Professional Documents
Culture Documents
INTRODUCTION
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
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
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
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
governmental decision making process. CREW uses a combination of research, litigation, and
House of Representatives to take ethical issues seriously. CREW closely monitors the laws and
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).
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
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.
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. §
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
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
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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
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
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
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
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.”
company’s finances, headed by the law firm of Debevoise & Plimpton, with the assistance of
submitted a 368 page report with 246 exhibits, based on 450 boxes of documents, the contents of
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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
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
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
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.
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
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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
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
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).
CLAIM ONE
(Failure to Produce Records)
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,
34. On July 23, 2004, Defendant denied Plaintiff’s request and on August 23, 2004,
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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
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
(1) Declare that the FEC has violated the Freedom of Information Act (FOIA) by failing to
(2) Declare that the FEC has violated the FOIA by failing to respond to Plaintiff’s FOIA appeal
(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
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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
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