Radar Online LLC v. Federal Bureau Of Investigation

Background

Radar Online LLC and James Robertson brought a Freedom of Information Act (FOIA) action seeking records related to the FBI’s investigation and prosecution of Jeffrey Epstein. Radar Online is described as an online investigative news outlet, and Robertson is described as one of its senior editors. Robertson submitted the FOIA request on April 20, 2017. After the FBI initially failed to respond, the plaintiffs filed this action.

Following an initial case-management conference, the FBI agreed to produce documents at a rate of 500 pages per month. It processed 11,571 responsive pages, most of which were partially redacted or withheld in full under FOIA exemptions. After Epstein was indicted in July 2019, the FBI invoked FOIA Exemption 7(A) over previously withheld records and all remaining responsive records. That exemption permits withholding law-enforcement records when disclosure could reasonably be expected to interfere with enforcement proceedings.

Epstein died while the charges against him were pending. Ghislaine Maxwell was later indicted, convicted, and sentenced to 20 years’ imprisonment. Her appeal remained pending when the FBI renewed its motion, and the FBI argued that a successful appeal could lead to a new trial.

Earlier Summary-Judgment Order

In a September 19, 2023 order, the court granted the FBI summary judgment on several exemptions, including exemptions concerning information protected by another statute, attorney work-product, personal privacy, confidential information from local law enforcement, and law-enforcement techniques. The court denied the FBI summary judgment without prejudice on several other issues, including Exemption 7(A), because the FBI had not sufficiently connected its document categories to the harms that disclosure could cause. The court directed the parties to submit revised declarations and renewed summary-judgment motions.

Exemption 7(A)

The FBI’s renewed motion relied on revised declarations from Maureen Comey, an Assistant United States Attorney, and Michael G. Seidel, a Section Chief in the FBI’s Information Management Division. The revised submissions used three functional categories: (1) evidentiary and investigative materials; (2) administrative materials; and (3) public-source or non-investigative materials.

The evidentiary and investigative category included records or evidence, analysis of evidence, communications referring to evidence, business records, witness-provided documents, and information about witnesses. The administrative category included internal investigative communications, communications with other government agencies, grand-jury subpoenas and subpoenaed information, and organizational documents that could identify witnesses or investigation subjects. The FBI stated that public-source materials had already been produced to the plaintiffs.

The FBI identified several potential harms from releasing the evidentiary, investigative, and administrative materials: witnesses could shape their testimony to match information in the records; witnesses could be identified, intimidated, or discouraged from cooperating; disclosure could unfairly prejudice the government in a possible retrial; Maxwell could obtain greater access to investigative files than she otherwise would through the criminal discovery process; and disclosure could violate the protective order in the underlying case.

The plaintiffs argued that the revised declarations did not provide new substantive facts or adequately explain why disclosure would cause harm, particularly because much of the evidence was already public or had been discussed in earlier proceedings. They also argued that the FBI had not adequately segregated non-exempt material from exempt material.

The court held that the FBI had met its burden. Unlike its earlier submission, the FBI’s revised declarations described the contents of each category and linked those categories to specific potential harms. The court concluded that the explanations provided a logical and plausible connection between disclosure and possible interference with law-enforcement proceedings. The court also accepted the FBI’s explanation that it had reviewed the records document by document and had separated publicly available materials that were already accessible online.

Segregability

FOIA generally requires an agency to release reasonably segregable, or separable, non-exempt portions of records. The FBI stated that it had conducted a segregability review of the 11,571 responsive pages and that any non-exempt information in records withheld under Exemption 7(A) was intertwined with exempt information. It further explained that releasing information about Epstein without complete context could contribute to speculation and theories about the Maxwell case. The court concluded that the FBI had satisfied its segregability obligation for records withheld in full under Exemption 7(A).

Because the court found that Exemption 7(A) protected all redacted information, it did not evaluate the other exemptions asserted by the FBI for those records.

Disposition

The court granted the FBI’s motion for summary judgment and denied Radar Online LLC and James Robertson’s cross-motion for summary judgment. The Clerk was directed to terminate the motions and close the case.