Opinion
17 Civ. 3956 (PGG)
07-05-2023
RADAR ONLINE LLC and JAMES ROBERTSON, Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.
ORDER
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 sex 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. (Am. Cmplt. (Dkt. No. 12) ¶¶ 2-3) Plaintiffs submitted a FOIA request to the FBI seeking the documents and records described above 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 produced 11,571, pages most of which were redacted in part based on certain exemptions to disclosure under FOIA, including exemptions 3, 6, 7(C), 7(D), and 7(E). (See Def. Dec. 8, 2020 Ltr. (Dkt. No. 25)) The FBI also withheld 10,107 pages based on these exemptions. (Id.)
On July 6, 2019, Jeffrey Epstein was arrested on new criminal charges, at which point the FBI began to review “the remaining responsive records for categorical withholding pursuant to FOIA Exemption 7(A)” (id.) - the exemption to disclosure under FOIA for “records or information compiled for law enforcement purposes[] . . . [when disclosure] could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). The FBI then asserted that the remaining responsive records, and the 10,107 pages that were previously processed and withheld, are categorically exempt under Exemption 7(A) as they relate to ongoing criminal investigations. (See Def. Dec. 8, 2020 Ltr. (Dkt. No. 25) at 1) On December 10, 2020, this 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 fully briefed on October 29, 2021. (Dkt. Nos. 27-36; Dkt. Nos. 37, 42)
“To justify withholding [documents categorically under Exemption 7(A)], the [Government] must [] demonstrate that ‘disclosure (1) could reasonably be expected to interfere with (2) enforcement proceedings that are (3) pending or reasonably anticipated.'” Citizens for Resp. & Ethics in Washington v. U.S. Dep't of Just., 746 F.3d 1082, 1096 (D.C. Cir. 2014) (quoting Mapother v. Dep't of Justice, 3 F.3d 1533, 1540 (D.C.Cir.1993)). The FBI argues that all remaining responsive Epstein records and previously withheld records are categorically exempt from disclosure under Exemption 7(A) because their release “would interfere” with the prosecution of Ghislaine Maxwell, who was charged on March 29, 2021 assisting Epstein in his abuse of minor girls. (Def. Br. (Dkt. No. 38) at 14-20; United States v. Maxwell, 20 Cr. 330 (Dkt. No. 1) (S.D.N.Y.)) In its motion for summary judgment, the FBI argues inter alia, that releasing the records would or might (1) “allow Maxwell earlier or greater access to agency investigatory files than she otherwise would have through the criminal discovery process”; (2) improperly “influenc[e] witness testimony”; and (3) “impair the ability to seat a fair and impartial jury in the Maxwell trial.” (Def. Br. (Dkt. No. 38) at 16-18).
On December 29, 2021, about two months after the parties' motions were fully briefed, a jury found Maxwell guilty on five of six counts charged in the indictment. (20 Cr. 330, Dkt. Sheet at Dec. 29, 2021) On June 28, 2022, Maxwell was sentenced to 20 years' imprisonment. (20 Cr. 330, Jgmt. (Dkt. No. 696))
As the FBI has previously acknowledged, “unlike other FOIA exemptions, Exemption 7(A) is ‘temporal in nature,' and thus if the pending criminal case that gives rise to the exemption happens to be resolved during the pendency of the litigation, the exemption may become outdated.” (Def. Dec. 8, 2020 Ltr. (Dkt. No. 25) at 2 (citing Citizens for Responsibility and Ethics in Washington, 746 F.3d at 1097) Moreover, for purposes of Exemption 7(A) “‘[t]he proceeding must remain pending at the time of [the Court's] decision, not only at the time of the initial FOIA request.'” Farahi v. Fed. Bureau of Investigation, 2022 WL 17338008, at *8 (D.D.C. Nov. 30, 2022) (quoting Shapiro v. Dep't of Just., 2020 WL 3615511, at *16 (D.D.C. 2020)).
The parties' briefing turns on the ongoing prosecution of Ghislaine Maxwell. The FBI has not asserted that any other investigations are ongoing, and the parties have not addressed the effect of Maxwell's conviction or of any pending appeal on the FOIA exemptions asserted by the FBI, including Exemption 7(A), which is the only categorical exemption asserted. (See Def. Br. (Dkt. No. 38))
Accordingly, the parties will file supplemental briefing - and, if necessary, supplemental declarations - addressing the above developments and their impact on the parties' motions. Supplemental briefing will proceed on the following schedule:
(1) Defendant's supplemental brief is due by July 11, 2023.
(2) Plaintiff's supplemental brief is due by July 18, 2023.
The parties' supplemental briefs are each limited to fifteen double spaced pages.
SO ORDERED.