Radar Online LLC v. Federal Bureau Of Investigation

Background

Radar Online LLC and James Robertson brought this Freedom of Information Act case seeking records related to the FBI’s investigation and prosecution of Jeffrey Epstein for child sex trafficking crimes. Robertson submitted the request on April 20, 2017, and the plaintiffs filed suit after receiving no response. The parties later limited the request to records in files identified by the FBI, and the FBI agreed to process 500 pages per month.

The FBI ultimately processed 11,571 pages. It released 181 pages in full, released 1,051 pages in part, and withheld 10,339 pages in full. It relied on several statutory exemptions, including exemptions protecting law-enforcement investigations, child-victim information, grand-jury material, attorney work product, personal privacy, confidential sources, and law-enforcement techniques.

After Epstein was indicted in 2019, the FBI began relying on Exemption 7(A), which permits withholding law-enforcement records when disclosure could reasonably be expected to interfere with pending or prospective enforcement proceedings. The FBI later relied on the continuing appeal of Ghislaine Maxwell’s conviction. The plaintiffs and the FBI filed cross-motions for summary judgment, meaning each side asked the court to rule without a trial because it claimed no important factual dispute required one.

Exemption 7(A)

The court held that the FBI timely invoked Exemption 7(A). The exemption became applicable after Epstein’s 2019 indictment, and the FBI asserted it before the court ruled on the summary-judgment motions. The court also concluded that Maxwell’s pending appeal qualified as a continuing law-enforcement proceeding.

The court nevertheless held that the FBI did not adequately show how disclosure of particular categories of records could interfere with Maxwell’s prosecution or a possible retrial. The FBI described several possible harms, including giving Maxwell greater access to investigative files, influencing witnesses, affecting juror perceptions, and revealing investigative interests. But the court found that the FBI did not sufficiently link those harms to specific functional categories of records. The court also noted that concerns about a fair and impartial jury were more naturally associated with Exemption 7(B), which the FBI had not asserted. The FBI’s motion was therefore denied to the extent it relied on Exemption 7(A).

Exemption 3

Exemption 3 covers records specifically protected from disclosure by another statute. The court upheld the FBI’s withholding of names, images, and identifying information concerning minor victims and witnesses under the Child Victims’ and Child Witnesses’ Rights Act.

The court found the FBI’s showing inadequate, however, as to records withheld under Federal Rule of Criminal Procedure 6(e), which protects grand-jury matters. The FBI had not separately categorized the grand-jury records or explained sufficiently how disclosure of each category would reveal a protected aspect of a grand-jury investigation. The court also found that the FBI had not shown that the Juvenile Justice and Delinquency Act applied to the records at issue, including because it did not state whether the records concerned federal juvenile proceedings.

Exemption 5

The court upheld the withholding of several internal FBI memoranda under Exemption 5’s attorney work-product protection. The memoranda were prepared at the direction of an assistant United States attorney in anticipation of potential criminal prosecution or civil forfeiture proceedings involving Epstein’s assets. The plaintiffs did not contest the FBI’s description of those memoranda or the work-product argument.

Exemptions 6 and 7(C)

The court upheld the FBI’s withholding of names and identifying information involving eight categories of people, including investigative subjects, FBI personnel, victims, witnesses, local law-enforcement personnel, other government personnel, people mentioned in investigative records, and people who provided information to the FBI.

The court recognized substantial privacy interests in the identities of people connected to a high-profile criminal investigation. It concluded that the public interest in understanding the FBI’s performance did not outweigh those privacy interests. The court also rejected the plaintiffs’ arguments that public discussion, court filings, or public allegations automatically eliminated the individuals’ privacy interests.

Exemption 7(D)

Exemption 7(D) protects information that would identify a confidential source or reveal information supplied by such a source. The court held that the FBI did not provide enough evidence that its own sources received express or implied assurances of confidentiality. The FBI also did not establish that information from foreign agencies was provided under a confidential relationship.

The court did uphold the FBI’s withholding of information provided by local law-enforcement agencies. It found that, under the circumstances described, those agencies could reasonably be understood to expect confidentiality for their own sources, investigations, and personnel. The FBI’s motion was therefore granted as to this category but denied as to the FBI’s own sources and foreign agencies.

Exemption 7(E)

The court upheld the FBI’s reliance on Exemption 7(E) for information concerning investigative methods, sensitive file numbers, the type and scope of investigations, surveillance targets and dates, investigative accomplishment forms, nonpublic database information, and investigative payments or funding. The court found that the FBI had adequately explained how disclosure of these categories could reveal law-enforcement techniques or guidelines and could help people circumvent the law.

Segregability and next steps

The Freedom of Information Act generally requires an agency to release reasonably separable non-exempt portions of records. Because the FBI had not adequately established that Exemption 7(A) and several other exemptions applied, the court concluded that it could not yet determine whether withheld records contained reasonably segregable material.

The court therefore did not order immediate disclosure of portions of the records that might be protected by upheld exemptions. Instead, it directed the parties to confer and submit a joint letter by October 6, 2023, proposing a schedule for revised FBI declarations and any renewed summary-judgment motions.

Disposition

The FBI’s motion for summary judgment was granted with respect to documents withheld under Exemption 3 as it relates to the Child Victims’ Act, Exemption 5, Exemptions 6 and 7(C), Exemption 7(D) as to information provided by local law-enforcement agencies, and Exemption 7(E), and was otherwise denied without prejudice. The plaintiffs’ cross-motion was granted to the extent the court found the government’s declarations inadequate to support certain exemptions and was otherwise denied without prejudice.