Radar Online LLC v. FBI, No. 17-3956, 2024 WL 3161777 (S.D.N.Y. June 25, 2024) (Gardephe, J.)

Radar Online LLC v. FBI, No. 17-3956, 2024 WL 3161777 (S.D.N.Y. June 25, 2024) (Gardephe, J.)

Re:  Request for records concerning FBI’s investigation and prosecution of financier Jeffrey Epstein for child sex trafficking crimes

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiffs’ cross-motion for summary judgment

• Exemption 7(A):  “[The] Court concludes that ‘[t]he [revised] declarations provide[ ] sufficient detail for the Court to trace a rational link between the information contained in the records and the potential interference with law enforcement proceedings,’ . . . and the FBI has thus met its burden for withholding disclosure of the records under Exemption 7(A).”  The court relates that “[t]he FBI contends that ‘the records responsive to the FOIA requests withheld in full or in part . . . [a]ll . . . fall within the scope of Exemption 7(A)’ . . . because their ‘public disclosure . . . could reasonably be expected to interfere with the pending prosecution of [the defendant in a pending, related case].’”  “[I]n the FBI’s revised declarations filed in support of the instant motion, the Bureau now lists the potential harms that may arise from public disclosure, and does so as to each category of documents.”  “The first category of documents – Evidentiary /Investigative Materials – ‘includes copies of records or evidence, analysis of that evidence, and derivative communications summarizing or otherwise referencing evidence.’”  “This category includes business records and ‘documents and evidence provided by witnesses to law enforcement,’ as well as information regarding those witnesses.”  “The second category of documents – Administrative Materials – consists of ‘internal communications among investigators within the FBI providing updates regarding the status of the investigation, including witness interviews and discussion of evidence gathered during the investigation; communications between the FBI and other government agencies regarding the investigation; grand jury subpoenas identifying the names of witnesses and documents sought during the investigation; and organizational documents such as envelopes used to organize and store documents and other evidentiary documents, bulky exhibit cover sheets, transmittal forms, and letter routing slips, some of which contain the names of witnesses, including victim-witnesses, and subjects of the investigation.’”  “As for the harm that would result from disclosure of the Evidentiary/Investigative Materials and the Administrative Materials, the FBI states that disclosure would (1) impact witness testimony, (2) impact witnesses’ willingness to testify, (3) prejudice the jury pool ‘so as to hinder the Government’s ability to present its case in court,’ (4) provide [the defendant in a pending, related case] with greater access ‘to the investigatory files than she would otherwise have during the criminal discovery process,’ and (5) violate the Protective Order entered in the underlying case.”  “The FBI has met [its] burden here.”  “Unlike in its previous motion . . . , the FBI has described the contents of each category and linked specific harms that would result from the public disclosure of the documents in each category.”  “For example, the FBI has explained that public disclosure of the Evidentiary/Investigative Materials ‘could influence the testimony of witnesses by providing the opportunity for witnesses to shape their testimony to conform with other evidence gathered during the investigation, including both records and witness statements.’”  “Disclosure of the Evidentiary/Investigative Materials could also have a chilling effect on witnesses because “[t]he public release of this information could lead to the identification and intimidation of witnesses, who may decline to cooperate with the parties and be disinclined to testify if their personal information is released to the public.’”  “Public disclosure could also cause unfair prejudice to the Government at a retrial, based on the fact that certain documents were available to the Government but not offered at the first trial.”  “Finally, public disclosure would provide [the defendant in a pending, related case] with greater access to investigatory materials than she would otherwise have.”  “These paradigmatic harms are among the harms that the FBI now alleges would result from disclosure of the Evidentiary/Investigative Materials and the Administrative Materials.”  “While the FBI previously failed to link these potential harms to each document category, it has now done so.”  “There is no need for the FBI to further ‘particularize how the exposure of this material would influence witness testimony.’” “‘[T]he record establishes that the release of the requested information could reasonably be expected to cause articulable harm.’”

• Litigation Considerations, “Reasonably Segregable” Showing:  “[The] Court concludes that the FBI has satisfied its segregability burden with respect to the documents withheld in full under Exemption 7(A).”  “Here, the FBI states that it has reviewed responsive records on a ‘document-by-document basis’ and conducted a segregability review concerning 11,571 responsive pages.”  “The FBI further represents that ‘to the extent there is non-exempt information contained in the records withheld under Exemption 7(A), that information is intertwined with exempt information and cannot reasonably be segregated without risking interference with the [related, pending] prosecution, referencing the harms described [previously].’”  “According to the FBI, ‘[t]he media coverage of speculation and theories about [the defendant in a pending, related case’s] association with Epstein makes the segregation of any possibly non-exempt information particularly difficult because providing information pertaining to Epstein without complete context can reasonably be expected to contribute to the dissemination of speculation and theories about the [pending, related] case.’”