Radar Online LLC v. Federal Bureau Of Investigation
Filing
51
MEMORANDUM OPINION & ORDER re: 37 MOTION for Summary Judgment . filed by Federal Bureau Of Investigation, 42 MOTION for Summary Judgment . filed by James Robertson, Radar Online LLC. For the reasons stated above, D efendant's motion for summary judgment is granted with respect to documents withheld pursuant to Exemption 3 (as it relates to the Child Victims' Act) and Exemptions 5, 6, 7(C), 7(D) (as to information provided by local law enforcement ag encies), and 7(E), and is otherwise denied without prejudice. Plaintiffs' cross-motion for summary judgment is granted to the extent that this Court has found that the Government's declarations are inadequate to support application of cert ain FOIA exemptions. Plaintiffs' summary judgment is otherwise denied without prejudice. The parties shall confer and submit a joint letter by October 6, 2023, stating how they propose to proceed. The parties' letter should contain a prop osed schedule for the FBI's submission of revised declarations, as well as any renewed motions for summary judgment. The Clerk of Court is directed to terminate the motions (Dkt. Nos. 37, 42). (Signed by Judge Paul G. Gardephe on 9/19/2023) (ate)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RADAR ONLINE LLC and JAMES
ROBERTSON,
Plaintiffs,
- against FEDERAL BUREAU OF
INVESTIGATION,
MEMORANDUM
OPINION & ORDER
17 Civ. 3956 (PGG)
Defendant.
PAUL G. GARDEPHE, U.S.D.J.:
Plaintiffs Radar Online LLC and James Robertson bring this action under the
Freedom of Information Act (“FOIA”), seeking records related to the FBI’s investigation and
prosecution of financier Jeffrey Epstein for child sex trafficking crimes. (See Am. Cmplt. (Dkt.
No. 12)) Plaintiff Radar Online is an online investigative news outlet and Plaintiff Robertson is
one of its senior editors. (Id. ¶¶ 2-3)
Plaintiffs submitted their FOIA request on the Federal Bureau of Investigation
(“FBI”) on April 20, 2017. (Id.¶ 10) After receiving no response, Plaintiffs commenced this
action on May 25, 2017. (Cmplt. (Dkt. No. 1)) The Amended Complaint was filed on August
28, 2017. (Am. Cmplt. (Dkt. No. 12)) After an initial case management conference on
September 7, 2017, the FBI agreed to begin producing documents at a rate of 500 pages per
month. As of December 8, 2020, the FBI had reviewed 11,571 responsive pages, most of which
were redacted in part or withheld in full based on certain exemptions to disclosure under FOIA,
including exemptions 3, 6, 7(C), 7(D), and 7(E). (See Dec. 8, 2020 Joint Ltr. (Dkt. No. 25) at 1) 1
1
The page numbers referenced in this opinion correspond to the page numbers designated by
this District’s Electronic Case Filing (“ECF”) system.
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On July 6, 2019, Jeffrey Epstein was arrested and charged with new Federal
offenses, at which point the FBI asserted Exemption 7(A) to FOIA – the exemption for “records
or information compiled for law enforcement purposes[,] . . . [the disclosure of which] could
reasonably be expected to interfere with enforcement proceedings” 5 U.S.C. § 552(b)(7)(A) –
over the 10,107 pages that were previously processed and withheld and over all “remaining
responsive records.” (Id.)
On December 10, 2020, this Court directed the parties to file cross-motions for
summary judgment. (Dkt. No. 26)
For the reasons stated below the parties’ cross-motions will each be granted in
part and denied in part.
BACKGROUND
I.
FACTS
In support of its summary judgment motion, the FBI submitted a declaration from
Maureen Comey, an Assistant United States Attorney (“AUSA”) in the United States Attorney’s
Office for the Southern District of New York. (2021 Comey Decl. (Dkt. No. 39) ¶ 1) Comey is
one of the AUSAs “handling the prosecution of Ghislaine Maxwell” and, prior to Epstein’s
death, was one of the AUSAs “in charge of [his] prosecution.” (Id.) The FBI has also submitted
a declaration from Michael G. Seidel, the Section Chief of the Record/Information
Dissemination Section (“RIDS”) of the FBI’s Information Management Division (“IMD”).
(Seidel Decl. (Dkt. No. 50) ¶ 1) Attached as exhibits to Seidel’s declaration are, inter alia,
Plaintiff’s FOIA request and the FBI’s response. 2 (Dkt. Nos. 50-1, 50-2)
2
Local Rule 56.1 requires those moving for summary judgment to “annex[] to the notice of
motion a separate, short and concise statement, in numbered paragraphs, of the material facts as
to which the moving party contends there is no genuine issue to be tried.” Local Civ. R. 56.1(a).
2
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Epstein was a financier who in June 2008 pleaded guilty to “a criminal charge of
procuring prostitution of a minor,” and served thirteen months of an eighteen-month sentence.
(Seidel Decl. (Dkt. No. 50) ¶ 5) On July 2, 2019, Epstein was indicted by a federal grand jury in
this District on “one count of conspiracy to commit sex trafficking . . . [and] one count of sex
trafficking.” (Id. (citing United States v. Epstein, 19 Cr. 490 (RMB) (S.D.N.Y.), Indictment
(Dkt. No. 2))) Epstein committed suicide at the Metropolitan Correction Center in Manhattan on
August 10, 2019, while the charges against him were pending. (Id. (citing United States v.
Epstein, 19 Cr. 490 (RMB), Nolle Prosequi (Dkt. No. 52))) Epstein’s 2019 indictment, arrest,
and death were the subject of extensive media coverage.
A.
Plaintiff’s FOIA Request and the Instant Action
On April 20, 2017, Plaintiff Robertson submitted a FOIA request to the FBI
seeking “all documents relating to the FBI’s investigation and prosecution” of Epstein. (Seidel
Decl., Ex. A. (FOIA Request) (Dkt. No. 50-1) at 4) Plaintiff asked that his FOIA request receive
expedited treatment. (Id. at 5)
On April 28, 2017, the FBI sent Robertson a letter confirming receipt of his FOIA
request and informing him that because he had requested information about a “third party
individual[]” – Epstein – “the FBI would neither confirm nor deny the existence of such records
pursuant to FOIA Exemptions 6 and 7(C).” 3 (Seidel Decl. (Dkt. No. 50) ¶ 7) The FBI informed
Neither side has submitted a Rule 56.1 statement here. However, “the general rule in this Circuit
is that in FOIA actions, agency affidavits alone will support a grant of summary judgment.”
Ferguson v. Fed. Bureau of Investigation, 1995 WL 329307, at *2 (S.D.N.Y. June 1, 1995)
(citing Carney v. United States Dept. of Justice, 19 F.3d 807, 812 (2d Cir. 1994)). Accordingly,
this Court will not require the submission of Local Rule 56.1 statements.
3
FOIA Exemption 6 provides that “personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of personal privacy” are exempted
from disclosure. 5 U.S.C. § 552(b)(6). Exemption 7(C) similarly exempts from disclosure
“records or information compiled for law enforcement purposes, but only to the extent that the
3
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Roberts that it was closing his request, and provided information about “making requests for
records on third party individuals” and about appealing the FBI’s determination. (Id.; see also
id., Ex. B (FOIA Response) (Dkt. No. 50-1))
Plaintiffs filed the instant action on May 25, 2017 (Cmplt. (Dkt. No. 1)), and filed
the Amended Complaint on August 28, 2017. (Am. Cmplt. (Dkt. No. 12)) In a stipulation soordered by this Court on October 5, 2017, Plaintiffs agreed to “limit the scope of their [FOIA]
request to the records located in” certain files identified by the FBI in their search for responsive
records. (Dkt. No. 17) The parties also agreed that the FBI would process 500 pages of the
records per month, starting October 1, 2017. (Id.)
Between October 2017 and Epstein’s July 2019 indictment the FBI processed 500
pages of the records per month. 4 (Seidel Decl. (Dkt. No. 50) ¶¶ 9-29) Following Epstein’s July
2019 indictment, the FBI “withheld in full all remaining responsive records” and “all previously
protected information” pursuant to Exemption 7(A). (Id. ¶ 30 & n.4)
“By letter dated January 31, 2020, the FBI . . . released 46 [additional] pages of
records in full or part.” (Id. ¶ 31) In total, “the FBI processed on a document-by-document basis
a total of 11,571 pages of responsive records. Of these pages, the FBI released 181 pages in full,
released 1,051 pages in part, and withheld 10,339 pages in full.” (Id. ¶ 3) The records were
withheld because one or more FOIA Exemption applied, the pages were “duplicative of other
pages” already produced by the FBI, “and/or the pages are sealed pursuant to [a court order].”
(Id. ¶ 3) The FBI does not state how many records comprise the “remaining responsive records”
production of such law enforcement records or information . . . could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” Id. § 552(b)(7)(C).
4
The FBI notes that no records were produced between January and March 2019 “because of
the lapse in appropriations funding for the Department of Justice” during that time. (Seidel Decl.
(Dkt. No. 50) n.3)
4
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that were reviewed on a “categorical basis,” and over which the FBI has asserted only Exemption
7(A). (See id. ¶ 44 & n.11) The FBI likewise has not disclosed how many records were
“categorically withheld” pursuant to Exemption 7(A). The FBI’s Vaughn index 5 addresses only
the records processed before Epstein’s indictment and does not address the categorically
withheld records. (Id. ¶ 44)
B.
The Prosecution of Ghislaine Maxwell
On June 29, 2020, Ghislaine Maxwell – “an individual who associated with
Jeffrey Epstein” (2021 Comey Decl. (Dkt. No. 39) ¶ 1) – was indicted by a grand jury in this
District on “one count of conspiracy to entice minors to travel to engage in illegal sex acts”; “one
count of enticement of a minor to travel to engage in illegal sex acts”; “one count of conspiracy
to transport minors with intent to engage in criminal sexual activity”; “one count of
transportation of a minor with intent to engage in criminal sexual activity”; “and two counts of
perjury.” (Id. ¶ 6)
On December 29, 2021, a jury found Maxwell guilty on five of the six counts
against her. (2023 Comey Decl. (Dkt. No 47) ¶ 6; 20 Cr. 330, Dkt. Sheet at Dec. 29, 2021) On
June 28, 2022, Maxwell was sentenced to 20 years’ imprisonment. (2023 Comey Decl. (Dkt. No
47) ¶ 6; 20 Cr. 330, Judgment (Dkt. No. 696))
5
A “‘Vaughn index is an affidavit that specifically describes the withheld or redacted documents
and justifies, in detail, why each withheld record that would be responsive to the request is
exempt from disclosure under FOIA.’” Heartland All. for Hum. Needs & Hum. Rts. v. United
States Immigr. & Customs Enf’t, 406 F. Supp. 3d 90, 125 (D.D.C. 2019) (quoting Campaign For
Responsible Transplantation v. U.S. Food And Drug Admin., 180 F. Supp. 2d 29, 32 (D.D.C.
2001)).
5
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On July 7, 2022, Maxwell appealed her conviction to the Second Circuit. (2023
Comey Decl. (Dkt. No 47) ¶ 7) Maxwell seeks, inter alia, “a new trial based on alleged juror
misconduct and alleged evidentiary issues.” (Id.) Her appeal remains pending. (Id. ¶ 8)
II.
PROCEDURAL HISTORY
The Complaint was filed on May 25, 2017 (Cmplt. (Dkt. No. 1)), and the
Amended Complaint was filed on August 28, 2017. (Am. Cmplt. (Dkt. No. 12)) After the FBI
asserted that Exemption 7(A) categorically applies to the documents it had previously withheld,
as well as all remaining responsive documents, the Court directed the FBI to produce a Vaughn
index by July 1, 2020. (Dkt. No. 21) On December 2, 2020, this Court ordered the parties to
provide a status update (Dkt. No. 24), and on December 10, 2020, the Court directed the parties
to file cross-motions for summary judgment. (Dkt. No. 26) The FBI requested several
extensions, which this Court granted, and the parties’ motions were not fully briefed until
October 29, 2021. (Dkt. Nos. 27-37, 42)
Two months later, Maxwell was convicted at trial. (2023 Comey Decl. (Dkt. No.
47) ¶ 6) Because the parties’ summary judgment briefing “turn[ed] on the ongoing prosecution
of Ghislaine Maxwell,” 6 this Court ordered the parties to submit supplemental briefing and
declarations addressing the impact of Maxwell’s conviction “on the parties’ [cross] motions.”
(June 30, 2023 Order (Dkt. No. 45)) The FBI submitted a supplemental brief and declaration
from Maureen Comey on July 11, 2023 (Dkt. Nos. 46-47), and Plaintiffs filed a supplemental
brief on July 20, 2023. (Dkt. No. 48)
6
In seeking summary judgment, the FBI argued, inter alia, that releasing the records (1) would
“allow Maxwell earlier or greater access to agency investigatory files than she otherwise would
have through the criminal discovery process”; (2) might improperly “influenc[e] witness
testimony”; and (3) might “impair the ability to seat a fair and impartial jury in the Maxwell
trial.” (Def. Br. (Dkt. No. 38) at 16-18).
6
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DISCUSSION
I.
LEGAL STANDARDS
A.
Summary Judgment Standard
Summary judgment is warranted where the moving party shows that “there is no
genuine dispute as to any material fact” and that it “is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A dispute about a ‘genuine issue’ exists for summary judgment purposes
where the evidence is such that a reasonable jury could decide in the non-movant’s favor.”
Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). “When no rational jury could find
in favor of the nonmoving party because the evidence to support its case is so slight, there is no
genuine issue of material fact and a grant of summary judgment is proper.” Gallo v. Prudential
Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (citing Dister v. Cont’l Grp.,
Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)).
In deciding a summary judgment motion, the Court “‘resolve[s] all ambiguities,
and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing
summary judgment.’” Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir. 2009) (quoting
Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (internal quotation marks and citation
omitted)). However, a “‘party may not rely on mere speculation or conjecture as to the true
nature of the facts to overcome a motion for summary judgment. . . . [M]ere conclusory
allegations or denials . . . cannot by themselves create a genuine issue of material fact where
none would otherwise exist.’” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (alterations in
original) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).
“The same standard[s] appl[y] where, as here, the parties file[] cross-motions for
summary judgment. . . .” Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir. 2001).
7
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“[W]hen both parties move for summary judgment, asserting the absence of any genuine issues
of material fact, a court need not enter judgment for either party. Rather, each party’s motion
must be examined on its own merits, and in each case all reasonable inferences must be drawn
against the party whose motion is under consideration.” Id. (internal citations omitted).
B.
Summary Judgment in FOIA Cases
“Summary judgment is the procedural vehicle by which most FOIA actions are
resolved.” Jones-Edwards v. Appeal Bd. of Nat. Sec. Agency Cent. Sec. Agency, 352 F. Supp.
2d 420, 423 (S.D.N.Y. 2005). “In order to prevail on a motion for summary judgment in a FOIA
case, the defending agency has the burden of showing that [1] its search was adequate[,] and [2]
any withheld documents fall within an exemption to the FOIA.” Carney v. U.S. Dept. of Justice,
19 F.3d 807, 812 (2d Cir. 1994).
A government agency may sustain its burden through “‘[a]ffidavits or
declarations [that] supply[] facts indicating that the agency has conducted a thorough search and
[that] giv[e] reasonably detailed explanations why any withheld documents fall within an
exemption.’” Associated Press v. U.S. Dept. of Justice, 2007 WL 737476, at *3 (S.D.N.Y. Mar.
7, 2007) (quoting Carney, 19 F.3d at 812); accord Garcia v. U.S. Dept. of Justice, Office of Info.
& Privacy, 181 F. Supp. 2d 356, 366 (S.D.N.Y. 2002). “‘[T]he general rule in this Circuit is that
in FOIA actions, agency affidavits alone will support a grant of summary judgment,’ and Local
Civil Rule 56.1 statements are not required.” N.Y. Times Co. v. U.S. Dept. of Justice, 872 F.
Supp. 2d 309, 314 (S.D.N.Y. 2012) (quoting Ferguson v. FBI, 1995 WL 329307, at *2 (S.D.N.Y.
June 1, 1995), aff’d, 83 F.3d 41 (2d Cir. 1996)). “Affidavits submitted by an agency are
presumed to have been made in good faith.” Garcia, 181 F. Supp. 2d at 366.
8
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“[D]iscovery relating to the agency’s search and the exemptions it claims for
withholding records generally is unnecessary if the agency’s submissions are adequate on their
face.” Carney, 19 F.3d at 812. “A district court . . . may grant summary judgment in favor of an
agency ‘on the basis of agency affidavits if they contain reasonable specificity of detail rather
than merely conclusory statements, and if they are not called into question by contradictory
evidence in the record or by evidence of agency bad faith.’” Grand Cent. P’ship, Inc. v. Cuomo,
166 F.3d 473, 478 (2d Cir. 1999) (emphasis in original) (quoting Gallant v. N.L.R.B., 26 F.3d
168, 171 (D.C. Cir. 1994)). A plaintiff may avoid summary judgment and obtain discovery
where, “once the agency has satisfied its burden, the plaintiff . . . make[s] a showing of bad faith
on the part of the agency . . . or provide[s] some tangible evidence that the exemption claimed by
the agency should not apply.” Conti v. U.S. Dept. of Homeland Sec., 2014 WL 1274517, at *10
(S.D.N.Y. Mar. 24, 2014).
II.
FOIA EXEMPTION 7(A)
The FBI argues that all of the withheld records responsive to Plaintiffs’ FOIA
request were properly withheld under Exemption 7(A) to FOIA. 7 (See 2021 Comey Decl. (Dkt.
No. 39); 2023 Comey Decl. (Dkt. No. 47)) Plaintiff contends that (1) “FOIA does not allow
agencies to retroactively redact material based on developments that post-dated their decision to
withhold”; (2) the “FBI’s declarations fail to explain how release of the records would interfere
with Maxwell’s prosecution”; and (3) the “FBI failed to undertake the required segregability
analysis.” (Pltf. Br. (Dkt. No. 43) at 11-18)
7
The FBI also contends that its search for responsive records was adequate. (See Def. Br. (Dkt.
No. 38) at 12-14) Plaintiff does not dispute this point, however. (See Pltf. Br. (Dkt. No. 43);
Pltf. Reply Br. (Dkt. No. 44); Pltf. Supp. Reply (Dkt. No. 48)) Accordingly, this Court addresses
only the second step of the analysis – whether Exemption 7(A) applies to the withheld material.
See Carney, 19 F.3d at 812.
9
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A.
Applicable Law
Exemption 7(A) to FOIA permits government agencies to withhold “records or
information compiled for law enforcement purposes” where “the production of such law
enforcement records or information . . . could reasonably be expected to interfere with
enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). “This exemption ‘prevent[s] harm to the
government’s case in court by not allowing litigants earlier or greater access to agency
investigatory files than they would otherwise have.’” N.Y. Times Co. v. United States Dept. of
Justice, 2016 WL 5946711, at *7 (S.D.N.Y. Aug. 18, 2016) (quoting Conti, 2014 WL 1274517,
at *22). “[I]f the exemption applies, it ‘will justify denial of release, not only to the objects of
the investigation and any pending or prospective enforcement actions, but to third parties as
well.’” Stein v. U.S. Sec. & Exch. Comm’n, 2017 WL 3141903, at *11 (D.D.C. July 24, 2017)
(quoting Kanter v. IRS, 433 F. Supp. 812, 817 (N.D. Ill. 1977)).
In order to demonstrate that Exemption 7(A) applies, the government must satisfy
three elements. First, as a threshold matter, the government must show that “that the requested
records were compiled for law enforcement purposes.” Local 32B-32J, Serv. Employees Int’l
Union, AFL-CIO v. Gen. Servs. Admin., 1998 WL 726000, at *7 (S.D.N.Y. Oct. 15, 1998)
(internal quotation marks omitted). Second, the government must show that “a law enforcement
proceeding is pending or prospective.” Amnesty Int’l USA v. C.I.A., 728 F. Supp. 2d 479, 525
(S.D.N.Y. 2010). With respect to this element, “it is sufficient that the government’s ongoing
. . . investigation is likely to lead to [law enforcement] proceedings.” Azmy v. U.S. Dept. of
Def., 562 F. Supp. 2d 590, 605 (S.D.N.Y. 2008). Third, the government must show that “release
of the information could reasonably be expected to cause some articulable harm.” Amnesty Int’l,
728 F. Supp. 2d at 525.
10
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“‘[A]lthough [courts] give deference to an agency’s predictive judgment of the
harm that will result from disclosure of information, it is not sufficient for the agency to simply
assert that disclosure will interfere with enforcement proceedings; it must rather demonstrate
how disclosure will do so.’” Stein, 2017 WL 3141903, at *9 (quoting Citizens for Responsibility
& Ethics in Wash. v. U.S. Dept. of Justice (“CREW I”), 746 F.3d 1082, 1096 (D.C. Cir. 2014))
(emphasis in CREW I). “Ultimately, the government must ‘allow[] the court to trace a rational
link between the nature of the document and the alleged likely interference.’” N.Y. Times Co.,
2016 WL 5946711, at *7 (quoting Ctr. for Nat’l Sec. Studies v. U.S. Dept. of Justice, 331 F.3d
918, 940 (D.C. Cir. 2003)).
B.
Whether the FBI’s Invocation of Exemption 7(A) was Timely
Plaintiffs contend that the FBI’s invocation of Exemption 7(A) was untimely.
(Pltf. Br. (Dkt. No. 43) at 11-14) It is the “‘general rule’” in FOIA cases that “‘a FOIA decision
is evaluated as of the time it was made and not at the time of a court’s review.’” ACLU v. NSA,
925 F.3d. 576, 602 (2d. Cir. 2019) (quoting New York Times Co. v. U.S. DOJ, 756 F.3d 100,
111 (2d Cir.), as amended, 758 F.3d 436 (2d Cir. 2014), and supplemented, 762 F.3d 233 (2d
Cir. 2014)). According to Plaintiffs, the FBI is not entitled to rely on Exemption 7(A) at
summary judgment, “because there were no active ‘enforcement proceedings’ at the time of
Plaintiffs’ requests.” (Pltf. Br. (Dkt. No. 43) at 11-12) But “Plaintiffs’ requests” are not the
“FOIA decision” of which the Second Circuit speaks. Indeed, Plaintiffs have not cited any case
holding that government agencies may only rely on exemptions applicable at the time a FOIA
request is submitted.
While in ACLU the Second Circuit “reaffirm[ed] the general rule . . . that a court
reviewing a[n] [agency’s] FOIA decision must not order reprocessing simply to reassure itself
11
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that a correct decision remains current,” ACLU, 925 F.3d. at 602, this rule exists to preserve
judicial economy and to limit the burdens of FOIA requests on agencies, not to prevent agencies
from asserting applicable exemptions when they arise during document processing. See ACLU,
925 F.3d at 602 (“‘[T]o require an agency to adjust or modify its FOIA response based on postresponse occurrences could create an endless cycle of judicially mandated reprocessing each
time some circumstance changes.’”) (quoting Florez v. Cent. Intel. Agency, 829 F.3d 178, 188
(2d Cir. 2016)).
In sum, the “FOIA decision” under review here is the FBI’s decision to withhold
responsive documents pursuant to various exemptions, including Exemption 7(A). (See Pltf. Br.
(Dkt. No. 43) at 9-10 (“[Following the] July 2019[] . . . indictment of Epstein[,] . . . in the
twenty-second monthly production to Plaintiffs (out of twenty eight total), the FBI for the first
time invoked the law enforcement exemption, Exemption 7(A) categorically over all the
remaining responsive documents.”)) Bonner v. U.S. Dep’t of State, 928 F.2d 1148, 1152 (D.C.
Cir. 1991) (“In FOIA cases particularly, court review properly focuses on the time the
determination to withhold is made.”).
As to the timeliness of an agency’s asserted exemption, the “general rule” is that
agencies “must assert all exemptions at the same time, in the original district court proceedings.”
Maydak v. U.S. Dep’t of Just., 218 F.3d 760, 764 (D.C. Cir. 2000); Jud. Watch, Inc. v. U.S.
Dep’t of State, 282 F. Supp. 3d 338, 341 (D.D.C. 2017) (same). This is because “allowing an
agency to invoke new FOIA exemptions on remand – thereby essentially restarting the litigation
– could interfere with the FOIA’s ‘statutory goals of efficient, prompt, and full disclosure of
information, and with interests of judicial finality and economy.’” Elec. Priv. Info. Ctr. v. Dep’t
of Just., 296 F. Supp. 3d 109, 122 (D.D.C. 2017) (quoting Maydak, 218 F.3d at 764).
12
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“Essentially, Maydak prohibits the government from ‘play[ing] cat and mouse by withholding its
most powerful cannon until after the District Court has decided the case and then springing it on
surprised opponents and the judge.’” Marino v. Drug Enf’t Admin., 2021 WL 3793053, at *5
(D.D.C. Aug. 26, 2021) (quoting Aug. v. FBI, 328 F.3d 697, 699 (D.C. Cir. 2003)).
Courts have recognized two exceptions to this rule:
(1) ”extraordinary circumstances where, from pure human error, the government
failed to invoke the correct exemption and will have to release information
compromising national security or sensitive, personal, private information unless
the court allows it to make an untimely exemption claim”; and (2) “a substantial
change in the factual context of the case or an interim development in the
applicable law forces the government to invoke an exemption after the original
district court proceedings have concluded.”
Id. (quoting Maydak, 218 F.3d at 767); Senate of the Com. of Puerto Rico on Behalf of
Judiciary Comm. v. U.S. Dep’t of Just., 823 F.2d 574, 581 (D.C. Cir. 1987) (agency permitted to
raise new exemptions on appeal due in part to “special circumstances”); Adamowicz v. I.R.S.,
552 F. Supp. 2d 355, 361 (S.D.N.Y. 2008) (finding that an agency’s “failure to raise an
exemption prior to an adverse determination does not give rise to waiver”).
Plaintiffs have not cited any case suggesting that agencies may not raise new
exemptions during the document review and production process, however. To the contrary, “the
document-production process is a fluid one at the district-court level, and it often includes
contemporaneous review and continuous production determinations by agency-defendants.”
Elec. Priv. Info. Ctr., 296 F. Supp. 3d at 122. Agencies are therefore permitted to review their
determinations, and, as here, raise new FOIA exemptions as they become applicable prior to the
district court’s final decision. See id. (“The Court does not perceive the government as having
acted in bad faith, nor does it view the government’s filings as providing post-hoc
rationalizations for withholdings already made.”); see also Heffernan v. Azar, 317 F. Supp. 3d
94, 119 & n.14 (D.D.C. 2018) (exemption permissibly raised in agency’s reply brief); Senate of
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Puerto Rico, 823 F.2d at 581 (Exemption 7(A) properly raised two years after initial FOIA
request).
Here, the FBI asserted Exemption 7(A) soon after Epstein’s 2019 indictment.
(Seidel Decl. (Dkt. No. 50) ¶ 30 & n.4) While the FBI’s invocation of Exemption 7(A) took
place after Plaintiff initiated this action in 2017 (Cmplt. (Dkt. No. 1)), it was well before this
Court reached “the merits of the parties’ initial summary judgment motions, [and well before]
. . . any appellate proceedings.” Elec. Priv. Info. Ctr., 296 F. Supp. 3d at 122. Moreover, as
discussed below, Plaintiffs have “not been prejudiced in any meaningful sense by the [timing of]
the government’s assertion of Exemption [7(A)], nor [have Plaintiffs] provided any evidence of
bad faith with respect to the government’s timing on this issue.” Id. (emphasis omitted). To the
contrary, the FBI produced records in response to Plaintiffs FOIA requests for well over a year
before Epstein was indicted and the FBI asserted Exemption 7(A). In other words, the FBI has
not raised different exemptions at different times throughout the proceedings in an apparent
attempt to gain a “tactical advantage.” See Senate of Puerto Rico, 823 F.2d at 581.
Plaintiffs argue, however, that this Court should find the FBI’s invocation of
Exemption 7(A) to be untimely because (1) “this Court should not permit the assertion of
retroactive exemptions”; (2) the cases cited by the FBI are distinguishable; and (3) “the need to
limit the changed circumstances doctrine is particularly striking here because the changed
circumstance is entirely of the Government’s own making.” (Pltf. Br. (Dkt. No. 43) at 13-14)
None of these arguments is persuasive.
Plaintiffs complain that “the FBI [improperly] asserted Exemption 7(A)
retroactively to cover the first two years of the production in its Motion for Summary Judgment.”
(See Pltf. Supp. Reply Br. (Dkt. No. 48) at 1-2) As discussed above, however, the FBI asserted
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Exemption 7(A) soon after Epstein was indicted in 2019 and in any case years before the parties’
summary judgment briefing was complete. While government agencies are generally required to
assert all applicable FOIA exemptions prior to the district court’s ruling on “the merits of the
parties’ initial summary judgment motions,” Elec. Priv. Info. Ctr., 296 F. Supp. 3d at 122, that is
exactly what the FBI did here. Moreover, whether Exemption 7(A) now applies to bar disclosure
of the records sought does not depend on the propriety of any previously raised exemptions. 8
Plaintiffs’ attempt to distinguish Senate of Puerto Rico, 823 F.2d 574 – in which
the Second Circuit concluded that Exemption 7(A) was properly invoked two years after the
initial FOIA request – and similar cases is not persuasive. Plaintiffs contend that these cases are
distinguishable because the exemptions at issue were “available to [the relevant agencies] . . . at
the time of the [original FOIA] request.” (Pltf. Br. (Dkt. No. 43) at 12 (“In other words, the
[agency’s] invocation [of additional exemptions] was justifiable, if belated.”)) But in Senate of
Puerto Rico, the Second Circuit upheld an Exemption 7(A) assertion made on remand, two years
after the original FOIA request, because the “Senate [did not] contend that the DOJ [had] acted
irresponsibly, with a purpose to delay, in failing to anticipate the swift course of the federal
prosecution in Puerto Rico” that triggered the applicability of Exemption 7(A). Senate of Puerto
Rico, 823 F.2d at 580-81. Nothing in Senate of Puerto Rico suggests that an agency may not
assert an exemption once it becomes applicable during district court proceedings.
Finally, there is no “need to limit the changed circumstances doctrine” here, as
Plaintiffs suggest (Pltf. Br. (Dkt. No. 43) at 13), because there is no evidence that the
government manipulated the course of events to frustrate Plaintiffs’ FOIA request. As discussed
8
The FBI may thus assert the applicability of Exemption 7(A) both as to responsive records that
the FBI categorically withheld after its July 2019 review, and to records processed before
Epstein’s indictment, concerning which the FBI subsequently asserted Exemption 7(A) coverage.
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above, the “changed circumstances doctrine” is an exception to the general rule that agencies
“must assert all exemptions at the same time.” Maydak, 218 F.3d at 764. Here, the “changed
circumstance” was the 2019 Epstein indictment, which triggered the applicability of Exemption
7(A). (Seidel Decl. (Dkt. No. 50) ¶ 30 & n.4) While it is true that the government controlled the
timing of the Epstein indictment, there is no evidence that the FBI delayed or manipulated the
production of responsive documents in anticipation of the Epstein indictment, or that the
government obtained the Epstein indictment in order to avoid producing documents responsive
to Plaintiffs’ FOIA request.
Shapiro v. DOJ, 177 F. Supp. 3d 467 (D.D.C. 2016), cited by Plaintiffs (Pltf. Br.
(Dkt. No. 43) at 13) is not on point. In that FOIA action, the FBI sought to “advance a new
policy that would protect some of [the] records” it had been ordered to produce by the district
court at summary judgment. Shapiro, 177 F. Supp. 3d at 469-70. The court concluded that the
“changed circumstances” exception did not apply because the FBI “changed its policy . . . [well]
before the Court issued its [summary judgment] opinion in this matter. . . . The FBI [did] not
point to any ‘interim development,’ . . . outside its control [that caused it to change its policy]; it
only represent[ed] that [it] developed a new policy that it would like to apply to the plaintiffs’
requests.” Id. The court also commented that the FBI had “not lacked for opportunities to
inform the Court or the plaintiffs that it had adopted a new policy,” but had not done so. Id. at
470-71. Given these circumstances, the court expressed concern that the FBI’s “new policy”
might constitute “‘an attempt to gain a tactical advantage over the FOIA requester.’” Id. at 470
(quoting Aug., 328 F.3d at 698).
There are no such facts here. The FBI raised Exemption 7(A) soon after Epstein’s
2019 indictment, when the exemption became applicable and before any briefing in this case.
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And there is no suggestion that the FBI manipulated either its document production or the timing
of the Epstein’s indictment in “‘an attempt to gain a tactical advantage over the FOIA
requester.’” Id. (quoting Aug., 328 F.3d at 698).
In sum, the FBI’s invocation of Exemption 7(A) was timely.
C.
Whether Exemption 7(A) Applies
The FBI contends that Exemption 7(A) applies to “all of the records that were
withheld by the FBI in full or in part” (Def. Br. (Dkt. No. 38) at 13), because their “public
disclosure . . . could reasonably be expected to interfere with the pending prosecution of
[Ghislaine] Maxwell.” (2021 Comey Decl. (Dkt. No. 39) ¶ 11)
1.
Law Enforcement Records
With respect to the first requirement for application of Exemption 7(A) – whether
the requested records were “compiled for law enforcement purposes” 5 U.S.C. § 552(b)(7) – the
records withheld by the FBI concern the FBI’s “investigation of criminal child prostitution
involving Jeffrey Epstein.” (Seidel Decl. (Dkt. No. 50) ¶ 55). Accordingly, the records plainly
were “compiled for law enforcement purposes.” See Halpern v. F.B.I., 181 F.3d 279, 296 (2d
Cir. 1999) (“[A]ll records of investigations compiled by the FBI are for law enforcement
purposes.”).
2.
Pending or Prospective Law Enforcement Proceeding
As to whether a “law enforcement proceeding is pending or prospective,”
Maxwell was convicted on December 29, 2021, was sentenced to 20 years’ imprisonment on
June 28, 2022. (20 Cr. 330, Dkt. Sheet at Dec. 29, 2021; id. Judgment (Dkt. No. 696)) Maxwell
appealed her conviction on July 7, 2022, and the appeal remains pending. (2023 Comey Decl.
(Dkt. No. 47) ¶ 7)
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A “law enforcement proceeding” remains “pending or prospective” for purposes
of Exemption 7(A) even though the target of such an investigation has been convicted and filed
an appeal. See Kansi v. U.S. Dep’t of Just., 11 F. Supp. 2d 42, 44 (D.D.C. 1998) (“The potential
for interference with witnesses and highly sensitive evidence that drives the 7(A) exemption
exists at least until plaintiff’s conviction is final.”) (citations omitted); James v. U.S. Secret
Serv., 2007 WL 2111034, at *5 (D.D.C. July 23, 2007) (“A pending appeal of a criminal
conviction qualifies as an ongoing or prospective law enforcement proceeding for purposes of
Exemption 7(A).”).
Plaintiffs argue, however, that the FBI has only cited “cases that support the
abstract principle that a pending appeal could provide the ‘potential’ for appropriately utilizing
the exemption, [and has not] offer[ed] a logical or plausible justification against release of the
records.” (Pltf. Supp. Reply (Dkt. No. 48) at 3) But Maxwell’s “success on appeal . . . is not
foreclosed,” and accordingly, her prosecution remains “pending” for purposes of Exemption
7(A). Kidder v. F.B.I., 517 F. Supp. 2d 17, 28 (D.D.C. 2007).
3.
Interference with Law Enforcement Proceedings
Prior to the Maxwell trial, the FBI asserted that release of the withheld records (1)
would “allow Maxwell earlier or greater access to agency investigatory files than she otherwise
would have through the criminal discovery process” (2021 Comey Decl. (Dkt. No. 39) ¶ 13); (2)
“could reasonably be expected to influence witnesses’ potential testimony at trial” (id. ¶¶ 14, 1516); (3) “could reasonably be expected to influence potential jurors’ perceptions of the witnesses
and the evidence to be presented at trial” (id. ¶¶ 14, 17-21); and (4) “would identify the FBI’s
investigative interest in particular individuals . . . and provide subjects . . . the opportunity to
destroy evidence and/or alter their behavior to avoid detection.” (Id. ¶ 22) The FBI further
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asserted that disclosure of the records to the media carried a greater than ordinary risk of tainting
jury impartiality and witness testimony, given the “heightened . . . media coverage of
[Maxwell’s] prosecution.” (Id. ¶ 14)
Because Maxwell’s appeal remains pending, the FBI maintains that these same
risks still exist. (See 2023 Comey Decl. (Dkt. No. 47) ¶ 8 (“Given that the Maxwell criminal
prosecution is still pending on appeal, and if the Second Circuit grants Maxwell the relief she
seeks, there could be a new trial, [and] public disclosure of the FBI’s records relating to the
investigation and prosecution of Epstein would still likely interfere with the prosecution of
Maxwell, for similar reasons as explained in [the] June 2021 [Comey] declaration.”); Def. Supp.
Br. (Dkt. No. 46) at 4-5 (“[P]ublic disclosure of the FBI’s records relating to the investigation
and prosecution of Epstein would still reasonably be expected to interfere with the prosecution of
Maxwell[, because Maxwell seeks a new trial on appeal].”))
Plaintiffs argue that the “FBI’s supporting declarations do not offer sufficient
detail . . . [and] merely summarize what types of documents exist within Epstein’s FBI file
without specifically demonstrating how they could harm the specific law enforcement case at
issue.” (Pltf. Br. (Dkt. No. 43) at 15-16) Plaintiffs further contend that the Comey declarations
contain only “conclusory justifications of harm . . . [that] do not withstand scrutiny.” (Id. at 16)
“[U]nder exemption 7(A) the government is not required to make a specific
factual showing with respect to each withheld document that disclosure would
actually interfere with a particular enforcement proceeding. Rather, federal courts
may make generic determinations that, with respect to particular kinds of
enforcement proceedings, disclosure of particular kinds of investigatory records
while a case is pending would generally interfere with enforcement proceedings.”
Radcliffe v. I.R.S., 536 F. Supp. 2d 423, 437 (S.D.N.Y. 2008), aff’d, 328 F. App’x 699 (2d Cir.
2009) (quoting Barney v. I.R.S., 618 F.2d 1268,1273 (8th Cir.1980)). “Because generic
determinations are permitted, the government need not justify its withholdings document-by-
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document; it may instead do so category-of-document by category-of-document. The
government may not, however, make its justifications file-by-file.” Crooker v. Bureau of
Alcohol, Tobacco & Firearms, 789 F.2d 64, 67 (D.C. Cir. 1986) (“Congress did not authorize [a]
‘blanket exemption’ for ‘all records relating to an ongoing investigation.’”) (quoting Campbell v.
Department of Health and Human Services, 682 F.2d 256 (D.C. Cir.1982)); CREW I, 746 F.3d at
1098 (“[A]n agency may satisfy its burden of proof ‘by grouping documents in categories and
offering generic reasons for withholding the documents in each category.’”) (quoting Maydak,
218 F.3d at 765).
“[I]f [an agency] wishes to adopt the generic approach, [it] has a three-fold task.
First, it must define its categories functionally. Second, it must conduct a
document-by-document review in order to assign documents to the proper
category. Finally, it must explain to the court how the release of each category
would interfere with enforcement proceedings.”
CREW I, 746 F.3d at 1098 (quoting Bevis v. Dep’t of State, 801 F.2d 1386, 1389-90 (D.C. Cir.
1986)).
While appearing to adopt a “category-of-document by category-of-document”
approach, the FBI in fact argues that Exemption 7(A) applies to the withheld records on an
impermissible “file-by-file” basis.
The 2021 Comey Declaration groups the responsive records sought by Plaintiffs
and withheld by the FBI into three categories: (1) “[i]nterview forms, reports and notes . . . of
interviews with individuals, including victims”; (2) “Federal Grand Jury Subpoenas and
Subpoenaed information”; and (3) other records including “documents provided by state and
local law enforcement agencies, . . . . background information for witnesses . . . and subjects for
the investigation[,] communications within the FBI [and between the FBI and other agencies]
regarding the investigation[,] organizational documents, . . . the sources from and techniques
through which such information and evidence was gathered[,] . . . the methods used to analyze
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the information and evidence, . . . and the focus of the investigation.” (2021 Comey Decl. (Dkt.
No. 39) ¶ 11)
The Seidel declaration organizes the responsive documents differently, however,
listing nine “types of responsive records” 9 and three “functional categories of information”:
(1) ”Evidentiary/Investigative Materials,” including “confidential witness statements” and
“information exchanged between the FBI and its local law enforcement partners”;
(2) ”Administrative materials,” including internal agency “reporting communications” pertaining
to an investigation, and other “standardized forms used for a variety of purposes”; and
(3) ”public source material,” including news articles and court transcripts which have already
been “released . . . to Plaintiffs.” (Seidel Decl. (Dkt. No. 50) ¶¶ 58-68 (capitalization altered)
The document categories in the Seidel declaration and in the 2021 Comey declaration do not
match, and documents falling within each of the Comey categories likely span multiple
categories described by Seidel.
In any event, the FBI has not explicitly linked any of the document categories –
whether Seidel’s or Comey’s – to the four types of potential harm cited in the 2021 Comey
declaration – (1) “allow[ing] Maxwell earlier or greater access to agency investigatory files than
she otherwise would have through the criminal discovery process”; (2) “influenc[ing] witnesses’
potential testimony at trial”; (3) “influenc[ing] potential juror’s perceptions of the witnesses and
the evidence to be presented at trial”; and (4) “identify[ing] the FBI’s investigative interest in
9
(1) “FD-1057 - Electronic Communication”; (2) “Interview Forms (FD-302)”; (3)
“Handwritten Interview Notes”; (4) “State and Local Law Enforcement Documents”;
(5) ”Documents Implementing Sensitive Investigative Techniques”; (6) “Federal Grand
Jury Subpoenas/Subpoenaed Information”; (7) “FD-340, IA Envelopes”; (8) “Other
Investigative Documents”; and (9) “Internet Printouts.” (Seidel Decl. (Dkt. No. 50)
¶¶ 58-68 (formatting altered))
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particular individuals . . . and [thus] provid[ing] subjects [with] . . . the opportunity to destroy
evidence and/or alter their behavior to avoid detection.” (2021 Comey Decl. (Dkt. No. 39) ¶¶
13-22)
The FBI instead merely asserts that “disclosure of the records” in general would
“interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). As to Maxwell obtaining
“earlier or greater access to agency investigatory files than she otherwise would have,” the FBI
links that harm to “the entirety of the records at issue in this litigation.” (2021 Comey Decl.
(Dkt. No. 39) ¶ 13) Likewise, the FBI’s concern that “[p]remature disclosure of the records
withheld under Exemption 7(A) . . . could reasonably be expected to impair the Government’s
(and the defendant’s) ability to seat a fair and impartial jury in Maxwell” is not tied to any
clearly identified functional category of investigatory records. 10 (2021 Comey Decl. (Dkt. No.
10
Moreover, the FBI’s concerns regarding the effects of disclosure on jury impartiality are
properly raised under Exemption 7(B), and not under Exemption 7(A). Exemption 7(A) applies
to records “compiled for law enforcement purposes, but only to the extent that the production of
such law enforcement records or information (A) could reasonably be expected to interfere with
enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). There is a separate exemption for records
the disclosure of which “would deprive a person of a right to a fair trial or an impartial
adjudication.” Id. § 552(b)(7)(B). The FBI has not argued that Exemption 7(B) applies to any of
the records withheld here, however. (See generally Def. Br. (Dkt. No. 38)) Nor has the FBI
identified any case holding that Exemption 7(A) applies to records the disclosure of “which
could impair the . . . ability to seat a fair and impartial jury” (2021 Comey Decl. (Dkt. No. 39) ¶
17) – and this Court has not discovered any such case.
As the D.C. Circuit recently noted, “Exemption 7(B) applies only when the disclosure of law
enforcement records would deprive a person of the right to ‘a fair trial or an impartial
adjudication[]’ . . . [and] the word ‘trial’ means the ultimate determination of factual and legal
claims by judge or jury in a judicial proceeding.” Chiquita Brands Int’l Inc. v. S.E.C., 805 F.3d
289, 295 (D.C. Cir. 2015) (quoting 5 U.S.C. § 552(b)(7)(B)); see also Washington Post Co. v.
U.S. Dep’t of Just., 863 F.2d 96, 101 (D.C. Cir. 1988) (“The exemption[] . . . was meant to
prevent disclosures from conferring an unfair advantage upon one party to an adversary
proceeding or leading to prejudicial publicity in pending cases that might inflame jurors or
distort administrative judgment.”). “Congress made the threshold of (7)(B) higher than for
[7(A)] . . . . Whereas (7)(A), (C), (D) and (F) permit records to be withheld if release ‘could
22
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39) ¶¶ 17-19; see also Def. Br. (Dkt. No. 38) at 18 (asserting that “the release of these categories
of records could reasonably be expected to impair the ability to seat a fair and impartial jury in
the Maxwell trial” without identifying any such categories))
As to interference with witness testimony, the FBI asserts that the withheld
records include
information about which witnesses may be expected to testify at trial, [] details
that are not publicly known or known to other witnesses, and [] information and
documents authored by potential trial witnesses. These records also include
potential trial exhibits that the Government anticipates will be entered into
evidence, many of which the potential trial witnesses have not seen.
(2021 Comey Decl. (Dkt. No. 39) ¶ 15)
The FBI cites N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978)
to argue that “Exemption 7(A) was enacted precisely to prevent such an end run around the rules
governing criminal discovery.” (See Def. Br. (Dkt. No. 38) 17) That case concerns an
employer’s request, “pursuant to FOIA, that [the National Labor Relations Board] make
available for inspection and copying, at least seven days prior to [a] hearing [concerning the
employer’s labor practices], copies of all potential witnesses’ statements collected during the
reasonably be expected to’ cause a particular evil, (7)(B) requires that release ‘would’ deprive a
person of fair adjudication.” Washington Post Co., 863 F.2d at 102 (quoting 5 U.S.C. § 552(b)).
It appears unlikely that Congress intended that Exemption 7(A) apply to documents “which
could reasonably be expected to impair the . . . ability to seat a fair and impartial jury.” (2021
Comey Decl. (Dkt. No. 39) ¶ 23) That reading of Exemption 7(A) would swallow Exemption
7(B), despite the latter’s heightened standard and distinct requirements. See U.S. DOJ v. Reps.
Comm. For Freedom of Press, 489 U.S. 749, 776 (1989) (“[T]he language of Exemptions 7(B),
(C), and (D) seems to contemplate a case-by-case [analysis whereas] . . . Exemption 7(A)
‘appears to contemplate that certain generic determinations might be made.’”) (quoting Robbins
Tire, 437 U.S. at 223–24).
In any event, the parties have not briefed the applicability of Exemption 7(B) and – despite the
reference to the “ability to seat a fair and impartial jury” in the Comey declarations – the Court
does not understand the FBI to be claiming that Exemption 7(B) applies here.
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Board’s investigation.” Robbins Tire, 437 U.S. at 216. The Court declined to read FOIA as
“overrid[ing] a long tradition of [relatively limited] agency discovery” in the “absence of clear
congressional direction.” Id. at 238-239. The Court also noted, however, that “[t]he most
obvious risk of ‘interference’ with enforcement proceedings . . . is that employers or, in some
cases, unions will coerce or intimidate employees and others who have given statements, in an
effort to make them change their testimony or not testify at all.” Id. at 239. Accordingly, the
Court’s holding in favor of the agency was premised on the danger of “disclosure of [a]
particular kind[] of investigatory record[],” i.e., witness statements, id. at 236, and not on
concerns over disclosure of “the entirety of the records at issue” (2021 Comey Decl. (Dkt. No.
39) ¶ 13) – here, more than 10,000 pages of records. 11 (Seidel Decl. (Dkt. No. 50) ¶ 3)
In sum, the FBI has not demonstrated that the “disclosure of particular kinds of
investigatory records,” Robbins Tire, 437 U.S. at 236, would interfere with any retrial of
Maxwell if she were to prevail on appeal. Accordingly, the FBI’s motion for summary judgment
will be denied to the extent it is predicated on Exemption 7(A). See CREW I, 746 F.3d at 1099
(“[A]lthough the DOJ identifies [] distinct categories of documents[,] . . . it never explains how
the specific risks entailed in premature disclosure of one category of document might differ from
risk of disclosure of the other.”); Campbell v. Dep’t of Health & Hum. Servs., 682 F.2d 256,
263-64 (D.C. Cir. 1982) (“If . . . an active investigation [alone] . . . constituted a sufficient
11
While the Seidel Declaration discusses certain harm that could flow from the disclosure of
certain categories of documents (Seidel Decl. (Dkt. No. 50) ¶¶ 59-68), the FBI has not argued
that the Seidel Declaration sufficiently supports withholding the records, and the Bureau does not
rely on the Seidel Declaration in arguing that “disclosure of the records [at issue] would interfere
with pending criminal proceedings.” (Def. Br. (Dkt. No. 38) at 16-18 (capitalization altered); see
also Def. Reply (Dkt. No. 41) at 10-13; Def. Supp. Br. (Dkt. No. 46) at 2-9) The FBI’s briefing
instead tracks the various harms cited in the 2021 Comey declaration, without linking those
harms to any particular category of documents.
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predicate for the invocation of Exemption 7(A), the Court in Robbins Tire would not have
examined the special risks entailed in premature disclosure of . . . a particular kind of records. . . .
Instead, the Court would simply have held those statements clearly related to a concrete
enforcement matter and, . . . [therefore,] properly withheld.”); Prop. of the People, Inc. v. DOJ,
2021 WL 3052033, at *3 (D.D.C. July 20, 2021) (holding that an agency’s withholding of
documents at the file level was inadequate).
III.
EXEMPTION 3
Exemption 3 allows an agency to withhold records that are “specifically exempted
from disclosure by statute.” 5 U.S.C. § 552(b)(3). “To claim this Exemption, the government
must demonstrate that: ‘(1) the statute invoked qualifies as an [E]xemption 3 withholding
statute, and (2) the materials withheld fall within that statute’s scope.’” Spadaro v. U.S. Customs
& Border Protection, 978 F.3d 34, 42 (2d Cir. 2020) (quoting A. Michael’s Piano, Inc. v. FTC,
18 F.3d 138, 143 (2d Cir. 1994)).
Here, the FBI relies on three statutes that preclude disclosure of certain
documents sought by Plaintiffs: (1) the Child Victims’ and Child Witnesses’ Rights Act, 18
USC. § 3509; (2) Fed. R. Crim. P. 6(e)’s shield of “matters occurring before the grand jury”; and
(3) the Juvenile Justice and Delinquency Act, 18 U.S.C. § 5038. (Seidel Decl. (Dkt. No. 50)
¶¶ 48-51) Plaintiffs “do not contest” that these statutes qualify as Exemption 3 withholding
statutes, but they argue that “the FBI fails to identify how it employed these exemptions and to
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what degree,” and that the Seidel declaration does not “establish that the records were reviewed
for segregable, non-exempt material.” (Pltf. Br. (Dkt. No. 43) at 23)
A.
Child Victims Information
As Plaintiffs acknowledge, “the Child Victims’ Act unambiguously qualifies as
an Exemption 3 statute.” Corley v. Dep’t of Just., 998 F.3d 981, 985 (D.C. Cir. 2021). 12 (Pltf.
Br. (Dkt. No. 43) at 23) The Seidel declaration states that the FBI asserted Exemption 3 as to
certain of the withheld records “to protect names, images, and identifying information of minor
children victims and witnesses within the child prostitution investigation of Jeffrey Epstein.”
(Seidel Decl. (Dkt. No. 50) ¶ 49) Plaintiffs have not offered any basis to believe that the FBI’s
justification is insufficient. The Court therefore concludes that the FBI properly withheld
material pursuant to the Child Victims’ Act. See Vaskas v. DHS, 2023 WL 4930092, at *2
(D.D.C. Aug. 2, 2023) (“Defendants’ declaration establishes that some of their records . . .
included statutorily protected information about children, regardless of whether [Plaintiff]
specifically requested that information. That is sufficient to withhold those records.”).
B.
Grand Jury Materials
Federal Rule of Criminal Procedure 6(e) prohibits government attorneys, grand
jurors, and others from “‘disclos[ing] a matter occurring before the grand jury,’ . . . and, although
12
The Child Victim’s Act provides that “all employees of the Government connected with [a
particular] case” “shall (i) keep all documents that disclose the name or any other information
concerning a child in a secure place to which no person who does not have reason to know their
contents has access; and (ii) disclose documents described in clause (i) or the information in
them that concerns a child only to persons who, by reason of their participation in the
proceeding, have reason to know such information.” 18 U.S.C. § 3509(d). “This two-part
requirement, that documents ‘shall’ be kept ‘in a secure place’ and disclosed ‘only’ to authorized
personnel (as opposed to the general public), clearly ‘requires that . . . matters be withheld from
the public in such a manner as to leave no discretion on the issue.’” Corley, 998 F.3d at 985
(quoting 5 U.S.C. § 552(b)(3)(A)(i)).
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a rule is not generally considered to be a statute, it qualifies as one under FOIA [and Exemption
3,] because the Congress has enacted it into positive law.” Murphy v. Exec. Off. for U.S. Att’ys,
789 F.3d 204, 206 (D.C. Cir. 2015) (quoting Fed. R. Crim. P. 6(e)). Rule 6(e) and Exemption 3
apply where responsive documents would “‘tend to reveal some secret aspect of the grand jury’s
investigation,’ including ‘the identities of witnesses or jurors, the substance of testimony, the
strategy or direction of the investigation,’ or ‘the deliberations or questions of jurors.’” Hodge v.
F.B.I., 703 F.3d 575, 580 (D.C. Cir. 2013) (quoting Senate of Puerto Rico, 823 F.2d at 582).
“The disclosure of information ‘coincidentally before the grand jury [which can] be revealed in
such a manner that its revelation would not elucidate the inner workings of the grand jury’ is not
prohibited.” Senate of Puerto Rico, 823 F.2d at 582 (quoting Fund for Constitutional
Government v. National Archives and Records Service, 656 F.2d 856, 870 (D.C. Cir.1981)).
Here, the Seidel declaration asserts that certain records responsive to Plaintiffs’
request address or detail “matters occurring before one or more federal grand juries empaneled in
relation to the investigations at issue.” (Seidel Decl. (Dkt. No. 50) ¶ 50) In particular,
responsive records contain “names of recipients of federal grand jury subpoenas”; “information
that identifies specific records subpoenaed by a federal grand jury”; and “copies of specific
records provided pursuant to federal grand jury subpoenas.” (Id.)
Plaintiffs complain that the Seidel declaration fails “to show a ‘nexus between
disclosure and revelation of a protected aspect of the grand jury’s investigation.’” (Pltf. Br. (Dkt.
No. 43) at 23-24 (quoting Senate of Puerto Rico, 823 F.2d at 584))
There is support for the FBI’s argument that “information about the names of
recipients of federal grand jury subpoenas[ and] . . . that identifies specific records subpoenaed
by a federal grand jury” (Seidel Decl. (Dkt. No. 50) ¶ 50) would “tend to reveal some secret
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aspect of the grand jury’s investigation.” Senate of Puerto Rico, 823 F.2d at 582 (internal
quotation marks omitted). The D.C. Circuit has rejected the argument that “copies of specific
records provided to a federal grand jury” are automatically exempt from disclosure, however.
See Labow v. United States Dep’t of Just. (“Labow II”), 831 F.3d 523, 529 (D.C. Cir. 2016)
(vacating in part and remanding).
In Labow, the D.C. Circuit criticized the district court for failing to provide an
“explanation” in support of its conclusion that “releasing [such] documents would ‘reveal the
strategy or direction of the [grand jury’s] investigation.’” Id. (quoting Labow v. U.S. Dep’t of
Just. (“Labow I”), 66 F. Supp. 3d 104, 121 (D.D.C. 2014)) Here, as in Labow, Plaintiffs “did not
request documents related to a grand jury” and it is the “government [that has] revealed the
existence of a grand jury by withholding the documents.” Id.; compare id. (“It is possible that,
had the government released the documents without invoking Exemption 3, [plaintiff] would
never have known that any of the documents had been subpoenaed by a grand jury.”); with
Boehm v. Fed. Bureau of Investigation, 983 F. Supp. 2d 154, 159 (D.D.C. 2013) (“[P]laintiff
seeks these documents to learn what occurred before the grand jury, not for use in furtherance of
a lawful investigation.”) Moreover, the FBI has not explained or provided details regarding its
conclusory assertion that “[a]ny disclosure of this information would clearly violate the secrecy
of the grand jury proceedings and could reveal the inner workings of a federal grand jury.”
(Seidel Decl. (Dkt. No. 50) ¶ 50). See also Labow II, 831 F.3d at 530 (describing the same
justification as “conclusory”); see id. (“[W]e do not know why documents obtained through the
grand jury’s subpoenas would necessarily reveal” the “inner workings of a federal grand jury.”)
(emphasis in original).
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The Second Circuit has followed the D.C. Circuit’s analysis in applying
Exemption 3 to Rule 6(e) materials:
Documents requested under the FOIA may be withheld under Rule 6(e) only
when their “disclosure would tend to reveal some secret aspect of the grand jury’s
investigation . . . [i.e.,] identities of witnesses or jurors, . . . [and] the strategy or
direction of the investigation.” . . . The government defendants have simply failed
to demonstrate “a nexus between disclosure and revelation of a protected aspect
of the grand jury’s investigation.” A document that is otherwise available to the
public does not become confidential simply because it is before a grand jury.
Instead, there must be a showing that disclosure of the document will result in
exposure of some other aspect of the grand jury proceeding that is secret. No
such showing has been made in the instant case. Indeed, the subject matter of the
investigation was sufficiently known to have prompted the FOIA request.
John Doe Corp. v. John Doe Agency, 850 F.2d 105, 109 (2d Cir. 1988), rev’d on other grounds,
493 U.S. 146 (1989) (quoting Senate of Puerto Rico, 823 F.2d at 582, 584).
In Grynberg v. DOJ, plaintiff “sought . . . bank records, court transcripts, and
corporate records received from subpoenas directed at [third parties] . . . in the course of [a
government investigation].” 758 F. App’x 162, 163 (2d Cir. 2019) (summary order). The
Second Circuit found adequate an agency’s declaration that the disclosure of such materials
“would publicly reveal the scope and secret aspects of the grand jury investigation by showing
where the Government sought its evidence, the sources of information it had relied on to develop
the facts of its investigation, and the steps that the Government anticipated taking and actually
took in furtherance of the investigation,” and “make clear who produced them and show what
criminal actions were being investigated.” Id. at 164. The Second Circuit concluded that the
declaration “establishe[d] an ample ‘nexus between disclosure and revelation of a protected
aspect of the grand jury’s investigation.’” Id. (quoting John Doe Corp., 850 F.2d at 109); see
also Sorin v. DOJ, 758 F. App’x 28, 31 (2d Cir. 2018) (“(1) communications from a law firm to
federal prosecutors, accompanying the production of documents requested by grand jury
subpoena and discussing the contents of specific subpoenas; and (2) communications from those
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federal prosecutors to that law firm referencing specific grand jury subpoenas . . . ‘tend to reveal
what transpired before’ the grand jury.”) (quoting United States v. E. Air Lines, Inc., 923 F.2d
241, 244 (2d Cir. 1991)).
In sum, “copies of specific records provided to a federal grand jury” are not
exempt from disclosure under FOIA merely because “the documents were subpoenaed.” Id.
Because the FBI has not separately categorized records withheld pursuant to Rule 6(e), the Court
cannot determine which categories of records, if any, are properly exempt under Exemption 3
and pursuant to Rule 6(e). See Lopez v. DOJ, 393 F.3d 1345, 1349 (D.C. Cir. 2005) (discussing
different categories of grand jury materials requested pursuant to FOIA). Accordingly, the FBI
has failed to meet its burden with respect to grand jury materials under Exemption 3.
C.
Juvenile Arrest and Criminal History Information
The FBI asserts that it properly withheld records “that contain arrest information
and criminal history of third party juveniles” pursuant to the Juvenile Justice and Delinquency
Act (the “Delinquency Act”). (Def. Br. (Dkt. No. 38) at 22) The FBI has not argued – or cited
to any case law holding – that the Delinquency Act “‘qualifies as an [E]xemption 3 withholding
statute.’” Spadaro, 978 F.3d at 42 (quoting A. Michael’s Piano, Inc., 18 F.3d at 143). Assuming
arguendo that the Delinquency Act qualifies as an Exemption 3 withholding statute, the FBI has
not met its burden to show that “‘the materials withheld fall within that statute’s scope.’” Id.
(quoting A. Michael’s Piano, Inc., 18 F.3d at 143); A. Michael’s Piano, Inc., 18 F.3d at 143
(“The burden of proof, upon such review, rests with the agency asserting the exemption, with
doubts resolved in favor of disclosure.”).
The Delinquency Act provides that “[t]hroughout and upon the completion of []
juvenile delinquency proceeding[s], the records [regarding these proceedings] shall be
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safeguarded from disclosure to unauthorized persons.” 18 U.S.C. § 5038(a). The Delinquency
Act defines a “juvenile delinquency” as a “violation of a law of the United States committed by a
person prior to his eighteenth birthday which would have been a crime if committed by an
adult.” 18 U.S.C. § 5031; see also id. § 5032 (establishing procedures for delinquency
proceedings in federal district court). “Read in the context of these sections, the phrase ‘juvenile
delinquency proceeding’ in section 5038(a) is clearly a reference to a federal delinquency
proceeding.” McDonnell v. United States, 4 F.3d 1227, 1249 (3d Cir. 1993).
The FBI does not state whether there are responsive documents that concern
federal juvenile proceedings. (See Seidel Decl. (Dkt. No. 50) ¶ 51) Accordingly, even assuming
that the Delinquency Act qualifies as an Exemption 3 withholding statute, this Court is not in any
position to determine whether responsive records fall within the scope of the Delinquency Act.
See McDonnell, 4 F.3d at 1249. (“Because Rogers’ juvenile records are state juvenile records,
they do not fall within the scope of § 5038.”). 13
IV.
EXEMPTION 5
Exemption 5 protects from disclosure records consisting of “inter-agency or intra-
agency memorandums or letters that would not be available by law to a party other than an
agency in litigation with the agency, provided that the deliberative process privilege shall not
apply to records created 25 years or more before the date on which the records were requested.”
13
The FBI states that it “also asserted Exemptions 6 and 7(C) over all information [withheld
pursuant to the Delinquency Act].” (Seidel Decl. (Dkt. No. 50) ¶ 51) As discussed below, the
Court concludes that the FBI has met its burden as to Exemptions 6 and 7(C) to the extent that
the it seeks to withhold “names and identifying information” of eight categories of people,
including “third party victims” of Epstein’s crimes. (Id. ¶¶ 73-83) Accordingly, any “names and
identifying information” contained within the relevant juvenile delinquency records are protected
from disclosure under Exemptions 6 and 7(C), but the entirety of these records is not protected
under these provisions.
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5 U.S.C. § 552(b)(5). “To qualify, a document must thus satisfy two conditions: its source must
be a Government agency, and it must fall within the ambit of a privilege against discovery under
judicial standards that would govern litigation against the agency that holds it.” Dep’t of Interior
v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). “‘Courts have interpreted
Exemption 5 to encompass traditional common-law privileges against disclosure, including the
work-product doctrine and . . . deliberative process and attorney-client privileges.” ACLU v.
U.S. DOJ, 210 F. Supp. 3d 467, 476 (S.D.N.Y. 2016) (quoting Nat’l Council of La Raza v. U.S.
DOJ, 411 F.3d 350, 356 (2d Cir.2005)).
“‘The work-product doctrine shields materials “prepared in anticipation of
litigation or for trial by or for another party or by or for that other party’s representative
(including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent.”‘”
McKinley v. Bd. of Governors of Fed. Rsrv. Sys., 647 F.3d 331, 341 (D.C. Cir. 2011) (quoting
Judicial Watch, Inc. v. U.S. DOJ, 432 F.3d 366, 369 (D.C. Cir. 2005)) (quoting in turn Fed. R.
Civ. P. 26(b)(3)).
The FBI contends that the following documents are protected by the attorney
work-product privilege:
(i) two internal FBI memoranda which relay information provided by an AUSA
relating to the timing of Epstein’s indictment and information being gathered or
gathered by the FBI, pursuant to the instruction of an AUSA, for the purpose of
assessing a potential forfeiture action to seize Epstein’s assets; (ii) one
memorandum from an FBI investigator to an AUSA, relating to the value of an
asset owned by Epstein for consideration of its seizure, with attachments
providing supporting information gathered by the FBI regarding the value of the
asset; (iii) an internal FBI memorandum that describes actions being taken by the
FBI, at the direction of an AUSA, to gather evidence in support of a potential
forfeiture action regarding certain of Epstein’s assets; (iv) an internal FBI
memorandum that describes actions being taken by the FBI, at the direction an
AUSA, to gather evidence for the potential prosecution of Epstein and others and
seizure of an asset.
(Seidel Decl. (Dkt. No. 50) ¶ 54)
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The FBI asserts that these “memoranda were created at the request of an AUSA in
reasonable anticipation of litigation, and they provide the AUSA’s prosecutorial strategy and the
information the AUSA was gathering to either support an indictment of Jeffrey Epstein or a civil
forfeiture action.” (Id.) Plaintiffs do not contest the FBI’s description of the memoranda, and do
not discuss the work-product privilege. Plaintiffs instead address the deliberative process
privilege, which the FBI has not asserted. (See Pltf. Br. (Dkt. No. 43) at 24-25 (“[T]he
deliberative process privilege ‘does not operate indiscriminately to shield all decision-making by
public officials.’”) (quoting New York Times Co. v. DOD, 499 F. Supp. 2d 501, 514 (S.D.N.Y.
2007)))
Because the memoranda listed by the FBI were prepared in anticipation of
litigation against Jeffrey Epstein, they are exempt from disclosure under FOIA. See Shapiro v.
DOJ, 969 F. Supp. 2d 18, 29 (D.D.C. 2013) (“‘[A]ny part of [a document] prepared in
anticipation of litigation, not just the portions concerning opinions, legal theories, and the like, is
protected by the work product doctrine and falls under exemption 5.’”) (quoting Tax Analysts v.
IRS, 117 F.3d 607, 620 (D.C. Cir.1997)).
V.
EXEMPTIONS 6 AND 7(C)
The FBI has also invoked FOIA Exemptions 6 and 7(C) to withhold information
in certain responsive records. Exemption 6 provides that “personnel and medical files and
similar files the disclosure of which would constitute a clearly unwarranted invasion of personal
privacy” are exempt from disclosure. 5 U.S.C. § 552(b)(6). As discussed above, Exemption 7
protects from disclosure certain “records or information compiled for law enforcement
purposes.” 5 U.S.C. § 552(b)(7). Plaintiffs do not dispute that the records they seek were
compiled for law enforcement purposes. Subpart (C) applies “only to the extent that the
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production of such law enforcement records or information . . . could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” Id.
“When information is claimed to be exempt from disclosure under both
[Exemption 6 and Exemption 7(C)], courts ‘focus . . . on Exemption 7(C) because it provides
broader privacy protection than Exemption 6 and thus establishes a lower bar for withholding
material.’” Citizens for Resp. & Ethics in Washington v. DOJ (“CREW II”), 854 F.3d 675, 681
(D.C. Cir. 2017) (quoting CREW I, 746 F.3d at 1091).
Where an “agency identifies a privacy interest in the requested documents,” the
documents should be disclosed only if “the requester ‘[] show[s] that the [countervailing] public
interest sought to be advanced is a significant one,’” and outweighs the privacy interest. Behar
v. United States Dep’t of Homeland Sec., 39 F.4th 81, 91 (2d Cir. 2022) (quoting NARA v.
Favish, 541 U.S. 157, 172 (2004)). The public interest at stake must be “‘more specific than
having the information for its own sake,’” and the information sought must be “‘likely to
advance that interest.’” Id. (quoting Favish, 541 U.S. at 172). “‘[G]oals other than opening
agency action to public scrutiny are deemed unfit to be accommodated under FOIA when they
clash with privacy rights.’” Id. (quoting Associated Press v. U.S. Dep’t of Def., 554 F.3d 274,
293 (2d Cir. 2009)). “Thus, ‘whether disclosure of a private document under Exemption 7(C) is
warranted must turn on the nature of the requested document and its relationship to the basic
purpose of the Freedom of Information Act to open agency action to the light of public
scrutiny.’” Id. (quoting DOJ v. Reps. Comm. For Freedom of Press, 489 U.S. 749, 772 (1989)).
The FBI asserts that Exemption 7(C) protects from disclosure the “names and
identifying information” of eight categories of people: (1) “third parties who were of
investigative interest to the FBI”; (2) “FBI Special Agents [] and Victim Specialists . . .
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responsible for conducting, supervising, and/or maintaining the investigation/investigative
activities”; (3) “third-party victims”; (4) “local law enforcement employees”; (5) “third parties
who were merely mentioned in the investigative records responsive to Plaintiffs’ request”; (6)
“personnel from non-FBI, federal government agencies who provided information to or
otherwise assisted the FBI in its investigation of Jeffrey Epstein”; (7) “local government
personnel”; and (8) “individuals who were interviewed, and/or provided information by other
means, to the FBI during the course of its investigation of Jeffrey Epstein.” (Seidel Decl. (Dkt.
No. 50) ¶¶ 73-83) The FBI argues that an individual who falls within these categories has
“strong privacy interests . . . ‘in preventing dissemination of his or her name and home address’”
that are protected by Exemption 7(C). (Def. Br. (Dkt. No. 38) at 25-26 (quoting Federal Labor
Relations Auth. v. U.S. Dep’t of Veterans Affairs, 958 F.2d 503, 510 (2d Cir. 1992)))
Plaintiffs respond that they “recognize the appropriateness of redacting the names
of uninvolved third-parties or juvenile victims who have not come forward.” But Plaintiffs argue
that the FBI has improperly taken a “categorical approach” to Exemption 7(C) and that – in
balancing the relevant interests – it has ignored the “diminished privacy of certain individuals
and the immense public interest underlying this case.” (Pltf. Br. (Dkt. No. 43) at 20-23)
Plaintiffs complain that “the FBI applied [the] privacy [exemptions] far more
expansively than necessary to merely protect the identities of third parties.” (Id. at 20)
According to Plaintiffs, while
FOIA allows for the redaction of the names and identifying information of private
citizens mentioned in law enforcement files, “it does not permit an agency to
exempt from disclosure all material in an investigatory record solely on the
grounds that the record includes some information which identifies a private
citizen or provides that person’s name and address.”
(Id. (quoting CREW I, 746 F.3d at 1094)) But the Seidel declaration states that the FBI
withheld the “names and identifying information” of eight specific categories of people
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throughout the records (Seidel Decl. (Dkt. No. 50) ¶¶ 73-83), not that it withheld “every
responsive document in toto.” CREW I, 746 F.3d at 1094. Moreover, the Seidel
declaration and the Vaughn index reveal that hundreds of pages of records for which the
FBI has asserted Exemptions 6 and 7(C) were “released in part” to Plaintiffs. (See
generally Vaughn index (Dkt. No. 50-31)) And Plaintiffs have not identified any
individual records listed in the Vaughn index that the FBI improperly withheld in their
entirety based on Exemptions 6 and 7(C). 14
Plaintiffs also argue that “the FBI offers no information whatsoever as to how
individuals’ privacy interests were weighed against the substantial public interest in this matter.”
(Pltf. Br. (Dkt. No. 43) at 20) Where Exemption 7(C) has been invoked, however, the
government agency must “account for the privacy interests at stake,” while it is Plaintiffs’
“burden to ‘show the information [withheld as private under Exemption 7(C)] is likely to
advance’ the public interest in learning whether [a government agency] pulled its punches.”
CREW II, 854 F.3d at 683 (quoting Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 172
(2004)).
As to the FBI’s balancing of the relevant interests, Plaintiffs do not dispute that
the eight categories of individuals listed by the FBI have cognizable privacy interests in their
14
To the extent that the Plaintiffs’ complaint with respect to the FBI’s “categorical” approach is
that the Bureau has not properly weighed the relevant privacy interests against the public interest
in disclosure for each individual record, that complaint is unavailing. There are more than
10,000 pages of records at issue in this case; reviewing each individual redaction, page, or record
would “actually impede court review and undermine the functions served by a Vaughn index.”
Jud. Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 147 (D.C. Cir. 2006) (“Especially where
the agency has disclosed and withheld a large number of documents, categorization and
repetition provide efficient vehicles by which a court can review withholdings that implicate the
same exemption for similar reasons.”). The FBI’s categorization of the types of individual
names and identifying information found in the records and withheld is thus appropriate under
the circumstances.
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names and identities under Exemption 7(C). See Levy v. U.S. Postal Serv., 567 F. Supp. 2d 162,
167 (D.D.C. 2008) (“Suspects, witnesses, and investigators all have substantial privacy interests
that are implicated by the public release of law enforcement investigative materials.”); Summers
v. United States Dep’t of Just., 2004 WL 7333532, at *6 (D.D.C. Apr. 14, 2004) (“The privacy
interest is very strong with respect to disclosure of identities of third-party individuals in law
enforcement documents.”). That interest is heightened “[i]n the context of this high profile
criminal investigation” involving Epstein and Maxwell. Summers, 2004 WL 7333532, at *6.
The “weighty” public interest in ensuring “the diligence of the FBI’s
investigation” concerning Epstein and Maxwell notwithstanding, CREW I, 746 F.3d at 1093, the
privacy interest of “witnesses and third parties” outweighs the public interest in disclosure to the
extent that “names . . . [and] identifying characteristics, [should] properly [be] redacted.”
Perlman v. U.S. Dep’t of Just., 312 F.3d 100, 106 (2d Cir. 2002), vacated on other grounds, 541
U.S. 970 (2004). Indeed, the D.C. Circuit has held “categorically” that “unless access to the
names and addresses of private individuals appearing in files within the ambit of Exemption 7(C)
is necessary in order to confirm or refute compelling evidence that the agency is engaged in
illegal activity, such information is exempt from disclosure.” SafeCard Servs., Inc. v. S.E.C.,
926 F.2d 1197, 1206 (D.C. Cir. 1991). Plaintiffs have not argued that the FBI has engaged in
“illegal activity” here.
The Court concludes that disclosure of the names and identifying information of
government employees, victims, witnesses, arrestees, or informants here “would not advance the
public’s understanding of the [FBI’s] performance of its statutory duties.” Behar, 39 F.4th at 94
(internal quotation marks omitted).
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Plaintiffs argue, however, that several individuals “have already been publicly
connected to the [Epstein/Maxwell trafficking investigation and criminal cases and] controversy
or have voluntarily identified themselves,” undermining the applicability of Exemption 7(C) as
to them. In this regard, Plaintiffs cite (1) certain individuals “explicitly named in [Epstein’s
2007] plea document as receiving immunity”; (2) several alleged victims of Epstein and
Maxwell’s scheme; and (3) a former attorney for Epstein, Alan Dershowitz. (Pltf. Br. (Dkt. No.
43) at 20-22)
The “SafeCard rule” discussed above does not apply to individuals “who were
convicted or pled guilty for their roles” in the relevant conduct or investigation. CREW II, 854
F.3d at 681. Courts have likewise stated that public officials, government employees, and
prominent politicians’ privacy interests with respect to law enforcement records are diminished
where they have made public statements regarding an investigation. Kimberlin v. Dep’t of Just.,
139 F.3d 944, 949 (D.C. Cir. 1998) (“government officials, as we have stated before, may have a
‘somewhat diminished’ privacy interest”) (quoting Quinon v. FBI, 86 F.3d 1222, 1230 (D.C. Cir.
1996)); Perlman, 312 F.3d at 107 (“[An individual’s] privacy interest is ‘somewhat diminished’
by his status as a government employee.”) (quoting Kimberlin 139 F.3d at 949)); Nation Mag.,
Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995) (“[Presidential
Candidate Ross] Perot’s decision to bring information connecting himself with such efforts into
the public domain differentiates his privacy interest from the interest of unnamed SafeCard
witnesses.”). To the extent that a politician, public official, or government employee has made
public statements concerning the subject matter of an investigation, district courts must
determine whether shielding their identifying information “would [] serve any useful purpose in
protecting [the individual’s] privacy.” Nation Mag., 71 F.3d at 896.
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While Kimberlin and similar cases cited by Plaintiffs suggest that certain public
officials have a “somewhat diminished” privacy interest based on their prominence, Kimberlin,
139 F.3d at 944, 949, Plaintiffs have not cited any case holding that an ordinary citizen’s privacy
interest diminishes because his or her name was mentioned in a court filing or because they have
made public statements concerning the investigation. Individuals do not “waive” their privacy
interests “merely by acknowledging [an] investigation.” Id. at 949.
As to the first group cited by Plaintiffs – people “explicitly named in [Epstein’s
2007] plea document as receiving immunity” – Plaintiffs rely on a 2007 “non-prosecution
agreement” between Epstein and the United States Attorney’s Office for the Southern District of
Florida. (Pltf. Br. (Dkt. No. 43) at 20-21) In the non-prosecution agreement – which was filed
as an exhibit to a civil complaint filed against Epstein – the “United States [] agree[d] that it
[would] not institute criminal charges against any potential co-conspirators of Epstein, including
but not limited to [certain individuals listed in Plaintiffs’ brief].” (Podhurst Orseck, P.A. v.
Epstein, 10 Civ. 21586 (ASG) (S.D. Fla 2010) Cmplt., Ex. A (Non-Prosecution Agreement)
(Dkt. No. 1-3) at 6) Plaintiffs do not allege, however, that these individuals (1) have been
“convicted or [pleaded] guilty” to a role in Epstein and Maxwell’s sex trafficking scheme, see
CREW II, 854 F.3d at 681; (2) are “government official[s]” who have made “statement[s] to the
press” concerning “what[,] [if anything, they] were accused of,” see Kimberlin, 139 F.3d at 949;
(3) are the subject of government “agency press releases or testimony in open court” naming
them “as having been charged, convicted or otherwise implicated” in the Epstein affair, CREW
II, 854 F.3d at 682; or (4) are discussed in a published judicial opinion reviewing allegations of
misconduct made against them. See Bartko v. United States Dep’t of Just., 898 F.3d 51, 69
(D.C. Cir. 2018) (“Wheeler’s [privacy] interest is substantially diminished . . . [given that] the
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allegations of misconduct during the Bartko trial are already a matter of public record, as is the
referral to OPR published in the Fourth Circuit’s decision, and the U.S. Attorney’s public
announcement that it too was referring the allegations of misconduct to OPR.”).
Acknowledging that the four individuals at issue are listed as potential “coconspirators” of Epstein in the latter’s non-prosecution agreement, the Court cannot conclude
that – as a result – they have a diminished expectation of privacy with respect to documents held
by the FBI containing their names.
Epstein and Maxwell’s alleged victims, and Dershowitz, are likewise not public
officials, nor are their “activities significant in their connection to agency conduct.” Nation
Mag., 71 F.3d at 895 (“[FOIA requesters were] especially interested in documents and records
that pertain to offers by Mr. Perot to assist the Customs Service in the interdiction of illegal
drugs.”).
As to certain of Epstein’s alleged victims who have discussed their involvement
with Epstein publicly, however, Plaintiffs have proffered (1) an article discussing a documentary
featuring interviews with those victims; and (2) three articles concerning the release of
transcripts of testimony in a lawsuit brought by Virginia Giuffre against Maxwell for her role in
Epstein’s trafficking ring. (See Pltf. Br. (Dkt. No. 43) at 21-22) The articles discuss, inter alia,
Giuffre’s allegations that “Maxwell and Epstein ordered her to have sex with men.” See, e.g.,
Bill Chappell & Scott Neuman, “Judge Releases Trove of Sealed Records Related To Lawsuit
Against Ghislaine Maxwell,” NPR, (July 31, 2020)
https://www.npr.org/2020/07/31/896627505/judge-releases-trove-of-sealed-records-relatedtocase-against-ghislaine-maxwell.
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Acknowledging that certain of Epstein’s victims have publicly discussed being
trafficked by Maxwell and Epstein, these individuals remain victims of and witnesses to the
scheme. And given the nature of Epstein and Maxwell’s conduct towards the alleged victims, it
is almost certain that the records sought by Plaintiffs contain highly sensitive material about
Giuffre and other victims and witnesses. See Summers, 2004 WL 7333532, at *4 (“[I]n the
context of this high profile criminal investigation, these individuals clearly have more than a
minimal privacy interest in not having their identities exposed.”). Accordingly, Giuffre and
those similarly situated maintain significant privacy interests in the records at issue.
As to Dershowitz, Plaintiffs have cited only articles in which Dershowitz denies
any wrongdoing in connection with his representation of Epstein. (Pltf. Br. (Dkt. No. 43) at 22)
To the extent that Dershowitz has been accused of misconduct, “official confirmation of what
has been reported in the press and the disclosure of additional details could reasonably be
expected to constitute an unwarranted invasion of [Dershowitz’s] personal privacy.” Kimberlin,
139 F.3d at 949. Accordingly, Dershowitz’s privacy interest with respect to the records at issue
is undiminished.
As with the other witnesses, third parties, and investigators named in the FBI’s
records, the public interest in shedding light on the Bureau’s activities is not served by the
disclosure of records that name and identify Giuffre or any of Epstein’s victims, Dershowitz, and
the others listed in Plaintiff’s brief. See U.S. Dep’t of Just. v. Reps. Comm. For Freedom of
Press, 489 U.S. 749, 774 (1989) (“[Revealing sensitive private information] would tell us
nothing directly about the character of the [agency’s] behavior.”).
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*
*
*
*
In sum, the FBI has met its burden to establish that it properly withheld private
information pertaining to the eight categories of individuals listed in the Seidel declaration.
VI.
EXEMPTION 7(D)
Exemption 7(D) protects from disclosure law enforcement records that “could
reasonably be expected to disclose the identity of a confidential source, . . . [who] furnished
information on a confidential basis[] . . . [or] information furnished by a confidential source.” 5
U.S.C. § 552(b)(7)(D). “Under Exemption 7(D), the question is not whether the requested
document is of the type that the agency usually treats as confidential, but whether the particular
source spoke with an understanding that the communication would remain confidential.” DOJ v.
Landano, 508 U.S. 165, 172 (1993) (emphasis in original). “[C]onfidentiality is not limited to
complete anonymity or secrecy. A statement can be made ‘in confidence’ even if the speaker
knows the communication will be shared with limited others, as long as the speaker expects that
the information will not be published indiscriminately.” Id. Accordingly, “disclosure is not
required ‘if the source provided information under an express assurance of confidentiality or in
circumstances from which such an assurance could be reasonably inferred.’” Halpern v. F.B.I.,
181 F.3d 279, 298 (2d Cir. 1999) (quoting Landano, 508 U.S. at 172).
There is no “presumption” that an FBI source has provided information pursuant
to an explicit or implicit assurance of confidentiality. Landano, 508 U.S. at 174-78; see also
CREW I, 746 F.3d at 1101 (“‘[I]t is not enough for the agency to claim that all sources providing
information in the course of a criminal investigation do so on a confidential basis.’”) (quoting
Roth v. DOJ, 642 F.3d 1161, 1184 (D.C. Cir. 2011)).
Instead, the FBI must “point to more narrowly defined circumstances that . . .
support the inference” of confidentiality. When no express assurance of
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confidentiality exists, courts consider a number of factors to determine whether
the source nonetheless “spoke with an understanding that the communication
would remain confidential.” These factors include “the character of the crime at
issue,” “the source’s relation to the crime,” whether the source received payment,
and whether the source has an “ongoing relationship” with the law enforcement
agency and typically communicates with the agency “only at locations and under
conditions which assure the contact will not be noticed.”
Roth, 642 F.3d at 1184 (quoting Landano 608 U.S. at 172, 179) And “[e]ven when the FBI
contends that a source received an express assurance of confidentiality, it must, in order to
‘permit meaningful judicial review,’ present sufficient evidence that such an assurance was in
fact given.” Id. (quoting Campbell v. DOJ, 164 F.3d 20, 34 (D.C. Cir. 1998)).
The Seidel declaration identifies four Exemption 7(D) categories: (1) names and
identifying information of sources and information provided by sources “under circumstances in
which confidentiality can be inferred”; (2) names and identifying information of sources and
information provided by sources “under express grants of confidentiality”; (3) “information
provided to the FBI from a foreign agency under circumstances in which confidentiality can be
inferred”; and (4) names and identifying information of local law enforcement personnel, and
information provided such personnel “under an implied assurance of confidentiality.” (Seidel
Decl. (Dkt. No. 50) ¶¶ 87-94)
Plaintiffs challenge all four categories and argue that “the FBI has only offered a
bald claim that witnesses expected confidentiality,” has provided no evidence that its sources
received an express grant of confidentiality, and has not “pointed to ‘more narrowly defined
circumstances’ that support the inference of confidentiality.” (Pltf. Br. (Dkt. No. 43) at 26-27
(quoting CREW I, 746 F.3d. at 1101))
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As to the Seidel declaration’s second category – information provided under an
express grant of confidentiality – Seidel merely asserts that
when processing the records at issue, the FBI found evidence these individuals,
who provided specific and detailed information that is singular in nature, either
requested their identities not be revealed; and/or FBI investigators would have, by
standard practice, expressly promised these third parties their identities and the
information they provided would remain confidential.
(Seidel Decl. (Dkt. No. 50) ¶ 90) The FBI has not submitted any “probative evidence” that any
source received an express grant of confidentiality in the form of, for example, “notations on the
face of a withheld document, the personal knowledge of an official familiar with the source, a
statement by the source, or contemporaneous documents discussing practices or policies for
dealing with the source or similarly situated sources.” Campbell v. DOJ, 164 F.3d 20, 34 (D.C.
Cir. 1998), as amended (Mar. 3, 1999); Roth, 642 F.3d at 1184 (“Even when the FBI contends
that a source received an express assurance of confidentiality, it must . . . present sufficient
evidence that such an assurance was in fact given.”).
Moreover, Seidel is the FBI’s “Section Chief for the Record/Information
Dissemination Section [], Information Management Division” (Seidel Decl. (Dkt. No. 50) ¶ 1),
and there is no evidence that he participated in the Epstein investigation or otherwise has
“personal knowledge of the particular events” in which sources received express assurances of
confidentiality. Campbell, 164 F.3d at 35. And if any of the records “reveal express guarantees
of confidentiality on their face,” no such evidence has been presented to the Court. Id.
In sum, the FBI has not carried its burden to demonstrate an express assurance of
confidentiality.
As to Seidel’s first category – sources who provided information under
“circumstances in which confidentiality can be inferred” – the only factual circumstance cited by
the FBI is that its sources held “unique positions allowing them ready access to and/or
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knowledge about investigative targets and others involved in child prostitution or trafficking of a
minor.” (Seidel Decl. (Dkt. No. 50) ¶ 88) While “generic circumstances” can sometimes give
rise to an “implied assurance of confidentiality,” Landano, 508 U.S. at 179, the fact that Epstein
and Maxwell’s crimes involved “child sexual abuse” does not alone “support a finding of some
implicit confidentiality agreement.” See Bagwell v. U.S. Dep’t of Just., 588 F. Supp. 3d 58, 71
(D.D.C. 2022) While “courts are more willing to infer confidentiality in cases where the crimes
at issue are particularly violent,” Ramaci v. FBI, 568 F. Supp. 3d 378, 388 (S.D.N.Y. 2021), the
sources at issue here are not comparable to a “‘witness[] to a gang-related murder[,]’ [which] the
Supreme Court offered as an example of someone who might be ‘unwilling to speak . . . except
on the condition of confidentiality.’” Bagwell, 588 F. Supp. 3d at 71 (quoting Landano, 508
U.S. at 179). Nor has the Bureau proffered evidence that its sources have reason to fear
retaliation. See Computer Pros. for Soc. Resp. v. U.S. Secret Serv., 72 F.3d 897, 906 (D.C. Cir.
1996), amended (Feb. 20, 1996) (“[T]he Service offered no evidence that a fear of retaliation by
hackers is sufficiently widespread to justify an inference that sources of information relating to
computer crimes expect their identities and the information they provide to be kept
confidential.”).
Nor does the Seidel declaration discuss any “narrowly defined circumstances that
[] support the inference” of confidentiality, such as a paid informant, an informant that had an
“ongoing relationship with the Bureau,” or an informant who met with the Bureau in unique or
unusual “locations and [] conditions.” See Landano, 508 U.S. at 179. Indeed, the portions of the
Seidel declaration addressing this category are mere boilerplate, citing “1) the singularity of the
information provided and the likelihood these individuals could be identified through release of
this information by those familiar with the events described; 2) the proximity of these sources to
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the investigative subjects and events they described; 3) and the nature of the criminal acts they
described.” (Seidel Decl. (Dkt. No. 50) ¶ 87) But Seidel does not explain or provide any details
regarding the “singularity of the information provided,” “the proximity of [the FBI’s] sources” to
Epstein, Maxwell or other investigative subjects, or “the nature of [any] criminal acts.” (Id.)
Accordingly, the FBI has not satisfied its burden to show that its sources provided information
under an implicit expectation of confidentiality.
As to Seidel’s third category – information provided by foreign agencies – the
FBI asserts that it “solicits and receives information from . . . foreign agencies” in connection
“with a wide variety of criminal and national security investigations.” (Seidel Decl. (Dkt. No.
50) ¶ 92) According to the FBI, the “understanding that the identity of such a source . . . will be
held in confidence” is “[i]nherent” to such cooperation. (Id.) The FBI then notes that the release
of records which “reveal the existence of a confidential relationship with a foreign government
reasonably could be expected to strain relations between the United States and the foreign
government and lead to diplomatic or economic retaliations . . . [and to have] a chilling effect on
the free flow of vital information to” the FBI. (Id.)
These justifications are insufficient. As noted at the outset, the relevant inquiry is
whether release of the records “could reasonably be expected to disclose the identity of a
confidential source, including a state, local or foreign agency,” or information provided by such
a source – not whether release could reasonably be expected to “strain relations” between the
United States and other countries. 5 U.S.C. § 552(b)(7)(D). In any event, the FBI has not
submitted evidence that any “particular foreign government agency that the FBI [seeks] to
protect via its redactions requested that its identity, relationship with FBI, and the information it
provided be classified and withheld.” Shapiro v. Cent. Intel. Agency, 247 F. Supp. 3d 53, 68
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(D.D.C. 2017); Stein v. U.S. Dep’t of Just., 134 F. Supp. 3d 457, 486 (D.D.C. 2015) (“The only
statement that the FBI makes about the implied assurance of confidentiality purportedly made [to
the foreign agency or agencies] . . . is an entirely conclusory recitation of the burden it must
meet[.] . . . This is not sufficient.”) Accepting the FBI’s assertion that expectations of privacy
are “[i]nherent” to cooperation with foreign agencies (Seidel Decl. (Dkt. No. 50) ¶ 92) – without
evidence of any explicit or implicit assurance of confidentiality – amounts to applying the sort of
“presumption of confidentiality” that the Supreme Court has explicitly rejected. See Landano,
508 U.S at 181 (“[T]he Government is not entitled to a presumption that a source is confidential
within the meaning of Exemption 7(D) whenever the source provides information to the FBI in
the course of a criminal investigation.”).
As to Seidel’s fourth category – information from local law enforcement agencies
– he states that local
law enforcement authorities provided specific detailed information of value to the
FBI, that is singular in nature, concerning Jeffrey Epstein. The FBI inferred these
personnel provided this information to the FBI with an expectation their
involvement in the investigation, and/or the information they provided, would
remain confidential due to the following: the information provided pertains to
unknown investigations pursued by these agencies; or the information would
expose the agency’s personnel to undue public scrutiny based on their
involvement with these particular matters.
(Seidel Decl. (Dkt. No. 50) ¶ 93)
The Court concludes that the FBI has sufficiently established that records
provided by local law enforcement authorities were provided under “more narrowly defined[,]
. . . [although] generic circumstances [from] which an implied assurance of confidentiality can
fairly be inferred.” See Landano, 508 U.S. at 179. Epstein’s illegal activities spanned decades
and took place in a variety of locations, including New York, Florida, and the Virgin Islands. It
is reasonable to assume that local law enforcement authorities who provided information to the
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FBI have their own sources and investigations to protect. It is also reasonable to assume that
local law enforcement agencies would expect that the information they provided to the FBI
would be maintained as confidential.
In sum, the FBI has not provided sufficient evidence that explicit or implicit
assurances of confidentiality were made to the FBI’s own sources and to foreign agencies.
However, the FBI has met its burden with respect to information provided by local law
enforcement agencies.
VII.
EXEMPTION 7(E)
Exemption 7(E) applies to law enforcement records the release of which “would
disclose techniques and procedures for law enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). The
qualification “‘such disclosure could reasonably be expected to risk circumvention of the law’[]
modifies only ‘guidelines’ and not ‘techniques and procedures.’” Allard K. Lowenstein Int’l
Hum. Rts. Project v. Dep’t of Homeland Sec., 626 F.3d 678, 681 (2d Cir. 2010); see also id.
(“When Congress [amended FOIA] . . . in 1986, it expanded the scope of Exemption 7(E) by
adding the entire second clause[,] . . . thereby exempting ‘guidelines’ from disclosure only if
public access to such guidelines would risk circumvention of the law.”). Accordingly,
“techniques and procedures” are exempt from disclosure “without need for [a] demonstration of
harm.” Id. (quoting Keys v. Dep’t of Homeland Sec., 510 F.Supp.2d 121, 129 (D.D.C. 2007)).
“The term ‘guidelines’ . . . generally refers in the context of Exemption 7(E) to resource
allocation . . . [while the] phrase ‘techniques and procedures,’ [] refers to how law enforcement
officials go about investigating a crime.” Id. at 682.
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The FBI has asserted Exemption 7(E) as to the following categories of
information found within the records Plaintiffs seek: (1) “methods the FBI uses to collect and
analyze information it obtains for investigative purposes”; (2) “sensitive investigative file
numbers . . . [which identify] the investigative interest or priority given to [particular] matters”;
(3) the “type of investigations,” such as “preliminary” or “full”; (4) “the target, dates and scope
of [] surveillance [operations]”; (5) information located within the FBI’s FD-515 forms used to
report “investigative accomplishments, . . . such as an arrest, conviction, sentencing, [or] asset
seizure”; (6) nonpublic database identifiers or printouts; and (7) monetary payments or funding
needed for investigative purposes. (Seidel Decl. (Dkt. No. 50) ¶¶ 98-112) For each category of
information, regardless of whether classified as “guidelines” or “techniques and procedures,” the
Seidel declaration explains how “disclosure could reasonably be expected to risk circumvention
of the law.” (Id.)
The Court concludes that the FBI has satisfied its burden under Exemption 7(E) –
each category of information identified in the Seidel declaration qualifies as “techniques and
procedures . . . [or] guidelines . . . [the] disclosure [of which] could reasonably be expected to
risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(D); see also Shapiro v. Dep’t of Just., 2020
WL 3615511, at *36 (D.D.C. July 2, 2020), aff’d in part, remanded in part on other grounds, 40
F.4th 609 (D.C. Cir. 2022) (finding that the FBI met its burden under Exemption 7(E) as to, inter
alia, “methods the FBI uses to collect and analyze the information,” “information regarding
monetary payments,” “how, under what circumstances, and on whom the FBI conducts
surveillance,” and “FBI Form FD-515”); Gonzalez v. United States Citizenship & Immigr.
Servs., 475 F. Supp. 3d 334, 352 (S.D.N.Y. 2020) (“[Law enforcement file and] event codes and
URLs of internal law enforcement databases[] [are] properly withheld under Exemption 7(E).”);
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Ford v. Dep’t of Just., 208 F. Supp. 3d 237, 253 (D.D.C. 2016) (“[The FBI] also withheld
information pertaining to . . . whether an investigation is preliminary or full and the date of its
initiation. . . . [T]he FBI’s justification for withholding this information is adequate.”).
Plaintiffs do not contest the FBI’s reasoning and instead argue that, as with
Exemption 7(D), the FBI “offers nothing more [] than a paraphrase of [E]xemption 7(E).” (Pltf.
Br. (Dkt. No. 43) at 27) This argument ignores the Seidel declaration’s detailed description of
the guidelines, techniques and procedures the FBI seeks to protect under Exemption 7(E). The
Court concludes that the FBI has “logically explain[ed] how the [requested information] could
help criminals circumvent the law, and that suffices here to justify invocation of Exemption
7(E).” Blackwell v. F.B.I., 646 F.3d 37, 42 (D.C. Cir. 2011).
VIII.
SEGREGABILITY
“FOIA . . . provides that ‘[a]ny reasonably segregable portion of a record shall be
provided to any person requesting such record after deletion of the portions which are exempt.’”
Conti, 2014 WL 1274517, at *25 (quoting 5 U.S.C. § 552(b)). “[T]he agency must provide a
detailed justification for its decision that non-exempt material is not segregable,” but “is entitled
to a presumption that it complied with its obligation to disclose reasonably segregable material.”
Id. (citing Mead Data Cent., Inc. v. U.S. Dept. of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977)).
“[T]o justify withholding an entire document[,] the DOJ . . . must demonstrate that [it] cannot
delineate between exempt and non-exempt information therein.” Ayyad v. U.S. Dept. of Justice,
2002 WL 654133, at *2 (S.D.N.Y. Apr. 18, 2002).
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Here, the FBI argues that the “records withheld in full under . . . Exemption 7(A)”
do “not contain any reasonably segregable information.” 15 The FBI has not met its burden to
establish the applicability of Exemption 7(A) as to all of the withheld documents, however.
Accordingly, the Court cannot evaluate whether the FBI has met its burden with respect to
segregability. See Seife v. United States Dep’t of State, 298 F. Supp. 3d 592, 629 (S.D.N.Y.
2018) (court “not yet in a position to reach the question of segregability” where the agency has
failed to meet its burden in initial summary judgment briefing).
IX.
PLAINTIFFS’ CROSS-MOTION
Where, as here, an agency “‘fails to provide a sufficiently detailed [declaration] to
enable the district court to make a de novo determination of the agency’s claims of exemption,
the district court then has several options, including inspecting the documents in camera,
requesting further affidavits, or allowing the plaintiff discovery.’” Id. (quoting Spirko v. U.S.
Postal Serv., 147 F.3d 992, 997 (D.C. Cir. 1998)) Because there are tens of thousands of pages
of records at issue here (see Vaughn index (Dkt. No. 50-31) at 164), in camera review is not a
practical solution for the FBI’s inadequate declarations. In any event, “‘[a] district court should
not undertake in camera review of withheld documents as a substitute for requiring an agency’s
15
In its moving brief, the FBI states that “[t]he records withheld in full by the FBI do not
contain any reasonably segregable non-exempt information. With regard to the records withheld
in full under Exemption 7(A), the Comey Declaration explains why each category of records is
exempt from disclosure. . . . As to the remaining records withheld in full, either the records are
privileged in their entirety or any non-exempt information in the documents is inextricably
intertwined with exempt information.” (Def. Br. (Dkt. No. 38) at 33 (citations omitted)) It is not
clear what the FBI’s purpose is in differentiating between “records withheld in full under
Exemption 7(A)” and “the remaining records withheld in full.” (Id.) The Seidel declaration and
the FBI’s brief say that the FBI has asserted Exemption 7(A) as to “all [] protected information”
withheld before the July 2019 Epstein indictment as well as “all remaining responsive
documents.” (Seidel Decl. (Dkt. No 50) ¶ 30 & n.4; Def. Br. (Dkt. No. 38) at 11) The FBI’s
11,000 line Vaughn index also indicates that the FBI has asserted Exemption 7(A) as to each
record withheld in full. (Vaughn Index (Dkt. No. 50-31))
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explanation of its claimed exemptions in accordance with Vaughn.’” New York Times Co. v.
U.S. Food & Drug Admin., 529 F. Supp. 3d 260, 270 (S.D.N.Y. 2021) (quoting Seife, 298 F.
Supp. 3d at 629).
Moreover, given the circumstances here, it would not be appropriate for this Court
to order the FBI to produce the responsive records with redactions for those portions that fall
within one of the exemptions for which the FBI has sustained its burden. “‘Before approving the
application of a FOIA exemption, the district court must make specific findings of segregability
regarding the documents to be withheld.’” See Spadaro, 978 F.3d at 41 (quoting Sussman v.
U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007)). As discussed above, a segregability
analysis cannot be performed, because the FBI has not carried its burden as to certain
exemptions. The inadequacy of the FBI’s declarations as to the bulk of the claimed exemptions
thus makes it impossible for this Court to make the necessary segregability findings.
District courts frequently encounter such circumstances in FOIA cases, and direct
the defendant agency to file revised declarations and the parties to file renewed motions for
summary judgment. See, e.g., Prop. of the People, 2021 WL 3052033, at *3 (“For the foregoing
reasons, the Court will deny Defendant’s Cross-Motion for Summary Judgment . . . and require
more specific justifications for its withholdings.”); McGehee, 800 F. Supp. 2d at 239
(“Defendant’s Motion for Summary Judgment is granted in part and denied in part. . . .
Defendant must file an updated Vaughn index in conformity with this Memorandum Opinion
. . . .”); ACLU, 210 F. Supp. 3d at 486 (“DOJ is directed to submit revised Vaughn submissions a
. . . and a segregability analysis . . . along with a renewed motion for partial summary
judgment.”); New York Times Co., 499 F. Supp. 2d at 519 (“Following a review of Defendants’
additional submissions, the Court will determine whether summary judgment is appropriate with
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respect to the Unclassified Documents and the adequacy of the DOD search.”); Seife, 298 F.
Supp. 3d at 629 (“The State Department is directed to submit revised Vaughn submissions . . . as
well as a segregability analysis . . . along with a renewed motion for partial summary judgment
. . . .[Plaintiff] may [also] file a renewed cross-motion for summary judgment.”).
Of course, where an agency “has satisfied its burden,” a FOIA requester may still,
in theory, secure production of the requested documents by demonstrating “bad faith on the part
of the agency sufficient to impugn the agency’s affidavits or declarations, or provide some
tangible evidence that an exemption claimed by the agency should not apply or summary
judgment is otherwise inappropriate.” Carney, 19 F.3d at 812. But this rule says nothing about a
FOIA requester’s remedy where an agency has failed to meet its burden in the first instance, but
the requester lacks evidence of bad faith or proof that a claimed exemption should not apply. 16
In any event, Plaintiff has submitted no such “tangible evidence” in this case. See Elec. Frontier
Found. v. Cent. Intel. Agency, 2013 WL 5443048, at *26 (N.D. Cal. Sept. 30, 2013)
(“[S]ummary judgment is not warranted [for the plaintiff] given the Court’s conclusion that
Defendants’ Vaughn submissions are inadequate, not that information has been improperly
withheld.”).
While the current FOIA regime does not incentivize agencies to file adequate
declarations in the first instance – because they will likely be given another opportunity to seek
summary judgment on the basis of revised declarations – this Court is not aware of any decision
16
Where the adequacy of an agency’s search, rather than the applicability of a FOIA exemption,
is at issue, district courts may order discovery. See Fams. for Freedom v. U.S. Customs &
Border Prot., 837 F. Supp. 2d 331, 337 (S.D.N.Y. 2011) (ordering “limited discovery” where
defendants had, “[f]or over a year, . . . not complied with FOIA’s requirements” and conducted
“inadequate searches” for responsive records). Here, however, Plaintiffs have not disputed the
adequacy of the FBI’s search.
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that has directed disclosure of agency records where an agency’s initial declaration has been
inadequate to support the applicability of a FOIA exemption. And, as discussed above, this
Court cannot order disclosure of some portion of the requested records at this juncture because it
cannot make the requisite finding as to segregability. See Spadaro, 978 F.3d at 41.
CONCLUSION
For the reasons stated above, Defendant’s motion for summary judgment is
granted with respect to documents withheld pursuant to Exemption 3 (as it relates to the Child
Victims’ Act) and Exemptions 5, 6, 7(C), 7(D) (as to information provided by local law
enforcement agencies), and 7(E), and is otherwise denied without prejudice. Plaintiffs’ crossmotion for summary judgment is granted to the extent that this Court has found that the
Government’s declarations are inadequate to support application of certain FOIA exemptions.
Plaintiffs’ summary judgment is otherwise denied without prejudice.
The parties shall confer and submit a joint letter by October 6, 2023, stating how
they propose to proceed. The parties’ letter should contain a proposed schedule for the FBI’s
submission of revised declarations, as well as any renewed motions for summary judgment.
The Clerk of Court is directed to terminate the motions (Dkt. Nos. 37, 42).
Dated: New York, New York
September 19, 2023
SO ORDERED.
_______________________________
Paul G. Gardephe
United States District Judge
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