CREW I

citizens for responsibility

and ethics in washington

May 12,2011

Melanie Ann Pustay

Director
Office of Information Policy
U.S. Department of Justice
1425 New York Avenue, N.W.
Suite 11050
Washington, D.C. 20530-0001

Re: Freedom ofInfonnation Act Appeal in Request No. CRM- 2011001 23F

Dear Ms. Pustay:

Citizens for Responsibility and Ethics in Washington ("CREW") hereby appeals the
adequacy of the search conducted by the Criminal Division of the Department of Justice ("DOJ")
in response to our Freedom ofInfonnation Act ("FOIA") request of February 14, 2011.

By letter dated and sent by facsimile on February 14, 2011 , CREW requested all records
related to the investigations offonner Rep. Alan B. Mollohan (D-WV) conducted by DOJ and
the Federal Bureau ofInvestigation ("FBI"), including but not limited to DOl's decision not to
bring criminal charges against Rep. Mollohan. CREW explicitly excluded from its request
records covered by grand jury secrecy pursuant to Rule 6(e) of the Federal Rules of Criminal
Procedure. A copy of the request is attached as Exhibit A.

CREW also sought a public interest fee waiver, explaining that the requested records are
likely to contribute to greater public awareness of alleged malfeasance and possible criminal
behavior by Rep . Mollohan, as well as the decision of DOJ not to prosecute Rep. Mollohan
despite his known conduct. As CREW explained, DOJ conducted an inve stigation of Rep.
Mollohan related to $250 million in earmarks that benefitted non-profit organizations of Rep .
Mollohan's campaign contributors. CREW further explained that DOJ notified Rep. Mollohan
in January 2010 it had concluded its investigation of him and declined to prosecute him , and the
United States Attorney's Office for the District of Columbia ("USAO") confirmed it had closed
its investigation.

The Criminal Division of DOJ acknowledged receipt of the request by letter dated
February 22, 2011 . A copy of this letter is attached as Exhibit B. The Criminal Division asserted
in the letter that the USAO oversaw the investigation of Rep. Mollohan, and because the records
CREW seeks are likely maintained by the USAO , the Criminal Division had routed the request to
that office. Id.

1400 Eye Street, NW., Suite 450, Washington , D.C. 20005 I 202.408.5565 phone I 202.588.5020 fax www.citizensforethics.org
Freedom of Information Act Appeal
May 12, 2011
Page 2

By letter dated April 11,2011, the Criminal Division responded to CREW's request,
explaining it had "conducted a search of the appropriate indices" to its records, but located no
responsive records. A copy of the response letter is attached as Exhibit C.

DOJ Failed To Conduct An Adequate Search

Upon receipt of a properly submitted FOIA request, an agency must conduct a search that
is "reasonably calculated to uncover all relevant documents." The Nation Magazine v. Us.
Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995); see also Weisberg v. Us. Dep't ofJustice,
705 F.2d 1344,1351 (D.C. Cir. 1983). The reasonableness of an agency's search depends, in
part, on the scope of the FOIA request and the requester's description of the records sought. See,
e.g., 5 U.S.C. § 552(a)(3)(A). Moreover, agencies have a duty to construe FOIA requests
liberally. Judicial Watch, Inc. v. Dep 't ofDefense, 2006 U.S. Dist. LEXIS 44003, at *11 (D.D.C.
2006).

DOJ does not appear to have conducted an adequate search for records related to the
investigations of Rep. Mollohan. DOJ and the FBI began an investigation of Rep. Mollohan's
activities in 2006, see John R. Wilke, Appropriations, Local Ties and Now a Probe of a
Legislator, Wall Street Journal, Apr. 7,2008 (attached as Exhibit D), which included the
issuance of subpoenas to at least a dozen non-profit organizations with ties to Rep. Mollohan, see
George Hohmann, Mollohan Beneficiary Strikes Back, Charleston Daily Mail, May 24, 2006
(attached as Exhibit E). As CREW explained in its FOIA request, the investigation related to
campaign contributions given to Rep. Mollohan by employees of organizations that benefitted
from earmarks obtained by Rep. Mollohan. Accordingly, the offenses investigated likely
included bribery of a public office and/or illegal gratuities, violations of campaign finance laws,
and/or corruption of the election process.

The Criminal Division's Public Integrity Section has supervisory jurisdiction over these
crimes. U.S. Attorney's Manual § 9-85.100. Moreover, even if the investigation was conducted
by the USAO, that office is required to consult with the Public Integrity Section in all federal
criminal matters that focus on the types of offenses at issue. ld. § 9-85.210. In addition, the
USAO is required to report to DOJ (through the Executive Office of the U.S. Attorneys) major
developments in important cases that have a high likelihood of congressional interest or coverage
in the news media, id. § 3-18.200, or that involve an interview or grand jury appearance of a
member of Congress, id. § 3-18.220. As a result, it is unlikely the Criminal Division has no
records of the investigation of Rep. Mollohan, or consultation or communication with the USAO
about it.
Freedom of Information Act Appeal
May 12,2011
Page 3

Based on the foregoing, we request that you reverse the Criminal Division's initial
determination as to the adequacy of its search.

Respectfully submitted,

AL ~~
Adam J. Rappaport
Senior Counsel

Enclosures