The FBI has finally begun the release of the pre-1960 ELSUR (electronic surveillance index cards) and several thousand more that are dated post-1960. For more four decades the FBI had routinely sworn in hundreds of declarations filed in FOIA and other cases that the ELSUR indices began on January 1, 1960 and nothing before that existed. In 2008, George Lardner forced the FBI to admit that this was false, but in that case, Lardner v. FBI, C.A. No. 03-0874, and others, the FBI has been unable to find any responsive records despite allegedly having search for them.
The information in this release is still heavily redacted for records that are now nearly 70 years old, some of which date back to 1944.
Case 1:18-cv-01868-TNM Document 1 Filed 08/08/18
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Civil Action No. 1:18-cv-01868
ASSASSINATION ARCHIVES AND RESEARCH CENTER, INC.
Silver Spring, MD 20910
Plaintiff,
v.
DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue, NW
Washington, DC 20530,
Defendant.
COMPLAINT
Plaintiff Assassination Archives and Research Center, Inc. brings this action against
Defendant Department of Justice pursuant to the Freedom of Information Act, 5 U.S.C. § 552, et
seq., as amended (“FOIA”), the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, and the
All Writs Act, 28 U.S.C. § 1651.
JURISDICTION
1. This Court has both subject matter jurisdiction over this action and personal
jurisdiction over Defendant pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331.
1. This Court has both subject matter jurisdiction over this action and personal
jurisdiction over Defendant 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.
2. Venue is appropriate under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391.
PARTIES
3. Plaintiff Assassination Archives and Research Center, Inc. (“AARC”) is a non
profit tax-exempt business incorporated in the state of Maryland.
3. Plaintiff Assassination Archives and Research Center, Inc. (“AARC”) is a non
profit tax-exempt business incorporated in the state of Maryland.
4. Defendant Department of Justice (“DOJ”) 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 AARC which are
the subject of this action.
U.S.C. § 552(e), and is in possession and/or control of the records requested by AARC which are
the subject of this action.
5. The Federal Bureau of Investigation (“FBI”) and Office of Information Policy
(“OIP”) are DOJ components.
(“OIP”) are DOJ components.
FACTUAL BACKGROUND
6. On 2 July 2009, FBI revealed that it possessed seven boxes of indices of pre-1960
electronic surveillance activities (“ELSUR indices”) in a sworn declaration filed in the FOIA
case Lardner v. FBI, No. 03-874 (D.D.C.).
6. On 2 July 2009, FBI revealed that it possessed seven boxes of indices of pre-1960
electronic surveillance activities (“ELSUR indices”) in a sworn declaration filed in the FOIA
case Lardner v. FBI, No. 03-874 (D.D.C.).
7. On 7 October 2009, AARC submitted to FBI a FOIA request for the ELSUR
indices (“the 1st Request”) via U.S. Postal Service Certified Mail.
indices (“the 1st Request”) via U.S. Postal Service Certified Mail.
8. AARC requested that it be classified as a representative of the news media and be
granted a public interest fee waiver.
granted a public interest fee waiver.
9. On 4 November 2009, FBI acknowledged receipt of the 1st Request and assigned
it Request No. 1139342-000.
it Request No. 1139342-000.
10. On 5 November 2009, FBI informed AARC that it had denied its fee category and
fee waiver requests.
fee waiver requests.
11. On 13 November 2009, FBI informed AARC that it had identified approximately
18,000 pages of potentially responsive records.
18,000 pages of potentially responsive records.
12. On 9 February 2011, FBI informed AARC that approximately 5,000 pages of the
identified records were dated after 1960. FBI stated that AARC must commit to pay $540 or
agree to reduce the scope of the request within thirty days or the request would be closed.
identified records were dated after 1960. FBI stated that AARC must commit to pay $540 or
agree to reduce the scope of the request within thirty days or the request would be closed.
13. AARC did not commit to pay $540 or agree to reduce the scope of the 1st
Request.
Request.
14. AARC did not file an administrative appeal of FBI’s fee category and fee waiver
denials with OIP.
denials with OIP.
15. FBI did not release any records to AARC. FIRST CAUSE OF ACTION (CONSTRUCTIVE RECORDS DENIAL – UNKNOWN NO.)
16. AARC repeats and realleges the allegations contained in all paragraphs set forth
above.
above.
17. On 7 September 2012, AARC submitted to FBI a followup FOIA request for the
ELSUR indices via U.S. Postal Service Certified Mail.
ELSUR indices via U.S. Postal Service Certified Mail.
18. AARC made reference to Lardner and the fact that “FBI . . . advised [it] that
some of the materials in these seven boxes concern post-1960 surveillances, rather than pre-1960
surveillances.”
some of the materials in these seven boxes concern post-1960 surveillances, rather than pre-1960
surveillances.”
19. AARC requested “copies of all these indices, whether they relate to pre- or post
1960 surveillance . . . [and] all tapes, transcripts, logs and other materials related to said
surveillance, including surveillance applications, affidavits, testimony, authorizations and
warrants” (“the 2d Request”).
1960 surveillance . . . [and] all tapes, transcripts, logs and other materials related to said
surveillance, including surveillance applications, affidavits, testimony, authorizations and
warrants” (“the 2d Request”).
20. AARC requested that it be classified as a representative of the news media and be
granted a public interest fee waiver.
granted a public interest fee waiver.
21. According to the U.S. Postal Service, FBI refused to accept delivery of the 2d
Request on 10 September 2012, and it was sent to the Dead Mail Office, where it was disposed
of.
Request on 10 September 2012, and it was sent to the Dead Mail Office, where it was disposed
of.
22. On 10 April 2013, AARC’s counsel, having learned of FBI’s refusal to accept the
2d Request, wrote to FBI: “I would like to know the identities of all members of your staff who
were aware of or participated in this denial of rights, and I ask that you take disciplinary action
against them. Please place [this] request in a processing queue in accordance with the priority it
would have received had you accepted delivery of it in September 2012.”
2d Request, wrote to FBI: “I would like to know the identities of all members of your staff who
were aware of or participated in this denial of rights, and I ask that you take disciplinary action
against them. Please place [this] request in a processing queue in accordance with the priority it
would have received had you accepted delivery of it in September 2012.”
23. AARC has not received any response from FBI to this request as of this writing.
24. AARC has a legal right under FOIA to obtain the information it seeks, and there
is no legal basis for the denial by FBI of said right.
is no legal basis for the denial by FBI of said right.
SECOND CAUSE OF ACTION (CONSTRUCTIVE RECORDS DENIAL – 1386188-000)
25. AARC repeats and realleges the allegations contained in all paragraphs set forth
above.
25. AARC repeats and realleges the allegations contained in all paragraphs set forth
above.
26. On 2 October 2017, AARC submitted to FBI a FOIA request for all information
about the processing of the 1st Request.
about the processing of the 1st Request.
27. AARC stated, “Because these records should be easy to locate and should not be
voluminous, we do not anticipate the assessment of any fees, but should you conclude that fees
are appropriate, please inform me and we will address that issue at that time.”
voluminous, we do not anticipate the assessment of any fees, but should you conclude that fees
are appropriate, please inform me and we will address that issue at that time.”
28. On 12 October 2017, FBI acknowledged receipt of this request and assigned it
Request No. 1386188-000.
Request No. 1386188-000.
29. AARC has not received any substantive response from FBI to this request as of
this writing.
this writing.
30. AARC has a legal right under FOIA to obtain the information it seeks, and there
is no legal basis for the denial by FBI of said right.
is no legal basis for the denial by FBI of said right.
THIRD CAUSE OF ACTION (CONSTRUCTIVE RECORDS DENIAL – 1386440-000)
31. AARC repeats and realleges the allegations contained in all paragraphs set forth
above.
31. AARC repeats and realleges the allegations contained in all paragraphs set forth
above.
32. On 2 October 2017, AARC submitted to FBI a FOIA request for information
related to the 2d Request.
related to the 2d Request.
33. AARC described the sequence of events surrounding the 2d Request and
requested “all information about the aforementioned sequence of events and all information
about any actions FBI took in response to [AARC’s counsel’s] 10 April 2013 letter.”
requested “all information about the aforementioned sequence of events and all information
about any actions FBI took in response to [AARC’s counsel’s] 10 April 2013 letter.”
34. AARC stated, “This includes all information in the [FOIA Document Processing
System] about the request itself, all emails or records not in that system discussing the request,
and all records, regardless of location, discussing any disciplinary actions considered or taken by
FBI regarding this sequence of events, as well as any similar records discussing this matter (such
as, for example, an email or memo inquiring into the reasons for the refusal, or an email or
memo stating that no response will be issued).”
System] about the request itself, all emails or records not in that system discussing the request,
and all records, regardless of location, discussing any disciplinary actions considered or taken by
FBI regarding this sequence of events, as well as any similar records discussing this matter (such
as, for example, an email or memo inquiring into the reasons for the refusal, or an email or
memo stating that no response will be issued).”
35. AARC stated, “Because these records should be easy to locate and should not be
voluminous, we do not anticipate the assessment of any fees, but should you conclude that fees
are appropriate, please inform me and we will address that issue at that time.”
voluminous, we do not anticipate the assessment of any fees, but should you conclude that fees
are appropriate, please inform me and we will address that issue at that time.”
36. On 10 October 2017, FBI acknowledged receipt of this request and assigned it
Request No. 1386440-000, stating that it had been “unable to identify any main file records [in
the Central Records System] responsive to [this] request.”
Request No. 1386440-000, stating that it had been “unable to identify any main file records [in
the Central Records System] responsive to [this] request.”
37. On 11 October 2017, AARC submitted an appeal to OIP, stating simply, “It is no
surprise that the responsive records about what the FBI Mail Room did about a FOIA request is
not in the Central Records System, and it is ludicrous for FBI to only search that system,” which
was assigned Appeal No. DOJ-AP-2018-000176.
surprise that the responsive records about what the FBI Mail Room did about a FOIA request is
not in the Central Records System, and it is ludicrous for FBI to only search that system,” which
was assigned Appeal No. DOJ-AP-2018-000176.
38. On 13 October 2017, FBI informed AARC that “[t]he No Record Letter
previously sent to [it] was in error.”
previously sent to [it] was in error.”
39. On 15 November 2017, OIP informed AARC that “FBI is still currently
processing [its] request” and closed the appeal.
processing [its] request” and closed the appeal.
40. AARC has not received any substantive response from FBI to this request as of
this writing.
this writing.
41. AARC has a legal right under FOIA to obtain the information it seeks, and there
is no legal basis for the denial by FBI of said right.
is no legal basis for the denial by FBI of said right.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Assassination Archives and Research Center, Inc. prays that this
Court:
(1) Order the Federal Bureau of Investigation to provide all responsive records to it;
(2) Issue a written finding that the circumstances surrounding the failure to respond
to the 2d Request raise questions whether agency personnel acted arbitrarily or capriciously;
(3) Order preliminary and permanent injunctive and/or declaratory relief as may be
appropriate;
(4) Award reasonable costs and attorneys’ fees as provided in 5 U.S.C. §
552(a)(4)(E) or any other applicable law;
(5) Expedite this action in every way pursuant to 28 U.S.C. § 1657(a); and
(6) Grant such other relief as the Court may deem just and proper.
WHEREFORE, Plaintiff Assassination Archives and Research Center, Inc. prays that this
Court:
(1) Order the Federal Bureau of Investigation to provide all responsive records to it;
(2) Issue a written finding that the circumstances surrounding the failure to respond
to the 2d Request raise questions whether agency personnel acted arbitrarily or capriciously;
(3) Order preliminary and permanent injunctive and/or declaratory relief as may be
appropriate;
(4) Award reasonable costs and attorneys’ fees as provided in 5 U.S.C. §
552(a)(4)(E) or any other applicable law;
(5) Expedite this action in every way pursuant to 28 U.S.C. § 1657(a); and
(6) Grant such other relief as the Court may deem just and proper.
Date: August 8, 2018
Respectfully submitted,/s/ Kelly B. McClanahan
Kelly B. McClanahan, Esq.
D.C. Bar #xxxxxxx
National Security Counselors
xxxx xxxxxxxxxxxx
xxxxxx, xxxxxxxx
Counsel for Plaintiff