- 10 Plaintiff's Efforts To Obtain Pertinent Pursuant to and in fulfillment of his oversight responsibilities as the Ranking Minority Member of the Committee, Plaintiff has made extensive but unsuccessful efforts for six months to obtain documents pertaining to Madison Guaranty. Plaintiff has made these efforts pursuant to the Freedom of Information Act, House Rules, settled principles of agency cooperation with Congress, FIRREA, and the Constitution. As more fully set forth in the Declaration of Joseph L. Seidel and in Plaintiff's Statement of Undisputed Material Facts submitted pursuant to Local Rule 108(h) ("Stmt."), Plaintiff has written to each Defendant at least eight times beginning in December 1993. On December 9, 1993, Plaintiff wrote to the Honorable Roger C. Altman (Interim Chief Executive Officer of Defendant RTC) and Jonathan Fiechter (Acting Director of Defendant OTS), requesting each to provide all documents relating to Madison Guaranty. (Stmt. ¶ 10.) On December 22, 1993, Mr. Fiechter wrote to Plaintiff and agreed to "provide you with any information available to the public under the Freedom of Information Act," but refusing to make available additional information. (Stmt. 10) (emphasis added). Also on December 22, 1993, Mr. Altman responded that "the RTC will thoroughly cooperate in this investigation" and agreed to supply "most" of the documents; nevertheless, Mr. Altman referred to "limits on our ability to provide certain" documents, including "the Privacy Act and legal privilege or other restrictions on the ability of the RTC to release them." (Stmt. ¶ 10.) - 11 To address the purported legal concerns raised by Defendants in their responses to Plaintiff's December 9, 1993 letters, Plaintiff's staff prepared and sent to Defendants RTC and OTS a legal memorandum detailing the right of Plaintiff in his capacity as Ranking Minority Member to obtain access to the requested documents. 7 (Stmt. ¶ 10.) Plaintiff's staff also made repeated offers to accommodate any legitimate concerns Defendants might have about confidentiality or privacy. (Stmt. ¶ 10.) On February 3 and 4, 1994, Plaintiff wrote again to Messrs. Altman and Fiechter, respectively, reiterating the request of the December 9, 1993, letters. (Exs. 13 and 14.) Defendants responded by refusing to provide any documents not otherwise available to the public pursuant to FOIA. (Stmt. ¶ 10.) On March 7, 1994, Plaintiff wrote to Messrs. Fiechter and Ryan reiterating his request for documents pertaining to Madison Guaranty, and requesting that Defendants confirm that their refusal to provide the documents constituted final agency action. (Stmt. ¶ 10.) On March 8, 1994, Plaintiff wrote to Messrs. Fiechter and Ryan requesting documents pertaining to Madison Guaranty, this time expressly stating that the documents were necessary for the Committee's "statutorily mandated, semi-annual" oversight hearings, then scheduled for March 24. (Stmt. ¶ 10.) On March 10, 1994, however, Henry B. Gonzalez, Chairman of the Committee, wrote to both Defendants instructing them not to comply with Plaintiff's request for documents. (Stmt. ¶ 10.) The very next day, and consistent with the instructions from Congressman Gonzalez, Defendants again refused to produce the requested documents. (Stmt. ¶ 10.) - 12 Undeterred, Plaintiff wrote once again to Defendants on March 18, 1994, seeking documents pertaining to Madison Guaranty for use in connection with the oversight hearings, then scheduled for March 24, 1994. (Stmt. ¶ 10.) On March 21, 1994, however, Congressman Gonzalez abruptly postponed the statutorily-mandated After passage of House Resolution No. 394, Plaintiff again wrote to Defendants seeking documents pertaining to Madison Guaranty Savings & Loan Association. Again, both Defendants refused. (Stmt. ¶ 10.) On April 11 and 12, 1994, Plaintiff lodged administrative appeals with Defendants pursuant to Defendants' respective FOIA regulations. (Stmt. ¶ 10.) Those appeals were denied by Defendant OTS on April 21 and by Defendant RTC on May 2, 1994. (Stmt. ¶ 10.) Plaintiff's efforts over the last six months to obtain from Defendants documents pertaining to Madison Guaranty have proved futile. Through their most senior officials, Defendants have made clear their unwillingness to produce any documents to Plaintiff other than those available to members of the public pursuant to FOIA, regardless of whether Plaintiff seeks such documents pursuant to FOIA, House Rules, settled principles of agency cooperation with Congress, or Plaintiff's statutory responsibility to oversee Defendants pursuant to FIRREA and other laws. In addition, Defendants appear to have been subject to improper political pressures to withhold the - 13 documents. Despite the clear relevance of the documents to the hearings mandated by FIRREA, House Resolution No. 394, and the corresponding Senate resolution, as well as the President's call for "[c]ooperation [and] disclosure," Defendants have repeatedly refused to release the documents, even under guarantees of strict confidentiality. This coordinated refusal of two federal agencies to provide documents to the Ranking Minority Member of the House Committee with jurisdiction over their activities is unprecedented, unlawful, arbitrary and capricious, and an abuse of Defendants' discretion. As we show below, it cannot stand. ARGUMENT I. PLAINTIFF IS ENTITLED TO RECEIVE THE REQUESTED As a Member of Congress and Ranking Minority Member of the House Committee on Banking, Finance and Urban Affairs, Plaintiff is entitled to the requested documents under FOIA. Defendants have invoked FOIA exemptions 4, 5, 7, and 8 as well as the Privacy Act as the stated bases for denying Plaintiff's requests. (Stmt. 10.) Defendants' position is flawed as a matter of law, however: by the express wording of the statutes, neither FOIA exemptions nor the Privacy Act can justify refusals 21 Although the interference by Congressman Gonzalez is documented (Stmt. ¶ 10; Seidel Decl. ¶ 12(e) and Exs. 21, 22), the current record does not disclose whether any instructions (or "suggestions") to withhold the documents were made to Mr. Altman in the course of his widely-reported discussions of Defendants' investigations with senior White House officials. - 14 to produce documents to Plaintiff. Moreover, Defendants' departure from their practice of not invoking the discretionary FOIA exemptions constitutes an abuse of discretion. A. / FOIA Expressly Prohibits Defendants from Invoking Although FOIA contains numerous exemptions, Congress made clear that The legislative history of the savings clause states that "members of the Congress have all the rights of access guaranteed to 'any person' [by FOIA], and the Congress has additional rights of access to all Government information which it deems necessary to carry out its functions." H.Rep. No. 1497, 89th Cong., 2d Sess. 11-12, 1966 U.S. Code Cong. & Admin. News 2418, 2429. The statute "explicitly notes that its exemptions from disclosure of agency records provide no authority to withhold information from Congress," Office of Legal Counsel, General Accounting Office Request for Documents of the Federal Emergency Management Agency, 4 Op. O.L.C. (Volume B) 773, 774 (September 10, 1980), and the courts have applied the savings clause as plainly as it is written. See, e.g., Florida House of Representatives v. United States 3/ Because Defendants possess no particular agency expertise with regard to FOIA and the Privacy Act, this Court reviews their interpretations of those statutes de novo. See United States Dep't of the Navy v. FLRA, 975 F.2d 348, 351 (7th Cir. 1992). |