COMPLAINT

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 0005354770
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 11
• Document Creation Date: June 23, 2015
• Document Release Date: September 29, 2010
• Case Number: F-2010-00666
• Publication Date: January 8, 2009

APPROVED FOR RELEASED
DATE: 18-Aug-2010)
 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES MADISON PROJECT
1250 Connecticut Avenue. NW
Suite 200
Washington, D.C. 20036
*
Plaintiff *
*
V. *
CENTRAL INTELLIGENCE AGENCY
Washington, D.C. 20505,
*
and
* Civil Action No. 08-0708 (JR)
DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue, NW
Washington, D.C. 20530, *
*
and *
*
FEDERAL BUREAU OF
INVESTIGATION
935 Pennsylvania Avenue, NW
Washington, D.C. 20535 *
Defendants. *
*
* * * * * * * *
FIRST AMENDED COMPLAINT
This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. ? 552, et
sec ., as amended, for the disclosure of agency records improperly withheld from plaintiff
James Madison Project by defendants Central Intelligence Agency, Department of
Justice, and Federal Bureau of Investigation.
JURISDICTION
1. This Court has both subject matter jurisdiction over this action and personal
jurisdiction over the defendants 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.
PARTIES
3. Plaintiff James Madison Project ("JMP") is a non-profit organization under the
laws of the District of Columbia and has the ability to disseminate information on a wide
scale. Stories concerning our activities have received prominent mention in many
publications including, but not limited to, the Washington Post, Washington Times, St.
Petersburg Tribune, San Diego Union Tribune, European Stars & Stripes, Christian
Science Monitor, U.S. News and World Report, Mother Jones and Salon Magazine.
4. Defendants Central Intelligence Agency ("CIA"), Department of Justice ("DOS"),
and Federal Bureau of Investigation ("FBI") are agencies within the meaning of 5 U.S.C.
? 552 (e), and are in possession and/or control of the records requested by JMP which are
the subject of this action.
BACKGROUND
5. John L. Helgerson ("Mr. Helgerson") has served as the Inspector General of the
CIA since April 26, 2002. Since his appointment, Mr. Helgerson has led numerous
internal investigations into controversial programs that began in the aftermath and as a
result of the September 11, 2001, terrorist attacks, including such high-profile programs
as the CIA's detention and interrogation of terrorist suspects. Mr. Helgerson also
conducted an investigation into the CIA's actions prior to the September 11, 2001,
terrorist attacks, resulting in a report which recommended "accountability boards" to
consider disciplinary action against a handful of senior officials.
6. Upon information and belief, the prolonged and aggressive nature of these
investigations has caused bitter resentment on the part of certain CIA operatives and
officials towards the Office of the Inspector General ("OIG") in general and Mr.
Helgerson in particular.
 Hayden ("Director Hayden") had authorized an internal investigation into the operations
of the CIA's O1G, specifically focusing on the conduct of Mr. Helgerson, which began in
April 2007. The basis of the review was to address complaints that the OIG's
investigations have not consisted of a fair and impartial review but rather as a "crusade"
against CIA officials involved in controversial programs. CIA spokesman Paul
Gimigliano refused to characterize the internal review which was overseen by Robert
L. Deitz, Senior Counselor to Director Hayden, and Michael J. Morell, Associate Deputy
Director-as an "investigation" and insisted that Director Hayden's only objective was to
assist the O1G in doing "its vital work even better."
8. On January 31, 2008, Director Hayden announced the completion of the
investigation, including details of changes that would be made to the OIG as a result of
the investigation, including measures requiring the 1G to: a) keep CIA employees and
managers informed about both the process and results of investigations; b) appoint an
ombudsman; and c) appoint a "quality control officer" who would make sure
OIG reports "include all exculpatory and relevant mitigating information."
9. Upon information and belief, the CIA's stated basis for and characterization of
the internal investigation is both misleading and inaccurate. Upon further information and
belief, the commencement of such an investigation posed a conflict of interest and
threatens to undermine the independence of the OIG.
10. Frederick P. Hitz, who served as the CIA's Inspector General from 1990 to 1998
and currently teaches at the University of Virginia, stated on October 12, 2007, that any
investigation by Director Hayden into the OIG's work would "not be proper."
11. Pursuant to the Inspector General Act of 1978, only the President of the United
States may remove the Inspector General of a Cabinet-level or major agency. In the event
of such action, both houses of Congress must be notified of the rationale justifying the
removal.
 12. Upon information and belief, Director Hayden lacks the authority to initiate an
internal investigation designed to address complaint(s) against both the OIG as a whole
and Mr. Helgerson in particular.
13. Pursuant to Executive Order 12993, allegations of misconduct by an Inspector
General and/or senior staff members of most federal agencies' OIGs are referred to the
Integrity Committee of the President's Council on Integrity and Efficiency ("PCIE").
Pursuant to Section 2(c) of Executive Order 12993, the Integrity Committee shall
determine if there is a substantial likelihood that the allegation "discloses a violation of
any law, rule or regulation, or gross mismanagement, gross waste of funds or abuse of
authority." To the extent that an investigation is necessary, the Public Integrity Section of
the Department of Justice or the Federal Bureau of Investigation will conduct the
investigation on behalf of the Integrity Committee.
14. Pursuant to Executive Order 12993, records of the Integrity Committee of the
PCIE are maintained by the FBI.
15. Upon information and belief, to date, Director Hayden has not referred any
complaint(s) against Mr. Helgerson and/or his staff to the Integrity Committee of the
PCIE.
COUNT ONE
16. JMP repeats and realleges the allegations contained in paragraphs 5 through 15
above, inclusive.
17. By letter dated October 18, 2007, JMP submitted to the CIA a FOIA request
which sought copies of all internal CIA documents pertaining to discussions concerning
the decision to initiate an internal review of the operations of Mr. Helgerson, and of the
OIG as a whole. Copies of news articles from the Los Angeles Times, New York Times,
and USA Today that detailed the CIA's confirmation that an internal review had been
authorized were included. The request sought a waiver of all fees, noting that JMP is a
non-profit organization with the ability to disseminate information on a wide scale, the
 information would contribute to the public's understanding of government operations or
activities and is in the public interest, and that JMP had been granted a fee waiver on all
prior requests.
18. By letter dated November 5, 2007, the CIA acknowledged receipt of JMP's
request and assigned it Request No. F-2008-00103. The CIA also granted JMP's request
for a waiver of fees.
19. By letter dated July 1 t, 2008, the CIA, pursuant to judicial order, informed JMP
that no records were found responsive to this request. The letter noted that, since the
request is the subject of pending litigation, no administrative appeals would be permitted.
20. JMP has a legal right under the FOIA to obtain the information it seeks, and there
is no legal basis for the denial by the CIA of said right.
COUNT TWO
21. JMP repeats and realleges the allegations contained in paragraphs 5 through 15
above, inclusive.
22. By letter dated August 11, 2008, JMP submitted to the CIA a FOIA request which
sought copies of all internal CIA documents pertaining to: a) discussions concerning the
decision to initiate an internal review of the operations of Mr. Helgerson, and of the OIG
as a whole, dated after November 5, 2007; b) the activities of the internal review itself,
c) proposals for and the implementation of changes in the operations and procedures of
the OIG; and d) any semiannual IG reports to the Director that reference any of the
above. Copies of news articles from the New York Times and Washington Post that
detailed the CIA's confirmation that an internal review had been authorized were
included. The request sought a waiver of all fees, noting that JMP is a non-profit
organization with the ability to disseminate information on a wide scale, the information
would contribute to the public's understanding of government operations or activities and
is in the public interest, and that JMP had been granted a fee waiver on most prior
requests.
 23. By letter dated August 28, 2008, the CIA acknowledged receipt of JMP's request
and assigned it Request No. F-2008-01698. The CIA also granted JMP's request for a
waiver of fees.
24. By letter dated August 27, 2008, JMP amended its request to expand the time
frame to include the period January 1, 2006 - November 5, 2007.
25. By letter dated September 18, 2008, the CIA acknowledged receipt of JMP's
amendment and stated that its search for records will be from January 1, 2006 - August
28, 2008.
26. As twenty working days have elapsed without a substantive determination by the
CIA, JMP has constructively exhausted all required administrative remedies.
27. JMP has a legal right under the FOIA to obtain the information it seeks, and there
is no legal basis for the denial by the CIA of said right.
COUNT THREE
28. JMP repeats and realleges the allegations contained in paragraphs 5 through 15
above, inclusive.
29. By letter dated May 26, 2008, JMP submitted to the DOJ Criminal Division a
FOIA request which sought copies of all DOJ documents pertaining to: a) investigations
referred to the Criminal Division's Public Integrity Section by the Integrity Committee of
the PCIE into the operations of the CIA IG, John Helgerson, and of the IG's Office as a
whole; and b) discussions, records, correspondence, memoranda, or opinions of the
Public Integrity Section regarding CIA Director Hayden's decision to initiate an internal
investigation of the IG's Office. Copies of news articles from the New York Times and
Los Angeles Times that detailed the CIA's confirmation that an internal review had been
authorized were included. The request sought a waiver of all fees, noting that JMP is a
non-profit organization with the ability to disseminate information on a wide scale, the
information would contribute to the public's understanding of government operations or
 activities and is in the public interest, and that JMP had been granted a fee waiver on
most prior requests.
30. By letter dated June 5, 2008, the DOJ acknowledged receipt of JMP's request and
assigned it Request No. CRM-200800363.
31. By telephone on July 21, 2008, JMP's Director of FOIA Operations, Kel
McClanahan, contacted the DOJ Criminal Division's FOIA Requester Service Center for
a status update on the request. The DOJ stated that the request was still being processed
and indicated that it could not provide a concrete date upon which the process would be
completed because no response had yet been received from the Public Integrity Section.
32. By telephone on August 13, 2008, Mr. McClanahan contacted the DOJ Criminal
Division's FOIA Requester Service Center again for a status update on the request. The
DOJ stated that the request was still being processed and indicated that it still could not
provide a concrete date upon which the process would be completed, but that an overdue
notice was being sent to the Public Integrity Section.
33. By telephone on August 20, 2008, Mr. McClanahan contacted the DOJ Criminal
Division's FOIA Requester Service Center again for a status update on the request. The
DOJ stated that the request was still being processed and indicated that it still could not
provide a concrete date upon which the process would be completed, but that the Public
Integrity Section had until September 3, 2008, to respond.
34. By telephone on August 21, 2008, a representative of the DOJ Criminal
Division's FOIA Requester Service Center contacted Mr. McClanahan. The
representative stated that the FOIA Requester Service Center is not required to answer
questions about the status of requests, that these updates were merely a courtesy, and that
the Public Integrity Section "will get to it when it gets to it."
35. As twenty working days have elapsed without a substantive determination by the
DOJ, IMP has constructively exhausted all required administrative remedies.
 36. JMP has a legal right under the FOIA to obtain the information it seeks, and there
is no legal basis for the denial by the DOJ of said right.
COUNT FOUR
37. JMP repeats and realleges the allegations contained in paragraphs 5 through 15
above, inclusive.
38. By letter dated May 26, 2008, JMP submitted to the FBI a FOIA request which
sought copies of all PCIE documents pertaining to a) investigations authorized by the
Integrity Committee of the PCIE into the operations of the CIA IG, John Helgerson, and
of the IG's Office as a whole; and b) discussions, records, correspondence, memoranda,
or opinions of the Integrity Committee regarding CIA Director Hayden's decision to
initiate an internal investigation of the IG's Office. Copies of news articles from the New
York Times and Los Angeles Times that detailed the CIA's confirmation that an internal
review had been authorized were included. The request sought a waiver of all fees, noting
that IMP is a non-profit organization with the ability to disseminate information on a
wide scale, the information would contribute to the public's understanding of government
operations or activities and is in the public interest, and that JMP had been granted a fee
waiver on most prior requests.
39. By letter dated July 1, 2008, the FBI acknowledged receipt of JMP's request and
assigned it Request No. 1116243-000. In this letter, the FBI informed JMP that no
records were found responsive to this request.
40. By letter dated September 11, 2008, IMP submitted an appeal of the FBI's
determination to the DOJ Office of Information and Privacy. In this letter, JMP stipulated
that there were no formal investigations launched by the PCIE Integrity Committee of
Mr. Helgerson or his office and accordingly limited the scope of the appeal to the
request's second line item.
41. By letter dated September 19, 2008, the DOJ acknowledged receipt of JMP's
appeal and assigned it Appeal No. 08-2741.
 42, As twenty working days have elapsed without a substantive determination by the
DOJ Office of Information and Privacy, JMP has constructively exhausted all required
administrative remedies.
43. IMP has a legal right under the FOIA to obtain the information it seeks, and there
is no legal basis for the denial by the FBI of said right.
WHEREFORE, plaintiff James Madison Project prays that this Court:
(1) Order the defendants to disclose the requested records in their entireties and make
copies promptly available to it;
(2) Award reasonable costs and attorney's fees as provided in 5 U.S.C. ? 552
(a)(4)(E) and/or 28 U.S.C. ? 2412 (d);
(3) Expedite this action in every way pursuant to 28 U.S.C. ? 1657 (a); and
(4) Grant such other relief as the Court may deem just and proper.
Date: November 14, 2008
Bradley P. Moss, Esq.
DC Bar #975905
Mark S. Zaid, Esq.
DC Bar #440532
Mark S. Zaid, P.C.
1250 Connecticut Avenue, NW
Suite 200
Washington, D.C. 20036
[phone]
[phone] fax
 Kelly B. McClanahan, Esq.
NYS Bar Y4563748
Mark S. Zaid, P.C.
1250 Connecticut Avenue, NW
Suite 200
Washington, D.C. 20036