CREW Icitizens for responsibility

and ethics in washington

January 14, 2011

Melanie Ann Pustay

Director
Office of Inform ation Policy
U.S . Department of Justice
1425 New York Avenue
Suite 11050
Washington, D.C. 20530-000 1

Re: Freedom ofInformation Act Appeal in Request No. 11 59012-000

Dear Ms. Pustay

Citizens for Responsibil ity and Ethics in Washington ("CREW") hereby appeals the
refusal of the Federal Bur eau ofInve stigation ("F BI") to relea se to CREW any records
responsive to our Freedom ofInformation Act ("F OIA") request of Decemb er 13, 2010.

By letter dated and sent by facsimil e on Decemb er 13, 2010, CREW requested all records
related to the investigation of Senator John Ensign (R-NV) conducted by the Department of
Justi ce ("DOJ") and the FBI, including but not limit ed to DOl' s decision not to bring criminal
charges again st Sen. Ensign. CREW explicitly excluded from its request records covered by
grand jury secrecy pur suant to Rule 6(e) of the Federal Rules of Criminal Procedure. A copy of
the request is attac hed as Exhibit A.

CREW also sou ght a public interest fee waiver, explaining that the reque sted records are
likely to contribute to greater public awareness of alleged malfeasance and possible criminal
behavior by Sen. Ensign, as well as the decision of DOJ not to pro secute Sen. Ensign despit e his
known conduct. As CREW explained, Sen. Ensign took 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 form er chief of staff. Among other thin gs,
Sen. Ensign helped Mr. Hampton establish a lobbying practice, lined up clients to pay Mr.
Hampt on 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
Hampt ons with questionable gifts and seve rance payments , including a $96 ,000 gift from Sen.
Ensign's parents.

Acc ording to press reports, DOJ initiated an investi gation into Sen. Ensign ' s condu ct in
late 2009, and notifi ed him in Novemb er 20 1a it had ended its investigation of him. See Steve
Tetreault & Jeff Germ an, News again good for Ensign, Las Vegas Review-Journal , Dec. 2, 20 10
(attached as Exhibit B); John Bresnahan & Manu Raju, DOJ drop s Ensign investigation, Politico,
Dec. 1, 2010 (attached as Exhibit C).

1400 Eye Street, N.W., Suite 450, Washington , D.C. 20005 I 202.408.5565 phone I 202.588.5020 fax I www. citizensforethics.org
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January 14,2011
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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
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 DOl's apparent
decision to close the investigation without bringing charges against him.

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

In response, the FBI sent CREW a form letter dated December 22,2010 (attached as
Exhibit D), acknowledging receipt of CREW's request. Claiming disclosure "could constitute an
unwarranted invasion of the privacy of third party individuals," the FBI denied access to most of
the requested records pursuant to Exemptions 6 and 7(C) of the FOIA absent CREW providing
notarized authorizations from the third parties involved (presumably Sen. Ensign). The FBI
further contended disclosure of the records in the absence of a written authorization from the
individuals to whom the records pertain is prohibited by the Privacy Act unless disclosure is
required by the FOIA. Finally, the FBI offered to release any public records maintained in its
files upon further request by CREW.

By denying access to the requested records other than public record material, the FBI has
failed to meet its most basic obligations under the FOIA. First, the FBI improperly relied on
Exemptions 6 and 7(C) to withhold the requested records. The FBI misstated the standards for
withholding records pursuant to these exemptions. Exemption 6 exempts from compelled
disclosure "personnel and medical files and similar files the disclosure of which would constitute
a clearly unwarranted invasion of personal privacy," 5 U.S.c. § 552(b)(6), and Exemption 7(C)
exempts from disclosure records "compiled for law enforcement purposes" where disclosure
"could reasonably be expected to constitute an unwarranted invasion of personal privacy," 5
U.S.C. § 552(b)(7)(C). Under these standards, to determine if a privacy exemption properly
applies, a court must balance the privacy interest against the public interest in citizens being
"informed about 'what their government is up to. '" Us. Dep 't ofJustice v. Reporters Comm. for
Freedom ofthe Press, 489 U.S. 749,762,772-73 (1989) ("Reporters Committee") (internal
citation omitted). Information that "sheds light on an agency's performance of its statutory duties
falls squarely within" the public interest. Id. at 773; see also Us. Dep 't ofDefense v. FLRA, 510
U. S. 487, 497 (1994). Personal information may be withheld only when it "reveals little or
nothing" about the government's conduct. Reporters Committee, 489 U.S at 773.

The records CREW requests unquestionably would inform the public about what
government leaders, including an elected member of the Senate, were up to. As CREW
explained in the request, the requested records are likely to contribute to greater public awareness
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January 14,2011
Page 3

of alleged malfeasance and possible criminal behavior by Sen. Ensign. DOJ and the FBI
conducted an extensive investigation into Sen. Ensign's activities, and while DOJ eventually
decided not to prosecute him, his activities still may have been illegal or improper. The public
clearly has a strong interest in being informed about these activities.

In addition, these documents would shed light on the conduct of DOJ and the FBI in
conducting the investigation of Sen. Ensign, and DOl's decision to close its investigation without
bringing charges against him. Considering the immense importance of this investigation, the
public has a powerful interest in fully understanding the FBI's and DOl's conduct.

These public interests clearly outweigh any privacy interests. The FBI does not specify
what privacy interests are at issue, but there is no need to protect Sen. Ensign from being
associated with the criminal investigation as the investigation has been widely reported and
confirmed by Sen. Ensign himself. See Tetreault & German, Las Vegas Review-Journal, Dec. 2,
2010; Bresnahan & Raju, Politico, Dec. 1,2010. Sen. Ensign 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). Moreover, many of the facts related to Sen. Ensign's conduct were made
public by the federal government as a result of an investigation of potential campaign finance law
violations conducted by the Federal Election Commission ("FEC"). At the end of that
investigation, the FEC released its First General Counsel's Report on the matter, which described
in detail the circumstances surrounding the $96,000 gift from Sen. Ensign's parents to the
Hamptons. See Federal Election Commission, First General Counsel's Report in MUR 6200,
Mar. 31, 2010 (attached as Exhibit E and available at
http://eqs.sdrdc.com/eqsdocsMURJI0044282872.pdf). The FEC also released other documents
related to the investigation, including the response the Battle Born Political Action Committee,
Sen. Ensign's leadership PAC, and several of its exhibits. See Letter from Chris K. Gober to Jeff
S. Jordan, Aug. 11,2009 (attached as Exhibit F and available at
http://eqs.sdrdc.com/eqsdocsMUR/10044282844.pdf). As all the information in these records
has been made public by the government and are freely available, Sen. Ensign has no privacy
interest in related information in the FBI's records. See Trentadue v. Integrity Committee, 501
F.3d 1215, 1234-35 (lOth Cir. 2007).

Furthermore, high-ranking government officials such as Sen. Ensign have a diminished

privacy interest in the balancing conducted under Exemptions 6 and 7(C). See, e.g., Stern v. FBI,
737 F.2d 84, 92-94 (D.C. Cir. 1984).

Even if the requested records contain some information for which some privacy interest
outweighs the public interest in disclosure, the FBI also did not comply with its duty under the
FOIA to disclose all non-exempt, segregable portions of the records. The FOIA requires
agencies to "disclose any reasonably segregable portion of a record ... after deletions of the
portions which are exempt." 5 U.S.C. § 552(b). "[Tjhe focus in the FOIA is information, not
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Janu ary 14,2011
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documents, and an agenc y cannot j ustify withholding an entire document simp ly by showin g that
it contains some exe mpt materi al." Me ad Data Central, Inc. v. United States Dep 't of A ir Force ,
566 F.2d 242, 260 (D.C. Cir. 1977); see also Public Citize n Health Research Group v. FDA , 185
F.3d 898, 907 (D.C. Cir. 1999). The FBI should have redacted any legitimately exempt
information and disclosed the remainder of the records.

The FBI's initial determination withholding the requested records pursuant to Exemptions
6 and 7(C) plainly is in error and must be reversed. Furthermo re, as the FBI acknowledges , the
Privacy Act is not a bar to that disclosure because the ForA requires disclosure of the requested
records. 5 U.S .C. § 552a(b)(2) .

Resp ectfully submitted ,

Adam 1. Rappapor
Senior Counsel

Enclosures