CREW I citizens for responsibility

and ethics in washington

Novembe r 23,20 10

Director
Office of Inform ation Policy
U.S. Department of Ju stice
1425 New York Ave nue, NW
Suite 11050
Washin gton , D.C. 20530-000 1

Re: Free do m ofInformation Act Appeal in Request N o. CRM-2 0 100077 3F

Dear Sir/Ma dam:

Citizens for Responsibility and Ethics in Washington ("CREW") hereby appeals the
refusal of the Department of Jus tice ("DO J") to release to CREW any records respo nsive to our
Freedom ofInfo rmation Act ("FOIA") request of October 19, 2010.

By letter dated and sent by facsimile on October 19,2010, CREW req uested any witness
statements, investigation repo rts, prosecution memoranda, and FBI 302 reports related to DOl' s
investigation of former Ho use Majority Leader Tom DeLay. Th e request includes, but is not
limi ted to, the FBI's and DOl' s investigation of relationships between Mr. DeLay and Christine
DeLay, Dani DeLay, Jack Abra mo ff, Edwin Buckham , Tony Rud y, Michae l Scanlon, Susan
Hirshma nn, the Alexa nde r Strategy Group, the National Center for Pu bli c Poli cy Research,
eLottery, Inc., the U.S. Family Ne tw ork, Americans for a Republican Majority PAC
("ARMPAC"), Texans for a Republican Majority PAC ("T RM PAC ") , and/or the
Commonwealth of the No rthern Marianas Islands. CRE W's request also described some of the
subjects of DOl' s investi gations of these indi vidu als and groups, and their connections to Mr.
DeLay. For your conve nience, a copy of this request is atta ched as Ex hibit A.

In j ustifying its request for a public interest fee waiver, CREW ex plained that the
requested records are like ly to contribute to greater public awareness of alleged malfeasance and
possible criminal behav ior by the for mer majority leader of the House of Representatives, and of
the rece ntly concluded investigation into Mr. DeLay' s activities. As CREW explained , related
investigations resulted in criminal convictions of Mr. Abrarnoff, Mr. Rudy, Mr. Scan lon, former
Rep. Bob Ney, and others . While DO] eventually decided not to prosecute Mr. DeLay, his
activities still may have bee n illegal or violations of the rules of the House of Rep resentatives,
and the requested records wo uld shed light on them. CREW furt her explained these documents
wou ld shed light on DOl' s conduct in conducting the investigation of Mr. DeLay, and DOl' s
apparent decision to close the investigation without bringing charges against Mr. DeLay.

CREW specifically noted its willingness to disc uss with DO] the scope of its reques t and
whet her it can be narrowed or modified to better ena ble DO] to process it.

1400Eye 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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November 23,2010
Page 2

Despite the specificity of the request, by letter dated October 22, 2010, Rena Kim, Chief
of the Criminal Division's FOIA/PA Section, advised CREW that the Criminal Division
considered the request "to be broad in scope" and to "not clearly identify the records" CREW is
seeking. Ms. Kim requested "clarification regarding the investigation" to which CREW referred,
including "the specific time frames covered," CREW's "reference to relationships between Mr.
DeLay and the other individuals," and "a further description of the specific information that you
are seeking." Ms. Kim also indicated that absent a clarified request, the Criminal Division would
administratively close this matter. A copy of Ms. Kim's letter is attached as Exhibit B.

On October 27,2010, I spoke by telephone with Kristin Ellis, the Criminal Division's
FOIA officer assigned to this request. According to Ms. Ellis, the Criminal Division was unclear
about the extent to which CREW seeks records from DOl's investigation into illegal lobbying
activities by Mr. Abramoff and others that do not specifically mention Mr. DeLay. Ms. Ellis and
I discussed the scope of the request and whether CREW could provide clarification of it.

In an effOli to assist DOl's processing of the request, CREW advised DOl by letter dated
October 27,2010 it was willing to accept, as a first step toward fulfilling the entire request, a
subset of the requested records. Specifically, the subset of records CREW said it would accept
initially are witness statements, investigation reports, prosecution memoranda, and FBI 302
reports from DOl's investigation into illegal lobbying activities in which Mr. DeLay is named or
otherwise identified. To further assist DOl, CREW said it would accept responsive records from
January 1, 2003 to the present. CREW specified it was not narrowing the scope of the request.
Rather, CREW stated it was willing to accept a subset of records responsive to the request as a
first step in DOl's fulfillment of the entire request in stages. A copy of this letter is attached as
Exhibit C.

In its initial determination, dated November 9, 2010, DOl denied CREW's request in full.
DOl acknowledged it had conducted a search and located records potentially responsive to the
request, but withheld all of the records pursuant to Exemption 7(A) of the FOIA. Specifically,
DOl asserted the records "related to open and on-going law enforcement proceedings, and that
release, at this time, could reasonably be expected to interfere with these proceeding by revealing
prematurely the nature and scope of the evidence compiled by the government." A copy of this
letter is attached as Exhibit D.

DOl improperly withheld the requested records. Exemption 7(A) permits the
withholding of "records or information compiled for law enforcement purposes ... to the extent
that production of such law enforcement records or information ... could reasonably be expected
to interfere with enforcement proceedings." 5 U.S.c. § 552(b)(7)(A). The purpose of Exemption
7(A) is '''to prevent harm to the government's case in court. '" NLRB v. Robbins Tire & Rubber
Co., 437 U.S. 214, 227 (1978) (internal citation omitted); see also North v. Walsh, 881 F.2d
1088, 1097 (D.C. Cir. 1989) (Exemption 7(A) is "designed to block the disclosure of information
Office of Information Policy
November 23,2010
Page 3

that will genuinely harm the government's case in an enforcement proceeding or impede an
investigation"). Exemption 7(A) does "not endlessly protect material simply because it was in an
investigatory file." Robbins Tire & Rubber Co., 437 U.S. at 230. Law enforcement records may
be withheld only where release "is likely to cause some distinct harm." Kay v. FCC, 976 F.
Supp. 23, 38 (D.D.C. 1997).

Disclosing the requested records will not interfere with any enforcement proceeding
related to Mr. DeLay for the simple reason that DOJ has closed its investigation of Mr. DeLay.
Mr. DeLay and his attorney, Richard Cullen, repeatedly have acknowledged to the news media
and the public that DOJ notified them in August that it had concluded its investigation ofMr.
DeLay and would not bring charges against him. See, e.g., Josh Gerstein & Mike Allen, DeLay
'knew this day would corne,' Politico, Aug. 16,2010 (Mr. Cullen "said a prosecutor from
[DOl's] Public Integrity Section phone him with the news last week and said he was free to make
it public") (attached as Exhibit E); Juan A. Lozano, Ex-Rep. Torn DeLay unsurprised after DOJ
ends probe, Assoc. Press, Aug. 16, 2010 (Mr. Cullen said DOl's Office of Public Integrity
"informed DeLay's legal team last week that it was ending its investigation of his ties to
Abramoff') (attached as Exhibit F). No harm can corne to DOl's case against Mr. DeLay in
court because there will be no case against Mr. DeLay.

To the extent DOJ is contending disclosure of the requested records could interfere with
other enforcement proceedings, DOl's investigations and prosecutions of Mr. DeLay's associates
also have concluded. Mr. Cullen publicly confirmed DOJ closed its investigation of Christine
DeLay, Mr. DeLay's wife. See R. Jeffrey Smith, Justice Department drops investigation of
DeLay ties to Abramoff, Wash. Post, Aug. 16,2010 (attached as Exhibit G). Mr. DeLay's former
chief of staff, Edwin Buckham, also has been "cleared by the Justice Department," according to
news reports. ld. There is no indications DOJ is continuing any enforcement proceedings
against Mr. DeLay's daughter Dani or former aide Susan Hirshmann, Accordingly, disclosure of
the requested records could not interfere with proceedings against these individuals.

Two other former aides to Mr. DeLay, Michael Scanlon and Tony Rudy, pleaded guilty to
various charges in 2005 and 2006, respectively, and both await sentencing. See Pete Yost & Ben
Nuckols, US courthouse still busy with Abramoff scandal, Assoc. Press, Oct. 23, 2010 (attached
as Exhibit H). Although these cases technically remain open, the proceedings with which
disclosure of the requested records potentially could interfere have been concluded, and Mr.
Scanlon and Mr. Rudy have waived their right to appeal their sentences. Nor is disclosure of the
requested records foreclosed simply because their cases remain open. Banks v. Dep 't ofJustice,
700 F. Supp. 2d 9,18 (D.D.C. 2010) ("The mere fact that the underlying investigation remains
open is not a sufficient basis for withholding the entire case file; such a decision is justified only
on a showing that the release of each category of documents could reasonably be expected to
interfere with enforcement proceedings."). Disclosure of the requested records therefore should
not cause harm to any remaining proceedings against Mr. Rudy and Mr. Scanlon.
Office of Information Policy
November 23,2010
Page 4

In addition, nearly all of the proceedings in DO]' s broader investigation of illegal

lobbying activities - most of which do not appear to relate to Mr. DeLay at all - have concluded.
Mr. Abramoffpleaded guilty to conspiracy charges in January 2006 and has served most of his
sentence. See U.S. Ends Six-Year Probe of Ex-Majority Leader DeLay, Congressional Quarterly
Weekly, Sept. 4, 2010 (attached as Exhibit I). Former Rep. Bob Ney pleaded guilty to accepting
bribes from Mr. Abramoff, and has completed his sentence. See People caught up in the
Abramoff corruption probe, Assoc. Press, Nov. 22, 2010 (attached as Exhibit J). Sixteen others
have been convicted of crimes. ld. DOJ has dropped other investigations, including its
investigation of former Rep. John Doolittle. See Erica Werner, Ex-congressman: DOJ has closed
case against him, Assoc. Press, June 11,2010 (attached as Exhibit K). Only one further
defendant, an aide to former Sen. Don Young whose actions have no apparent relationship to Mr.
DeLay, currently faces trial. See Spencer S. Hsu, Ring guilty on five counts in Abramoff bribery
case, Wash. Post, Nov. 16,2010 (noting that the Abramoff investigations "are winding down")
(attached as Exhibit L).

Moreover, even if disclosure of some of the requested records could, if released, interfere
with ongoing enforcement proceedings, DOJ is wrong to withhold all of the records. While
CREW does not know what witness statements, investigation reports, prosecution memoranda,
and FBI 302 reports related to the investigation of Mr. DeLay DOJ possesses, it is extremely
unlikely that all of them are related to ongoing proceedings and disclosure could reasonably be
expected to interfere with those proceedings. It is much more likely that some, if not most, ofthe
requested records relate solely to closed proceedings such as the investigation of Mr. DeLay
himself, and their release would not cause harm to any open proceedings. DOJ improperly
withheld any such records under Exemption 7(A).

Similarly, DOJ 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). "[T]he focus in the FOIA is information, not documents, and an agency cannot justify
withholding an entire document simply by showing that it contains some exempt material."
Mead Data Central, Inc. v. United States Dep 't ofAir Force, 566 F.2d 242, 260 (D.C. Cir.
1977); see also Public Citizen Health Research Group v. FDA, 185 F.3d 898, 907 (D.C. Cir.
1999). Even if some of the requested records contain information related to open enforcement
proceedings and disclosure of that information could reasonably be expected to interfere with
those proceedings, it is again very unlikely that all of the information in the requested records is
exempt. DOJ should have redacted any legitimately exempt information and disclosed the
remainder of the records.
Office of Information Policy
November 23,2010
Page 5

Accordingly, DOl's initial determination that all of the requested records are exempt
under Exemption 7(A) plainly is in error and must be reversed .

Respectfully submitted,

U~
Adam J. RappapOli )
Senior Counsel

Enclosures