness to join the Supreme Court. However, as Senator Sheldon Whitehouse has pointed out, 'Judge Kavanaugh said himself his time as President Bush's Staff Secretary was "in many ways among the most instructive" for his career as a judge.' Certainly, to the extent any records from this time period reflect Judge Kavanaugh's views and advice to President Bush on any number of important and contentious issues, they are highly relevant to the confirmation process. ...

"Given their focus on issues affecting and of interest to the LGBTQ community, Lambda Legal and Windy City Times request records from Judge Kavanaugh's tenure in the White House that bear on LGBTQ issues, which he would be likely to encounter in cases before the Supreme Court. For instance, during his 2004 reelection campaign, President Bush advocated for a constitutional amendment banning gay marriage. As another example, less than a year after Judge Kavanaugh's tenure as staff secretary ended, a bill colloquially known as the Matthew Shepard Act, a revived version of LGBTQ hate crime legislation that had been in the works for years, was introduced as a bipartisan bill. Despite versions of the bill passing in both the House and the Senate, President Bush indicated he would veto the legislation. Most relevant to this request, leaders of OSC during the Bush Administration were implicated in an effort to purge LGBTQ employees by reassigning them to a distant office. ...

"Judge Kavanaugh's views and advice concerning these issues have direct relevance to the public's understanding of his prospective treatment of similar issues likely to come before the Court in coming years. Justice Kennedy, whose seat Judge Kavanaugh has been nominated to fill, has been the author of and/or deciding voice in a number of crucial decisions advancing and defending LGBTQ rights. Judge Kavanaugh's record, in contrast, has been criticized ( by Lambda Legal and others ) as hostile to LGBTQ and other civil rights. Therefore, the requested records are vitally important to provide a robust picture of Judge Kavanaugh's positions on cases implicating LGBTQ issues that he is likely to encounter as a Supreme Court Justice."

"Since Donald Trump and Senate Republicans refuse disclose Judge Kavanaugh's involvement with Bush-era scandals like the reassignment and termination of LGBT workers at the Office of Special Counsel during the time that Kavanaugh served as Staff Secretary in the Bush White House, we have taken matters into our own hands and have filed a FOIA request to learn the full scope of his involvement," said Sasha J. Buchert, staff attorney at Lambda Legal. "From what little we know about this notorious purge of LGBT workers, it is evident that senior members of the Bush White House—and likely Brett Kavanaugh—were at the center of the scandal. LGBT people, and all Americans, deserve to fully understand the views and positions taken by a lifetime nominee to the federal bench and Lambda Legal will continue to fight for that transparency."

The full FOIA request is available here: www.windycitymediagroup.com/pdf/LambdaLegalECTOSCRequest8.30.18.pdf .


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