CREW citizens for responsibility and ethics in washington March 14, 2011 Melanie Ann Pustay Director Office of Information Policy U.S. Department of Ju: 1425 New York Avenue, N.W. Suite 11050 Washington, D.C. 20530-0001 Re: Freedom of Information Act Appeal in Request No. CRM-201000892F Dear Ms, Pustay: Citizens for Responsibility and Ethics in Washington (“CREW”) hereby appeals the refusal of the Department of Justice (“DOJ”) to release to CREW any records responsive to our Freedom of Information Act (“FOIA”) request of December 13, 2010. By letter dated and sent by facsimile on December 13, 2010, CREW requested all records related to the investigation of Senator John Ensign (R-NV) conducted by the Department of Justice (“DOJ”) and the Federal Bureau of Investigation (“FBI”), including but not limited to DOS's decision not to bring criminal charges against Sen. Ensign. CREW explicitly excluded from its request records covered by grand jury secrecy pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure. A copy of the request is attached as Exhibit A. CREW also sought a public interest fee waiver, explaining that the requested records are likely to contribute to greater public awareness of alleged malfeasance and possible criminal behavior by Sen. Ensign, as well as DOI’s decision not to prosecute Sen. Ensign despite his known conduct. As CREW explained, Sen. Ensign committed a series of potentially illegal actions in an effort to cover up his admitted affair with a former campaign staffer, Cynthia Hampton, whose husband Doug Hampton had served as Sen. Ensign’s chief of staff. Among other things, Sen. Ensign helped Mr. Hampton establish a lobbying practice, lined up clients to pay Mr. Hampton enough to match his former Senate salary, and later contacted federal officials on behalf of some of Mr. Hampton’s new clients. Sen. Ensign and his family also provided the Hamptons with questionable gifts and severance payments, including a $96,000 gift from Sen. Ensign’s parents. As CREW further explained, DOJ initiated an investigation into Sen. Ensign’s conduct in Jate 2009, and notified him in November 2010 it had ended its investigation of him. Through his conduct, Sen. Ensign may have committed criminal campaign finance law violations and criminally conspired with Mr. Hampton to violate the post-employment lobbying 1400 Eye Steet, NW, Suite 450, Washington, 0.6. 20005 | 202.408.5566 phone | 202.588,5020fax | yanwitizenstoetics org =Office of Information Policy March 14, 2011 Page 2 restrictions. As CREW explained, while DOJ decided not to prosecute Sen. Ensign, his activities still may have been illegal or violations of the rules of the Senate, and the requested records ‘would shed light on them. CREW further explained these documents would shed light on the conduct of DOJ and the FBI in conducting the investigation of Sen, Ensign, and DOJ"s apparent decision to close the investigation without bringing charges against him. CREW specifically noted its willingness to discuss with DOJ the scope of its request and whether it can be narrowed or modified to better enable DOJ to process it. In response, DOJ notified CREW by letter dated February 22, 2011 (attached as Exhibit B) it had conducted a search and located records responsive to the request, but withheld all of the records pursuant to Exemption 7(A) of the FOIA. Specifically, DOJ asserted the records “relate to open and on-going law enforcement proceedings in the District of Columbia, and that release, at this time, could reasonably be expected to interfere with these proceeding by revealing prematurely the nature and scope of the evidence compiled by the government.” DOS improperly withheld the requested records. Exemption 7(A) permits the withholding of “records or information compiled for law enforcement purposes . .. to the extent that production of such law enforcement records or information . . . could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § $52(b)(7)(A). The purpose of Exemption 7(A) is “to prevent harm to the government's case in court.”” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 227 (1978) (internal citation omitted); see also North v. Walsh, 881 F.2d 1088, 1097 (D.C. Cir. 1989) (Exemption 7(A) is “designed to block the disclosure of information that will genuinely harm the government's case in an enforcement proceeding or impede an investigation”). Exemption 7(A) does “not endlessly protect material simply because it was in an investigatory file.” Robbins Tire & Rubber Co., 437 U.S. at 230. Law enforcement records may be withheld only where release “is likely to cause some distinet harm.” Kay v. FCC, 976 F. Supp. 23, 38 (D.D.C. 1997); see also Citizens for Responsibitity and Ethics in Washington. US. Dep't of Justice, 658 F. Supp. 2d 217, 226 (D.D.C. 2009) Disclosing the requested records will not interfere with any enforcement proceeding related to Sen, Ensign for the simple reason that DOJ has closed its investigation of Sen. Ensign. Sen. Ensign and his attorney repeatedly have acknowledged to the news media and the public that DOJ notified them in November 2010 it had concluded its investigation of Sen, Ensign and would not bring charges against him. See, e.g., Ray Hagar, John Ensign Says He Must Earn Back Trust of Nevada Voters, Reno Journal-Gazette, January 21, 2011 (attached as Exhibit C); Steve Tetreault & Jeff German, News again good for Ensign, Las Vegas Review-Journal, December 2, 2010 (attached as Exhibit D). No harm can come to DOJ’s case against Sen. Ensign in court because there will be no case against Sen. Ensign. To the extent DOJ is contending disclosure of the requested records could interfere withOffice of Information Policy March 14, 2011 Page 3 other enforcement proceedings, disclosure of records from an active investigation is not foreclosed simply because the investigation is open, Banks v. Dep't of Justice, 700 F. Supp. 24 9, 18 (D.D.C. 2010) (“The mere fact that the underlying investigation remains open is not a sufficient basis for withholding the entire case file; such a decision is justified only on a showing that the release of each category of documents could reasonably be expected to interfere with enforcement proceedings.”). Even if disclosure of some of the requested records could, if released, interfere with ongoing enforcement proceedings, DOJ cannot withhold all of the records. While CREW does not know what records DOI possesses that relate to the investigation of Sen. Ensign, it is very unlikely all of them are related to ongoing proceedings and their disclosure reasonably could be expected to interfere with those proceedings. It is much more likely that at least some of the requested records relate solely to the closed investigation of Sen. Ensign, and their release would not cause harm to any open proceedings. Similarly, DOJ did not comply with its duty under the FOTA to disclose all non-exempt, segregable portions of the records. The FOIA requires agencies to “disclose any reasonably segregable portion of a record . .. after deletions of the portions which are exempt.” 5 U.S.C. § 552(b). [T]he focus in the FOIA is information, not documents, and an agency cannot justify withholding an entire document simply by showing that it contains some exempt material.” Mead Data Central, Inc. v. United States Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977); see also Public Citizen Health Research Group v. FDA, 185 F.34 898, 907 (D.C. Cir. 1999). Even if some of the requested records contain information related to open law enforcement proceedings and disclosure of that information could reasonably be expected to interfere with those proceedings, itis again very unlikely all of the information in the requested records is exempt. DOJ should have redacted any legitimately exempt information and disclosed the remainder of the records, Accordingly, DOJ’s initial determination that all of the requested records are exempt under Exemption 7(A) plainly is in error and must be reversed. Respectfully submitted, Ab. £,/* Adam J. Rappaport Senior Counsel Enclosures