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1 Complaint Against United States Small Business Administratio (No. 1:23-cv-09946)

Summary

A Freedom of Information Act complaint filed November 9, 2023, by Insider, Inc., Katherine Long and John Newsham against the U.S. Small Business Administration in the U.S. District Court for the Southern District of New York, Case 1:23-cv-09946-DEH. It describes a First Request and a Second Request for Shuttered Venue Operators Grant records on named touring companies, SBA-2023-003111 of June 22, 2023 and SBA-2023-003577 of August 7, 2023, which the SBA answered by withholding records under Exemption 4 and, for drug-free workplace certifications, Exemption 6. The complaint states that the SBA did not decide the plaintiffs' administrative appeals. It asks the court to declare the records non-exempt and order their release within twenty business days. The signature block names Bix Bettwy and Maryanne Stanganelli of Insider, Inc.

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“1 Complaint Against United States Small Business Administratio (No. 1:23-cv-09946).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/1-complaint-against-united-states-small-business-administratio-6626e7506f/, SHA-256 aef3b4adcb5ffa7c62f0f9d637c7032f92727f0ec910913a8cf81ed5e59d5075.

Full text

               Case 1:23-cv-09946-DEH Document 1 Filed 11/09/23 Page 1 of 10




                              UNITED STATES DISTRICT COURT
                             SOUTHERN DISTRICT OF NEW YORK

INSIDER, INC., KATHERINE LONG &
JOHN NEWSHAM
                                 Plaintiffs,

          v.

UNITED STATES SMALL BUSINESS                                          COMPLAINT
ADMINISTRATION,
                                 Defendant


                                          INTRODUCTION

          Plaintiffs Insider, Inc., Katherine Long, and John Newsham, by their undersigned attorneys,

allege:

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

et seq., for declaratory, injunctive, and other appropriate relief.

          2.       By this action, plaintiffs seek to compel defendant U.S. Small Business

Administration (“SBA”) to release records related to certain recipients of Shuttered Venue

Operators Grants (“SVOG”).

          3.       The public has a right to understand how the government spent its money on

COVID relief efforts and, specifically, whether SBA was disbursing SVOG funds in a manner

consistent with Congress’ purpose in appropriating these funds.



                                               PARTIES

          4.       Plaintiff Insider, Inc. publishes various news websites, including Insider and

Business Insider—available at https://www.insider.com and https://www.businessinsider.com,
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respectively—and is headquartered in this judicial district at One Liberty Plaza, 8th Floor, New

York, New York, 10006.

       5.       Plaintiff Katherine Long is an employee of Insider, Inc. and a correspondent at

Insider. She is a resident of the state of Washington and works remotely.

       6.       Plaintiff John Newsham (“Jack Newsham”) is an employee of Insider, Inc. and a

senior reporter at Insider. He works in Insider’s New York, NY bureau.

       7.       Defendant SBA is a federal government agency within the meaning of 5 U.S.C.

§ 552(f)(1) that has possession and control of the information sought by plaintiffs.



                                 JURISDICTION AND VENUE

       8.       This Court has subject-matter jurisdiction over this action and personal jurisdiction

over the defendant pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B).

       9.       Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B).



                                              FACTS

                                        The First Request

       10.      On June 22, 2023, plaintiffs submitted the following FOIA request (the “First

Request”) to SBA via email to FOIA@sba.gov:

       For each of these entities:

       1. EPICFAIL INC.
       2. AIC ENTERTAINMENT
       3. GODSMACK TOURING INC.
       4. SREMM TOURING, INC
       5. LA MONARCA ENTERTAINMENT, INC
       6. The Smashing Pumpkins Machine Inc
       7. YOUNG MONEY TOURING INC
       8. Knot Touring LLC
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        9. DJ Kid Millionaire Touring, Inc.
        10. 365 TOURING INTERNATIONAL, INC
        11. CBE TOURING, LLC

        we would like the following records for the period from April 1, 2021 to June 1,
        2023:

        1. Any application(s) filed by the entity for a grant through the SVOG program
        2. Documents filed in support of the application, such as those mentioned in the
           July 2021 SBA publication “Shuttered Venue Operators Grant Application
           Checklist.” These include tax returns, financial statements, floor plans, event
           documentation, marketing materials, box office/ticketing information and
           artist performance agreements.
        3. Any notices of award (SBA Form 1222)
        4. Any expense reports submitted as part of the close-out process.
        5. Any third-party audits.

The First Request was assigned number SBA-2023-003111.

        11.     By letter dated July 19, 2023 and sent the same day via email, SBA replied to

plaintiffs’ First Request. It provided a link to an Excel spreadsheet available on its website and

explained that this represented the entirety of “publicly available information regarding Shuttered

Venue Operators Grantees.”

        12.     The Excel spreadsheet contained a list of all SVOG grantees, and, for each grantee,

the award received, its address, the date of the award, and a boilerplate description of the grantee’s

business per 15 U.S.C. § 9909(a) (e.g. “Live venue operator or promoter”); it was not responsive

to plaintiff’s First Request.

        13.     SBA further explained that it was withholding all responsive documents—

including, specifically, applications, additional documents in support of applications, and audit

information—pursuant to FOIA Exemption 4, 5 U.S.C. 552(b)(4), because “[i]nformation

included in a business’ application is proprietary and confidential.” A true and correct copy of the

defendant’s response to the First Request is annexed as Exhibit A.

        14.     On July 25, 2023, plaintiffs timely appealed, see infra ¶ 21.
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                                      The Second Request

      15.       On August 7, 2023, plaintiffs submitted the following FOIA request (the “Second

Request”) to SBA via email to FOIA@sba.gov:

                For each of the following recipients of SVOG grants:

                Posty Touring Inc
                Knotfest LLC
                GHETTO YOUTHS TOURS INC
                DUBFIRE TOURING, INC.
                Don't Mean Nothing Tours, Inc
                MEDICINE TRIBE TOURING, INC.
                APPLE ORCHARD TOURING INC
                HABITRAIL TOURING, INC
                Shroud of Tour, Inc
                LET'S GET NICE LIMITED INC
                CRIME DON'T PAY, INC.
                JAUZ TOURING, INC
                Migo Management, LLC
                MJP LIVE, INC
                ORRO TOURING, INC
                SAMMY LOVES HOT CHEETOS TOURING LLC
                Maydew Golenberg LLC
                PRODIGY TOURING CORP
                Nickelback Touring 2, Inc.
                PAY DJ MUSTARD MUSIC INC
                GUILE GRIEVER TOURING, INC.
                Velvet Hammer Music, Inc.
                Phuncky Feel LLC
                Want Some More Touring LLC
                BEAST MODE TOURING INC.
                SYSTEM SUMMER CAMP, LLC
                TOURING IS MOST FUNNEST, INC.
                Destroyers Inc
                STOOPID TOURING, INC.
                THINK COMMON TOURING INC
                Genevieve Productions, Inc
                Monotone Inc
                NAVFIVE LIVE, INC
                LOUIS THE CHILD LLC
                Beggars Bush Inc.
                Ridge Road, Inc.
                Slarie Music US Inc.
                Ella Mai Music, Inc.
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         Case 1:23-cv-09946-DEH Document 1 Filed 11/09/23 Page 5 of 10




                EPICFAIL INC
                RACON TOURING, LLC
                HIGH END TOURING LLC
                AIC ENTERTAINMENT
                GODSMACK TOURING INC.
                SREMM TOURING, INC
                LA MONARCA ENTERTAINMENT, INC
                The Smashing Pumpkins Machine Inc
                YOUNG MONEY TOURING INC
                Knot Touring LLC
                THE SHALIZI GROUP, INC.
                DJ Kid Millionaire Touring, Inc.
                365 TOURING INTERNATIONAL, INC
                CBE TOURING, LLC
                Apex Event Management, LLC

                Please provide the following records submitted as part of their
                SVOG applications:

                - Signed Certification of Need

                - Signed Drug-Free Workplace Certification

The Second Request was assigned number SBA-2023-003577.

       16.      By letter dated August 17, 2023, and sent the same day via email, SBA replied to

plaintiffs’ Second Request, denying the Request in full. A true and correct copy of the defendant’s

response to the Second Request is annexed as Exhibit B.

       17.      Like SBA’s July 19 letter, the August 17 letter provided a link to the Excel

spreadsheet available on SBA’s website, referenced supra at ¶¶ 11–12, and explained that this

represented the entirety of “publicly available information regarding Shuttered Venue Operators

Grantees.”

       18.      SBA explained that it was withholding the Signed Certifications of Need pursuant

to FOIA Exemption 4, 5 U.S.C. § 552(b)(4), because “[i]nformation included in a business’

application is proprietary and confidential.”


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         Case 1:23-cv-09946-DEH Document 1 Filed 11/09/23 Page 6 of 10




       19.      SBA further explained that it was withholding the Signed Drug-Free Workplace

Certifications pursuant to both Exemption 4 and Exemption 6, 5 U.S.C. § 552(b)(6). It explained

that Exemption 6 “protects information for which the disclosure would constitute ‘a clearly

unwarranted invasion’ of individual privacy,” but did not explain why this Exemption applied to

the documents in question.

       20.      On August 23, 2023, plaintiffs timely appealed, see infra ¶ 27.

                                     Administrative Appeals

       21.      By letter dated July 25, 2023 and sent via email the same day to Oreoluwa Fashola,

FOIA Officer—and copying Alan Escobar, FOIA Public Liaison for SBA—plaintiffs

administratively appealed SBA’s partial denial of the First Request (the “First Appeal”). A true

and correct copy of the plaintiffs’ July 25 email, along with the attached First Appeal and its

exhibits, is annexed as Exhibit C.

       22.      Pursuant to 5 U.S.C. § 552(a)(6)(A)(ii), agencies must “make a determination with

respect to any appeal within twenty [business] days.”

       23.      SBA failed to respond to the First Appeal in the time required by 5 U.S.C. §

552(a)(6)(A)(ii).

       24.      On August 28, 2023, having received no response from SBA even to acknowledge

receipt of the First Appeal, plaintiffs sent an email to Mr. Fashola, with Mr. Escobar copied,

seeking an update. A true and correct copy of plaintiffs’ email is annexed as Exhibit D.

       25.      Upon sending this email, plaintiffs received an automatic reply from Mr. Fashola

stating that he was “out sick” for the day and directing requests for “immediate assistance” to

foia@sba.gov. A true and correct copy of Mr. Fashola’s email is annexed as Exhibit E.



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         Case 1:23-cv-09946-DEH Document 1 Filed 11/09/23 Page 7 of 10




       26.      Accordingly, the same day, plaintiffs replied to their email sent earlier in the day

and added “foia@sba.gov” to the list of recipients. A true and correct copy of plaintiffs’ email is

annexed as Exhibit F.

       27.      By letter dated August 23, 2023 and sent via email the same day to Oreoluwa

Fashola, FOIA Officer—and copying Alan Escobar, FOIA Public Liaison for SBA—plaintiffs

administratively appealed SBA’s denial of the Second Request (the “Second Appeal”). The August

23 email did not include the necessary exhibits, so plaintiff followed up with an email the following

day, August 24, including the exhibits. A true and correct copy of the plaintiffs’ August 23 and 24

emails, along with the attached Second Appeal and its exhibits, is annexed as Exhibit G.

       28.      SBA failed to respond to the Second Appeal in the time required by

5 U.S.C. § 552(a)(6)(A)(ii).

       29.      On September 22, 2023, having received no response from SBA even to

acknowledge receipt of the Second Appeal—and having still received no response to messages

about the First Appeal, with the exception of Mr. Fashola’s away message—plaintiffs sent an email

to Mr. Fashola, with Mr. Escobar and foia@sba.gov copied, seeking an update on both matters. A

true and correct copy of plaintiffs’ email is annexed as Exhibit H.

       30.      Upon sending this email, plaintiff received an automatic reply from Mr. Fashola

stating that he was “out of the office this week.” A true and correct copy of Mr. Fashola’s email is

annexed as Exhibit I.

       31.      On September 25, 2023, having still received no response from SBA regarding its

Appeals, plaintiffs mailed paper copies of the Appeals and relevant exhibits to the address provided

on SBA’s letters of denial, see Exs. A & B. A true and correct copy of the cover letter for that

mailing is annexed as Exhibit J.

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          Case 1:23-cv-09946-DEH Document 1 Filed 11/09/23 Page 8 of 10




        32.     On September 26, 2023, plaintiffs emailed Mr. Fashola, with Mr. Escobar and

foia@sba.gov copied, to confirm that paper copies of the two appeals had been mailed the previous

day. A true and correct copy of that email is attached as Exhibit K.

        33.     On October 27, having still received no response from SBA related to either appeal,

plaintiffs sent another email to Mr. Fashola, with Mr. Escobar and foia@sba.gov copied, seeking

an update. A true and correct copy of that email is attached as Exhibit L.

        34.     As of the day this complaint is filed, is has been 75 business days since Insider

submitted its First Appeal and 54 business days since it submitted its Second Appeal.

        35.     Having received no reply to either Appeal, plaintiffs have exhausted all applicable

administrative remedies.



                                 CLAIM I – FIRST REQUEST
                           (Failure to Disclose Non-Exempt Records)

        36.     Plaintiffs repeat, re-allege, and reincorporate the allegations in the foregoing

paragraphs as though fully set forth herein.

        37.     SBA is subject to FOIA and must therefore disclose upon request any non-exempt

records in its possession at the time of the request and must provide a lawful reason for withholding

any information as to which it is claiming an exemption.

        38.     Plaintiffs identified with reasonable specificity records within the custody and

control of SBA that they wish to inspect.

        39.     SBA is wrongfully withholding non-exempt information contained in agency

records requested by plaintiffs.

        40.     SBA has violated FOIA by failing to disclose the information requested by

plaintiffs.
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             Case 1:23-cv-09946-DEH Document 1 Filed 11/09/23 Page 9 of 10




        41.      Accordingly, plaintiffs are entitled to an order compelling SBA to produce the

information requested.



                                CLAIM II – SECOND REQUEST
                            (Failure to Disclose Non-Exempt Records)

        42.      Plaintiffs repeat, re-allege, and reincorporate the allegations in the foregoing

paragraphs as though fully set forth herein.

        43.      SBA is subject to FOIA and must therefore disclose upon request any non-exempt

records in its possession at the time of the request and must provide a lawful reason for withholding

any information as to which it is claiming an exemption.

        44.      Plaintiffs identified with reasonable specificity records within the custody and

control of SBA that they wish to inspect.

        45.      SBA is wrongfully withholding non-exempt information contained in agency

records requested by plaintiffs.

        46.      SBA has violated FOIA by failing to disclose the information requested by

plaintiffs.

        47.      Accordingly, plaintiffs are entitled to an order compelling SBA to produce the

information requested.



                                     RELIEF REQUESTED

WHEREFORE, plaintiffs respectfully request this Court to:

        1.       Declare that the information requested by plaintiffs is non-exempt and must be

                 disclosed pursuant to 5 U.S.C. § 552;


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        Case 1:23-cv-09946-DEH Document 1 Filed 11/09/23 Page 10 of 10




       2.     Order SBA to provide the requested information to plaintiffs within twenty

              business days of the Court’s order;

       3.     Enjoin defendants from charging plaintiffs any fees for processing their request;

       4.     Award plaintiffs the costs of this proceeding, including reasonable attorneys’ fees,

              as expressly permitted by FOIA; and

       5.     Grant such other and further relief as the Court deems just and proper.

Dated this 9th day of November, 2023.



                                                Respectfully submitted

                                                INSIDER, INC.




                                                 Bix Bettwy
                                                 Maryanne Stanganelli
                                                 Insider, Inc.
                                                 One Liberty Plaza
                                                 Eighth Floor
                                                 New York, NY 10006
                                                 Email: bbettwy@insider.com

                                                 Counsel for Plaintiffs




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