UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Dave Levinthal, et al., |

|

Plaintiffs, |

|

v. | Civil Action No. 15-1148 (JEB)

| ECF

Federal Election Commision, |

|

Defendant. |

PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT

AND OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Plaintiffs, Dave Levinthal and the Center for Public Integrity, move for summary 

judgment pursuant to Federal Rule of Civil Procedure 56 and oppose Defendant’s Motion for 

Summary Judgment. Plaintiff’s Memorandum of Points and Authorities, Statement of Material 

Facts as to Which There Is No Genuine Issue and a proposed Order accompany this motion.

Respectfully submitted,

/S/

Peter Newbatt Smith 

D.C. Bar #458244

Center for Public Integrity

910 17th Street, N.W., 7th Floor

Washington, DC 20006-2606

202-481-1239

psmith@publicintegrity.org

Attorney for Plaintiff

March 11, 2016

Case 1:15-cv-01148-JEB Document 15 Filed 03/11/16 Page 1 of 7
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Dave Levinthal, et al., |

|

Plaintiffs, |

|

v. | Civil Action No. 15-1148 (JEB)

| ECF

Federal Election Commision, |

|

Defendant. |

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND IN 

OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 

This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, as

amended, to secure the production of certain agency records from the Federal Election 

Commission (FEC), the Defendant, concerning commissioners’ official schedules.

After unexplained delays in processing Plaintiffs’ FOIA request, Defendant produced 

documents responsive to the request but produced no calendar records for three of the six 

commissioners. Plaintiffs do not seek production of the records that Defendant characterizes as 

“personal calendars.” However, Defendant has admitted the existence of additional records 

concerning the schedules of these three commissioners. These are uncontestably agency records

responsive to Plaintiffs’ request, but Defendant has not produced them.

BACKGROUND

Plaintiffs Dave Levinthal and the Center for Public Integrity are engaged in investigative 

journalism. Mr. Levinthal’s assignments include covering the Federal Election Commission and 

the influence of money in federal politics. By email dated August 14, 2014, Plaintiffs requested

from Defendant

Case 1:15-cv-01148-JEB Document 15 Filed 03/11/16 Page 2 of 7
[A]ny and all scheduling documents and/or records — be them in paper or 

electronic form — used by FEC commissioners. Such documents should include, 

but not be limited to, calendars, schedules, emails, and itineraries that list or 

account for commissioners' meetings, whereabouts or travels when conducting

government business or traveling to/from engagements or duties involving 

government business.

The request covered the timeframe October 21, 2013, through August 14, 2014. (See Decl. Katie 

A. Higginbotham ¶ 2, Feb. 10, 2016.)

Although FOIA generally requires an agency determination within 20 business days (5 

U.S.C. § 552(a)(6)(A)(i)), Defendant did not produce any responsive records until May 19, 2015

(see Higginbotham Decl. ¶ 8), more than nine months after the request. This batch of records 

concerned one of the six FEC commissioners. When additional records were not forthcoming, 

Plaintiffs filed this lawsuit, on July 20, 2015. Defendant produced additional responsive records 

on August 27, September 14, and October 14, 2015 (see Higginbotham Decl. ¶ 8).

Plaintiffs noted that Defendant did not produce any records from the calendars of 

Commissioners Hunter, Petersen, and Walther, and asked Defendant for an explanation. 

Defendant responded: “Neither Commissioner Hunter, nor Commissioner Walther, nor Vice 

Chair Petersen maintains a calendar that constitutes an agency record subject to FOIA.” (Letter 

from Greg J. Mueller to Peter Newbatt Smith (Dec. 4, 2015), attached as Exh. A to Decl. of Greg 

J. Mueller, Feb. 12, 2016.)

Plaintiffs informed Defendant that Plaintiffs would not seek judicial review except on the 

issue of whether “calendars and/or other scheduling information for Commissioners Hunter, 

Petersen and Walther” are “contained in any agency records ....” (Email from Peter Newbatt 

Smith to Greg J. Mueller (Dec. 10, 2015), attached as Exh. B. to Mueller Decl.)

Case 1:15-cv-01148-JEB Document 15 Filed 03/11/16 Page 3 of 7
ARGUMENT

I. LOTUS NOTES MEETING NOTIFICATIONS ARE RESPONSIVE AGENCY

RECORDS

With its Motion for Summary Judgment, Defendant for the first time disclosed that 

Commissioners Hunter, Petersen and Walther each “occasionally receive notifications of

meetings through the agency's Lotus Notes software ....”1 (Decl. of Caroline C. Hunter ¶ 5, Feb. 

11, 2016; Decl. of Matthew S. Petersen ¶ 5, Feb. 11, 2016; and Decl. of Steven T. Walther ¶ 5, 

Feb. 11, 2016 (“... notifications of internal meetings ...”).)

Defendant has not produced records of these meeting notifications. The Declaration of

Katie A. Higginbotham, describing Defendant’s search process, makes no mention that the 

agency’s information technology staff were asked to conduct an electronic search for responsive 

records — only that commissioners were asked “to search their paper and electronic files ....”

(Higginbotham Decl. ¶ 5.)

These meeting notifications are obviously agency records, sent between agency officials, 

relating to agency business, and using the agency’s computer system. They are likewise clearly 

responsive to Plaintiffs’ FOIA request, as would be any other calendar information contained in 

or sent through Lotus Notes, such as meeting invitations and responses to invitations. Defendant 

has no justification for not producing them.

II. “PERSONAL CALENDARS”

Plaintiffs do not seek production of the records that Defendant has characterized as 

“personal calendars.”

 1 Lotus Notes has been renamed “IBM Notes.” (See “IBM Notes,” http://www-03.ibm.com/software/products/-

en/ibmnotes, accessed March 11, 2016.) Plaintiff will follow Defendant’s convention in continuing to refer to the 

software as “Lotus Notes.”

Case 1:15-cv-01148-JEB Document 15 Filed 03/11/16 Page 4 of 7
CONCLUSION

For the foregoing reasons, the Court should grant Plaintiffs’ Motion for Summary 

Judgment and deny Defendant’s Motion for Summary Judgment.

Respectfully submitted,

/S/

Peter Newbatt Smith 

D.C. Bar #458244

Center for Public Integrity

910 17th Street, N.W., 7th Floor

Washington, DC 20006-2606

202-481-1239

psmith@publicintegrity.org

Attorney for Plaintiff

March 11, 2016

Case 1:15-cv-01148-JEB Document 15 Filed 03/11/16 Page 5 of 7
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Dave Levinthal, et al., |

|

Plaintiffs, |

|

v. | Civil Action No. 15-1148 (JEB)

| ECF

Federal Election Commision, |

|

Defendant. |

PLAINTIFF’S STATEMENT OF MATERIAL FACTS

AS TO WHICH THERE IS NO GENUINE ISSUE

Pursuant to Local Civil Rule 7(h), Plaintiff submits the following statement of material 

facts as to which there is no genuine issue, in support of Plaintiff’s Motion for Summary 

Judgment, and in opposition to Defendant’s Motion for Summary Judgment:

1. By email dated August 14, 2014, Plaintiffs requested from Defendant, pursuant to 

the Freedom of Information Act,

[A]ny and all scheduling documents and/or records — be them in paper or 

electronic form — used by FEC commissioners. Such documents should include, 

but not be limited to, calendars, schedules, emails, and itineraries that list or 

account for commissioners' meetings, whereabouts or travels when conducting

government business or traveling to/from engagements or duties involving 

government business.

The request covered the timeframe October 21, 2013, through August 14, 2014. (See Decl. of 

Katie A. Higginbotham ¶ 2, Feb. 10, 2016.)

2. The only issue in this lawsuit that Plaintiffs continue to contest is whether 

“calendars and/or other scheduling information for Commissioners Hunter, Petersen and 

Walther” are “contained in any agency records ....” (Email from Peter Newbatt Smith to Greg J. 

Mueller (Dec. 10, 2015), attached as Exh. B. to Decl. of Greg J. Mueller, Feb. 12, 2016.)

Case 1:15-cv-01148-JEB Document 15 Filed 03/11/16 Page 6 of 7
3. Commissioners Hunter, Petersen and Walther each “occasionally receive 

notifications of meetings through the agency's Lotus Notes software ....” (Decl. of Caroline C. 

Hunter ¶ 5, Feb. 11, 2016; Decl. of Matthew S. Petersen ¶ 5, Feb. 11, 2016; and Decl. of Steven 

T. Walther ¶ 5, Feb. 11, 2016 (“... notifications of internal meetings ...”).)

4. Defendant has not searched for, and has not produced, records of notifications of 

meetings sent through Lotus Notes software or similar records. (Higginbotham Decl.)

Respectfully submitted,

/S/

Peter Newbatt Smith 

D.C. Bar #458244

Center for Public Integrity

910 17th Street, N.W., 7th Floor

Washington, DC 20006-2606

202-481-1239

psmith@publicintegrity.org

Attorney for Plaintiff

March 11, 2016

Case 1:15-cv-01148-JEB Document 15 Filed 03/11/16 Page 7 of 7