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FIRO vs. FBI
FBI Breaks FOIA Laws

FIRO Complaint Against FBI

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

 

WESTERN SECTION

CIVIL ACTION

NO.

 

GRAEME SEPHTON
Plaintiff,

v.

FEDERAL BUREAU OF INVESTIGATION of the

DEPARTMENT OF JUSTICE
of the UNITED STATES

Defendant.

COMPLAINT AND REQUEST FOR INJUNCTIVE RELIEF

  • PARTIES
      1. The plaintiff, GRAEME SEPHTON, at all times relevant to the allegations of
      2. this Complaint, has been a resident of the Town of Shutesbury, Hampshire County, in the Commonwealth of Massachusetts.

      3. The defendant, the FEDERAL BUREAU OF INVESTIGATION, is an agency of the
      4. DEPARTMENT OF JUSTICE of the UNITED STATES.

      5. Subject matter jurisdiction exists pursuant to 5 USC 552(a)(4)(B) which grants a

    district court of the United States jurisdiction to enjoin an agency from improperly withholding records and to order said agency to produce such records to the complainant. Venue is proper in the District of Massachusetts under 5 USC 552(a)(4)(B) which grants jurisdiction to the district court in the district in which the complainant lives.

    II. FACTS

    1. On or about September 21, 1998, pursuant to the Freedom of Information Act

    (hereinafter, FOIA), plaintiff Sephton requested from the defendant FBI, the following information:

        1. a list of all foreign material/objects recovered from the bodies of the victims of the crash of TWA flight 800; and
        2. the results of the forensic analysis of the physical characteristics of all the foreign material/objects recovered from the victims' bodies, including:
        1. the matter/object's dimensions and weigh;
        2. the matter/object's general condition;
        3. the matter/object's physical composition; and
        4. any other analytic results of tests on these foreign materials and/or objects preformed by the FBI.
        5. 5. On or about October 5, 1998, plaintiff Sephton received from defendant FBI

          its refusal to release the requested documents pursuant to 5 USC 552(b)(7)(A) that exempts from FOIA mandatory disclosure, agency records which ". . . could reasonably be expected to interfere with enforcement procedures. . . ." Defendant FBI's letter offered no explanation why release of the requested records would interfere or hinder its on-going investigation of the crash.

        6. On or about November 20, 1998, plaintiff Sephton filed an appeal with the
        7. Department of Justice challenging defendant FBI's refusal to release the requested records.

        8. On or about December 21, 1998, plaintiff Sephton received a letter from the

    Department of Justice acknowledging receipt of his appeal.

    1. On or about June 1, 1999, Dr. Charles Wetli, the Chief Medical Examiner for
    2. Suffolk County, New York, advised plaintiff Sephton during a phone conversation, that as foreign matter/objects were removed from the crash victims' bodies during an autopsy they were immediately given to FBI agents who were in attendance.

    3. During October 1999, the plaintiff received a letter from the Department of Justice
    4. dated September 23, 1999, stating that defendant FBI's reason for withholding the requested records no longer existed and that defendant FBI would begin processing "those records that can be made available." The Department of Justice advised the plaintiff that he had a right to judicial review inasmuch as its action "does not constitute a complete grant of access."

    5. On or about February 23, 2000, defendant FBI released fourteen pages of
    6. records purporting to be responsive to the plaintiff's request. However, none of the fourteen pages contain the forensic analytical data actually requested by the plaintiff. Instead, the released pages consist of vague descriptions of the type of investigations undertaken by the National Transportation Safety Board and defendant FBI.

    7. The pages released by the defendant FBI do contain numerous references to FBI

    forensic analysis of the foreign matter/objects found in the bodies of the crash victims, thereby documenting that the records requested from defendant FBI by plaintiff Sephton do exist. For example:

        1. an investigator "advised that foreign objects being removed by the medical examiners from the bodies of the victims have been provided to the FBI";
        2. "review of FD-192s discloses numerous green sheets reflecting foreign material being removed from victims' bodies";
    1. the New York Office of the FBI "is aware that all foreign matter found in or on the victim body was/were highly scrutinized by FBI bomb techs";
    2. the FBI New York office "requests all documentation and actual samples taken from these tests [simulated missile tests] for use in comparison to actual fragments found in victim bodies";
    3. "89 victims (39%) had foreign bodies (FB's) in their remains. . . . Investigation is continuing to identify FB's of unknown origin"; and
    4. "[f]oreign material removed from the bodies was immediately released to an FBI technician."
      1. Neither the defendant FBI nor the Department of Justice justified or explained why
      2. defendant FBI so narrowly focused its search that the documents released were not responsive to the plaintiff's request.

      3. The defendant FBI refused to release seven pages of relevant records to the

    plaintiff, claiming that the requested data was specifically exempted from disclosure by Rule 6(e) of the Federal Rules of Criminal Procedure, mandating the secrecy of grand jury proceedings. The defendant FBI did not sufficiently identify the material it deleted so that the plaintiff could determine if the deleted material was legally exempted from the FOIA as claimed by the defendant.

    CLAIM I: REQUEST FOR INJUNCTIVE RELIEF ENJOINING DEFENDANT FBI FROM ACTING IN BAD FAITH BY IGNORING THE PLAINTIFF'S REQUEST FOR SPECIFIC DATA KNOWN TO BE IN ITS POSSESSION.

    1. The plaintiff hereby incorporates by reference the allegations of Paragraphs 1
    2. through 13 of this Complaint as though fully set forth herein.

      15. 5 U.S.C. 552 (a)(3) requires that governmental agencies "upon any request for

      records. . . shall make the records promptly available to any person."

      16. The defendant FBI acted in bad faith when, in response to plaintiff Sephton's

      legitimate FOIA request for its forensic analysis of the foreign matter/objects found in the bodies of the victims of the crash of TWA Flight 800, it did not conduct an adequate search of its records and then release to him all the requested records it has in its possession. Such action violated

      5 U.S.C. 552 (a)(3), causing injury to the plaintiff.

      17. Plaintiff Sephton, who has exhausted his administrative remedies is entitled to

      judicial review of this claim pursuant to 5 USC 552(a)(4)(B).

      CLAIM II: REQUEST FOR INJUNCTIVE RELIEF ENJOINING DEFENDANT FBI FROM ACTING IN BAD FAITH BY REFUSING, WITHOUT EXPLANATION, TO RELEASE RECORDS PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 6(e).

      18. The plaintiff hereby incorporates by reference the allegations of Paragraphs 1

      through 17 of this Complaint as though fully set forth herein.

      19. Agencies can legally refuse to release records only if the records requested fall within

      the nine exemptions to compulsory disclosure listed in 5 USC 552( b).

      20. Defendant FBI acted in bad faith when it, pursuant to 5 U.S.C. 572(b)(3) and Rule

      6(e) of the Federal Rules of Criminal Procedure, refused to release seven pages of requested records without providing the plaintiff with a description of the deleted material sufficiently detailed to allow him to ascertain whether the claimed exemption reasonably applied to the documents in question. Such action violated 5 U.S.C. 552 (a)(3) and (b), causing injury to the plaintiff.

      21. Plaintiff Sephton, who has exhausted his administrative remedies is entitled to

      judicial review of this claim pursuant to 5 USC 552(a)(4)(B).

       

       

      WHEREFORE, the plaintiff requests that this court:

    3. enjoin defendant FBI from acting in bad faith and order it to conduct a good faith, adequate search of its records in response to the plaintiff's request and to release to the plaintiff all requested records located during the course of this search;
    4. enjoin defendant FBI from acting in bad faith and order it to release the seven pages it withheld from the plaintiff pursuant to 5 U.S.C. 552(b)(3) and Rule 6(e) of the Federal Rules of Criminal Procedure; or
    5. alternatively, enjoin defendant FBI from acting in bad faith and order it to describe its decision to withhold seven pages of requested records in sufficient detail that the plaintiff can ascertain if the FBI's decision was legal pursuant to 5 U.S.C. 552(b)(3) and Rule 6(e)of the Federal Rules of Criminal Procedure;.
    6. require the defendant to pay the plaintiff's litigation costs and expenses, including reasonable attorneys' fees; and
    7. award such other relief as this Court deems just, equitable and appropriate

    DATED: July 17, 2000; Respectively submitted,

    Graeme Sephton

    The Plaintiff

    By his Attorney

     

    ____________________

    Caroline Carrithers

    P.O. Box 2236

    Amherst, Massachusetts 01004

    413 XXX-XXXX



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