Radar Online LLC v. Fed. Bureau of Investigation

692 F.Supp.3d 318

RADAR ONLINE LLC and James Robertson, Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.

17 Civ. 3956 (PGG)

United States District Court, S.D. New York

Signed September 19, 2023

Daniel Richard Novack, New York, NY, for Plaintiffs.

Allison Rovner, United States Attorney's Office, New York, NY, Kirti Vaidya Reddy, Quarles and Brady LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE:

Plaintiffs Radar Online LLC and James Robertson bring this action under the Freedom of Information Act ("FOIA"), seeking records related to the FBI's investigation and prosecution of financier Jeffrey Epstein for child sex trafficking crimes. (See Am. Cmplt. (Dkt. No. 12)) Plaintiff Radar Online is an online investigative news outlet and Plaintiff Robertson is one of its senior editors. (Id. ¶¶ 2-3)

Plaintiffs submitted their FOIA request on the Federal Bureau of Investigation ("FBI") on April 20, 2017. (Id. ¶ 10) After receiving no response, Plaintiffs commenced this action on May 25, 2017. (Cmplt. (Dkt. No. 1)) The Amended Complaint was filed on August 28, 2017. (Am. Cmplt. (Dkt. No. 12)) After an initial case management conference on September 7, 2017, the FBI agreed to begin producing documents at a rate of 500 pages per month. As of December 8, 2020, the FBI had reviewed 11,571 responsive pages, most of which were redacted in part or withheld in full based on certain exemptions to disclosure under FOIA, including exemptions 3, 6, 7(C), 7(D), and 7(E). (See Dec. 8, 2020 Joint Ltr. (Dkt. No. 25) at 1)¹

On July 6, 2019, Jeffrey Epstein was arrested and charged with new Federal offenses, at which point the FBI asserted Exemption 7(A) to FOIA - the exemption for "records or information compiled for law enforcement purposes[,] . . . [the disclosure of which] could reasonably be expected to interfere with enforcement proceedings" 5 U.S.C. § 552(b)(7)(A) - over the 10,107 pages that were previously processed and withheld and over all "remaining responsive records." (Id.)

On December 10, 2020, this Court directed the parties to file cross-motions for summary judgment. (Dkt. No. 26)

For the reasons stated below the parties' cross-motions will each be granted in part and denied in part.

BACKGROUND

I. FACTS

In support of its summary judgment motion, the FBI submitted a declaration from Maureen Comey, an Assistant United States Attorney ("AUSA") in the United States Attorney's Office for the Southern District of New York. (2021 Comey Decl. (Dkt. No. 39) ¶ 1) Comey is one of the AUSAs "handling the prosecution of Ghislaine Maxwell" and, prior to Epstein's death, was one of the AUSAs "in charge of [his] prosecution." (Id.) The FBI has also submitted a declaration from Michael G. Seidel, the Section Chief of the Record/Information Dissemination Section ("RIDS") of the FBI's Information Management Division ("IMD"). (Seidel Decl. (Dkt. No. 50) ¶ 1) Attached as exhibits to Seidel's declaration are, inter alia, Plaintiff's FOIA request and the FBI's response.² (Dkt. Nos. 50-1, 50-2)

Epstein was a financier who in June 2008 pleaded guilty to "a criminal charge of procuring prostitution of a minor," and served thirteen months of an eighteen-month sentence. (Seidel Decl. (Dkt. No. 50) ¶ 5) On July 2, 2019, Epstein was indicted by a federal grand jury in this District on "one count of conspiracy to commit sex trafficking . . . [and] one count of sex trafficking." (Id. (citing United States v. Epstein, 19 Cr. 490 (RMB) (S.D.N.Y.), Indictment (Dkt. No. 2))) Epstein committed suicide at the Metropolitan Correction Center in Manhattan on August 10, 2019, while the charges against him were pending. (Id. (citing United States v. Epstein, 19 Cr. 490 (RMB), Nolle Prosequi (Dkt. No. 52))) Epstein's 2019 indictment, arrest, and death were the subject of extensive media coverage.

A. Plaintiff's FOIA Request and the Instant Action

On April 20, 2017, Plaintiff Robertson submitted a FOIA request to the FBI seeking "all documents relating to the FBI's investigation and prosecution" of Epstein. (Seidel Decl., Ex. A. (FOIA Request) (Dkt. No. 50-1) at 4) Plaintiff asked that his FOIA request receive expedited treatment. (Id. at 5)

On April 28, 2017, the FBI sent Robertson a letter confirming receipt of his FOIA request and informing him that because he had requested information about a "third party individual[ ]" - Epstein - "the FBI would neither confirm nor deny the existence of such records pursuant to FOIA Exemptions 6 and 7(C)."³ (Seidel Decl. (Dkt. No. 50) ¶ 7) The FBI informed Roberts that it was closing his request, and provided information about "making requests for records on third party individuals" and about appealing the FBI's determination. (Id.; see also id., Ex. B (FOIA Response) (Dkt. No. 50-1))

Plaintiffs filed the instant action on May 25, 2017 (Cmplt. (Dkt. No. 1)), and filed the Amended Complaint on August 28, 2017. (Am. Cmplt. (Dkt. No. 12)) In a stipulation so-ordered by this Court on October 5, 2017, Plaintiffs agreed to "limit the scope of their [FOIA] request to the records located in" certain files identified by the FBI in their search for responsive records. (Dkt. No. 17) The parties also agreed that the FBI would process 500 pages of the records per month, starting October 1, 2017. (Id.)

Between October 2017 and Epstein's July 2019 indictment the FBI processed 500 pages of the records per month.⁴ (Seidel Decl. (Dkt. No. 50) ¶¶ 9-29) Following Epstein's July 2019 indictment, the FBI "withheld in full all remaining responsive records" and "all previously protected information" pursuant to Exemption 7(A). (Id. ¶ 30 & n.4)

"By letter dated January 31, 2020, the FBI . . . released 46 [additional] pages of records in full or part." (Id. ¶ 31) In total, "the FBI processed on a document-by-document basis a total of 11,571 pages of responsive records. Of these pages, the FBI released 181 pages in full, released 1,051 pages in part, and withheld 10,339 pages in full." (Id. ¶ 3) The records were withheld because one or more FOIA Exemption applied, the pages were "duplicative of other pages" already produced by the FBI, "and/or the pages are sealed pursuant to [a court order]." (Id. ¶ 3) The FBI does not state how many records comprise the "remaining responsive records" that were reviewed on a "categorical basis," and over which the FBI has asserted only Exemption 7(A). (See id. ¶ 44 & n.11) The FBI likewise has not disclosed how many records were "categorically withheld" pursuant to Exemption 7(A). The FBI's Vaughn index⁵ addresses only the records processed before Epstein's indictment and does not address the categorically withheld records. (Id. ¶ 44)

B. The Prosecution of Ghislaine Maxwell

On June 29, 2020, Ghislaine Maxwell - "an individual who associated with Jeffrey Epstein" (2021 Comey Decl. (Dkt. No. 39) ¶ 1) - was indicted by a grand jury in this District on "one count of conspiracy to entice minors to travel to engage in illegal sex acts"; "one count of enticement of a minor to travel to engage in illegal sex acts"; "one count of conspiracy to transport minors with intent to engage in criminal sexual activity"; "one count of transportation of a minor with intent to engage in criminal sexual activity"; "and two counts of perjury." (Id. ¶ 6)

On December 29, 2021, a jury found Maxwell guilty on five of the six counts against her. (2023 Comey Decl. (Dkt. No 47) ¶ 6; 20 Cr. 330, Dkt. Sheet at Dec. 29, 2021) On June 28, 2022, Maxwell was sentenced to 20 years' imprisonment. (2023 Comey Decl. (Dkt. No 47) ¶ 6; 20 Cr. 330, Judgment (Dkt. No. 696))

On July 7, 2022, Maxwell appealed her conviction to the Second Circuit. (2023 Comey Decl. (Dkt. No 47) ¶ 7) Maxwell seeks, inter alia, "a new trial based on alleged juror misconduct and alleged evidentiary issues." (Id.) Her appeal remains pending. (Id. ¶ 8)

II. PROCEDURAL HISTORY

The Complaint was filed on May 25, 2017 (Cmplt. (Dkt. No. 1)), and the Amended Complaint was filed on August 28, 2017. (Am. Cmplt. (Dkt. No. 12)) After the FBI asserted that Exemption 7(A) categorically applies to the documents it had previously withheld, as well as all remaining responsive documents, the Court directed the FBI to produce a Vaughn index by July 1, 2020. (Dkt. No. 21) On December 2, 2020, this Court ordered the parties to provide a status update (Dkt. No. 24), and on December 10, 2020, the Court directed the parties to file cross-motions for summary judgment. (Dkt. No. 26) The FBI requested several extensions, which this Court granted, and the parties' motions were not fully briefed until October 29, 2021. (Dkt. Nos. 27-37, 42)

Two months later, Maxwell was convicted at trial. (2023 Comey Decl. (Dkt. No. 47) ¶ 6) Because the parties' summary judgment briefing "turn[ed] on the ongoing prosecution of Ghislaine Maxwell,"⁶ this Court ordered the parties to submit supplemental briefing and declarations addressing the impact of Maxwell's conviction "on the parties' [cross] motions." (June 30, 2023 Order (Dkt. No. 45)) The FBI submitted a supplemental brief and declaration from Maureen Comey on July 11, 2023 (Dkt. Nos. 46-47), and Plaintiffs filed a supplemental brief on July 20, 2023. (Dkt. No. 48)

DISCUSSION

I. LEGAL STANDARDS

A. Summary Judgment Standard

Summary judgment is warranted where the moving party shows that "there is no genuine dispute as to any material fact" and that it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219,...