Complaint

11/09/1998

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

THE JAMES MADISON PROJECT
1501 M Street, N.W.
Suite 1175
Washington, D.C. 20005
Plaintiff

v

NATIONAL ARCHIVES AND RECORDS
ADMINSTRATION
8601 Adelphi Road
College Park, Maryland 20740-6001
Defendant

COMPLAINT

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").

JURISDICTION

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.

VENUE

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

PARTIES

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.

COUNT ONE (FOIA REQUEST)

5. 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."

6. 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.

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

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

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

10. NARA has failed to comply with the requisite statutory periods which govern compliance under FOIA with respect to release of the first oldest classified document. Therefore, NARA has wrongfully withheld documents from JMP.

11. JMP is not required to exhaust administrative remedies as no decision has been made by NARA.

12. 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: November 9, 1998

__________________________

Mark S. Zaid, Esq.

D.C. Bar #440532

THE JAMES MADISON PROJECT

1501 M Street, N.W., Suite 1175

Washington, D.C. 20005

(202) 785-3801

__________________________

Charles J. Sanders, Esq.

D.C. Bar #394793

THE JAMES MADISON PROJECT

Attorneys for Plaintiff

__________________________

Robert Seldon, Esq.,

D.C. Bar #245100

PROJECT LAW

1612 K Street, N.W.

Suite 1004

Washington, D.C. 20006

(202) 955-6968

Of Counsel