foia appeal: crew: doj-criminal division: regarding jerry lewis investigation: 3/18/11

8/7/2019 FOIA Appeal: CREW: DOJ-Criminal Division: Regarding Jerry Lewis Investigation: 3/18/11

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CREW I citizens for responsibilityand ethics in washingtonMarch 18,2011

Melanie Ann PustayDirectorOffice of Information PolicyU.S. Department of Justice1425 New York Avenue, N.W.Suite 11050Washington, D.C. 20530-0001

Re: Freedom ofInformation Act Appeal in Request No. CRM-201100063FDear Ms. Pustay:

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

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

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

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

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

1 40 0 E ye S tre et, NW ., S uite 4 50 , W as hin gto n, D .C . 2 00 05 I 2 02 .4 08 .5 56 5 p ho ne I 202 .588 .502 0 fax I www.citizensforethics.or
http://www.citizensforethics.org/http://www.citizensforethics.org/


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Office of Information PolicyMarch 18, 2011Page 2

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

DOJ Improperly Withheld Responsive Records Under Exemption 3DO] first asserted it withheld some unidentified number of responsive records pursuant to

Exemption 3, which permits withholding records specifically exempted by another statute. 5U.S.C. 552(b)(3).

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

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

In addition, even if the responsive records contain some information properly protectedfrom disclosure under Exemption 3, DO] did not comply with its duty under the FOIA todisclose 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 whichare exempt." 5 U.S.C. 552(b). "[T]he focus in the FOIA is information, not documents, and anagency cannot justify withholding an entire document simply by showing that it contains someexempt material." Mead Data Central, Inc. v. United States Dep 't of Air Force, 566 F.2d 242,


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Office of Information PolicyMarch 18,2011Page 3260 (D.C. Cir. 1977); see also Lopez v. Dep 't of Justice, 393 F.3d 1345, 1348-50 (D.C. Cir.2005). DOJ should have redacted any legitimately exempt information and disclosed theremainder of the records.

DOJ Improperly Withheld Responsive Records Under Exemption 5DOJ also asserted it withheld some unidentified number of records pursuant to

Exemption 5, which protects from disclosure "inter-agency or intra-agency memorandums orletters which would not be available by law to a party other than an agency in litigation with theagency." 5 U.S.C. 552(b)(5). DOJ claimed some unidentified number of responsive recordsare exempt pursuant to the deliberative process privilege and/or as attorney work productprepared in anticipation of litigation.

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

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

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

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


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Office of Information PolicyMarch 18,2011Page 4to an unprecedented level of transparency and openness. Discretionary releases are encouragedunder the Attorney General's guidelines, and the DOJ notified agencies that such releases are"most applicable under Exemption 5." Department of Justice, Office ofInformation Policy, OJPGuidance: President Obama's FOJA Memorandum and Attorney General Holder's FOJAGuidelines, Creating a "New Era of Open Government", April 17,2009 (attached at Exhibit C).

DOJ Improperly Withheld Responsive Records Under Exemption 6 and 7(C)DOJ further asserted it withheld some unidentified number of records pursuant to

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

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

In addition, these documents would shed light on the conduct of DOJ and the FBI inconducting the investigations of Rep. Lewis, and DOJ's decision to close the investigationswithout bringing charges against him. Considering the importance of these investigations, thepublic has a powerful interest in fully understanding the DO]' s and the FBI's conduct.

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


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Office of Information PolicyMarch 18,2011Page 5Simon, Federal inquiry of Rep. Lewis dropped, Los Angeles Times, December 4,2010 (attachedas Exhibit D). Rep. Lewis has no privacy interest in information he made public. See} e.g.,Nation Magazine v. Us. Customs Serv., 71 F.3d 885,896 (D.C. Cir. 1995).

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

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

ConclusionDOl's initial determination withholding all of the responsive records in their entirely

pursuant to Exemptions 3, 5, 6 and 7(C) of the FOIA plainly is in error and must be reversed.DOJ should

Adam J. RappaportSenior Counsel

Enclosures

foia appeal: crew: doj-criminal division: regarding jerry lewis investigation: 3/18/11

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