EFTA00622700.pdf

MARTIN G. WEINBERG, P.C . ATTORNEY AT LAW 20 PARK PLAZA, SUITE 1000 EMAIL ADDRESSES: BOSTON, MASSACHUSETTS 02116 FAX (617) 338-9538 NIGHT EMERGENCY (617) 901.3472 December 12, 2012 Office of Information Policy U.S. Department of Justice 1425 New York Avenue, N.W., Suite 11050 Washington, D.C. 20530-0001 FOIPA Request No.: 1203982 Re: EPSTEIN, JEFFREY EDWARD FREEDOM OF INFORMATION ACT APPEAL Director of Office of Information Policy, This is a timely appeal pursuant to 5 U.S.C. § 552(a)(6), concerning the U.S. Federal Bureau of Investigation's ("F.B.I." or "Agency") denial of a request for records within their control. I am writing this letter on behalf of Jeffrey Edward Epstein. As noted in the original FOIA request, dated November 27, 2012, Mr. Epstein seeks disclosure of any "records, documents, files, communications, memoranda, orders, agreements and/or instructions created from January 1, 2000 to November 25, 2012, that were prepared, received, transmitted, collected and/or maintained by the Federal Bureau of Investigation, the Department of Justice, or any of their components or field offices ..." as is more fully detailed at page 2, paragraphs 1-2 of the original FOIA request attached hereto. The Agency, by a letter dated December 6, 2012, refused to disclose any and all of the requested material, asserting that the requested records are located in an investigative file exempt from disclosure pursuant to 5 U.S.C. § 552(b)(7)(A). In applying this exemption the Agency has determined that the responsive records are law enforcement records, relevant to a pending or prospective law enforcement proceeding and that the release of the information contained in EFTA00622700 these records could reasonably be expected to interfere with the enforcement proceedings. We assert a good faith basis and believe that any ongoing F.B.I. investigation ended either on or about June 30, 2008 or no later than July of 2010, and therefore do not agree that the requested materials are exempt from disclosure under 5 U.S.C. § 552(bX7XA). Accordingly, we hereby ask that the Director reverse the denial of Mr. Epstein's FOIA request and waive all associated fees. We also contest the single sentence summary that every requested records falls within the enumerated exemptions that the disclosure of [each] such record, in whole or in part, will "interfere" with "a pending or prospective law enforcement proceeding." It is by now well-established law that a plaintiff in a FOIA case is entitled to an index of the documents and/or portions of documents that have been withheld by the defendant agency. Vaughn v. Rosen 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). Moreover, the description of the withheld material must be "sufficiently specific to permit a reasoned judgment as to whether the material is actually exempt under FOIA." Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Dir. 1979). Accordingly, we further request that if any portions of the requested documents are withheld, that the Director should describe the deleted material in detail and specify the statutory justification applied in this instance. Finally, we request that those portions of the documents which may indeed be properly exempted from disclosure under 5 U.S.C. § 552(b)(7)(A) should be released pursuant to the Director's powers of discretionary release under 36 C.F.R. § 200.11(b) and 7 C.F.R. § .17(b). The Agency has erred in their denial of the requested material. The wholesale application of exemption 5 U.S.C. § 552(bX7)(A) is inappropriate in this instance. Moreover, assuming, arguendo, that any portion of any document may be exempt from disclosure, "any reasonable segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt...," 5 U.S.C. 552(b). We request the application of the "segregable portions" clause of the Act. In the event that this appeal is denied, the Agency is required to provide a written response describing the reasons for denial, names and titles of each person responsible for the denial, and the procedures required to invoke judicial assistance in this matter. 5 U.S.C. § 552(aX6Xii), 7 C.F.R. § 1.8(d). If the appeal is denied or the Agency's response is not forthcoming within 20 working days, my client reserves his right under FOR to seek judicial review, including the award of attorney's fees. I await your prompt reply. Respectfully, n Martin G. Weinberg, EFTA00622701