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Case 1:13-cv-02000 Document 1 Filed 12/18/13 Page 1 of 8


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Civil ActionNo.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1. This is an actionunder theFreedom of Information Act ("FOIA"), 5 U.S.C.$ 552,

andtheFederal Declaratory Judgment Act, 28 U.S.C.$$2201and2202, for injunctive, declaratory, andotherappropriate relief. Plaintiff seeks therelease of records from threeU.S. ("DOJ")components - the CriminalDivision,the Federal Department of Justice Bureau of ("FBI"), andthe Executive Investigation ("EOUSA")- concerning Officeof U.S.Attorneys the now closed investigation of Congressman (R-FL). Plaintiff is statutorily Vern Buchanan entitled to thedisclosure of the records it seeks.Notwithstanding that entitlement, defendant has improperly withheld therequested records. Jurisdictionand Venue 2. jurisdictionoverthis actionandpersonal This Courthasboth subject matter

jurisdiction overtheparties pursuant to 5 U.S.C.$ 552(a)(a)@). jurisdiction This Courtalsohas

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pursuant and28 U.S.C. and2202.Venue liesin to 28 U.S.C. overthisaction $ 1331, $$2201(a) thisdistrictunder5 U.S.C.$ 552(aXa)@). Parties 3. ("CREW")is a nonfor Responsibility andEthicsin Washington PlaintiffCitizens

profit,non-partisan organized undersection 501(cX3) of the Internal Revenue Code. corporation to be informed about to protecting the right of citizens theactivities CREWis committed of government of govemment theintegrity officials. CREWseeks officialsandto ensuring to decisions andin the govemmental empower citizensto havean influentialvoicein government process through the dissemination of information decision-making aboutpublicofficialsand govemment its mission,CREWuses records their actions.To advance madeavailable to it undertheFOIA. 4. Defendant DOJ is an agency withinthemeaning of 5 U.S.C.$ 552(f)and5 U.S.C.

agency with possession andcontrolof therequested records andis $ 702. DOJis thefederal responsible for fulfilling plaintiff s FOIA requests. TheCriminalDivision,theFBI, andEOUSA arecomponents of defendant DOJ. DOJ's Investigation of Congressman Vern Buchanan 5. Rep.VernBuchanan wasthe subject of at leastonecriminalinvestigation

conducted by DOJ. Specifically, Rep.Buchanan's publiclyacknowledged lawyers in October 2011,DOJwasinvestigatingRep.Buchanan for receiving illegal conduitcontributions, anda jury in Tampa,Floridawashearing federalgrand testimony aspartof the investigation asof February 2012. 6. On September I I ,2012,Rep.Buchanan's attorneys publiclyannounced DOJhad

closed its investigation andwould not be pursuing criminalcharges against Rep.Buchanan.

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DOJ closed its investigation despitepublicly available evidencesupportingthe

conclusionRep. Buchananviolated criminal laws. On March 17,2010, the FederalElection Commission ("FEC") found reasonto believe Rep. Buchananknowingly received conduit campaigncontributions and excessivecontributions and begana full investigation. Even though aboutthe credibility of one the FEC closedits investigationof Rep. Buchanandue to questions of the witnesses,its generalcounsel stated,"the evidencein this casecomes close to supportinga violatedfederalelectionlaws. finding that it is more likely than not" Rep. Buchanan 8. In relatedmatters,the FEC also concludedtherewas probablecauseto believe

certainindividualsand car dealerships knowingly madeconduit contributionsand excessive contributions to Rep. Buchanan'scampaign,which resultedin settlements and the paymentof fines. All of the documentationof thesefindings is publicly available in FEC records,and was availableto the DOJ when it madeits decisionnot to prosecute Rep. Buchanan. Plaintiff s FOIA Requests 9. By letters dated September12,2012, and delivered on that date by facsimile to the

Criminal Division, FBI, and EOUSA, plaintiff requested underthe FOIA the following agency records(including,but not limited to, electronicrecordsand information,audiotapes, videotapes and photographs): not coveredby grandjury secrecypursuantto [A]ll documents Rule 6(e) of the FederalRules of Criminal Procedurerelated to the investigation of Vern Buchanan(R-FL) conductedby DOJ and the FederalBureauof Investigation("FBI") but not limited to DOJ's decisionnot to bring criminal charges againsthim. 10. The Criminal Division, FBI, and EOUSA receivedplaintiff s FOIA requests

describedin t[ 8 by facsimile on September12,2012.

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Defendant's Treatment of Plaintiff s FOIA Requests The Criminal Division 11. By letterto plaintiff datedOctober 78,2012,the Criminal Division acknowledged

receipt of plaintiff s FOIA requestand assignedit file number 201200786F. The Criminal Division informed plaintiff it had not conducteda searchfor responsiverecords, and asserted without: (l) an express written recordspertainingto a third party generallycannotbe released authorizationand consentof the third party (presumablyRep. Buchanan);(2) proof the third party is deceased; or (3) a clear demonstrationthat the public interest in disclosureoutweighs the personalprivacy interestsof the third party and that significant benefit would result from the records. The Criminal Division further asserted without a release, of the requested disclosures release of any recordsconcerninga third party proof of death,or public justification for release, would violate the Privacy Act and would result in an unwarrantedinvasion of privacy protected by Exemptions6 and 7(C). Finally, the Criminal Division advisedplaintiff of its right to appeal its determination to DOJ's Offrce of InformationPolicy ("OIP"). 12. By letter to OIP datedOctober24,2012, plaintiff appealed the Criminal Division's determinationto withhold in their entirety all recordsresponsiveto plaintiff s FOIA request. Plaintiff specifically noted in its appealit had establisheda public interest in the recordsthat Rep. Buchanan'sdiminishedprivacy interests outweighed in the records. 13. By letter to plaintiff datedMarch 28,2013, OIP advisedplaintiff it was remanding

the requestto Criminal Division to searchfor responsiverecords. OIP informed plaintiff that if any recordswere located the Criminal Division would releasethem directly to plaintiff. 14. The Criminal Division has not communicatedthe results of the searchto plaintiff or

communicated in any way to plaintiff sincethe remandof CREW's request. Thus,plaintiff has

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to the to its FOIA request with respect remedies administrative all applicable now exhausted CriminalDivision. TheFBI receipt of 25,2012, the FBI acknowledged September 15. By letterto plaintiffdated TheFBI further No. 1198736-000. it FOIPARequest andassigned plaintiff s FOIA request, records. for responsive it wassearching indicated responsive records 72,2012, the FBI stated December 16, By letterto plaintiffdated "records or pursuant 7(A), which concerns to FOIA Exemption wereexemptfrom release purposes, of but only to the extentthatthe production compiledfor law enforcement information be expected to interfere with records or information. . . couldreasonably suchlaw enforcement plaintiffof its rightto appeal to thatdetermination proceedings." TheFBI advised enforcement OIP. 17 . plaintiffappealed 23,2013, January the determination of the By letterto OIP dated

pursuant to plaintiff s FOIA request responsive to FBI to withholdin their entiretyall records FOIA Exemption 7(A). plaintiffExemption June25, 2013,OIPadvised 18. By letterto plaintiffdated 7(A) plaintiff it records in full, andfuftheradvised to withholdthe requested wasno longerapplicable to the FBI for furtherprocessing of responsive records. wasremanding the request 19. TheFBI hasnot produced or withheldanyresponsive records nor hasit communicated in anyway to plaintiffsince theremand of CREW'srequest. Thus,plaintiffhas now exhausted administrative remedies with respect all applicable to its FOIA request to the FBI.

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TheEOUSA call on December 19,2012,EOUSAacknowledged 20. By telephone to plaintiff s plaintiff s FOIA request 12,2012,andprovidedthe EOUSAhadreceived on September counsel JohnKommeir. At thattime, plaintiff providedEOUSA request to EOUSAFOIA employee copyofthe request. another to plaintiff s request. 21. To date, EOUSAhasnot responded 22. Plaintiff hasnow exhausted all applicable administrative remedies with respect to its FOIA request to EOUSA. PLAINTIFF'S CLAIMS FOR RELIEF CLAIM ONE (Failurre to ConductAdequate Searches) paragraphs 23. Plaintiff re-alleges andincorporates by reference l-22. 24. Plaintiff submitted to the CriminalDivision,FBI andthe EOUSA,requests that reasonably described the records soughtandweremadein accordance with DOJ'spublished FOIA regulations. 25. In response, the CriminalDivision,FBI, andtheEOUSAhavefailedto conduct searches reasonably to uncover calculated all agency records. 26. As a resultof the inadequate searches of the CriminalDivision,FBI andthe plaintiffhasnot received EOUSA, all therecords it requested underthe FOIA. 27. Therefore, by failingto release to plaintifftherecords specifically requested of the CriminalDivision,FBI andtheEOUSA,defendant violated the FOIA's mandate to search for responsive records, 5 U.S.C.g 552(a)(3)(D).

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CLAIM TWO (Wroneful Withhqldine Of Non-Exempt Records) 28. Plaintiff re-alleges paragraphs andincorporates by reference l-27. 29. Plaintiffproperly asked for records within thecustody andcontrolof DOJ components theCriminalDivision,theFBI, andtheEOUSA. DOJ wrongfullywithheldagency 30. Defendant records requested by plaintiff by withholding from disclosure all records responsive to plaintiff s FOIA requests to the Criminal Division, theFBI, andEOUSA. 31. Therefore, by failingto release the records asplaintiff specifically requested, defendant violatedthe FOIA. Requested Relief WHEREFORE, plaintiffrespectfully requests thatthis Court: (l) Orderdefendant DOJ andits components theCriminalDivision,theFBI, and EOUSAto conduct adequate searches andto disclose immediately andin theirentireties all records responsive to plaintiff s FOIA requests submitted to the CriminalDivision,the FBI, and EOUSAon September 12,2012. (2) Issue a declaration thatplaintiffis entitled to disclosure of therequested records; (3) Provide for expeditious proceedings in thisaction; (4) Awardplaintiffits costs andreasonable attorneys' feesin this action; and (5) Grantsuchotherandfurtherrelief asthe Courtmay deem just andproper.

Respectfu lly submitted,

ANNE L. WEISMANN ( D.C. Bar No.298l90) 7

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MELANIESLOAN (D.CBarNo. 434584 Citizensfor Responsibility andEthics in Washington 1400EyeStreet, N.W. Suite450 Washington, D.C. 20005 (202)408-5565 Phone: (202)588-5020 Facsimile:

(D.C.Bar430375) A. Hodes P.O.Box 42002 Washington, D.C. 20015 (301)404-0502 Phone: Fax:(413)641-2833 Dated D : e c.1 8 ,2 0 1 3 Attorneysfor Plaintiff