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CREW Icitizens for responsibilityand ethics in washingtonMelanie Ann PustayDirectorOffice of Information PolicyU.S . Department of Justice1425 New York AvenueSuite 11050Washington, D.C. 20530-0001

January 14, 2011

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

Citizens for Responsibility and Ethics in Washington ("CREW") hereby appeals therefusal of the Federal Bureau ofInvestigation ("FBI") to release to CREW any recordsresponsive to our Freedom ofInformation Act ("FOIA") request ofDecember 13, 2010.By letter dated and sent by facsimile on December 13, 2010, CREW requested all recordsrelated to the investigation of Senator John Ensign (R-NV) conducted by the Department ofJustice ("DOJ") and the FBI, including but not limited to DOl's decision not to bring criminalcharges against Sen. Ensign. CREW explicitly excluded from its request records covered bygrand jury secrecy pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure. A copy ofthe 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 Sen. Ensign, as well as the decision ofDOJ not to prosecute Sen. Ensign despite hisknown conduct. As CREW explained, Sen. Ensign took a series of potentially illegal actions inan effort to cover up his admitted affair with a former campaign staffer, Cynthia Hampton, whosehusband Doug Hampton had served as Sen. Ensign' s former 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 onbehalf of some ofMr. Hampton 's new clients. Sen. Ensign and his family also provided the

Hamptons with questionable gifts and seve rance payments, including a $96,000 gift from Sen.Ensign's parents.According to press reports, DOJ initiated an investigation into Sen. Ensign' s conduct inlate 2009, and notifi ed him in November 201a it had ended its investigation of him. See SteveTetreault & Jeff German, News again good for Ensign, Las Vegas Review-Journal , Dec. 2, 2010(attached as Exhibit B); John Bresnahan & Manu Raju, DOJ drops Ensign investigation, Politico,Dec. 1, 2010 (attached as Exhibit C).

1400Eye Street, N.W., Suite 450, Washington , D.C . 20005 I 202.408.5565 phone I 202.588.5020 fax I www.citizensforethics.

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Office of Information PolicyJanuary 14,2011Page 2

Through his conduct, Sen. Ensign may have committed criminal campaign finance lawviolations and criminally conspired with Mr. Hampton to violate the post-employment lobbyingrestrictions. As CREW explained, while DOJ decided not to prosecute Sen. Ensign, his activitiesstill may have been illegal or violations of the rules of the Senate, 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 investigation of Sen. Ensign, and DOl's apparentdecision to close the investigation without bringing charges against him.

CREW specifically noted its willingness to discuss with the FBI the scope of its requestand whether it can be narrowed or modif ied to better enable the FBI to process it.

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

By denying access to the requested records other than public record material, the FBI hasfailed to meet its most basic obligations under the FOIA. First, the FBI improperly relied onExemptions 6 and 7(C) to withhold the requested records. The FBI misstated the standards forwithholding records pursuant to these exemptions. Exemption 6 exempts from compelleddisclosure "personnel and medical files and similar files the disclosure ofwhich would constitutea 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," 5U.S.C. 552(b)(7)(C). Under these standards, to determine if a privacy exemption properlyapplies, 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. forFreedom of the Press, 489 U.S. 749,762,772-73 (1989) ("Reporters Committee") (internalcitation omitted). Information that "sheds light on an agency's performance of its statutory dutiesfalls squarely within" the public interest. Id. at 773; see also Us. Dep 't ofDefense v. FLRA, 510U.S. 487, 497 (1994). Personal information may be withheld only when it "reveals little ornothing" about the government's conduct. Reporters Committee, 489 U.S at 773.

The records CREW requests unquestionably would inform the public about whatgovernment leaders, including an elected member of the Senate, were up to. As CREWexplained in the request, the requested records are likely to contribute to greater public awareness

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Office of Information PolicyJanuary 14,2011Page 3of alleged malfeasance and possible criminal behavior by Sen. Ensign. DOJ and the FBIconducted an extensive investigation into Sen. Ensign's activities, and while DOJ eventuallydecided not to prosecute him, his activities still may have been illegal or improper. The publicclearly has a strong interest in being informed about these activities.

In addition, these documents would shed light on the conduct ofDOJ and the FBI inconducting the investigation of Sen. Ensign, and DOl's decision to close its investigation withoutbringing charges against him. Considering the immense importance of this investigation, thepublic 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 specifywhat 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 andconfirmed 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 ininformation 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 madepublic by the federal government as a result of an investigation of potential campaign finance lawviolations conducted by the Federal Election Commission ("FEC"). At the end of thatinvestigation, the FEC released its First General Counsel's Report on the matter, which describedin detail the circumstances surrounding the $96,000 gift from Sen. Ensign's parents to theHamptons. See Federal Election Commission, First General Counsel's Report in MUR 6200,Mar. 31, 2010 (attached as Exhibit E and available athttp://eqs.sdrdc.com/eqsdocsMURJI0044282872.pdf). The FEC also released other documentsrelated 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 JeffS. Jordan, Aug. 11,2009 (attached as Exhibit F and available athttp://eqs.sdrdc.com/eqsdocsMUR/10044282844.pdf). As all the information in these recordshas been made public by the government and are freely available, Sen. Ensign has no privacyinterest in related information in the FBI's records. See Trentadue v. Integrity Committee, 501F.3d 1215, 1234-35 (lOth Cir. 2007).Furthermore, high-ranking government officials such as Sen. Ensign 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, the FBI also did not comply with its duty under theFOIA to disclose all non-exempt, segregable portions of the records. The FOIA requiresagencies to "disclose any reasonably segregable portion of a record . . . after deletions of theportions which are exempt." 5 U.S.C. 552(b). "[Tjhe focus in the FOIA is information, not

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