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Melanie Sloan

D.C. Bar No. 454584


Citizens for Responsibility
and Ethics in Washington
11 Dupont Cir., N.W.
2nd Floor
Washington, D.C. 20036
202-588-5565

Attorney for Plaintiff

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
_________________________________________ :
CITIZENS FOR RESPONSIBILITY AND :
ETHICS IN WASHINGTON :
11 Dupont Cir., N.W. :
Washington, D.C. 20036 :
:
Plaintiff :
: Case No.: ________________
v. :
:
FEDERAL ELECTION COMMISSION :
999 E Street, N.W. :
Washington, D.C. 20463 :
:
Defendant :
_________________________________________ :

COMPLAINT FOR DECLARATORY


JUDGMENT AND INJUNCTIVE RELIEF

INTRODUCTION

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

552, as amended, as well as agency FOIA regulations, challenging the failure of the Federal

Election Commission (“FEC”) to fulfill the request of Plaintiff for production of a report

regarding potential campaign finance violations by Westar Energy Company. The report was
voluntarily submitted to the FEC by Westar despite the fact that the FEC had not commenced an

investigation into any such violations.

2. This case seeks declaratory relief that Defendant is in violation of the FOIA for

failing to fulfill Plaintiff’s request for records, and injunctive relief that Defendant immediately

and fully comply with Plaintiff’s request under the FOIA.

JURISDICTION AND VENUE

3. This Court has both subject matter jurisdiction over this action and personal

jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B). This court also has jurisdiction

over this action pursuant to 28 U.S.C. § 1331. Venue lies in this district under 5 U.S.C. §

552(a)(4)(B).

PARTIES

4. Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”)is a

non-profit corporation, organized under section 501(c)(3) of the Internal Revenue code. CREW

is committed to the protection of the right of citizens to be informed about the activities of

government officials and to ensuring the integrity of government officials. CREW is dedicated

to empowering citizens to have an influential voice in government decisions and in the

governmental decision making process. CREW uses a combination of research, litigation, and

advocacy to advance its mission.

5. CREW has invested considerable organizational resources to pushing the U.S.

House of Representatives to take ethical issues seriously. CREW closely monitors the laws and

rules applicable to Members of Congress.

6. CREW is harmed by the FEC’s failure to comply with the FOIA because that

failure harms CREW’s ability to provide full, accurate, and current information to the public.

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CREW has exhausted the applicable administrative remedies with regard to each Defendant. 5

U.S.C. § 552(a)(6)(C).

7. Defendant Federal Election Commission (“FEC”) is an agency within the

meaning of 5 U.S.C. § 552(f). The FEC is the federal agency with possession and control of the

requested records, and is responsible for fulfilling Plaintiff’s FOIA request. The FEC is sn

independent regulatory agency charged with administering and enforcing the Federal Election

Campaign Act (FECA) - the statute that governs the financing of federal elections.

STATUTORY FRAMEWORK

The Freedom of Information Act

8. The FOIA, 5 U.S.C. § 552, requires agencies of the federal government to release

requested records to the public unless one or more specific statutory exemptions apply.

9. The FEC has regulations implementing the FOIA. 11 C.F.R. Part 4.

10. An agency must respond to a party making a FOIA request within twenty

working days, notifying that party of at least its determination whether or not to fulfill the

request, and of the requester’s right to appeal its determination to the agency head. 5 U.S.C. §

552(a)(6)(A)(i). See also, 11 C.F.R. § 4.7(c).

11. An agency must respond to a FOIA appeal within twenty working days, notifying

that party of its determination to either release the withheld records or uphold the denial. 5

U.S.C. § 552(a)(6)(A)(ii). See also, 11 C.F.R. § 4.8(f).

12. In “unusual circumstances,” an agency may delay its response to a FOIA request

or appeal, but must provide notice and provide “the date on which a determination is expected

to be dispatched.” 5 U.S.C. § 552(a)(6)(B).

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13. This Court has jurisdiction, upon receipt of a complaint, “to enjoin the agency

from withholding agency records and to order the production of any agency records improperly

withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B).

FACTS GIVING RISE TO PLAINTIFFS’ CLAIMS FOR RELIEF

14. On May 17, 2002, Douglas Lawrence, Westar’s Vice-President for Public Affairs,

sent a memo to Westar executives outlining a plan for Westar and its executives to contribute

approximately $31,500 in hard money and $25,000 in soft money to Members of Congress and

their political action committees. The memo included a chart showing how much each executive

needed to contribute and to which campaigns those contributions should be directed.

15. On May 20, 2002, another Westar executive, Douglas Lake, sent an e-mail to

Doug Lawrence asking “who is Shimkus, who is Young. Delay [sic] is from TX what is our

connection? . . . I am confused.” See, www.wstnres.com, “Special Committee Report,” Exhibit

236.

16. Lawrence e-mailed a reply to Lake, explaining that the donations were needed for

Westar to “get a seat at the table,” in effect clearing the way for the passage of an amendment to

the energy bill that would have saved Westar billions of dollars. Id. Lawrence continued:

[t]he total of the package will be $31,500 in hard money (individual) and $25,000

in soft money (corporate). Right now we have $11,500 in immediate needs for a

group of candidates associated with Tom Delay [sic], Billy Tauzin, Joe Barton

and Senator Richard Shelby. Delay [sic] is the House Majority Leader. His

agreement is necessary before the House Conferees can push the language we

have in place in the House bill. Shimkus is a close associate of Billy Tauzin and

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Joe Barton, who are key House Conferees on our legislation. They have made

this request in lieu of contributions made to their own campaigns.

Id.

17. In May 2002, Westar executives then contributed $58,200 to various campaigns

and to political action committees. A document detailing Westar executives’ political donations

shows that Douglas Lake, the executive who had never heard of John Shimkus, contributed

$1,000 to Mr. Shimkus’ campaign. In addition, Mr. Tauzin’s political action committee, the

Bayou Leadership PAC, received $2,800 and Mr. Barton’s PAC, the Texas Freedom Fund,

received $4,000. Finally, Mr. DeLay’s PAC, Texans for a Republican Majority, received

$25,000 from Westar – the exact amount Douglas Lawrence earmarked for soft money

contributions.

18. On September 18, 2002, in the conference on the energy bill, Mr. Barton inserted

the Westar provision. The next day, Mr. Barton, who held Mr. Tauzin’s proxy, defeated

Congressman Edward Markey’s motion to strike the Westar provision on a party line vote of 8 to

6. During the discussion of Mr. Markey’s motion, Mr. Barton stated, “[t]his particular provision

benefits one company. That company is . . . Western Resources [former name of Westar] in

Topeka, Kansas.”

19. Commencing in 2002, Westar Energy conducted an internal probe of the

company’s finances, headed by the law firm of Debevoise & Plimpton, with the assistance of

investment consultants and forensic consultants from PriceWaterhouseCoopers. The firm

submitted a 368 page report with 246 exhibits, based on 450 boxes of documents, the contents of

22 computers and 200 interviews.

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20. The report included allegations of corruption, sweetheart financial deals, unjust

enrichment, fraud and a disinformation campaign by former Westar executive David Wittig. Id.

The report also noted that the emails raised issues related to possible violations of the Federal

Election Campaign Act (“FECA”), FEC regulations and potential criminal and civil sanctions

and recommended that the company retain a campaign finance expert to investigate those issues.

Id.

21. After receiving the Debeviose & Plimpton report, Westar’s board followed the

recommendation and retained Tim Jenkins of the law firm O’Connor & Hannan as expert

counsel to investigate the campaign finance issues raised in the initial report.

22. Mr. Jenkins then conducted his own probe into possible illegal political

contributions made by Westar executives during the tenure of former Westar executives, David

Wittig and Douglas Lake. Mr. Jenkins’ probe focused on a 2002 plan, evidenced by email

between executives, to influence pending federal legislation by making political donations,

including a $25,000 donation made to Majority Leader Tom DeLay (R-TX). The results of Mr.

Jenkins’ probe were then voluntarily forwarded to the FEC, a fact confirmed by Westar Vice

President of Public Affairs Jim Ludwig.

23. Upon information and belief, at the time Westar submitted Mr. Jenkins’ report to

the FEC, the FEC had neither opened an investigation into Westar’s potential campaign finance

violations, nor requested that Westar prepare or submit any information regarding any such

potential violations.

24. On June 15, 2004, Congressman Chris Bell (D-TX) filed a complaint against

Majority Leader Tom DeLay with the House Committee on Standards of Official Conduct. One

section of the three count complaint is devoted to the campaign contribution made to Texans for

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a Republican Majority, in apparent consideration for Rep. DeLay’s assistance with an

amendment to the energy bill beneficial to Westar. On June 22, 2004, the Committee on

Standards of Official Conduct accepted Rep. Bell’s complaint. At this time, the question of

whether or not to create a subcommittee to investigate the allegations in the complaint is pending

before the Committee and a vote is expected shortly.

25. The release of this information would provide the House Committee on Standards

of Official Conduct with the benefit of the information related to Westar’s political contributions

before it makes any determination regarding the ethics complaint. It would also provide the

public with important information about the legislative process and about campaign

contributions made to the Majority Leader and other Members in apparent payment for

legislative assistance. The public deserves to be informed of the contents of the report so that it

can fairly weigh any decision by the ethics committee as to how or if to proceed against Rep.

DeLay.

Plaintiff’s FOIA Request and Follow-Up

26. By letter dated July 12, 2004, Plaintiff requested that the FEC produce Mr.

Jenkins’ Westar report and any exhibits, attachments, or correspondence accompanying the

report.

27. Plaintiff received a letter dated July 23, 2004, from Defendant FEC denying

Plaintiff’s request. The FEC based its denial on the “confidentiality provision” of the Federal

Election Campaign Act (“FECA”), 2 U.S.C. §437g(a)(12)(A), which provides that: “[a]ny

notification or investigation made under this section shall not be made public by the Commission

without the written consent of the person receiving such notification or the person with respect to

whom such investigation is made.”

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28. On August 23, 2004, pursuant to 11 C.F.R. § 4.8, CREW appealed the FEC’s

denial of the July 12, 2004 FOIA request on the grounds that the “confidentiality provision” was

not intended to cover the Westar report. CREW’s Appeal of FEC FOIA Denial, August 23, 2004

(attached as Exhibit A).

29. Under the FEC’s regulations, the Commission was required to make a

determination with respect to the appeal within twenty days (excluding Saturdays, Sundays and

legal holidays) after receipt of the appeal. 11 C.F.R. § 4.8(f). According to Plaintiff’s

calculations, the twentieth day fell on September 21, 2004, but to date, Plaintiff has received no

response to its appeal.

30. The statutory time limit for the FEC to respond to Plaintiff’s appeal has run out,

and Plaintiff has exhausted the applicable administrative remedies. 5 U.S.C. § 552(a)(6)(C).

PLAINTIFF’S CLAIMS FOR RELIEF

CLAIM ONE
(Failure to Produce Records)

31. Plaintiff realleges and incorporates by reference all preceding paragraphs.

32. Plaintiff properly asked for, and referenced with attachments, the report created

by Mr. Jenkins at the behest of Westar’s board of directors and was voluntarily submitted to the

FEC.

33. Plaintiff is entitled by law to access to the records requested under the FOIA,

unless Defendant makes an explicit and justified statutory exemption claim.

34. On July 23, 2004, Defendant denied Plaintiff’s request and on August 23, 2004,

Plaintiff appealed that adverse determination.

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35. To date, Plaintiff has not received a response from the FEC in regard to Plaintiff’s

August 23, 2004 appeal and the FEC has exceeded the 20-working-day statutory time limit for

such a response. 5 U.S.C. § 552(a)(6)(A)(i).

36. Therefore, the FEC has violated the FOIA’s mandate to respond to Plaintiff’s

FOIA request within the statutory time period as well as FOIA’s mandate to release agency

records to the public by failing to release the Westar report as Plaintiff specifically requested. 5

U.S.C. §§ 552(a)(3)(A), 552(a)(4)(B).

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully request that this Court:

(1) Declare that the FEC has violated the Freedom of Information Act (FOIA) by failing to

lawfully satisfy Plaintiff’s FOIA request of July 12, 2004;

(2) Declare that the FEC has violated the FOIA by failing to respond to Plaintiff’s FOIA appeal

of August 23, 2004;

(3) Order the FEC to immediately release all records responsive to Plaintiff’s FOIA request;

(4) Award Plaintiff its reasonable attorney fees and litigation costs in this action, pursuant to 5

U.S.C. § 552(a)(4)(E); and

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(5) Grant such other and further relief as the Court may deem just and proper.

Respectfully submitted,

__________________________________
Melanie Sloan
(D.C. Bar No. 434584)
Citizens for Responsibility and
Ethics in Washington
11 Dupont Cir., N.W.
Washington, DC 20036
Phone: (202) 588-5565
Fax: (202) 588-5020

Attorney for Plaintiff

Dated: September 29, 2004

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