Case 1:17-cv-03842 Document 1 Filed 05/22/17 Page 1 of 4 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------------X RADAR ONLINE LLC and : MICHAEL BEST : Plaintiffs, : - v. - : FEDERAL BUREAU OF INVESTIGATION, Defendant. : : ------------------------------------------------------------------------X COMPLAINT 1. This is an action under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), to order the production of Federal Bureau of Investigation (“FBI”) records concerning investigations of The Church of Scientology (the “Church” or “Scientology”). Defendant FBI has improperly withheld these records despite properly filed FOIA requests. PARTIES 2. Plaintiff Radar Online LLC (“Radar”) is an online investigative news outlet that is read by millions worldwide. 3. Plaintiff Michael Best (“Best”), an independent journalist and analyst, has uploaded thousands of Freedom of Information Act records online for free public consumption. 4. The FBI, a component of the Department of Justice, is an agency of the United States with possession and control of the records sought by Plaintiffs. 1 Case 1:17-cv-03842 Document 1 Filed 05/22/17 Page 2 of 4 JURISDICTION AND VENUE 5. This court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B). 6. Radar’s principal place of business is New York City and therefore venue is appropriate under 5 U.S.C. § 552(a)(4)(B). FACTS Background of Request 7. The Church of Scientology is a religious movement founded by the late L. Ron Hubbard (“Hubbard”) in 1952. 8. Upon information and belief, in 1979, Church members carried out “Operation Snow White,” which involved the infiltration, wiretapping, and theft of documents in government offices. 9. Eleven high-ranking Church figures, including Hubbard’s wife Mary Sue, were convicted in federal court of obstructing justice, burglary of government offices, and theft of documents and government property. 10. Upon information and belief, the Church has been subject to numerous other investigations by the FBI throughout its history. 11. Hubbard’s late son, Ronald DeWolf (born L. Ron Hubbard Jr.) (“DeWolf”), publicly claimed that Scientology sold information to the Soviet KGB during the Cold War. Scientology FOIA Request and Denial 12. Plaintiffs Best and Radar Online are collaborating on an investigative reporting series relating to the Church of Scientology. 13. On November 30, 2016, Best submitted a Freedom of Information Act request to the FBI for records relating to Scientology (the “Scientology Request”). 2 Case 1:17-cv-03842 Document 1 Filed 05/22/17 Page 3 of 4 14. In a letter dated January 3, 2017, the FBI assigned the Scientology Request case number 1364000-000 but denied the request on the grounds that it lacked specificity. (Exhibit A) 15. On January 14, 2017, Best administratively appealed the denial on the grounds that he had adequately described the organization he sought records relating to. 16. In a letter dated April 26, 2017, the FBI denied Best’s administrative appeal (assigning it tracking number DOJ-AP-2017-001967) on new grounds; specifically, that searching for records relating to the Church would be “unreasonably burdensome.” (Exhibit B) 17. Mr. Best was not offered any opportunity to narrow his request. DeWolf FOIA Request and Constructive Denial 18. On February 24, 2017, Best submitted a Freedom of Information Act request for the FBI file of Ronald DeWolf (the “DeWolf Request”). 19. In a letter dated March 15, 2017, the FBI assigned the DeWolf Request case number 1368687-000 but requested proof of death. (Exhibit C) 20. On April 7, 2017, Best provided the FBI with an on-the-record interview with DeWolf’s grandson published by The Daily Telegraph, a national British newspaper, in which DeWolf’s 1991 death is recounted. 21. By failing to provide - or formally deny - documents within twenty working days, the FBI has constructively denied the DeWolf request under 5 U.S. Code § 552(a)(6)(A)(ii). CAUSE OF ACTION Violation of the Freedom of Information Act for Wrongful Withholding of Agency Records 22. Plaintiffs repeat and reallege paragraphs 1-21. 23. Defendant FBI has wrongfully withheld agency records requested by Plaintiffs. 24. Plaintiffs have exhausted all administrative remedies. 3 Case 1:17-cv-03842 Document 1 Filed 05/22/17 Page 4 of 4 REQUESTED RELIEF WHEREFORE, Plaintiffs request this Court: (A) Order defendant to provide access to the requested documents in their entirety; (B) Expedite this proceeding as provided for in 28 U.S.C. § 1657; (C) Award plaintiff costs and reasonable attorney fees in this action, as provided in 5 U.S.C. § 552(a)(4)(E); and (D) Grant such other and further relief as may deem just and proper. Dated: May 22, 2017 By: ______________________ Daniel Novack NY BAR ID: 5010863 Law Office of Daniel R. Novack 4 New York Plaza (2nd Floor) New York, NY 10004 Phone: (201) 213-1425 Email: Dan@NovackMediaLaw.com Counsel for Plaintiffs 4 Case 1:17-cv-03842 Document 1-1 Filed 05/22/17 Page 1 of 3 U.S. Department of Justice Federal Bureau of Investigation Washington, D. C. 20535 January 3, 2017 MR. MICHAEL BEST MUCKROCK DEPT MR 30386 411A HIGHLAND AVENUE SOMERVILLE, MA 02144-2516 Request No.1 1364000?000 Subject: Church of Scientology Dear Mr. Best: This is in response to your Freedom of Information Act (FOIA) request regarding Scientology or Church of Scientology. The FOIA provides for access to Government records where the records sought are "reasonably described" [Title 5, United States Code, Section Your letter does not contain enough descriptive information to permit a search of our records. In accordance with Title 28, Code of Federal Regulations. Part please provide us more speci?c information. Examples of speci?c information which could assist in locating potentially responsive records within a reasonable amount of effort are as follows: . Complete names of individuals 0 Birth date 0 Place of birth 0 Place of death 0 Location of incident . Organizations/Events 0 Date of event 0 Time frame 0 Location a Speci?c time frame 0 Speci?c location For questions on how to reasonably describe your request, please email us at foipaguestions@ic.fbi.gov. You may also visit and select "Services," ?Records Management,? and ?Freedom of Information/Privacy Act" for additional guidance. You may ?le an appeal by writing to the Director, Of?ce of Information Policy (OIP), United States Department of Justice, Suite 11050, 1425 New York Avenue, NW, Washington, DC. 20530-0001, or you may submit an appeal through OlP's FOIAonline portal by creating an account on the following web site: Your appeal must be postmarked or electronically transmitted within ninety (90) days from the date of this letter in order to be considered timely. If you submit your appeal by mail, both the letter and the envelope should be clearly marked ?Freedom of Information Act Appeal.? Please cite the FOIPA Request Number assigned to your request so that it may be easily identi?ed. You may seek dispute resolution services by contacting the Of?ce of Government Information Services (OGIS) at 877-684-6448, or by emailing ogis@nara.gov. Alternatively. you may contact the FBI's FOIA Public Liaison by emailing foigaguestions@ic.fbi.gov. If you submit your dispute resolution correspondence by email, the subject heading should clearly state ?Dispute Resolution Services." Please also cite the FOIPA Request Number assigned to your request so that it may be easily identified. Case 1:17-cv-03842 Document 1-1 Filed 05/22/17 Page 2 of 3 Enclosed for your information is a copy of the FBI Fact Sheet. Sincerely, David M. Hardy Section Chief, Record/Information Dissemination Section Records Management Division Enclosure Case 1:17-cv-03842 Document 1-1 Filed 05/22/17 Page 3 of 3 FBI FACT SHEET The primary functions of the FBI are national security and law enforcement. The FBI does not keep a file on every citizen of the United States. The FBI was not established until 1908 and we have very few records prior to the 19203. FBI files generally contain reports of FBI investigations of a wide range of matters, including counterterrorism, counter?intelligence, cyber crime, public corruption, civil rights, organized crime, white collar crime, major thefts, violent crime, and applicants. The FBI does not issue clearances or non-clearances for anyone other than its own personnel or persons having access to FBI facilities. Background investigations for security clearances are conducted by many different Government agencies. Persons who received a clearance while in the military or employed with some other government agency should contact that entity. Most government agencies have websites which are accessible on the internet which have their contact information. An identity history summary check or ?rap sheet? is NOT the same as an file.? It is a listing of information taken from fingerprint cards and related documents submitted to the FBI in connection with arrests, federal employment, naturalization or military service. The subject of a "rap sheet" may obtain a copy by submitting a written request to FBI CJIS Division Summary Request, 1000 Custer Hollow Road, Clarksburg, WV 26306. Along with a specific written request, the individual must submit a new full set of his/herfingerprints in orderto locate the record, establish positive identification, and ensure that an individual's records are not disseminated to an unauthorized person. The fingerprint submission must include the subject's name, date and place of birth. There is a required fee of $18 for this service, which must be submitted by money order or certified check made payable to the Treasury of the United States. A credit card payment option is also available. Forms for this option and additional directions may be obtained by accessing the FBI Web site at The National Name Check Program (NNCP) conducts a search of the Universal Index (UNI) to identify any information contained in FBI records that may be associated with an individual and provides the results of that search to a requesting federal, state or local agency. Names are searched in a multitude of combinations and phonetic spellings to ensure all records are located. The NNCP also searches for both ?main? and ?cross reference? files. A main file is an entry that carries the name corresponding to the subject of a file, while a cross reference is merely a mention of an individual contained in a file. The results from a search of this magnitude can result in several ?hits? and ?idents? on an individual. In each instance where UNI has identified a name variation or reference, information must be reviewed to determine if it is applicable to the individual in question. The Dissemination Section (RIDS) searches for records and provides copies of FBI files responsive to Freedom of Information or Privacy Act (FOIPA) requests for information. RIDS provides responsive documents to requesters seeking ?reasonably described information.? For a FOIPA search, the subject's name, event, activity, or business is searched to determine whether there is an associated investigative file. This is called a "main file search? and differs from the NNCP search. FOR GENERAL INFORMATION ABOUT THE FBI, VISIT OUR WEBSITE AT 7/18/16 Case 1:17-cv-03842 Document 1-2 Filed 05/22/17 Page 1 of 2 Office of U.S. Department of Justice Office of Information Policy Suite 11050 1425 New York Avenue, NW Washington, DC 20530-0001 Telephone: (202) 514-3642 April 26, 2017 Mr. Michael Best MuckRock DEPT MR 30386 411-A Highland Avenue Somerville, MA 02144-2516 30386-91985680@requests.muckrock.com Re: Appeal No. DOJ-AP-2017-001967 Request No. 1364000 MWH:DRC VIA: Email Dear Mr. Best: You appealed from the action of the Federal Bureau of Investigation on your Freedom of Information Act request for access to all records concerning Scientology or the Church of Scientology. After carefully considering your appeal, I am affirming the FBI's action on your request. Please be advised that your request for records related would require the FBI to conduct an unreasonably burdensome search. In order to fulfill your request, the FBI would have to spend approximately 500 hours searching for responsive records. Courts have consistently held that the FOIA does not require agencies to conduct "unreasonably burdensome" searches for records. See, e.g., Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 892 (D.C. Cir. 1995). If you wish to modify the scope of your request, please contact the FBI directly. Please be advised that this Office's decision was made only after a full review of this matter. Your appeal was assigned to an attorney with this Office who thoroughly reviewed and analyzed your appeal, your underlying request, and the action of the FBI in response to your request. If you have any questions regarding the action this Office has taken on your appeal, you may contact this Office's FOIA Public Liaison for your appeal. Specifically, you may speak with the undersigned agency official by calling (202) 514-3642. If you are dissatisfied with my action on your appeal, the FOIA permits you to file a lawsuit in federal district court in accordance with 5 U.S.C. § 552(a)(4)(B). For your information, the Office of Government Information Services (OGIS) offers mediation services to resolve disputes between FOIA requesters and Federal agencies as a nonexclusive alternative to litigation. Using OGIS services does not affect your right to pursue litigation. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, Room 2510, 8601 Adelphi Road, Case 1:17-cv-03842 Document 1-2 Filed 05/22/17 Page 2 of 2 -2College Park, Maryland 20740-6001; e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769. Sincerely, 4/26/2017 X Matthew Hurd, Associate Chief, for Sean O'Neill, Chief, Administrative Appeals Staff Signed by: MATTHEW HURD Case 1:17-cv-03842 Document 1-3 Filed Federal Bureau of Investigation Washington, D. C. 20535 March 15, 2017 MUCKROCK DEPT MR 33963 411A HIGHLAND AVENUE SOMERVILLE, MA 02144-2516 FOIPA Request No.2 1368687-000 Subject: RONALD DEWOLF Dear Mr. Best: This acknowledges receipt of your Freedom of Information Act (FOIPA) request to the FBI. The FOIPA number listed above has been assigned to your request. You have requested records concerning one or more third party individuals. The FBI recognizes an important privacy interest in the requested information. You may receive greater access to these records if they exist by providing one of the following: (1) an authorization and consent from the individual(s) express authorization and consent of the third party); (2) proof of death proof that your subject is deceased); or (3) a justi?cation that the public interest in disclosure outweighs personal privacy a clear demonstration that the public interest in disclosure outweighs personal privacy interests). In the absence of such information, the FBI can neither con?rm nor deny the existence of any records responsive to your request, which, if they were to exist, would be exempt from disclosure pursuant to FOIA Exemptions and 5 U.S.C. 552 and Express authorization and consent. If you seek disclosure of any existing records on this basis. enclosed is a Certi?cation of identity form. You may make additional copies of this form if you are requesting information on more than one individual. The subject of your request should complete this form and then sign it. Alternatively, the subject may prepare a document containing the required descriptive data and have it notarized. The original certi?cation of identity or notarized authorization with the descriptive information must contain a legible, original signature before FBI can conduct an accurate search of our records. Proof of death. If vou reek disclosure of any existir-r? ?emrds on this basis, proof of death can be a copy of a death certi?cate, Social Security Death Index, obituary, c. on recognized reference source. Death is presumed if the birth date of the subject is more than 100 years ago. Public Interest Disclosure. If you seek disclosure of any existing records on this basis. you must demonstrate that the public interest in disclosure outweighs personal privacy interests. In this regard, you must show that the public interest sought is a signi?cant one, and that the requested information is likely to advance that interest. Fax your request to the Work Process Unit at (540) 868?4997, or mail to 170 Marcel Drive, Winchester, VA 22602. If we do not receive a response from you within 30 days from the date of this letter, your request will be closed. You must include the FOIPA request number with any communication regarding this matter. For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. 5 U.S.C. 552(c). As such, this response is limited to those records, if any exist, that are subject to the FOIA. This is a standard noti?cation that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist. You may ?le an appeal by writing to the Director, Of?ce of Information Policy (OIP), United States Department of Justice, Suite 11050, 1425 New York Avenue, NW, Washington, DC. 20530?0001, or you may submit an appeal through OlP's FOIAonIine portal by creating an account on the following web site: Your appeal must be postmarked or electronically transmitted within ninety (90) days from the date of this letter in order to be considered timely. If you submit your appeal by mail, both the letter and the envelope should be clearly marked ?Freedom of Case 1:17-cv-03842 Document 1-3 Filed 05/22/17 Page 2 of 5 information Act Appeal.? Please cite the FOIPA Request Number assigned to your request so that it may be easily identi?ed. You may seek dispute resolution services by contacting the Of?ce of Government information Services (OGIS) at 877-684-6448, or by emailing ogis@nara.gov. Alternatively. you may contact the FBI's Public Liaison by emailing foipaguestions@ic.fbi.gov. If you submit your dispute resolution correspondence by email, the subject heading should clearly state "Dispute Resolution Services." Please also cite the FOIPA Request Number assigned to your request so that it may be easily identi?ed. For questions on how to reasonably describe your request. please email us at foipaguestions@ic.fbi.gov. You may also visit and select ?Services,? ?Records Management.? and "Freedom of information/Privacy Act" for additional guidance. Enclosed for your information is a copy of the Fact Sheet and a copy of the Explanation of Exemptions. Sincerely, David M. Hardy Section Chief, Dissemination Section Records Management Division Enclosure(s) Case 1:17-cv-03842 Document 1-3 Filed 05/22/17 Page 3 of 5 FBI FACT SHEET The primary functions of the FBI are national security and law enforcement. The FBI does not keep a file on every citizen of the United States. The FBI was not established until 1908 and we have very few records prior to the 19203. FBI files generally contain reports of FBI investigations of a wide range of matters, including counterterrorism, counter-intelligence, cyber crime, public corruption, civil rights, organized crime, white collar crime, major thefts, violent crime, and applicants. The FBI does not issue clearances or non-clearances for anyone other than its own personnel or persons having access to FBI facilities. Background investigations for security clearances are conducted by many different Government agencies. Persons who received a clearance while in the military or employed with some other government agency should contact that entity. Most government agencies have websites which are accessible on the internet which have their contact information. An identity history summary check or ?rap sheet? is NOT the same as an It is a listing of information taken from fingerprint cards and related documents submitted to the FBI in connection with arrests, federal employment, naturalization or military service. The subject of a ?rap sheet? may obtain a copy by submitting a written request to FBI CJIS Division Summary Request, 1000 Custer Hollow Road, Clarksburg, WV 26306. Along with a specific written request, the individual must submit a new full set of his/her fingerprints in order to locate the record, establish positive identification, and ensure that an individual?s records are not disseminated to an unauthorized person. The fingerprint submission must lnciude the subject's name, date and place of birth. There is a required fee of $18 for this service, which must be submitted by money order or certified check made payable to the Treasury of the United States. A credit card payment option is also available. Forms for this option and additional directions may be obtained by accessing the FBI Web site at The National Name Check Program (NNCP) conducts a search of the FBi?s Universal Index (UNI) to identify any information contained in FBI records that may be associated with an individual and provides the results of that search to a requesting federai, state or local agency. Names are searched in a multitude of combinations and phonetic spellings to ensure all records are located. The NNCP also searches for both ?main? and ?cross reference? files. A main file is an entry that carries the name corresponding to the subject of a file, while a cross reference is merely a mention of an individual contained in a file. The results from a search of this magnitude can result in several ?hits? and ?idents? on an individual. In each instance where UNI has identified a name variation or reference, information must be reviewed to determine if it is applicable to the individual in question. The Dissemination Section (RIDS) searches for records and provides copies of FBI files responsive to Freedom of Information or Privacy Act (FOIPA) requests for information. RIDS provides responsive documents to requesters seeking ?reasonably described information." For a FOIPA search, the subject's name, event, activity, or business is searched to determine whether there is an associated investigative file. This is called a "main file search" and differs from the NNCP search. FOR GENERAL INFORMATION ABOUT THE FBI, VISIT OUR WEBSITE AT 7/18/16 (MW 606) (DO) (10(1) (10(2) (10(3) (10(4) (10(5) (10(6) (10(7) Case 1:17-cv-03842 Document 1-3 Filed 05/22/17 Page 4 of 5 EXPLANATION or EXEMPTIONS SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552 (A) speci?cally authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classi?ed to such Executive order; related solely to the internal personnel rules and practices of an agency; speci?cally exempted ?om disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld; trade secrets and commercial or ?nancial information obtained from a person and privileged or con?dential; inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; personnel and medical ?les and similar ?les the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information A) could reasonably be expected to interfere with enforcement proceedings, would deprive a person of a right to a fair trial or an impartial adjudication, could reasonably be expected to constitute an unwarranted invasion of personal privacy, could reasonably be expected to disclose the identity of con?dential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a con?dential basis, and, in the case of record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a con?dential source, would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or could reasonably be expected to endanger the life or physical safety of any individual; contained in or related to examination, operating, or condition reports prepared by, on behalf ofagency responsible for the regulation or supervision of ?nancial institutions; or geological and geophysical information and data, including maps, concerning wells. SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552a information compiled in reasonable anticipation of a civil action proceeding; material reporting investigative efforts pertaining to the enforcement of criminal law including efforts to prevent, control, or reduce crime or apprehend criminals; information which is currently and properly classi?ed pursuant to an Executive order in the interest of the national defense or foreign policy, for example, information involving intelligence sources or methods; investigatory material compiled for law enforcement purposes, other than criminal, which did not result in loss of a right, bene?t or privilege under Federal programs, or which would identify a source who furnished information pursuant to a promise that his/her identity would be held in con?dence; material maintained in connection with providing protective services to the President of the United States or any other individual pursuant to the authority of Title 18, United States Code, Section 3056; required by statute to be maintained and used solely as statistical records; investigatory material compiled solely for the purpose of determining suitability, eligibility, or quali?cations for Federal civilian employment or for access to classi?ed information, the disclosure of which would reveal the identity of the person who furnished information pursuant to a promise that his/her identity would be held in con?dence; testing or examination material used to determine individual quali?cations for appointment or promotion in Federal Government service he release of which would compromise the testing or examination process; material used to determine potential for promotion in the armed services, the disclosure of which would reveal the identity of the person who fumished the material pursuant to a promise that his/her identity would be held in con?dence. Case 1:17-cv-03842 Document 1-3 Filed 05/22/17 Page 5 of 5 Department of Justice Certi?cation of Identity mmrmomm. 1103-0016- BZPEIES 93'? If]? Privacy Act Statement. In accordance with 28 CPR Section 16.4103) personal data Went to identify the individuals mbmitting requests by mail under the Privacy Act of 1974? 5 USC Section 552:. is required. The purpose of this solicitation is to me that the recetds of individuals who are the subject at US. Department of Justice 535m of records are not wrongfully disclosed by the Depamicnt. Requests will not be processed ifthis infatuation is not ?imished False information on this fem may mbject the tequesta to criminal penalties under 18 USC. Section 1001 audio: 5 USC. Section 5523(ix3). Public reporting bincim for this collection of mformation is estimte? to average 0.50 hours pa response 'mcluding the time for renewing instructions, searching existing that sources, gathering and maintaining the data needed, and completing and reviewing the collection of information Suggestions for reducing this burden may be submitted to the Office of Informatinn and Regi?atmy Affairs. Of?ce of Managunent and Budget, Public Use quom Ptoject (1103-0016), Washington. DC 20503. Full Name of Requester 1 Citizenship Status 3 Social Secmity NW3 Current Address Date of Birth Place of Bi?h OPTIONAL: Authorization to Release Information to Another Person This form is also to be completed by a requemer who is mthon'zing information relating to himself or baself to be released to another perm Eartha. pinsuant to 5 U.S.C. Section 5523(b). Ixuthorize the us. of Justice to release any and all mfounation relating to me to: Print or Type Name named above, that any falsi?cation oftliis statement is punishable immepmvisiom of 18 U.S.C. Section 1001 by a ?ne of pretenses is panislubleundn the pmvisiens of? U.S.C. 5523638) by a ?ne ofnot mmetim $5,000, Signature Date :Name ofindividual who is the subject oftbe moms) wugin. citimef?ieUtnted Statesmanalienlawfu?y admitted residence." pursuant to 5 U.S.C. Section 5533(ax2)- Requests willbe pmcesced as Fraction) ofinfomtion Act to 5 U.S.C. Section 552. requests. for meant United States citizensor aliens yomsocial isvohmtary? You are ashedtoprevideyumsocial facilitatethe Signature ofiudividual wine is the subject oft}! record sought, FORM DOE-361