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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA, FLORIDA
___________________________________
Ward Dean
Plaintiff,
Case No.: 3: 04cv179/RV/MD
v.
U.S. Department of Justice
Office of Information and Privacy
Washington, DC 20530
Defendant.
___________________________________
COMPLAINT FOR INJUNCTIVE RELIEF
UNDER THE FREEDOM OF INFORMATION ACT
1. This is an action under the Freedom of Information Act (FOIA), 5 U.S.C. §552 (a) (4) (B). Ward Dean, Plaintiff, seeks disclosure of IRS Form 9131, Request for Grand Jury Investigation, which pertains to him, including exhibits thereto. Defendant U.S. Department of Justice has refused to release the requested document and exhibits, claiming that the existence or nonexistence of this form is protected from disclosure pursuant to 5 USC Section 552 (b) (3), and FRcrP 6e.
A Violation of the Freedom of Information Act
2. DOJ's sustained refusal to disclose Form 9131 is a violation of the Freedom of Information Act.
3. 5 U.S.C. § 552 (b), states, in pertinent part, that “Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted shall be indicated at the place in the record where such deletion is made.“ [Emphasis added]
4. 5 U.S.C. § 552 (b) (7) and 26 CFR 601.701 (b) Exemptions provide a list of situations under which documents may be exempted from the Freedom of Information Act. These include: “Investigatory records compiled for law enforcement purposes… to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and in the case of a record compiled by a criminal investigation…confidential information furnished only by confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel.”
5. DOJ well knows that it is required to provide “reasonably segregable portion(s) of a record … to any person requesting such record after deletion of the portions which are exempt…,” and that it can do so without a great deal of effort.
6. Accordingly, plaintiff requests below that the Court issue a written finding "that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding." Such a finding is one of the prerequisites for a Special Counsel proceeding to determine whether disciplinary action is warranted. 5 U.S.C. §552(a)(4)(F).
A Violation of the U.S. Constitution
7. The government has violated its obligation -- which exists independent of this FOIA action -- to disclose the requested information. This obligation stems from the Fifth Article of the Bill of Rights of the U.S. Constitution, which holds that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…, nor shall any person … be deprived of life, liberty, or property, without due process of law.”
8. The U.S. Attorney’s Criminal Tax Manual, Para 6-4.120, states that “Any case directly referred to a United States Attorney’s office for grand jury investigation which does not fit the above fact pattern or in which a copy of the request for grand jury investigation letter has not been forwarded to the Tax Division by overnight courier or by telefax by Regional Counsel/District Counsel will be considered an improper referral and outside the scope of the delegation of authority” (Delegation of authority pursuant to Tax Division Directive No. 96, dated December 31, 1991).
7. Plaintiff has challenged whether Form 9131 regarding him actually exists, and whether it has been transmitted as required. Without this document having been completed and transmitted as required, Plaintiff contends that his due process rights are in jeopardy.
9. The Department of Justice does not have the authority to extinguish a constitutional requirement. In particular, it cannot deny the disclosure of a document which would confirm or deny Defendant’s right to challenge whether he is being denied due process by an improperly empanelled grand jury.
10. Therefore, the requested document is constitutionally precluded from being withheld from disclosure under the FOIA.
JURISDICTION AND VENUE
11. This Court has jurisdiction over this action pursuant to the FOIA, 5 U.S.C. § 552(a)(4)(B), the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and 28 U.S.C. § 1331 and 1361.
12. Venue lies in this district under 5 U.S.C. § 552(a)(4)(B).
PARTIES
13. Plaintiff Ward Dean is a citizen of the United States and a resident of Escambia County, Florida.
14. Defendant U.S. Department of Justice is an executive agency of the United States government which has possession of the information requested by plaintiff under the Freedom of Information Act.
STATEMENT OF THE CASE
15. Plaintiff first sought disclosure of the requested document under the FOIA on 25 June 2003 (Ex 1). The request was denied by the DOJ’s Executive Office for United States Attorneys on November 17, 2003, citing FOIA exemption (b)(3) and FRCrP Rule 6 (e) (Ex 2). Upon administrative appeal on 6 December, 2003 (Ex 3), Plaintiff’s request was again denied by DOJ’s Office of Information and Privacy on February 27, 2004 (Ex 4).
16. Plaintiff has therefore exhausted his administrative remedies.
CAUSES OF ACTION
17. Plaintiff incorporates each allegation of paragraphs 1-16 as if fully set forth herein.
18. Defendant DOJ's failure to release the requested document violates the Freedom of Information Act, 5 U.S.C. § 552.
PRAYER FOR RELIEF
WHEREFORE, plaintiff requests that the Court:
a. declare that the defendant's refusal to produce the requested document is unlawful;
b. order defendant to release to plaintiff the Form 9131 and associated exhibits that pertain to him (minus any portion that this honorable court deems to contain information that qualifies for exemption/redaction pursuant to 26 CFR 601.701 (b) Exemptions).
c. issue a written finding pursuant to 5 U.S.C. §552(a)(4)(F) (2000) "that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding";
d. award plaintiff his costs in this action; and
e. grant such other and further relief as the Court may deem just and proper.
Respectfully submitted,
_________________
Ward Dean
Plaintiff, Pro Se
May 17th, 2004
