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NARA Complaint as Filed 8 14

NARA Complaint as Filed 8 14

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Published by Cause of Action

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Published by: Cause of Action on Aug 15, 2012
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04/08/2013

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA
)
CAUSE OF ACTION, INC.
)(formerly Freedom Through Justice Foundation) )2100 M Street N.W. )Suite #170-247 )Washington, DC 20037-1233 ))Plaintiff, ))
Case No.
_____________________v. ))
NATIONAL ARCHIVES AND RECORDS
)
ADMINISTRATION
)
Judge:
_______________________700 Pennsylvania Ave, NW )Washington, D.C. 20408 ))Defendant )__________________________________________ )
COMPLAINT
Plaintiff Cause of Action, formerly Freedom Through Justice Foundation (“Plaintiff”)hereby files this complaint for compliance with the Freedom of Information Act, 5 U.S.C. § 552
et seq
. (“FOIA”). As grounds therefore, Plaintiff respectfully alleges as follows:
JURISDICTION AND VENUE
1.
 
This Court has jurisdiction pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331.It may grant declaratory relief pursuant to 28 U.S.C. § 2201,
et seq
. and award costs andattorneys’ fees pursuant to 28 U.S.C. § 2412 and 5 U.S.C. § 552(a)(4)(E).
 
2.
 
Venue is proper pursuant to 28 U.S.C. § 1391(e)(1)(C) and 5 U.S.C. § 552(a)(4)(B).
PARTIES
3.
 
Plaintiff Cause of Action (formerly known as “Freedom Through Justice Foundation”)(“CoA”), whose principal place of business is 2100 M Street N.W., Suite 170-247,
Case 1:12-cv-01342 Document 1 Filed 08/14/12 Page 1 of 9
 
2
Washington, D.C. 20037, is a non-partisan, non-profit organization that uses publicadvocacy and legal reform strategies to ensure greater transparency in government andprotect taxpayer interests and economic freedom. Plaintiff, who requested certaindocuments under FOIA, intends to disseminate the requested documents to its supportersand benefactors, government officials, appropriate news media, and to the Americanpublic at large. The documents Plaintiff seeks are likely to contribute significantly to thepublic’s understanding of the operations and activities of the Financial Crisis InquiryCommission (“FCIC”) and National Archives and Records Administration (“NARA”).Plaintiff is empowered to undertake educational and other programs to promote andprotect the public interest in connection with this and other matters.4.
 
Defendant, National Archives and Records Administration (“NARA”), is a 5 U.S.C. §552(f)(1) “agency” and an instrumentality of the United States. NARA has possession,custody, and control of the records that are the subject of this Complaint, but has illegallydenied CoA access to same.
FACTS
5.
 
Section 5 of the Fraud Enforcement and Recovery Act of 2009 (“FERA”), Pub. Law No.111-21, § 5, 123 Stat. 1617, 1625-31 (2009) created the Financial Crisis InquiryCommission (“FCIC”) to report to Congress and the President its findings andconclusions on the causes of the U.S. financial and economic crisis.6.
 
FCIC was directed to advise the Attorney General of the United States of any person thatmay have violated federal law in connection with the financial crisis.7.
 
FERA did not exempt FCIC, or other agencies in possession or control of FCIC records,from compliance with the Freedom of Information Act, 5 U.SC. § 552
et seq
. (“FOIA”).
Case 1:12-cv-01342 Document 1 Filed 08/14/12 Page 2 of 9
 
3
8.
 
As authorized by 5 U.S.C. App. II § 4(b) of the Federal Advisory Committee Act(FACA), Section 5(g) of the FERA specifically exempts the FCIC from the disclosurerequirements that the FACA—which only applies to bodies that,
inter alia
, advise theExecutive branch per 5 U.S.C. App. II § 3(2)—would otherwise impose.9.
 
Section 5(b)(2)(B) of the FERA explicitly prohibited members of Congress and theiremployees from serving as members of the FCIC.10.
 
No members of Congress or their employees served on the FCIC.11.
 
FCIC’s investigation included nineteen (19) days of public hearings and more than sevenhundred (700) witness interviews.12.
 
On or around February 13, 2011, without any express Congressional authorization, theFCIC, on its own initiative, selectively released records including, e-mails, audiorecordings and transcripts of interviews, and reports and fact sheets developed by FCICstaff 
 — 
to
 
Stanford Law School ostensibly for public distribution.13.
 
Although Section 5(h) of the FERA provided that the FCIC’s report on the financial crisiswas due on December 10, 2010, the FCIC did not deliver its statutorily mandated reportto the President, Congress, and the public at large until January 27, 2011.14.
 
Pursuant to FERA, the FCIC terminated on February 13, 2011, without a successor infunction.15.
 
On February 10, 2011, Phil Angelides, FCIC Chairman, sent a letter to Archivist of theUnited States, David Ferriero (“Letter”), stating his position that, with the sole exceptionof FCIC records that the Commission had previously selected to release to the public onits own initiative, NARA should impose a five-year categorical bar on public access toFCIC records, claiming that FCIC records are not subject to FOIA. (Exhibit 1).
Case 1:12-cv-01342 Document 1 Filed 08/14/12 Page 3 of 9

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