CREW I

citizens for responsibility and ethics in washington

March 18,2011

Melanie Ann Pustay Director

Office of Information Policy U.S. Department of Justice 1425 New York Avenue, N.W. Suite 11050

Washington, D.C. 20530-0001

Re: Freedom ofInformation Act Appeal in Request No. CRM-201100063F

Dear Ms. Pustay:

Citizens for Responsibility and Ethics in Washington ("CREW") hereby appeals the refusal of the Department of Justice ("DOJ") to release to CREW any records responsive to our Freedom ofInformation Act ("FOIA") request of January 24, 2011.

By letter dated and sent by facsimile on January 24,2011, CREW requested all records related to the investigations of Rep. Jerry Lewis (R-CA) conducted by DOJ and the Federal Bureau of Investigation ("FBI"), including but not limited to DOl's decision not to bring criminal charges against Rep Lewis. CREW explicitly excluded from its request records covered by grand jury secrecy pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure. A copy of the request is attached as Exhibit A.

CREW also sought a public interest fee waiver, explaining that the requested records are likely to contribute to greater public awareness of alleged malfeasance and possible criminal behavior by Rep. Lewis, as well as the decision of DOJ not to prosecute Rep. Lewis despite his known conduct. As CREW explained, DOJ started investigating Rep. Lewis in 2006 for his conduct in obtaining millions of dollars in earmarks for clients of lobbying firms run by his former colleagues and staff. CREW further explained that on December 3, 2010, a spokesperson for the U.S. Attorney's Office for the Central District of California announced that DOJ had ended its investigation into Rep. Lewis's conduct.

As CREW also explained, while DOJ decided not to prosecute Rep. Lewis, his activities still may have been illegal or violations of the rules of the House, and the requested records would shed light on them. CREW further explained these documents would shed light on the conduct of DOJ and the FBI in conducting the investigations of Rep. Lewis, and DOl's apparent decision to close the investigations without bringing charges against him.

CREW specifically noted its willingness to discuss with DOJ the scope of its request and whether it can be narrowed or modified to better enable DOJ to process it.

1400 Eye Street, NW., Suite 450, Washington, D.C. 20005 I 202.408.5565 phone I 202.588.5020 fax I www.citizensforethics.org

.~;

Office of Information Policy March 18, 2011

Page 2

In response, DO] denied CREW's request in full by letter dated March 3, 2011 (attached as Exhibit B). DO] acknowledged it located one box of records responsive to the request, but withheld all of the records pursuant to Exemptions 3, 5, 6, and 7(C). DO] improperly relied on these exemption to withhold all of the requested records.

DOJ Improperly Withheld Responsive Records Under Exemption 3

DO] first asserted it withheld some unidentified number of responsive records pursuant to Exemption 3, which permits withholding records specifically exempted by another statute. 5 U.S.C. § 552(b)(3).

The statute on which DO] relied is Rule 6( e) of the Federal Rules of Criminal Procedure, which restricts disclosure ofrecords that would reveal matters occurring before a grand jury. While Rule 6(e) qualifies as a statute under Exemption 3, it only permits some information related to a grand jury to be withheld. "There is no per se rule against disclosure of any and all information which has reached the grand jury chambers .... The touchstone is whether disclosure would 'tend to reveal some secret aspect of the grand jury's investigation' such matters as 'the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of the jury, and the like." Senate of the Commonwealth of Puerto Rico on Behalf of Judiciary Comm. v. Us. Dep 't of Justice, 823 F.2d 574,582 (D.C. Cir. 1987) (citation omitted); see also Stolt-Nielsen Transp. Group Ltd. v. United States, 534 F.3d 728, 732 (D.C. Cir. 2008). Grand jury material may only be withheld if there is "some affirmative demonstration of a nexus between disclosure and revelation of a protected aspect of the grand jury's investigation." Senate of the Commonwealth of Puerto Rico, 823 F.2d at 584. Records may not be withheld simply because they were submitted to the grand jury as exhibits, id., including records created independently of the grand jury process, Washington Post Co. v. Us. Dep 't of Justice, 863 F.2d 96, 100 (D.C. Cir. 1988).

CREW specifically excluded from the request any records covered by grand jury secrecy pursuant to Rule 6( e), and does not seek grand jury records properly withheld under these standards. However, any responsive records for which there is no nexus between disclosure and revelation of a protected aspect of a grand jury investigation may not be withheld under Exemption 3.

In addition, even if the responsive records contain some information properly protected from disclosure under Exemption 3, DO] did not comply with its duty under the FOIA to disclose all non-exempt, segregable portions of the records. The FOIA requires agencies to "disclose any reasonably segregable portion of a record ... after deletions of the portions which are exempt." 5 U.S.C. § 552(b). "[T]he focus in the FOIA is information, not documents, and an agency cannot justify withholding an entire document simply by showing that it contains some exempt material." Mead Data Central, Inc. v. United States Dep 't of Air Force, 566 F.2d 242,

Office of Information Policy March 18,2011

Page 3

260 (D.C. Cir. 1977); see also Lopez v. Dep 't of Justice, 393 F.3d 1345, 1348-50 (D.C. Cir. 2005). DOJ should have redacted any legitimately exempt information and disclosed the remainder of the records.

DOJ Improperly Withheld Responsive Records Under Exemption 5

DOJ also asserted it withheld some unidentified number of records pursuant to Exemption 5, which protects from disclosure "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." 5 U.S.C. § 552(b)(5). DOJ claimed some unidentified number of responsive records are exempt pursuant to the deliberative process privilege and/or as attorney work product prepared in anticipation of litigation.

In order to fall within the protection of Exemption 5 under the deliberative process privilege, the communication in question must be both predecisional and deliberative. Wolfe v. HHS, 839 F.2d 768, 774 (D.C. Cir. 1988) (en bane). To establish that the material in question is predecisional, DOJ must show "what deliberative process is involved, and the role played by the documents in issue in the course of that process." Coastal States Gas Corp. v. Dep 't of Energy, 617 F.2d 854,868 (D.C. Cir. 1980). Furthermore, Exemption 5 does not protect purely factual information, and permits withholding only specific materials reflecting the "give-and-take of the consultative process." Wolfe, 839 F.2d at 774.

Here, DOJ has failed to provide any description of the withheld documents, making it impossible to assess if or how the deliberative process privilege might apply to the responsive records. Given the nature of the request, it is unlikely that the records do not contain any factual matters that may not be withheld. CREW requested records related to a criminal investigation. DOJ and the FBI almost certainly obtain factual information in the course of that investigation, and the records most likely also contain factual material about the conduct of the investigation.

Similarly, DOJ has failed to show all of the responsive records are subject to the attorneywork product doctrine. The attorney-work product doctrine "provides a working attorney with a 'zone ofprivacy"'so long as the document at issue was "created for use at trial or because a lawyer or party reasonably anticipated that specific litigation would occur." Coastal States, 617 F.2d at 864 (citation omitted). Litigation need not be actual or imminent for the attorney workproduct doctrine to apply, but it "does not attach until at least some articulable claim, likely to lead to litigation, has arisen." Id at 865. DOl's failure to describe in any way the withheld records makes it impossible to determine if they properly fall within this privilege.

In addition, DOJ should consider making a discretionary release of these records, consistent with Attorney General Eric Holder's FOIA guidance that rests on a presumption of openness, and President Obama's January 21,2009 memoranda that commits the administration

Office of Information Policy March 18,2011

Page 4

to an unprecedented level of transparency and openness. Discretionary releases are encouraged under the Attorney General's guidelines, and the DOJ notified agencies that such releases are "most applicable under Exemption 5." Department of Justice, Office ofInformation Policy, OJP Guidance: President Obama's FOJA Memorandum and Attorney General Holder's FOJA Guidelines, Creating a "New Era of Open Government", April 17,2009 (attached at Exhibit C).

DOJ Improperly Withheld Responsive Records Under Exemption 6 and 7(C)

DOJ further asserted it withheld some unidentified number of records pursuant to Exemptions 6 and 7(C). Exemption 6 exempts from compelled disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," 5 U.S.C. § 552(b)(6), and Exemption 7(C) exempts from disclosure records "compiled for law enforcement purposes" where disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy," 5 U.S.C. § 552(b)(7)(C). Under these standards, to determine if a privacy exemption properly applies, a court must balance the privacy interest against the public interest in citizens being "informed about 'what their government is up to. '" Us. Dep 't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 762, 772-73 (1989) ("Reporters Committee") (internal citation omitted). Information that "sheds light on an agency's performance of its statutory duties falls squarely within" the public interest. Jd. at 773; see also us. Dep 't of Defense v. FLRA, 510 U.S. 487,497 (1994). Personal information may be withheld only when it "reveals little or nothing" about the government's conduct. Reporters Committee, 489 U.S at 773.

The records CREW requests unquestionably would inform the public about what the former ranking member of the House Appropriations Committee, and its current Chairman Emeritus, was up to. As CREW explained in the request, the requested records are likely to contribute to greater public awareness of alleged malfeasance and possible criminal behavior by Rep. Lewis. DOJ and the FBI conducted extensive investigations into Rep. Lewis's activities, and while DOJ eventually decided not to prosecute him, his activities still may have been illegal or improper. The public clearly has a strong interest in being informed about these activities.

In addition, these documents would shed light on the conduct of DOJ and the FBI in conducting the investigations of Rep. Lewis, and DOJ's decision to close the investigations without bringing charges against him. Considering the importance of these investigations, the public has a powerful interest in fully understanding the DO]' s and the FBI's conduct.

These public interests clearly outweigh any privacy interests. DOJ does not specify what privacy interests are at issue, but there is no need to protect Rep. Lewis from being associated with the criminal investigations because - as CREW explained in our request - their existence has been reported widely. Indeed, both the U.S. Attorney's Office for the Central District of California and Rep. Lewis have publicly acknowledged the investigations. See, e.g., Richard

Office of Information Policy March 18,2011

Page 5

Simon, Federal inquiry of Rep. Lewis dropped, Los Angeles Times, December 4,2010 (attached as Exhibit D). Rep. Lewis has no privacy interest in information he made public. See} e.g., Nation Magazine v. Us. Customs Serv., 71 F.3d 885,896 (D.C. Cir. 1995).

Furthermore, high-ranking government officials such as Rep. Lewis have a diminished privacy interest in the balancing conducted under Exemptions 6 and 7(C). See} e.g., Stern v. FBI, 737 F.2d 84,92-94 (D.C. Cir. 1984).

Even if the requested records contain some information for which some privacy interest outweighs the public interest in disclosure, DOJ also did not comply with its duty under the FOIA to disclose all non-exempt, segregable portions of the records. 5 U.S.C. § 552(b). DOJ should have redacted any legitimately exempt information and disclosed the remainder of the records.

Conclusion

DOl's initial determination withholding all of the responsive records in their entirely pursuant to Exemptions 3, 5, 6 and 7(C) of the FOIA plainly is in error and must be reversed. DOJ should

Adam J. Rappaport Senior Counsel

Enclosures

Sign up to vote on this title
UsefulNot useful