First Amended Complaint



1501 M Street, N.W.
Suite 1175
Washington, D.C. 20005


Civil Action No. 98-2737 (TPJ)

8601 Adelphi Road
College Park, Maryland 20740-6001



This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, et seq., as amended, for the disclosure of agency records improperly withheld from plaintiff The James Madison Project ("JMP") by defendant National Archives and Records Administration ("NARA").


1. This Court has both subject matter jurisdiction over this action and personal jurisdiction over the defendants pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 28 U.S.C.

§ 1331.


2. Venue is appropriate under 5 U.S.C. §§ 552(a)(4)(B) and 28 U.S.C. § 1391.


3. Plaintiff JMP is a non-profit corporation organized under the laws of the District of Columbia with the primary purpose of educating the public on issues relating to intelligence gathering and operations, secrecy policies, national security and government wrongdoing. JMP also handles litigation under the FOIA and Privacy Acts, including representation of news organizations, journalists, authors, intelligence officers, whistleblowers or others who allege harm at the hand of a government, foreign or domestic, in matters involving intelligence, national security and government accountability issues. It maintains its principal place of business in the District of Columbia.

4. Defendant NARA is an agency within the meaning of 5 U.S.C. § 552 (e) and is in possession and/or control of the records requested by Snyder which are the subject of this action.


5. In 1821, former President James Madison wrote that "A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives."

6. There is a place and a purpose for secrecy in order to protect national interests, but the United States government and its agencies has taken this notion to an extreme. "The best way to ensure that secrecy is respected, and that the most important secrets remain secret, is for secrecy to be returned to its limited but necessary role. Secrets can be protected more effectively if secrecy is reduced overall," so concluded The Commission on Protecting and Reducing Government Secrecy in 1997.

7. The Commission correctly emphasized that "[g]reater openness permits more public understanding of the Government's actions and also makes it more possible for the Government to respond to criticism and justify those actions....[By] allowing for a fuller understanding of the past, it provides opportunities to learn lessons from what has gone before - making it easier to resolve issues concerning the Government's past actions and helping prepare for the future."

8. In proposing a new statutory framework for declassifying information, the Commission suggested that "all information shall be declassified after 30 years, unless it is shown that demonstrable harm to an individual or to ongoing government activities will result from release."

9. Current declassification procedures are governed by Executive Order 12,958 which was signed by President Clinton in 1995. Section 3.4 of this Order directs automatic declassification of "all classified information contained in records that (1) are more than 25 years old, and (2) have been determined to have permanent historical value under title 44, United States Code." This declassification process, which was to be completed by 2000, was undermined in October 1998 by Senatorial concern that nuclear data was being inadvertently released. A rider in the 1998 defense authorization bill requires government agencies to conduct a page-by-page review of all classified records more than 25 years old to determine whether any nuclear information is contained therein. As a result, approximately 100 million documents will not be publicly released on time.

10. It is one of JMP's objectives to reduce the amount of unnecessary secrecy that envelops this country. It will do so by, among other ways, challenging the classification of records for which the national security interest has long since passed. Therefore, this lawsuit appropriately seeks the declassification of the six oldest classified records within the United States.

11. These six records have been identified as dating back to the days of World War One before there even existed intelligence agencies such as the Central Intelligence Agency (or its precursor the Office of Strategic Services), the National Security Agency or the Defense Intelligence Agency. These documents, which date from 1917-18, are so old that they even predate J. Edgar Hoover becoming director of the Federal Bureau of Investigation (which he assumed in 1924, although it was not named the FBI until 1935). The subject matter of the documents: German secret ink.

12. Upon information and belief, the release of these six documents will not cause any harm to the national security or foreign relation interests of the United States, any individuals (all of whom are obviously long-since deceased) or, perhaps most importantly, any current sources or methods.

13. There exists no legitimate purpose for the continuing classification of documents that are more than eighty years old and, in particular, certainly not those that apparently discuss alleged espionage techniques used by an enemy that no longer exists during a war that has long-since ended.


14. JMP repeats and realleges the allegations contained in paragraphs 1 through 13 above, inclusive.

15. By letter dated October 5, 1998, JMP submitted to NARA a FOIA request which sought disclosure of "the oldest classified document in the possession of the National Archives."

16. By letter dated October 21, 1998, NARA informed JMP that the request was received on October 7, 1998 and assigned reference number NW99-028. NARA identified the document in question as a 1917 memorandum from Heingleman to Marlenck, Project 750041, RG 038, Entry 78, Box 02, Tab 05. NARA also identified the next five oldest classified documents, all of which originated in 1918 and related to the same topic, as: (1) Pamphlet on Invisible Photography & writing, Synthetic Ink, Project 750041, RG 038, Entry 78, Box 05, Tab 01; (2) Report, "Detection of Secret Ink", Project 750041, RG 038, Entry 78, Box 02, Tab 04; (3) Report, "German Secret Ink Formula", Project 750041, RG 038, Entry 78, Box 02, Tab 02; (4) Report, "German Secret Ink Formula", Project 750041, RG 038, Entry 78, Box 02, Tab 01; (5) Report, "Secret Inks", Project 750041, RG 038, Entry 78, Box 02, Tab 03.

17. By letter dated October 28, 1998, JMP amended its FOIA request to include the next five oldest classified documents described above.

18. By facsimile dated October 29, 1998, NARA acknowledged the amended request.

19. No further written responses have been received from NARA.

20. NARA has failed to comply with the requisite statutory periods which govern compliance under FOIA with respect to JMP's requests. Therefore, NARA has wrongfully withheld documents from JMP.

21. JMP has exhausted all required administrative remedies.

22. JMP has a legal right under the FOIA to obtain the information it seeks, and there is no legal basis for the denial by NARA of said right.

WHEREFORE, plaintiff The James Madison Project prays that this Court:

(1) Order NARA to disclose the requested records in their entireties and make copies promptly available to it;

(2) Award reasonable costs and attorney's fees as provided in 5 U.S.C. § 552 (a)(4)(E) and/or 28 U.S.C. § 2412 (d);

(3) expedite this action in every way pursuant to 28 U.S.C. § 1657 (a); and

(4) grant such other relief as the Court may deem just and proper.

Date: December 13, 1998


Mark S. Zaid, Esq.

D.C. Bar #440532


1501 M Street, N.W., Suite 1175

Washington, D.C. 20005

(202) 785-3801


Charles J. Sanders, Esq.

D.C. Bar #394793


Attorneys for Plaintiff


Robert Seldon, Esq.

D.C. Bar #245100


1612 K Street, N.W.

Suite 1004

Washington, D.C. 20006

(202) 955-6968

Of Counsel