UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CENTER FOR AUTO SAFETY,
1825 Connecticut Avenue, N.W.,
Washington, D.C. 20009,
DEPARTMENT OF TRANSPORTATION,
400 Seventh Street, S.W.
Washington, D.C. 20590,
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
1. This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, as amended, to order the production of all materials relating to a June 28, 2002 meeting between the National Highway Traffic Safety Administration ("NHTSA") and representatives of Nissan North America, Inc. NHTSA is conducting an investigation into injuries associated with air bags installed in the 1994 and early 1995 Nissan Altima and Nissan is seeking to dissuade NHTSA from finding that the air bags are defective. FOIA requires prompt disclosure of records concerning Nissan’s effort to influence the investigation, but NHTSA has, without justification, procrastinated in releasing this information.
2. This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B).
3. Plaintiff Center for Auto Safety ("CAS") is a private nonprofit consumer advocacy organization incorporated under the laws of the District of Columbia. CAS works toward improved safety, environmental responsibility, and fair dealing in the automotive industry and the marketplace. CAS is the requestor of the withheld records.
4. Defendant Department of Transportation is an agency of the United States.
5. NHTSA is a component of the Department of Transportation, and it has possession of and control over the records that plaintiff seeks.
6. on March 5, 2001, the Center for Auto Safety and Public Citizen presented evidence to NHTSA showing that passengers in 1994-95 Nissan Altimas have suffered an inordinately high number of serious eye injuries, including blinding injuries, caused by deployment of the air bag installed inside these vehicles. on March 8, 2001, NHTSA opened a defect investigation (PE01-008) into facial and eye injuries resulting from passenger air bags in 1994-95 Nissan Altimas.
7. The investigation was upgraded to an Engineering Analysis (EA01-015) on August 9, 2001. The investigation has identified, through crash reports and medical records, at least 75 cases of facial and eye injuries from passenger air bags installed in 1994-95 Nissan Altimas.
8. on June 28, 2002, NHTSA officials met privately with representatives of Nissan to discuss the agency’s investigation.
9. In an August 7, 2002 letter to the NHTSA FOIA Officer, plaintiff requested, pursuant to the FOIA, disclosure of correspondence, notes, calendars, and all other records relating to the June 28, 2002 meeting.
10. In a letter dated September 11, 2002, NHTSA acknowledged receipt of plaintiff’s FOIA request. The letter stated that the agency would take an extension of ten working days to respond to the request pursuant to 49 C.F.R. § 7.33, and that the agency "would therefore expect that an answer will be provided to you by September 20, 2002."
11. FOIA provides that the agency "shall make the records promptly available" upon receiving a request for records covered by the statute, 5 U.S.C. § 552(a)(3)(A), and provides for only one extension of ten working days if "unusual circumstances" delay the agency’s response. 5 U.S.C. § 552(a)(6)(A). All of the statutory time limits for NHTSA to respond to plaintiff’s request, including the ten day extension invoked by the agency, have expired, and NHTSA has not released any records or provided a basis for withholding the records requested.
12. Plaintiff has subsequently contacted NHTSA at least four times to inquire about the status of the request; each time, plaintiff has been told that the agency’s response would be available by the end of the week, and no answer has appeared.
13. Plaintiff has a statutory right to prompt access to the records it seeks, and there is no legal basis for NHTSA’s refusal to disclose the records to the plaintiff.
WHEREFORE, plaintiff prays that this Court:
(A) Declare that defendant’s withholding of the requested records is unlawful;
(B) Order defendant to make the requested records promptly available to plaintiff;
(C) Award plaintiff its costs and reasonable attorneys fees pursuant to 5 U.S.C. § 552(a)(4)(e); and
(D) Grant all other appropriate relief.
Michael E. Tankersley
D.C. Bar No. 411978
Member of the NY Bar (D.C. Admission Pending)
PUBLIC CITIZEN LITIGATION GROUP
1600 20th Street, N.W.
Washington, D.C. 20009
November 14, 2002