CREW I citizens for responsibility

and ethics in washington

January 14,2011

Melanie Ann Pustay

Director
Office of Information Policy
U.S. Department of Justice
1425 New York Avenue
Suite 11050
Washington, D.C. 20530-0001

Re: Freedom of Information Act Appeal in Request No. 2010-4464

Dear Ms. Pustay:

Citizens for Responsibility and Ethics in Washington ("CREW") hereby appeals the
refusal of the Executive Office of the United States Attorneys ("EOUSA") to process and release
to CREW any records responsive to our Freedom of Information Act ("FOIA") request of
December 13,2010.

By letter dated and sent by facsimile on December 13,2010, CREW requested all records
related to the investigation of Senator John Ensign (R-NV) conducted by the Department of
Justice ("DOl") and the Federal Bureau of Investigation ("FBI"), including but not limited to
DOl's decision not to bring criminal charges against Sen. Ensign. CREW explicitly excluded
from its request records covered by grand jury secrecy pursuant to Rule 6(e) of the Federal Rules
of Criminal Procedure. A copy of the request is attached as Exhibit A.

CREW also sought a public interest fee waiver, explaining that the requested records are
likely to contribute to greater public awareness of alleged malfeasance and possible criminal
behavior by Sen. Ensign, as well as the decision of DOJ not to prosecute Sen. Ensign despite his
known conduct. As CREW explained, Sen. Ensign took a series of potentially illegal actions in
an effort to cover up his admitted affair with a former campaign staffer, Cynthia Hampton, whose
husband 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 on
behalf of some of Mr. Hampton's new clients. Sen. Ensign and his family also provided the
Hamptons with questionable gifts and severance payments, including a $96,000 gift from Sen.
Ensign's parents.

According to press reports, DOJ initiated an investigation into Sen. Ensign's conduct in
late 2009, and notified him in November-20l0 it had ended its investigation of him. See Steve
Tetreault & Jeff German, News again good for Ensign, Las Vegas Review-Journal, Dec . 2, 2010

1400 Eye 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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January 14,2011
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(attached as Exhibit B); John Bresnahan & Manu Raju, DOJ drops Ensign investigation, Politico,
Dec. 1,2010 (attached as Exhibit C).

Through his conduct, Sen. Ensign may have committed criminal campaign finance law
violations and criminally conspired with Mr. Hampton to violate the post-employment lobbying
restrictions. As CREW explained, while DOJ decided not to prosecute Sen. Ensign, his activities
still may have been illegal or violations of the rules of the Senate, and the requested records
would shed light on them. CREW further explained these documents would shed light on the
conduct ofDOJ and the FBI in conducting the investigation of Sen. Ensign, and DOl's apparent
decision to close the investigation without bringing charges against him.

CREW specifically noted its willingness to discuss with DOJ the scope of its request and
whether it can be narrowed or modified to better enable DOJ to process it.

In response, EOUSA sent CREW a form letter dated December 20,2010 (attached as
Exhibit D), acknowledging receipt of CREW's request and indicating that without express
written authorization and consent of "the third party" - presumably Sen. Ensign - any release to
CREW would violate the Privacy Act. EOUSA also claimed the records are "generally exempt
from disclosure" pursuant to Exemptions 6 and 7(C) of the FOIA. Finally, EOUSA offered to
release any public records maintained in its files upon further request by CREW.

By refusing at the outset to process any aspect of CREW's request that seeks anything
beyond public record material - described as court records, news clippings, and the like - EOUSA
has failed to meet its most basic obligations under the FOIA. EOUSA's reflexive reliance on the
Privacy Act and Exemptions 6 and 7(C) fails to take into account the significant public interest in
Sen. Ensign's conduct, DOl's conduct in investigating Sen. Ensign, and DOl's apparent decision
to close its investigation without bringing charges against him, as well as Sen. Ensign's
diminished privacy interest in the requested records.

Exemption 6 exempts from compelled disclosure "personnel and medical files and similar
files the disclosure of which would constitute a 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," 5 U.S.c. § 552(b)(7)(C). To determine if a privacy
exemption properly applies, 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. for Freedom ofthe Press, 489 U.S. 749,762,772-73 (1989) ("Reporters
Committee") (internal citation omitted). Information that "sheds light on an agency's
performance of its statutory duties falls squarely within" the public interest. ld. at 773; see also
Us. Dept ofDefense v. FLRA, 510 U.S. 487, 497 (1994). Personal information may be
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January 14,2011
Page 3

withheld only when it "reveals little or nothing" about the government's conduct. Reporters
Committee, 489 U.S at 773.

The records CREW requests unquestionably would inform the public about what
government leaders, including an elected member of the Senate, were up to. As CREW
explained in the request, the requested records are likely to contribute to greater public awareness
of alleged malfeasance and possible criminal behavior by Sen. Ensign. DOJ and the FBI
investigated Sen. Ensign's activities, and while DOJ eventually decided not to prosecute him, his
activities still may have been illegal or improper. The public clearly has a strong interest in being
informed about these activities.

In addition, these documents would shed light on DOl's and the FBI's conduct in
conducting the investigation of Sen. Ensign, and DOl's apparent decision to close its
investigation without bringing charges against him. Considering the immense importance of this
investigation, the public has a powerful interest in fully understanding DOl's and the FBI's
conduct.

These public interests clearly outweigh any privacy interests. EOUSA does not specify
what 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 and
confirmed 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 in
information 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 made
public by the federal government as a result of an investigation of potential campaign finance law
violations conducted by the Federal Election Commission ("FEC"). At the end of that
investigation, the FEC released its First General Counsel's Report on the matter, which described
in detail the circumstances surrounding the $96,000 gift from Sen. Ensign's parents to the
Hamptons. See Federal Election Commission, First General Counsel's Report in MUR 6200,
Mar. 31, 2010 (attached as Exhibit E and available at
http://eqs.sdrdc.com/eqsdocsMURJ10044282872.pdf). The FEC also released other documents
related 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 Jeff
S. Jordan, Aug. 11,2009 (attached as Exhibit F and available at
http://eqs.sdrdc.com/eqsdocsMURJ10044282844.pdf). As all the information in these records
has been made public by the government and are freely available, Sen. Ensign has no privacy
interest in related information in EOUSA's records. See Trentadue v. Integrity Committee, 501
F.3d 1215, 1234-35 (lOth Cir. 2007).
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January 14, 2011
Page 4

Furthermore, high-ranking government officials such as Sen. Ensign have a diminished

pr ivacy interest in the balancing conducted under Exe mpt ions 6 and 7(C) . See, e.g., Stern v. FBI,
737 F.2d 84, 92-94 (D.C. Cir. 1984).

Even if the req ues ted reco rds contain some inform ation for which some privacy interest
outweighs the public interest in disclo sure, EOUSA also did not comp ly with its duty under the
FOIA to disclose all non- exempt, segregable portions of the reco rds. Th e FOIA requires
age ncies to "disclose any reasonably segregable porti on of a record . .. after deletions of the
porti ons which are exempt." 5 U.S .c. § 552(b). " [T]he focus in the FO IA is information, not
doc uments, and an age ncy cannot justify withholding an entire document simply by show ing that
it contains some exempt material." Mead Data Central, Inc. v. United Sta tes 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). DOJ shou ld have redacted any legitim ately exe mpt information
and disclosed the remainder of the records.

Acco rdingly, EOUSA 's initial determinat ion that it could process CREW 's request only
with the express authorization and consent of Sen . Ens ign plainly is in erro r and must be
reversed. EOUSA mu st be orde red to process CREW 's request and withhold only information
purs uant to Exemptions 6 and 7(C) for which the privacy interests outweigh the compelling
interest in disclosure. EOUSA's reliance on the Privacy Act to j ust ify refusing to process
CREW's request is eq ually in error, give n the express acknowledgment in the Privacy Act that
where the FOIA requi res disclosure, the Privacy Act is not a bar to disclosure. 5 U.S .C. §
552a(b)(2).

Respectfully submitte d,

~16f
Senior Counsel

Enclosures