[Filed January 3, 2000]

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

ALLAN J. FAVISH,
Plaintiff,

vs.

OFFICE OF INDEPENDENT COUNSEL,
Defendant

Case No. 00-00009 CM (Ex)

COMPLAINT FOR INJUNCTIVE RELIEF UNDER FREEDOM OF INFORMATION ACT (5 U.S.C. § 552)

1. This action is brought under the Freedom of Information Act (FOIA), as amended (5 USC §552(a)(4)(B)), and seeks a preliminary and final injunction thereunder against the defendant for withholding certain records from plaintiff. This action seeks an order that the records be disclosed.

2. Plaintiff is an individual resident of Los Angeles County, California. Defendant, Office of Independent Counsel, is a federal administrative agency within the meaning of the Act.

3. Venue of this action is properly laid in this court.

4. The OIC maintains a record entitled "Report of Investigation by Medical Examiner" that is identified in the OIC's report on the death of former Deputy White House Counsel Vincent Foster as OIC Doc. No. DC-106A-1 to DC-106A-2. The OIC's report says that Dr. Donald Haut completed a:

"Report of Investigation by Medical Examiner" after the incident; the report is stamped with the date July 30, 1993. OIC Doc. No. DC-106A-1 to DC-106A-2. The report states that the cause of death was "perforating gunshot wound mouth-head" and the means of death was "38 caliber handgun."

Report on the Death of Vincent W. Foster, Jr., by the Office of Independent Counsel In Re: Madison Guaranty Savings & Loan Association at 27 n.57 (released to the public by order of the U.S. Court of Appeals for the District of Columbia Circuit, Division for the Purpose of Appointing Independent Counsels, October 10, 1997) (OIC Report). See Exhibit 1 (377 KB).

5. A copy of the "Report of Investigation by Medical Examiner" (Haut Report) is available from the National Archives. See Exhibit 2 (322 KB). But the original version of the report is maintained by the OIC.

6. Page one of the Haut Report states that the death shot was "mouth-head;" but page two of the Haut Report states that the death shot was "mouth to neck." See Exhibit 2 (322 KB).

7. Officially, there was no "mouth to neck" shot. The "mouth to neck" description on page two of the Haut Report contradicts both the official autopsy conclusion of "mouth to head" and the publicly reported conclusion of the OIC. The OIC says that the autopsy report "indicates 'backward' and 'upward' as the direction of the bullet through the head" and that the doctor who performed the autopsy said the exit wound was "three inches from the top of the head." OIC Report at 31 (see Exhibit 1 (377 KB)). The OIC says that the "autopsy report and the reports of the pathologists retained by the OIC and Mr. Fiske's office (Kenneth Starr's predecessor) demonstrate that the cause of death was a gunshot wound through the back of Foster's mouth and out the back of his head." OIC Report at 111 (see Exhibit 1 (377 KB)).

8. The publicly available copy of the Haut Report appears to show that a portion of the original version was improperly altered by what appears to be correction fluid, e.g. "white out," or some erasure or other alteration. The "mouth-head" language on page one apparently was altered so as to almost completely conceal what appears to be a four-letter word that was replaced with the word "head" slightly to the right of the concealed word. See Exhibit 2 (322 KB). It is possible that such a concealed word is "neck," as appears on page two of the Haut Report.

9. The OIC report on the Foster death quotes from the apparently altered language from page one of the Haut Report and fails to mention the unaltered "mouth to neck" language on page two of the Haut Report. See paragraph 4, supra.

10. A leading medical textbook states:

When you make a mistake on a chart, correct it promptly. Never erase, cover, completely scratch out, or otherwise obscure an erroneous entry because this may imply a coverup . . . Erasures or the use of correction fluid or heavy black ink to obliterate an error are red flags.

. . . .

When you make a mistake documenting on the medical record, correct it by drawing a single line through it and writing the words "mistaken entry" above or beside it. Follow these words with your initials and the date. If appropriate, briefly explain the necessity for the correction.

Make sure that the mistaken entry is still readable. This indicates that you're only trying to correct a mistake, not cover it up.

Mastering Documentation at 304-305 (Springhouse Corp., 2d ed. 1999).

11. The publicly available copy of the Haut Report fails to reveal important information about the report. The publicly available copy does not reveal what is concealing the apparent four letter word next to "head" on page one of the original report. Also, the publicly available copy does not reveal what is written underneath any correction fluid that might be on the original or what might have been erased from the original. This information only can be revealed by inspection of the original version of the Haut Report.

12. The OIC has been fully aware since at least February 1998 that the publicly released copy of the Haut Report appears to show that the original Haut Report has been altered as described above. This is because in February 1998 plaintiff served the OIC with a summary judgment motion in another FOIA case that fully discussed the issue of the apparently altered Haut Report. That FOIA case was filed in the central district of California, in Los Angeles, as Allan J. Favish v. Office of Independent Counsel, Case No. 97-1479 WDK (Ex). That case is presently awaiting a decision by the United States Court of Appeals for the Ninth Circuit under case number 98-55594. A full discussion of the apparently altered Haut Report also was included in the appellate briefs in that case. The publicly available copy of the Haut Report was presented as an exhibit to both the district and appellate courts. That case does not seek any copy or inspection of the Haut Report, but instead seeks photographs taken in connection with the Foster case, and merely uses the publicly available copy of the Haut Report as evidence.

13. By letter dated October 28, 1999, plaintiff requested that the OIC, through the appropriate officer or employee thereof, disclose the records described above to plaintiff and that the OIC permit inspection of the records. A copy of the publicly available copy of the Haut Report was enclosed with plaintiff's request. See Exhibit 3 (3 KB) (original was signed).

14. The OIC refused to allow plaintiff to inspect the original version of the Haut Report by letter dated November 22, 1999, without citing any exemptions from disclosure under the FOIA. The OIC said:

Upon review of the document you provided, this Office notes that the released document does not contain any redactions. Therefore, this Office considers your copy of the released document complete and is closing this request.

See Exhibit 4 (51 KB). The OIC did not comment on the condition of the original version of the Haut Report and ignored the apparent alteration on the publicly available copy of the report. Contrary to the OIC's statement, the publicly available copy of the Haut Report appears to contain a redaction, in the form of an improper alteration that was made on the original version, possibly by somebody other than the OIC.

15. By letter dated November 24, 1999, plaintiff appealed the OIC's denial of plaintiff's request, stating:

Under the FOIA I am entitled to personally inspect the document. 5 U.S.C. § 552(a)(2) says that federal agencies "shall make [certain records] available for public inspection and copying" and § 552(a)(3) says that with regard to records not covered by subsections (a)(1) & (a)(2), agencies "shall make the records promptly available to any person . . . in any form or format requested by the person if the record is readily reproducible by the agency in that form or format." (Emphasis added.)

See Exhibit 5 (5 KB) (original was signed).

16. By letter dated December 28, 1999, the OIC denied plaintiff's appeal, stating:

This letter responds to your Freedom of Information Act (FOIA) "appeal" dated November 24, 1999 and received on November 29, 1999. In your correspondence you note that the response this Office sent on November 22, 1999, to your FOIA request failed to grant you permission to view original copies of documents previously released to the public. FOIA provides only for an appeal from an agency's withholding of information. In as much as this agency has not previously withheld any information sought by you, and you do not assert otherwise, there is no basis upon which to appeal your request to personally inspect original documents. Nevertheless, I hereby reaffirm the previous decision of this Office to deny your request to personally inspect original documents.

5 U.S.C. § 552(a)(2)(D) states "each agency, in accordance with published rules, shall make available for public inspection and copying copies of all records, regardless of form or format, which have been released to any person under paragraph (3). . . ." 5 U.S.C. § 552(a)(3)(B) states that agencies "shall make the records promptly available to any person . . . in any form or format requested by the person if the record is readily reproducible by the agency in that form or format." As you currently possess unredacted copies of the records sought, this Office did not see a need to send additional copies of the documents.

If you are dissatisfied with my action, judicial review is available to you in an appropriate United States District Court. See 5 U.S.C. § 552(a)(4)(B).

See Exhibit 6 (89 KB) (emphasis in original).

17. According to the United States Supreme Court:

Without question, the [Freedom of Information] Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands.

EPA v. Mink, 410 U.S. 73, 80, 35 L.Ed.2d 119, 128, 93 S.Ct. 827 (1973) (emphasis added).

18. According to the United States District Court for the Southern District of New York:

[T]he "basic objective" of the Act: "the full . . . release of information." House Report No. 93-876, March 5, 1974, [1974] U.S.Code Cong. & Admin.News, p. 6267 (emphasis added); cf. Mead Data Control, Inc. v. U.S. Department of Air Force, 566 F.2d 242, 260 (D.C.Cir. 1977) (non-exempt portions of documents containing material exempt from disclosure must be released because the "focus of the FOIA is information, not documents . . .").

Diamond v. Federal Bureau of Investigation, 487 F.Supp. 774, 777 (S.D.N.Y. 1979) (bold emphasis added).

19. According to the United States Court of Appeals for the Second Circuit:

In enacting the Freedom of Information Act, codified as part of the Administrative Procedure Act, Congress expressed the strong policy which favors the disclosure to the public of information in the possession of federal agencies.

Donovan v. F.B.I., 806 F.2d 55, 57-58 (2nd Cir. 1986) (emphasis added) (citations omitted).

20. According to the United States Supreme Court:

[T]he [Freedom of Information] Act seeks 'to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.' S Rep No. 813, 89th Cong, 1st Sess, 3 (1965) (hereinafter S Rep No. 813); EPA v. Mink, supra, at 80, 35 L Ed 2d 119, 93 S Ct 827. As the Act is structured, virtually every document generated by an agency is available to the public in one form or another, unless it falls within one of the Act's nine exemptions.

NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 44 L.Ed2d 29, 95 S.Ct. 1504 (1975).

21. According to the United States Court of Appeals for the Second Circuit:

The exemptions that are part and parcel of the FOIA's broad disclosure plan are not to be used to deflect its aim that is focused on openness, not secrecy. The exemptions are exclusive, Mink, 410 U.S. at 79, 93 S.Ct. at 832, not to be added to or detracted from, see U.S. Dept. of Justice v. Tax Analysts, 492 U.S. 136, 153, 109 S.Ct. 2841, 2852, 106 L.Ed.2d 112 (1989) (Tax Analysts), to be narrowly construed with doubts resolved in favor of disclosure. See Rose, 425 U.S. at 366, 96 S.Ct. at 1601. In stressing the broad policy objective of disclosure the Supreme Court has noted that "unless the requested material falls within one of these nine statutory exemptions, FOIA requires that records and material in the possession of federal agencies be made available on demand to any member of the general public." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 221, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978); accord NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 1509, 44 L.Ed.2d 29 (1975).

FLRA v. U.S. Dept. of Veterans Affairs, 958 F.2d 503, 508 (2nd Cir. 1992).

22. The records sought are not covered by the FOIA exemptions.

23. The subject records were and are identifiable records within the meaning of the FOIA. The OIC's refusal to allow inspection of the original version of the Haut Report was wrongful and without lawful reason or excuse, and plaintiff is entitled to the relief provided by the Act.

Wherefore, plaintiff prays:

1. For preliminary and final injunctions prohibiting defendant from failing to allow plaintiff to inspect and copy the subject records;

2. For preliminary and final injunctions directing defendant to make such records available to plaintiff and permit the inspection and copying thereof.

Dated: January 3, 2000