CHARLES R. SMITH                             )
7707 WHIRLAWAY DRIVE                         )
MIDLOTHIAN, VA 23112                         )
         Plaintiff                           )
         V.                                  )
DEPARTMENT OF COMMERCE                       )
serve for                                    )
ASST. COUNSEL FOR ADMIN.                     )
14TH & CONSTITUTION AVE.                     )
WASHINGTON, D.C.  20230                      )
         Defendant                           )
ATTORNEY GENERAL OF THE                      )
UNITED STATES                                )
MAIN JUSTICE BUILDING                        )
10TH & CONSTITUTION AVE., N.W.               )
WASHINGTON, D.C.  20530                      )
MAIN STREET CENTRE, 18TH FLOOR               )
600 EAST MAIN STREET,                        )
RICHMOND, VA  23219                          )


Comes now Plaintiff, Charles R. Smith, and hereby files a complaint for compliance with the Freedom of Information Act ("FOIA"), 5 U.S.C., 552 as amended, Charles R. Smith respectfully alleges as follows:

1. This is an action brought under FOIA to order the production of documents and records of the Department of Commerce ("DOC").

2. This court has jurisdiction over this action pursuant to 5 U.S.C. sec 552 (a) (4) (B).

3. Plaintiff Charles R. Smith is a journalist and the owner of a Virginia based information security company whose principle place of business is 7707 Whirlaway Drive, Midlothian, Virginia. Plaintiff, the requester of the withheld documents, is a recognized independent journalist, as per written documentation provided by the Central Intelligence Agency, the Dept. of Justice and the Department of Commerce. Plaintiff is dedicated to the dissemination of accurate information, freedom of the press, protecting the lives, property and privacy of all citizens. In pursuit of those principles, Plaintiff is empowered to take legal and other corrective actions that will serve the public interest.

4. Defendant Department of Commerce ("DOC") is an agency of the United States government, established by statute and charged with the responsibility of international and domestic commerce. It's principle place of business, and the offices responsible for the purposes of legal, and FOIA requests is located inside the District of Columbia. The Defendant agency has possession of the documents and records to which Plaintiff seeks access.

5. Defendant has illegally withheld documents, made false claims for withholding documents, and refused to service FOIA request of the Plaintiff in violation of the Freedom of Information Act (FOIA) 5 U.S.C. sec 552 (a) (4) (B). Plaintiff appealed the Defendant's "final" response in 1998 for the FOIA material in question. In response to the Plaintiff's appeal, the Defendant has discovered an additional "33" documents but has denied access to some documents for a variety of FOIA exemptions. Please see examples:

         1  - Original FOIA 2/10/98
         2  - "Final" response by Commerce 10/13/98
         3  - FOIA appeal 10/16/98
         4  - FOIA Appeal 2/25/99
         5  - 3/29/99 response by Commerce.

6. Defendant is illegally withholding data on the Computer Systems Policy Project (CSPP) in order to conceal possible criminal activity. According to Commerce documents the CSPP was represented by Tony Podesta, brother of White House official John Podesta. Mr. John Podesta and Mr. Tony Podesta were engaged in activities that may constitute conflict of interest under USC title 18, sections 203 through 208. John Podesta was employed at the White House and charged with the very same policy that his brother Tony Podesta was engaged in lobbying the Government. Please see examples:

         6  - Podesta Associates document 3/11/98
         7  - White House document 3/11/98
         8  - White House document 3/13/98
         9  - Letter to Ron Brown cc to John Podesta 12/16/93
         10 - Memo for Daniel Poneman 12/13/93 "John Podesta"
              attending meeting
         11 - White House meeting on "Podesta ... legislation"
              with Ron Brown
         12 - White House 1/31/95 "CSPP Discussions" attended by
              Commerce officials
         13 - 5/18/95 Letter To Ron Brown From CSPP on
              encryption & computer exports

7. According to Federal Code USC title 18, sections 203 through 208, with regard to conflict of interest, White House advisors are prohibited from working on matters in which they have a direct financial interest. This law also prohibits them from lobbying on matters they worked on while in government and prohibits them from lobbying for a period of one year after they have left service. For example, a 1995 secret meeting in the White House attended by Podesta Associates employee, Ken Kay, took place while John Podesta was employed at the White House. In addition, John Podesta left the employ of the White House and went directly to work for his brother, Tony Podesta, in July 1995. Please see example #14 - June 1995 letter from William Reinsch Dept. of Commerce, C. Boyden Gray letter, CSPP letter and White House letter.

8. According to the Federal Advisory Committee Act (FACA) the Defendant was required to make public disclosure if a government agency consults advisors who are not government employees. FACA was established to force Federal officials to hold formal policy meetings in public, instead of meeting with special interests, lobbyists and industry behind closed doors. The Defendant was legally obliged to offer open access to the public, media and other qualified individuals the same access as the members of the CSPP - who are NOT members of the Federal Government. Instead, the Defendant engaged in secret meetings with the CSPP and Podesta Associates employees at the White House. No notification was issued for the meetings admitted to by the CSPP, Podesta Associates and the White House.

9. According to the General Accounting Office - CSPP members IBM and Silicon Graphics exported super-computers directly to Russian military nuclear weapons labs in violation of U.S. export laws. Those exports took place during the the period in which the Defendant is withholding documents, and during the period of time when the both companies were represented by Tony Podesta. Please see example #15 - quotes from GAO reports on Super Computer exports.

10. According to Commerce Dept. materials CSPP member Tandem Corp. exported computers to China Great Wall Corp., a company owned by the Chinese Army, during a August 1994 trade trip. Please see examples #16 - trade trip document on James Treybig "Tandem and China Great Wall Industry will announce in August their joint venture" and a document found by Defendant in the files of former Commerce Secretary Ron Brown - which specifically states that Treybig "negotiated a $100 million dollar joint venture for Tandem Computers while in China".

11. Plaintiff asserts that defendant is illegally withholding documentation on CSPP super- computer technology transfers to Chinese and Russian military units in violation of the State Department's International Traffic in Arms Regulations (ITAR) under the Arms Control Act (ACEA). The Defendant does not have the authority to authorize export of super-computers to foreign military units. Transfers of any equipment for the development of nuclear weapons to military units constitutes a "defense service" as per the United States Munitions List and the International Trade in Arms Regulations ITAR 22 C.F.R. Part 120.9 and is strictly under the authority of the State Dept. and the Defense Dept.

12. According to documents provided by the Defendant, White House official Robert Rubin was involved in both policy making meetings with the CSPP and the Commerce Dept. as well as soliciting campaign donations from CSPP members at the same time. According example # 18, a document partially withheld by Defendant, a 5/20/94 letter from the CSPP notes a meeting with Commerce officials, and "Robert Rubin" where super-computer exports to China and Russia were discussed. According to example #19, a 11/1/94 letter written to President Clinton provided by the Defendant, "Bob" Rubin "turned out the banking and silicon valley community" for a "$100,000" donation for Democrat Senator Feinstein of California. The letter was written in reference to the August 1994 trade trip during which CSPP member Tandem Corp. sold computers to China Great Wall Corp., a company owned by the Chinese Army.

13. According to the 6/1/95 memo from William Reinsch to Ron Brown - please see example #20, the CSPP meeting included Podesta Associate employee Ken Kay, and Charles Levy, a representative of Wilmer, Cutler and Pickering (C. Boyden Gray). According to C. Boyden Gray of Wilmer, Cutler and Pickering - the CSPP did not "engage" the Commerce Dept. on the issues covered in the 6/1/95 memo until November of 1995. In addition, CSPP Director Ken Kay donated money to the DNC and even obtained a "painting" of unknown value from the DNC. Please see example #21 3/11/98 letter from C. Boyden Gray.

14. Defendant's claims for withholding critical documentation from the CSPP has changed. A critical document detailing a CSPP secret meeting at the White House in 1995 is being denied by the Defendant to conceal evidence - please see example #20. The June, 1995 document was returned by the Defendant to a previous FOIA request for "encryption" by the Plaintiff - please see example #14. On example #14 - Areas of this document were withheld using "N/R" as "not responsive" to the Plaintiff's request. The same document was returned by the Plaintiff in response the the FOIA on the "CSPP" and now the Defendant claims that areas are to be withheld as "classified".

15. Defendant has made false claims to have "no" documentation on John Podesta and Tony Podesta. Please see example #22 March 1999 FOIA responses from Commerce Dept. on John Podesta and Tony Podesta. The Defendant's claim to have "no" documentation is clearly false based on the over-whelming data already provided by the Defendant from/to/about the same John and Tony Podesta. The Defendant refusal to service the FOIAs are under appeal.

16. Defendant has refused to properly service Plaintiff's FOIA requests despite numerous examples which show conflicts, sales and trade trips. Please see examples:

         23 - CSPP document found in Ron Brown's files 1/17/96
              "Ken Kay of Podesta Associates, is CSPP's
              executive director"

         24 - CSPP document showing CSPP address, phone and fax
               numbers were the same as Podesta Associates
               (please see example #6 3/11/98 fax from Podesta

         25 - 8/10/94 Document partially withheld by Commerce 
              dealing with CSPP - this document is in the time
              period during which John Podesta was employed at
              the White House, Tony Podesta represented CSPP,
              and a CSPP member trade trip to China.

         26 - 5/1/94 Dept. of Commerce document noting CSPP
              meeting with Commerce

         27 - A 11/3/95 letter to Ron Brown by CSPP Co-Chairs,
              thanking Mr. Brown for "the President's recent
              decision to significantly reform computer export

17. Plaintiff has repeatedly appealed the illegal withholding of documents by the Defendant. The Plaintiff has given over 30 days for the Defendant to respond to the FOIA, and has complied with all Defendant requests. The Plaintiff is in compliance with all provisions under the Freedom of Information Act (FOIA) 5 U.S.C. 552.

18. As of April 12, 1999, the Defendant has failed to comply and the Plaintiff shall be deemed to have exhausted its administrative remedies with respect to this request, pursuant to 5 U.S.C. 552 (a) (6) (C) and the 1974 Privacy Act.

19. Plaintiff has a right of access to all documents and records refused, pursuant to 5 U.S.C., 552 (a) (3). The Defendant has no legal basis for refusing to disclose these documents and records to the Plaintiff.

WHEREFORE, Plaintiff prays that this Court:

         (1)  Declare that Defendant's refusal to disclose
              records requested by Plaintiff is unlawful,

         (2)  Order Defendant to make the requested records
              available to the Plaintiff,

         (3)  Grant Plaintiff a request to depose individuals
              for testimony under oath,

         (4)  Award Plaintiff its costs and reasonable
              attorney's fees in this action,

         (5)  Grant such other and further relief as the Court
              may deem just and proper.

                           Respectfully submitted,


                           Charles R. Smith
                           7707 Whirlaway Drive
                           Midlothian, VA 23112
                           (phone - 804/639-1608)


April 12, 1999





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