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Radar Online LLC v. FBI, No. 17-3956, 2023 WL 6122691 (S.D.N.Y. Sept. 19, 2023) (Gardephe, J.)


Radar Online LLC v. FBI, No. 17-3956, 2023 WL 6122691 (S.D.N.Y. Sept. 19, 2023) (Gardephe, J.)

Re:  Request for records concerning prosecution of financier Jeffrey Epstein for child sex trafficking crimes

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s cross-motion for summary judgment

  • Litigation Considerations & Procedural Requirements:  The court holds that “the FBI’s invocation of Exemption 7(A) was timely.”  The court relates that “Plaintiffs contend that the FBI’s invocation of Exemption 7(A) was untimely.”  “According to Plaintiffs, the FBI is not entitled to rely on Exemption 7(A) at summary judgment, ‘because there were no active “enforcement proceedings” at the time of Plaintiffs’ requests.’”  “Plaintiffs have not cited any case holding that government agencies may only rely on exemptions applicable at the time a FOIA request is submitted.”  The court finds that “‘the document-production process is a fluid one at the district-court level, and it often includes contemporaneous review and continuous production determinations by agency-defendants.’”  “Agencies are therefore permitted to review their determinations, and, as here, raise new FOIA exemptions as they become applicable prior to the district court’s final decision.”  “Here, the FBI asserted Exemption 7(A) soon after Epstein’s 2019 indictment.”  “While the FBI’s invocation of Exemption 7(A) took place after Plaintiff initiated this action in 2017 . . . , it was well before this Court reached ‘the merits of the parties’ initial summary judgment motions, [and well before] . . . any appellate proceedings.’”  “Moreover, as discussed below, Plaintiffs have ‘not been prejudiced in any meaningful sense by the [timing of] the government’s assertion of Exemption [7(A)], nor [have Plaintiffs] provided any evidence of bad faith with respect to the government’s timing on this issue.’”
  • Exemption 7(A):  The court relates that “[t]he FBI contends that Exemption 7(A) applies to ‘all of the records that were withheld by the FBI in full or in part’ . . . because their ‘public disclosure . . . could reasonably be expected to interfere with the pending prosecution of [Ghislaine] Maxwell.’”

    First, the court finds that “[w]ith respect to the first requirement for application of Exemption 7(A) – whether the requested records were ‘compiled for law enforcement purposes’ . . . – the records withheld by the FBI concern the FBI’s ‘investigation of criminal child prostitution involving Jeffrey Epstein.’”  “Accordingly, the records plainly were ‘compiled for law enforcement purposes.’”

    Second, the court finds that, “[a]s to whether a ‘law enforcement proceeding is pending or prospective,’ Maxwell was convicted on December 29, 2021, was sentenced to 20 years’ imprisonment on June 28, 2022.”  “Maxwell appealed her conviction on July 7, 2022, and the appeal remains pending.”  “A ‘law enforcement proceeding’ remains ‘pending or prospective’ for purposes of Exemption 7(A) even though the target of such an investigation has been convicted and filed an appeal.”

    Regarding potential interference with law enforcement proceedings, the court finds that “[w]hile appearing to adopt a ‘category-of-document by category-of-document’ approach, the FBI in fact argues that Exemption 7(A) applies to the withheld records on an impermissible ‘file-by-file’ basis.”  “The 2021 Comey Declaration groups the responsive records sought by Plaintiffs and withheld by the FBI into three categories:  (1) ‘[i]nterview forms, reports and notes . . . of interviews with individuals, including victims’; (2) ‘Federal Grand Jury Subpoenas and Subpoenaed information’; and (3) other records including ‘documents provided by state and local law enforcement agencies, . . . . background information for witnesses . . . and subjects for the investigation[,] communications within the FBI [and between the FBI and other agencies] regarding the investigation[,] organizational documents, . . . the sources from and techniques through which such information and evidence was gathered[,] . . . the methods used to analyze the information and evidence, . . . and the focus of the investigation.’”  “The [current] declaration organizes the responsive documents differently, however, listing nine ‘types of responsive records’ and three ‘functional categories of information’:  (1) ‘Evidentiary/Investigative Materials,’ including ‘confidential witness statements’ and ‘information exchanged between the FBI and its local law enforcement partners’; (2) ‘Administrative materials,’ including internal agency ‘reporting communications’ pertaining to an investigation, and other ‘standardized forms used for a variety of purposes’; and (3) ‘public source material,’ including news articles and court transcripts which have already been ‘released . . . to Plaintiffs.’”  “The document categories in the Seidel declaration and in the 2021 Comey declaration do not match, and documents falling within each of the Comey categories likely span multiple categories described by [the current declarant].”  “In any event, the FBI has not explicitly linked any of the document categories – whether [the current declarant’s] or Comey's – to the four types of potential harm cited in the 2021 Comey declaration – (1) ‘allow[ing] Maxwell earlier or greater access to agency investigatory files than she otherwise would have through the criminal discovery process’; (2) ‘influenc[ing] witnesses’ potential testimony at trial’; (3) ‘influenc[ing] potential juror’s perceptions of the witnesses and the evidence to be presented at trial’; and (4) ‘identify[ing] the FBI’s investigative interest in particular individuals . . . and [thus] provid[ing] subjects [with] . . . the opportunity to destroy evidence and/or alter their behavior to avoid detection.’”  “The FBI instead merely asserts that ‘disclosure of the records’ in general would ‘interfere with enforcement proceedings.’”  “As to Maxwell obtaining ‘earlier or greater access to agency investigatory files than she otherwise would have,’ the FBI links that harm to ‘the entirety of the records at issue in this litigation.’”  “Likewise, the FBI’s concern that ‘[p]remature disclosure of the records withheld under Exemption 7(A) . . . could reasonably be expected to impair the Government’s (and the defendant’s) ability to seat a fair and impartial jury in Maxwell’ is not tied to any clearly identified functional category of investigatory records.”  “In sum, the FBI has not demonstrated that the ‘disclosure of particular kinds of investigatory records,’ . . . would interfere with any retrial of Maxwell if she were to prevail on appeal.”
  • Exemption 3:  The court relates that “[h]ere, the FBI relies on three statutes that preclude disclosure of certain documents sought by Plaintiffs:  (1) the Child Victims’ and Child Witnesses’ Rights Act, 18 USC. § 3509; (2) Fed. R. Crim. P. 6(e)’s shield of ‘matters occurring before the grand jury’; and (3) the Juvenile Justice and Delinquency Act, 18 U.S.C. § 5038.”  “Plaintiffs ‘do not contest’ that these statutes qualify as Exemption 3 withholding statutes . . . .” The court finds that, “[a]s Plaintiffs acknowledge, ‘the Child Victims’ Act unambiguously qualifies as an Exemption 3 statute.’”  “[Defendant’s] declaration states that the FBI asserted Exemption 3 as to certain of the withheld records ‘to protect names, images, and identifying information of minor children victims and witnesses within the child prostitution investigation of Jeffrey Epstein.’”  “Plaintiffs have not offered any basis to believe that the FBI’s justification is insufficient.”  “The Court therefore concludes that the FBI properly withheld material pursuant to the Child Victims’ Act.”

    “Federal Rule of Criminal Procedure 6(e) prohibits government attorneys, grand jurors, and others from ‘“disclos[ing] a matter occurring before the grand jury,” . . . and, although a rule is not generally considered to be a statute, it qualifies as one under FOIA [and Exemption 3,] because the Congress has enacted it into positive law.’”  “There is support for the FBI’s argument that ‘information about the names of recipients of federal grand jury subpoenas [and] . . . that identifies specific records subpoenaed by a federal grand jury’ . . . would ‘tend to reveal some secret aspect of the grand jury’s investigation.’”  “The D.C. Circuit has rejected the argument that ‘copies of specific records provided to a federal grand jury’ are automatically exempt from disclosure, however.”  “Plaintiffs ‘did not request documents related to a grand jury’ and it is the ‘government [that has] revealed the existence of a grand jury by withholding the documents.’”  “[T]he FBI has not explained or provided details regarding its conclusory assertion that ‘[a]ny disclosure of this information would clearly violate the secrecy of the grand jury proceedings and could reveal the inner workings of a federal grand jury.’”  “In sum, ‘copies of specific records provided to a federal grand jury’ are not exempt from disclosure under FOIA merely because “the documents were subpoenaed.’”  “Because the FBI has not separately categorized records withheld pursuant to Rule 6(e), the Court cannot determine which categories of records, if any, are properly exempt under Exemption 3 and pursuant to Rule 6(e).”

    “The FBI asserts that it properly withheld records ‘that contain arrest information and criminal history of third party juveniles’ pursuant to the Juvenile Justice and Delinquency Act (the ‘Delinquency Act’).”  “Assuming arguendo that the Delinquency Act qualifies as an Exemption 3 withholding statute, the FBI has not met its burden to show that ‘“the materials withheld fall within that statute's scope.”’”  “The FBI does not state whether there are responsive documents that concern federal juvenile proceedings.”
  • Exemption 5, Attorney Work-Product:  The court relates that “[t]he FBI asserts that [certain] ‘memoranda were created at the request of an AUSA in reasonable anticipation of litigation, and they provide the AUSA’s prosecutorial strategy and the information the AUSA was gathering to either support an indictment of Jeffrey Epstein or a civil forfeiture action.’”  “Plaintiffs do not contest the FBI’s description of the memoranda, and do not discuss the work-product privilege.”  “Plaintiffs instead address the deliberative process privilege, which the FBI has not asserted.”  “Because the memoranda listed by the FBI were prepared in anticipation of litigation against Jeffrey Epstein, they are exempt from disclosure under FOIA.”
  • Exemption 6; Exemption 7(C):  The court holds that “the FBI has met its burden to establish that it properly withheld private information pertaining to the eight categories of individuals listed in [defendant’s] declaration.”  The court relates that “[t]he FBI asserts that Exemption 7(C) protects from disclosure the ‘names and identifying information’ of eight categories of people:  (1) ‘third parties who were of investigative interest to the FBI’; (2) ‘FBI Special Agents [ ] and Victim Specialists . . . responsible for conducting, supervising, and/or maintaining the investigation/investigative activities’; (3) ‘third-party victims’; (4) ‘local law enforcement employees’; (5) ‘third parties who were merely mentioned in the investigative records responsive to Plaintiffs’ request’; (6) ‘personnel from non-FBI, federal government agencies who provided information to or otherwise assisted the FBI in its investigation of Jeffrey Epstein’; (7) ‘local government personnel’; and (8) ‘individuals who were interviewed, and/or provided information by other means, to the FBI during the course of its investigation of Jeffrey Epstein.’”  “The FBI argues that an individual who falls within these categories has ‘strong privacy interests . . . “in preventing dissemination of his or her name and home address”’ that are protected by Exemption 7(C).”  “Plaintiffs respond that they ‘recognize the appropriateness of redacting the names of uninvolved third-parties or juvenile victims who have not come forward.’”  “But Plaintiffs argue that the FBI has improperly taken a ‘categorical approach’ to Exemption 7(C) and that – in balancing the relevant interests – it has ignored the ‘diminished privacy of certain individuals and the immense public interest underlying this case.’”  “As to the FBI’s balancing of the relevant interests, Plaintiffs do not dispute that the eight categories of individuals listed by the FBI have cognizable privacy interests in their names and identities under Exemption 7(C).”  “That interest is heightened ‘[i]n the context of this high profile criminal investigation’ involving Epstein and Maxwell.”  “The ‘weighty’ public interest in ensuring ‘the diligence of the FBI’s investigation’ concerning Epstein and Maxwell notwithstanding, . . . the privacy interest of ‘witnesses and third parties’ outweighs the public interest in disclosure to the extent that ‘names . . . [and] identifying characteristics, [should] properly [be] redacted.’”  “Indeed, the D.C. Circuit has held ‘categorically’ that ‘unless access to the names and addresses of private individuals appearing in files within the ambit of Exemption 7(C) is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity, such information is exempt from disclosure.’”  “Plaintiffs have not argued that the FBI has engaged in ‘illegal activity’ here.”  “The Court concludes that disclosure of the names and identifying information of government employees, victims, witnesses, arrestees, or informants here would not advance the public's understanding of the [FBI’s] performance of its statutory duties.’” 

    “Plaintiffs argue, however, that several individuals ‘have already been publicly connected to the [Epstein/Maxwell trafficking investigation and criminal cases and] controversy or have voluntarily identified themselves,’ undermining the applicability of Exemption 7(C) as to them.”  “In this regard, Plaintiffs cite (1) certain individuals ‘explicitly named in [Epstein’s 2007] plea document as receiving immunity’; (2) several alleged victims of Epstein and Maxwell’s scheme; and (3) a former attorney for Epstein . . . .”  “As to the first group cited by Plaintiffs – people ‘explicitly named in [Epstein’s 2007] plea document as receiving immunity’ – Plaintiffs rely on a 2007 ‘non-prosecution agreement’ between Epstein and the United States Attorney’s Office for the Southern District of Florida.”  “In the non-prosecution agreement – which was filed as an exhibit to a civil complaint filed against Epstein – the ‘United States [ ] agree[d] that it [would] not institute criminal charges against any potential co-conspirators of Epstein, including but not limited to [certain individuals listed in Plaintiffs’ brief].’”  “Plaintiffs do not allege, however, that these individuals (1) have been ‘convicted or [pleaded] guilty’ to a role in Epstein and Maxwell’s sex trafficking scheme . . . ; (2) are ‘government official[s]’ who have made ‘statement[s] to the press’ concerning ‘what[,] [if anything, they] were accused of’ . . . ; (3) are the subject of government ‘agency press releases or testimony in open court’ naming them ‘as having been charged, convicted or otherwise implicated’ in the Epstein affair . . . ; or (4) are discussed in a published judicial opinion reviewing allegations of misconduct made against them.”  “Acknowledging that the four individuals at issue are listed as potential ‘co-conspirators’ of Epstein in the latter's non-prosecution agreement, the Court cannot conclude that – as a result – they have a diminished expectation of privacy with respect to documents held by the FBI containing their names.”  “Epstein and Maxwell’s alleged victims, and [Epstein’s former attorney, are likewise not public officials, nor are their ‘activities significant in their connection to agency conduct.’”  “As to certain of Epstein’s alleged victims who have discussed their involvement with Epstein publicly, however, Plaintiffs have proffered (1) an article discussing a documentary featuring interviews with those victims; and (2) three articles concerning the release of transcripts of testimony in a lawsuit brought by [an individual] against Maxwell for her role in Epstein’s trafficking ring.”  “The articles discuss, inter alia, [this individual’s] allegations that ‘Maxwell and Epstein ordered her to have sex with men.’”  “Acknowledging that certain of Epstein’s victims have publicly discussed being trafficked by Maxwell and Epstein, these individuals remain victims of and witnesses to the scheme.”  “And given the nature of Epstein and Maxwell’s conduct towards the alleged victims, it is almost certain that the records sought by Plaintiffs contain highly sensitive material about [the individual] and other victims and witnesses.”  “Accordingly, [the individual] and those similarly situated maintain significant privacy interests in the records at issue.”  “As to [Epstein’s former attorney], Plaintiffs have cited only articles in which [he] denies any wrongdoing in connection with his representation of Epstein.”  “To the extent that [the attorney] has been accused of misconduct, ‘official confirmation of what has been reported in the press and the disclosure of additional details could reasonably be expected to constitute an unwarranted invasion of [the attorney’s] personal privacy.’”  “Accordingly, [Epstein’s former attorney’s] privacy interest with respect to the records at issue is undiminished.”  “As with the other witnesses, third parties, and investigators named in the FBI’s records, the public interest in shedding light on the Bureau’s activities is not served by the disclosure of records that name and identify . . . any of Epstein’s victims, [Epstein’s former attorney], and the others listed in Plaintiff’s brief.”
  • Exemption 7(D):  The court holds that “the FBI has not provided sufficient evidence that explicit or implicit assurances of confidentiality were made to the FBI’s own sources and to foreign agencies.”  “However, the FBI has met its burden with respect to information provided by local law enforcement agencies.”  The court relates that “[defendant’s] declaration identifies four Exemption 7(D) categories:  (1) names and identifying information of sources and information provided by sources ‘under circumstances in which confidentiality can be inferred’; (2) names and identifying information of sources and information provided by sources ‘under express grants of confidentiality’; (3) ‘information provided to the FBI from a foreign agency under circumstances in which confidentiality can be inferred’; and (4) names and identifying information of local law enforcement personnel, and information provided such personnel ‘under an implied assurance of confidentiality.’”  “Plaintiffs challenge all four categories and argue that ‘the FBI has only offered a bald claim that witnesses expected confidentiality,’ has provided no evidence that its sources received an express grant of confidentiality, and has not ‘pointed to ‘more narrowly defined circumstances’ that support the inference of confidentiality.’”  The court finds that “[t]he FBI has not submitted any ‘probative evidence’ that any source received an express grant of confidentiality in the form of, for example, ‘notations on the face of a withheld document, the personal knowledge of an official familiar with the source, a statement by the source, or contemporaneous documents discussing practices or policies for dealing with the source or similarly situated sources.’”  “Moreover, [defendant’s declarant] is the FBI’s ‘Section Chief for the Record/Information Dissemination Section [ ], Information Management Division’ . . . and there is no evidence that he participated in the Epstein investigation or otherwise has ‘personal knowledge of the particular events’ in which sources received express assurances of confidentiality.”  “And if any of the records ‘reveal express guarantees of confidentiality on their face,’ no such evidence has been presented to the Court.”  “In sum, the FBI has not carried its burden to demonstrate an express assurance of confidentiality.”  However, “[t]he Court concludes that the FBI has sufficiently established that records provided by local law enforcement authorities were provided under ‘more narrowly defined[,] . . . [although] generic circumstances [from] which an implied assurance of confidentiality can fairly be inferred.’”  “Epstein’s illegal activities spanned decades and took place in a variety of locations, including New York, Florida, and the Virgin Islands.”  “It is reasonable to assume that local law enforcement authorities who provided information to the FBI have their own sources and investigations to protect.”  “It is also reasonable to assume that local law enforcement agencies would expect that the information they provided to the FBI would be maintained as confidential.”
  • Exemption 7(E):  The court relates that “[t]he FBI has asserted Exemption 7(E) as to the following categories of information found within the records Plaintiffs seek:  (1) ‘methods the FBI uses to collect and analyze information it obtains for investigative purposes’; (2) ‘sensitive investigative file numbers . . . [which identify] the investigative interest or priority given to [particular] matters’; (3) the ‘type of investigations,’ such as ‘preliminary’ or ‘full’; (4) ‘the target, dates and scope of [ ] surveillance [operations]’; (5) information located within the FBI’s FD-515 forms used to report ‘investigative accomplishments, . . . such as an arrest, conviction, sentencing, [or] asset seizure’; (6) nonpublic database identifiers or printouts; and (7) monetary payments or funding needed for investigative purposes.”  “For each category of information, regardless of whether classified as ‘guidelines’ or ‘techniques and procedures,’ [defendant’s] declaration explains how ‘disclosure could reasonably be expected to risk circumvention of the law.’”  “The Court concludes that the FBI has satisfied its burden under Exemption 7(E) – each category of information identified in the Seidel declaration qualifies as ‘techniques and procedures . . . [or] guidelines . . . [the] disclosure [of which] could reasonably be expected to risk circumvention of the law.’”  “Plaintiffs do not contest the FBI’s reasoning and instead argue that, as with Exemption 7(D), the FBI ‘offers nothing more [ ] than a paraphrase of [E]xemption 7(E).’”  “This argument ignores [defendant’s] declaration’s detailed description of the guidelines, techniques and procedures the FBI seeks to protect under Exemption 7(E).”  “The Court concludes that the FBI has ‘logically explain[ed] how the [requested information] could help criminals circumvent the law, and that suffices here to justify invocation of Exemption 7(E).’”
  • Litigation Considerations, “Reasonably Segregable” Requirements:  The court holds that “[h]ere, the FBI argues that the ‘records withheld in full under . . . Exemption 7(A)’ do ‘not contain any reasonably segregable information.’”  “The FBI has not met its burden to establish the applicability of Exemption 7(A) as to all of the withheld documents, however.”  “Accordingly, the Court cannot evaluate whether the FBI has met its burden with respect to segregability.”
  • Litigation Considerations, Relief:  Regarding plaintiff’s cross-motion, the court finds that “[w]hile the current FOIA regime does not incentivize agencies to file adequate declarations in the first instance – because they will likely be given another opportunity to seek summary judgment on the basis of revised declarations – [the] Court is not aware of any decision that has directed disclosure of agency records where an agency’s initial declaration has been inadequate to support the applicability of a FOIA exemption.”  “And, as discussed above, this Court cannot order disclosure of some portion of the requested records at this juncture because it cannot make the requisite finding as to segregability.”
Court Decision Topic(s)
District Court opinions
Exemption 3
Exemption 5
Exemption 5, Attorney Work-Product Privilege
Exemption 6
Exemption 7(A)
Exemption 7(C)
Exemption 7(D)
Exemption 7(E)
Litigation Considerations, Relief
Litigation Considerations, Supplemental to Main Categories
Litigation Considerations, “Reasonably Segregable” Requirements
Procedural Requirements, Supplemental to Main Categories
Updated October 31, 2023