File 031447

Images

Text

MARTIN G. WEINBERG, P.C.
ATTORNEY AT LAW
20 PARK PLAZA, SUITE 1000
BOSTON, MASSACHUSETTS 02116
FAX
NIGHT EMERGENCY
August 19, 2015
Via Certified Mail
Melanie Ann Pustay
Director of Office of Information Policy
Sean R. O'Neill
Chief, Administrative Appeals Staff
Office of Information Policy
United States Department of Justice, Suite 11050
1425 New York Avenue, N.W.
Washington, D.C. 20530
EMAIL ADDRESSES:
RE: FBI Request No 1203982-001/ DOJ OIP Appeal AP-2013-01397 (Jeffrey
Epstein)
Dear Ms. Pustay and Mr. O'Neill:
On March 29, 2013, the OIP determined that the FBI could not rely on 5 U.S.C. §
552(b)(7)(A) as a basis to withhold all records of past investigations regarding Mr. Epstein's
prior FBI FOIA request. On April 25, 2013, the FBI reopened the above-numbered FOIA
request and stated that it had started its processing and searching for responsive records. On
June 24, 2013, the FBI was informed that Mr. Epstein would pay the costs of copying. At
present, 27 1/2 months after the FBI started to process Mr. Epstein's FOIA request, Mr. Epstein
has received just two "batches," the first numbering 372 pages (including redactions) that was
produced on December 16, 2014, and the second "batch" numbering 336 pages that was
produced 5 1/2 months later on May 29, 2015, out of a file that exceeds 12,000 pages. The
processing of a third "batch" of documents will not begin until, at earliest, October, 2015, see
infra. At this pace, the FBI will not complete the processing Mr. Epstein's file until 2025. A
citizen should not have to wait over a decade for an agency to meet its FOIA obligations. As
documented below — and within the May 1, 2015, and August 13, 2015, letters to Mr. Dennis
Argall, FBI FOIPA Public Liaison Officer, each of which are attached — the FBI has declined to
meet its statutory obligations in providing Freedom of Information Act mandated disclosures
relating to the above-numbered request without unreasonable delay. Accordingly, I appeal to the
01P to require the FBI to comply with its March 29, 2013, determination in a reasonably prompt
manner.
HOUSE OVERSIGHT 031447
I spoke with Mr. Argall by telephone on August 12, 2015, and inquired as to when I
could expect a third interim production. He informed me that the FBI reviewer assigned to the
Epstein file had not commenced the processing of any additional materials in the 2 months
following the May 29 production and, further, that any such review was not currently scheduled
and would not begin until, at earliest, October 2015. Given the lengthy delays due which
include second level FOIA reviews conducted in Southern Florida by either the USAO or FBI, it
predictably will take, at the very minimum, 5 1/2 months from the prior production in May until a
third "batch" would be provided (not the 60-90 days I had repeatedly been told was the ordinary
delay between separate 500 page productions on large files such as Mr. Epstein's). At this pace
— a production offewer than 500 pages out of the still unprocessed 11,000 pages each 5 1/2
months — the remaining 22 "batches" will not be produced for ten more years. Mr. Argall also
advised that the reviewer assigned to the request was processing other files and that, in essence,
other than communicating with me (which Mr. Argall has done on a regular basis), he could not
suggest a way to expedite the pace other than by my advising Mr. Epstein to relinquish his FOIA
rights to the review of his entire file.
The FBI response to the above-numbered FOIA request has been utterly incompatible
with the language of the FOIA, which states that "[u]pon any determination by an agency to
comply with a request for records, the records shall be made promptly available to such person
making such request," 5 U.S.C. § 552(a)(6)(C)(i)(emphasis added), and with court opinions
defining the FOIA "basic policy" as focusing on "citizens' right to be informed about 'what their
government is up to," Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.
749, 773 (1989). Additionally, the FBI's delays in this matter violate the policy of President
Obama, announced on January 21, 2009, which directed each agency to "act promptly" and
make "timely disclosures of information." Even further, the Attorney General in a Memorandum
for the Heads of Executive Della'____tinents and Agencies dated March 19, 2009, stressed that FOIA
"professionals should be mindful of their obligation to work 'in a spirit of cooperation' with
FOIA requesters," that "unnecessary bureaucratic hurdles have no place in the 'new era of open
Government,' and that "timely disclosure of information is an essential component of
transparency [and] long delays should not be viewed as an inevitable and insurmountable
consequence of high demand." (emphasis added). The pace of disclosure where Mr. Epstein has
received less than 1,000 of over 12,000 pages in the over 28 months since the OIP required the
FBI to process his FOIA request is in stark conflict with the mandates of both the President and
the Attorney General. More is required than for Mr. Epstein to simply wait, year after year, for
the FBI to comply with its FOIA obligations.
In a recent opinion, Clemente v. FBI, 71 F.Supp.3d 262 (D.D.C. 2014), Judge Hogan found that
the "FBI is not 'deluged with [a] volume of requests . . vastly in excess of that anticipated by
Congress,' that the "FBI has not shown exceptional circumstance or sufficient progress in
reducing its backlog to warrant an Open America stay," and that although the plaintiff's request
"that the FBI process 5,000 pages a month is higher than the rate would be in an ordinary
case, . . . the FBI has successfully processed documents at that rate in other cases." Mr. Epstein
acknowledges the differences between his case and that of plaintiff Clemente, however, an
agreement that his file be processed at even 10% of the 5,000 pages a month ordered in the
Clemente case would speed up the production of his FOIA file by many multiples given that Mr.
2
HOUSE OVERSIGHT 031448
I would request that you intervene in this matter and require that the FBI agree to a
procedure that expedites the production of the 12,000 page file. I would also request a
conference with you and/or with the specific individuals who will be responsible for discharging
the FBI's FOIA responsibilities as to the pending Epstein request for FOTA materials so that I
can be assured that the FBI will be discharging its legal obligations without continued unlawful
and inexplicable delay.
Yours trtily _
Martin G. n erg
cc: James A. Baker
General Counsel
Federal Bureau of Investigation
935 Pennsylvania Avenue, N.W.
Washington, D.C. 20535
Epstein, after 28 months, has received just over 700 pages of redacted documents out of a file of
over 12,000 pages.
HOUSE OVERSIGHT 031449