On March 18, 2011, CREW filed an administrative appeal from the refusal of the Department of Justice’s Criminal Division to provide any records related to their investigations of House Appropriations Committee Chairman Emeritus Jerry Lewis (R-CA), including documents that would answer why Rep. Lewis was not criminally prosecuted despite evidence he violated the law.
On March 18, 2011, CREW filed an administrative appeal from the refusal of the Department of Justice’s Criminal Division to provide any records related to their investigations of House Appropriations Committee Chairman Emeritus Jerry Lewis (R-CA), including documents that would answer why Rep. Lewis was not criminally prosecuted despite evidence he violated the law.
On March 18, 2011, CREW filed an administrative appeal from the refusal of the Department of Justice’s Criminal Division to provide any records related to their investigations of House Appropriations Committee Chairman Emeritus Jerry Lewis (R-CA), including documents that would answer why Rep. Lewis was not criminally prosecuted despite evidence he violated the law.
CREW citizens for responsibility
and ethics in washington
Mareh 18, 2011
Melanie Ann Pustay
Director
Office of Information Policy
USS. Department of Justice
1425 New York Avenue, N.W.
Suite 11050
Washington, D.C. 20530-0001
Re: Freedom of Information 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 of Information 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 DOJ’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, DOS 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. Attomey’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 DOT's appatent
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
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=Office of Information Policy
March 18, 2011
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In response, DOJ denied CREW’s request in full by letter dated March 3, 2011 (attached
as Exhibit B). DOJ 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). DOJ improperly relied on
these exemption to withhold all of the requested records,
DOJ Improperly Withheld Responsive Records Under Exemption 3
DOI 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 DOJ relied is Rule 6(e) of the Federal Rules of Criminal Procedure,
which restricts disclosure of records 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. U.S. Dep't of Justice, 823
F.2d 574, $82 (D.C. Cir. 1987) (citation omitted); see also Stolt-Nielsen Transp. Group Lid. v.
United States, $34 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. U.S. 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, DOJ 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 The 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, $66 F.2d 242,Office of Information Policy
Mareh 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 attomey 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 banc). 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, DOM 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, itis 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 attorney-
work product doctrine. The attomey-work product doctrine “provides a working attorney with a
‘zone of privacy"'so long as the document at issue was “ereated for use at trial or because a
lawyer or party reasonably anticipated that specific litigation would oceur.” Coastal States, 617
F.2d at 864 (citation omitted). Litigation need not be actual or imminent for the attorney work-
product doctrine to apply, but it “does not attach until at least some articulable claim, likely to
lead to litigation, has arisen.” Jd. at 865. DOJ’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 administrationOffice 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 of Information Policy, OLP
Guidance: President Obama's FOIA Memorandum and Attorney General Holder's FOIA
Guidelines, Creating a “New Era of Open Government”, April 17, 2009 (attached at Exhibit 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. § $52(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.”” U.S. 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. [d. at 773; see also U.S. 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 DOJ’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, RichardOffice of Information Policy
March 18, 2011
Page $
Simon, Federal inquiry of Rep. Lewi 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. U.S. 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
DO'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
Respectfully submitte
eee
Adam J. Rappaport
Senior Counsel
Enclosures