Case 1:22-cv-00502-ABJ Document 1 Filed 02/25/22 Page 1 of 8 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

45COMMITTEE, INC., 

P.O. Box 710993 

Herndon, VA 20171, 

Plaintiff, 

V. 

FEDERAL ELECTION COMMISSION 

1050 First Street N.E. 

Washington, D.C. 20463, 

Defendant. 

Civil Action No. 1:22-cv-00502 

COMPLAINT 

Plaintiff 45Committee, Inc., by and through its undersigned attorneys, 

alleges as follows: 

INTRODUCTION 

1. 45Committee, Inc. ("45Committee") brings this action under the 

Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, et seq., to enjoin the Federal 

Election Commission (the "FEC" or "Commission") from improperly withholding 

records responsive to 45Committee's FOIA request submitted on November 19, 

2021 (the "Request"). 

2. 45Committee seeks the FEC's unredacted voting records related to an 

administrative complaint filed against 45Committee in 2018. 45Committee believes 

that the six-member Commission held a vote on the administrative complaint long 

ago and lacked the necessary four votes to proceed with an investigation-thus 

terminating the administrative complaint. 45Committee further believes that some 

at the FEC have arbitrarily and capriciously prevented the record of the 
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Commission's dismissal vote to be released publicly, all in an effort to try to force 

45Committee into civil litigation to defend against the administrative complaint's 

allegations without any input from the agency delegated exclusive enforcement 

authority over the federal campaign-finance laws. 

3. FOIA itself unambiguously requires the FEC to disclose its voting 

records in such enforcement matters, but the FEC has improperly withheld the 

responsive voting records in full with a blanket assertion of FOIA Exemption 5-

even though it is nonsensical for an agency to assert that records reflecting its final 

decisions are both deliberative and predecisional. The Court should order the FEC 

to promptly release the voting records that the Commission is withholding in 

violation of FOIA. After awarding 45Committee its attorneys' fees, the Court should 

issue a written finding that the FEC acted arbitrarily and capriciously by 

withholding the responsive records because the FEC lacked any legal basis to 

withhold its voting records under FOIA Exemption 5. 

JURISDICTION AND VENUE 

4. This Court has jurisdiction over this action pursuant to 5 U.S.C. 

§ 552(a)(4)(B) and 28 U.S.C. §§ 1331, 2201, and 2202. 

5. Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 

28 U.S.C. § 1391(e). 

6. 45Committee is deemed to have constructively exhausted its 

administrative remedies under 5 U.S.C. § 552(a)(6)(C)(i) because the FEC has not 

complied with the applicable time-limit provisions of FOIA. 

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PARTIES 

7. Plaintiff 45Committee is an independent, social welfare organization 

tax exempt under section 501(c)(4) of the Internal Revenue Code. 45Committee was 

established to engage primarily in the policy debate on key national issues and in 

particular to educate Americans on public policy issues expected to face the 45th 

President of the United States (whoever that may have ended up being). 

8. Defendant FEC is an independent federal agency headquartered in 

Washington, D.C., subject to FOIA under 5 U.S.C. § 552, and has possession or 

control of the records requested by 45Committee that are the subject of this action. 

STATEMENT OF FACTS 

9. On November 19, 2021, 45Committee submitted its FOIA Request to 

the FEC seeking: (1) Any vote certifications reflecting votes taken by the 

Commission on the complaint against 45Committee in FEC Matter Under Review 

7 486 ("MUR 7 486"); and (2) Any Statements of Reasons or other Commissioner 

opinions concerning the complaint against 45Committee in MUR 7 486. Attached as 

Exhibit 1 is a copy of the Request. The FEC assigned #2022-012 to the Request. 

10. On January 5, 2022, the FEC responded to the Request (the 

"Response"). Attached as Exhibit 2 is a copy of the Response. 

11. In its Response, the Commission granted in part and denied in part 

the Request. See Exhibit 2. Attached to its Response, the Commission provided a 

two-page document that it deemed responsive to 45Committee's Request. Id. That 

document is an "Amended Certification" from Acting Deputy Secretary of the 

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Commission Vicktoria J. Allen reflecting votes taken by the FEC's Commissioners 

on June 23, 2020, regarding MUR 7486. Id. (capitalization altered). But the FEC 

heavily redacted almost all of that document under FOIA Exemption 5. Id.; see 5 

U.S.C. § 552(b)(5). The only substantive portion of the document that the FEC left 

unredacted concerns a Commission vote held on whether the agency should defend 

itself in a lawsuit, which portion of the document is not even responsive to the 

Request. See Exhibit 2. The Response also stated that the Commission was 

withholding an additional "five pages of materials responsive to [45Committee's] 

request" under Exemption 5, but the FEC did not even attempt to segregate the 

exempt information from the non-exempt information in those pages. Id. In short, 

the Commission redacted or withheld all information responsive to the Request 

under Exemption 5. 

12. 45Committee administratively appealed the FEC's decision on 

January 7, 2022 (the "Appeal"). Attached as Exhibit 3 is a copy of the Appeal. 

13. In the Appeal, 45Committee argued that the FEC improperly withheld 

information under Exemption 5 because FOIA itself requires disclosure of 

Commissioners' votes. See Exhibit 3 (citing 5 U.S.C. § 552(a)(5) ("Each agency 

having more than one member shall maintain and make available for public 

inspection a record of the final votes of each member in every agency proceeding.")). 

45Committee further argued that, even if FOIA Exemption 5 were available to the 

FEC here, the withheld materials are not subject to Exemption 5 because the 

Commission's final decisions are neither predecisional nor deliberative. See id. 

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(citing Aug v. Nat'l R.R. Passenger Corp., 425 F. Supp. 946, 950-51 (D.D.C. 1976) 

(rejecting claim that votes, and any explanations of those votes, are subject to FOIA 

Exemption 5)). Moreover, 45Committee argued, even if the withheld documents 

contain some information exempt from disclosure under Exemption 5, the FEC 

cannot categorically withhold those documents in full but must segregate and 

disclose the non-exempt portions of those records. See id. (citing Val/ells v. CIA, 717 

F. Supp. 2d 110, 120 (D.D.C. 2010) (explaining that the agency must provide "a 

'detailed justification' and not just 'conclusory statements' to demonstrate that all 

reasonably segregable information has been released")). 

14. On February 7, 2022, by telephone call to counsel for 45Committee, the 

Commission invoked extraordinary circumstances to extend the statutory deadline 

to respond to the appeal by 10 working days-to and including February 22, 2022. 

15. Because the FEC did not respond to 45Committee's Appeal by 

February 22, 2022, Plaintiff is deemed to have exhausted its administrative 

remedies under 5 U.S.C. § 552(a)(6)(C)(i). 

16. 45Committee has a statutory right to the withheld records, and is now 

entitled to judicial action enjoining the Commission from continuing to improperly 

withhold records and ordering the production of records improperly withheld. 

CLAIM FOR RELIEF 

Violation of FOIA, 5 U.S.C. § 552 

Wrongful Withholding of Non-Exempt Records 

17. 45Committee incorporates by reference the allegations contained in 

the previous paragraphs as though set forth fully herein. 

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18. FOIA authorizes a court "to enjoin the agency from withholding agency 

records and to order the production of any agency records improperly withheld from 

the complainant." 5 U.S.C. § 552(a)(4)(B). 

19. 45Committee properly requested records within the possession and 

control of the FEC. 

20. The FEC is an agency subject to FOIA and must therefore release in 

response to a FOIA request any non-exempt records and provide a lawful reason for 

withholding any materials. 

21. 45Committee exhausted all of its administrative remedies under FOIA 

and the FEC's regulations. 

22. The FEC is wrongfully withholding non-exempt agency records 

requested by 45Committee under FOIA Exemption 5. FOIA itself requires the FEC 

to "make available for public inspection a record of the final votes of each member in 

every agency proceeding'' and "final opinions." 5 U.S.C. § 552(a)(5), (a)(2)(A). The 

FEC's own regulations likewise require the Commission to make available for 

public inspection "[o]pinions of Commissioners rendered in enforcement cases." 11 

C.F.R. § 4.4(a)(3). The FEC failed to comply with these unambiguous requirements 

in withholding the voting records responsive to the Request. 

23. In addition, the FEC is improperly withholding the requested voting 

records under FOIA Exemption 5 because the Commission's final decisions are 

neither predecisional nor deliberative. Even assuming Exemption 5 applies to some 

portions of the withheld voting records, the FEC failed to segregate the exempt 

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material and disclose the non-exempt material, as required by both FOIA and the 

FEC's implementing regulations. See 5 U.S.C. § 552(a)(8)(A)(ii)(II); 11 C.F.R. 

§§ 4.4(e), 4.5(c). The FEC's failure to provide all non-exempt responsive records 

violates FOIA. 

24. The FEC also acted arbitrarily or capriciously with respect to the 

withholding of the voting records responsive to the Request because the 

Commission had no legal basis to withhold the responsive documents under 

Exemption 5. See 5 U.S.C. § 552(a)(4)(F)(i). 

25. 45Committee is therefore entitled to declaratory and injunctive relief 

requiring the FEC to promptly produce all non-exempt records responsive to the 

Request and to provide an index justifying the withholding of any responsive 

records withheld under Exemption 5. 

PRAYER FOR RELIEF 

Wherefore, Plaintiff prays for the following relief: 

1. A declaration that 45Committee is entitled to disclosure of the 

requested voting records under FOIA; 

2. A declaration that the FEC acted arbitrarily or capriciously by 

withholding the requested voting records because the FEC lacked a legal basis to 

withhold the responsive documents under FOIA Exemption 5; 

3. An order requiring the FEC to promptly produce the voting records 

responsive to 45Committee's FOIA Request; 

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4. An injunction prohibiting the FEC from continuing to withhold any 

and all voting records responsive to 45Committee's FOIA Request; 

5. An order requiring the FEC to promptly produce an index justifying 

the withholding of any responsive records withheld under Exemption 5; 

6. That the Court retain jurisdiction of this action to ensure no agency 

records are wrongfully withheld; 

7. An award of all costs and attorneys' fees pursuant to any applicable 

statute or authority, including 5 U.S.C. § 552(a)(4)(E); and 

8. Any other relief this Court deems just and proper. 

Dated: February 25, 2022 Respectfully submitted, 

Is I Brett A. Shumate 

Brett A. Shumate 

(D.C. Bar No. 974673) 

Eric J. Snyder (D.C. Bar No. 1001610) 

(application for admission forthcoming) 

E. Stewart Crosland (D.C. Bar No. 1005353) 

(application for admission forthcoming) 

JONES DAY 

51 Louisiana Avenue, N.W. 

Washington, D.C. 20001 

Telephone: (202) 879-3939 

Facsimile: (202) 626-1 700 

Counsel for Plaintiff 

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