CREW v. Department of Justice (DOJ): DOJ reply brief in support of motion for summary judgment:...

8/7/2019 CREW v. Department of Justice (DOJ): DOJ reply brief in support of motion for summary judgment: 04/19/11

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA____________________________________

)

CITIZENS FOR RESPONSIBILITY )

AND ETHICS IN WASHINGTON ))

Plaintiff, ))

v. ) Civil Action No. 1:10-cv-1810 (ABJ)

)

U.S. DEPARTMENT OF JUSTICE )

)

Defendant. )

____________________________________)

DEFENDANTS REPLY MEMORANDUM OF POINTS AND AUTHORITIES INSUPPORT OF MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO

PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT

This action pertains to two Freedom of Information Act (FOIA) requests that Plaintiff,

Citizens for Responsibility and Ethics in Washington (CREW), submitted to Defendant, the

United States Department of Justice (DOJ). These requests sought documents from the Federal

Bureau of Prisons (BOP) and the Criminal Division, components of the DOJ, related to attempts

by documentary film makers to interview former lobbyist Jack Abramoff while he was in the

custody of the BOP, and Mr. Abramoffs involvement with other media productions. See Am.

Compl. 1 [dkt. no. 3].

Because the DOJ and its components fulfilled all of their obligations under FOIA, 5

U.S.C. 552, Defendant moved for summary judgment in its favor pursuant to Rule 56(b) of the

Federal Rules of Civil Procedure. See Def.s Mot. for Summ. J. [dkt. no. 10]. Plaintiff

subsequently filed its opposition to Defendants motion and cross-moved for partial summary

judgment. See Pl.s Mot. for Partial Summ. J. [dkt. no. 11]; Pl.s Mem. in Oppn [dkt. no. 12-2]

(Pl.s Mem.). Plaintiff argues that the DOJ has not established that it conducted an adequate

Case 1:10-cv-01810-ABJ Document 14 Filed 04/19/11 Page 1 of 28


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search for responsive records, see id. at 4-6, and that certain records and portions of records were

not properly withheld, see id. at 7-19.1

However, as described in Defendants initial Memorandum in Support of its Motion for

Summary Judgment [dkt. no. 10-2] and accompanying Declarations and Exhibits, as well as this

Memorandum and attached Declarations and Exhibits, the searches conducted by the BOP and

the Criminal Division were more than adequate to satisfy FOIAs requirements. Plaintiffs

arguments to the contrary rely on misstatements or misunderstanding of these searches, as well

as pure speculation about what the searches should have revealed. Furthermore, the BOP and the

Criminal Division as well as the Federal Bureau of Investigation (FBI), another DOJ

component, to which a small number of documents were referred properly invoked FOIAs

statutory exemptions, Plaintiffs arguments to the contrary notwithstanding. The third parties

whose information appears in the government files at issue in this case have at least some

privacy interest at stake, and there is no bona fide public interest that would justify an invasion of

their privacy. Accordingly, the Court should grant summary judgment in favor of Defendant and

deny Plaintiffs Motion for Partial Summary Judgment.

BACKGROUND

This action involves two separate but similar FOIA requests made by CREW, both

seeking documents related to attempts by documentary film makers to interview former lobbyist

Jack Abramoff while he was in the custody of the BOP, and Mr. Abramoffs involvement with

other media productions. The DOJs initial Memorandum in Support of its Motion for Summary

Judgment described the requests in detail, see Def.s Mem. of Points and Authorities in Support

of Mot. for Summ. J. [dkt. no. 10-2] (Def.s Mem.) at 2-4, and rather than reciting that factual

1 Plaintiff does not challenge the withholding of certain documents. See infra at 11 &

n.8.



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background again here, Defendant respectfully directs the Courts attention to that portion of its

initial brief. Defendants initial Memorandum also discussed the procedural history of this case,

as well as the processing of documents by the BOP, the Criminal Division, and the FBI, at some

length. See id. at 4-6. Again, rather than rehashing that discussion here, the DOJ refers the

Court to its prior brief.

In its brief, Plaintiff makes several assertions of fact that are not supported by the record

in this case. Defendant will respond to those assertions as needed throughout this Memorandum,

with reference to the Declarations accompanying its initial brief, see Decl. of William

Baumgartel (Baumgartel Decl.) (the BOPs initial Declaration); Decl. of Kristin L. Ellis (Ellis

Decl.) (the Criminal Divisions initial Declaration); Decl. of David M. Hardy (Hardy Decl.)

(the FBIs initial Declaration), as well as the Supplemental Declarations attached to this brief,

see Supp. Decl. of William Baumgartel (Baumgartel Supp. Decl.) (the BOPs Supplemental

Declaration); Supp. Decl. of Kristin L. Ellis (Ellis Supp. Decl.) (the Criminal Divisions

Supplemental Declaration).

However, Plaintiff makes one factual assertion that should be addressed up front.

Plaintiff states that after its FOIA requests were made, both BOP and the Criminal Division

withheld all responsive records in their entirety, citing the privacy of third parties for their

withholdings. CREW filed administrative appeals of the denials. In response, the Office of

Information Policy . . . blindly affirmed the initial blanket denials by BOP and the Criminal

Division. Pl.s Mem. at 3. Plaintiff mischaracterizes the procedural history of this case. It is

true that the BOP conducted an initial search for documents after receiving Plaintiffs request,

and then denied the request pursuant to FOIA Exemption 6, 5 U.S.C. 552(b)(6), and FOIA

Exemption 7(C), id. 552(b)(7)(C). See Baumgartel Decl. 7-8 & Ex. B. It is also true that



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Plaintiff appealed the BOPs denial, and the DOJ Office of Information Policy (OIP) denied the

appeal. See id. 9 & Exs. C, D, E. But the Criminal Division did not withhold responsive

records and did not issue a blanket denial; nor did Plaintiff file an appeal of any action taken by

the Criminal Division, as there was nothing to appeal. On the contrary, before this litigation was

filed the Criminal Division informed CREW that it would conduct a search for responsive

records, and was in the process of conducting that search when this litigation commenced. See

Ellis Decl. 8-9 & Attach. 4.

ARGUMENT

I. The Criminal Division and the BOP Have Established that They ConductedAdequate Searches for Responsive Documents

Plaintiff first argues that the Criminal Division and the BOP did not conduct adequate

searches in response to Plaintiffs FOIA requests. See Pl.s Mem. at 4-6. In support of this

argument, Plaintiff speculates that certain records that should exist were not in fact found by the

components. See id. at 5. Plaintiff also alleges that the searches conducted were narrower than

the actual requests in several respects. See id. at 5-6. Neither of these arguments is availing.

On summary judgment in a FOIA case, the agency must demonstrate that it has

conducted an adequate search that is, a good faith effort to conduct a search for the requested

records, using methods which can be reasonably expected to produce the information requested.

Oglesby v. U.S. Dept of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). There is no requirement

that an agency search every record system. Id. [T]he issue to be resolved is not whether there

might exist any other documents possibly responsive to the request, but rather whether the search

for those documents was adequate. Weisberg v. U.S. Dept of Justice, 745 F.2d 1476, 1485

(D.C. Cir. 1984) (emphasis in original). A search is not unreasonable simply because it fails to



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produce all relevant material. Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986);

Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982).

The process of conducting a reasonable search is a process that requires both systemic

and case-specific exercises of discretion and administrative judgment and expertise, and is

hardly an area in which the courts should attempt to micromanage the executive branch.

Schrecker v. U.S. Deptt of Justice, 349 F.3d 657, 662 (D.C. Cir. 2003) (Schrecker II) (internal

quotation marks and citation omitted). Therefore, in evaluating the adequacy of a search, courts

accord agency affidavits a presumption of good faith, which cannot be rebutted by purely

speculative claims about the existence and discoverability of other documents. SafeCard

Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc.

v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). The statute does not require meticulous

documentation [of] the details of an epic search. Perry, 684 F.2d at 127. [A]ffidavits that

explain in reasonable detail the scope and method of the search conducted by the agency will

suffice to demonstrate compliance with the obligations imposed by the FOIA. Id.

A. Plaintiffs Speculative Claims About the Existence of Certain Documents Do

Not Show that the Searches Were Inadequate

Much of Plaintiffs argument regarding the adequacy of the search for documents rests on

mere speculation that certain documents should have been found, but were not. Specifically,

Plaintiff claims that director George Hickenlooper and actor Kevin Spacey visited Mr. Abramoff

in prison, and the absence of records related to these visits except for one mention in an email

thread released by the Criminal Division2

2

Because the Criminal Division redacted third-party names from the records that itreleased, Plaintiffs statement that one of the emails relates to visits by Mr. Hickenlooper or Mr.

establishes that the searches were inadequate. See

Pl.s Mem. at 5.



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However, [m]ere speculation that as yet uncovered documents may exist does not

undermine the finding that the agency conducted a reasonable search. SafeCard Servs., 926

F.2d at 1201; see also Schoenman v. FBI, 573 F. Supp. 2d 119, 138 (D.D.C. 2008).

The D.C. Circuit has made clear that a FOIA requester who challenges the

reasonableness of a search because the agency did not find responsivedocuments that [the requester] claims must exist cannot sustain that challenge

when he provides no proof that these documents exist and [offers only] his own

conviction that [an event] was of such importance that records must have beencreated. . . . Such hypothetical assertions are insufficient to raise a material

question of fact with respect to the adequacy of the agency's search.

Carter, Fullerton & Hayes LLC v. Fed. Trade Commn, 520 F. Supp. 2d 134, 140 (D.D.C. 2007)

(quoting Oglesby, 920 F.2d at 67 n.13). In deciding whether an agency has conducted an

adequate search, the question for the Court is not whether there might exist any other

documents possibly responsive to the request, but rather whether the search for those documents

was adequate. Id. at 141 (quoting Steinberg v. U.S. Dept of Justice, 23 F.3d 548, 551 (D.D.C.

1994)).

Plaintiffs allegations regarding documents related to Mr. Abramoffs meetings with Mr.

Hickenlooper and Mr. Spacey are mere speculation. Plaintiff simply does not explain why

such documents must exist. Although Plaintiff alleges that there were extensive negotiations

between the filmmakers and DOJ, the only support for this allegation is a blog entry citing an

unnamed source. See Pl.s Mem. at 5. There is absolutely no indication of who was involved in

these alleged negotiations; and if they did in fact take place, they very well could have been oral,

resulting in no documents. Nor has Plaintiff explained why there is any reason to believe that the

Criminal Division should have found documents related to Mr. Hickenlooper and/or Mr. Spacey

beyond the single email thread previously mentioned.

Spacey is speculation, which DOJ neither confirms nor denies. Nonetheless, for purposes of this

argument DOJ assumes that Plaintiff is correct.



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Plaintiffs argument is further undermined by the fact that, as discussed in more detail

below, the searches conducted by both the Criminal Division and the BOP were broad enough to

find documents related to Mr. Hickenloopers and Mr. Spaceys visits if such documents did in

fact exist.3

B. The Searches Were Sufficiently Broad to Encompass the Entire Request

Plaintiff also argues that the searches conducted by the BOP and the Criminal Division

were narrower than the actual FOIA requests. See Pl.s Mem. at 5-6. Specifically, Plaintiff

alleges that the searches were focused on the requests by Alex Gibney and Jigsaw Productions to

interview Mr. Abramoff, and ignored that part of the request that sought records regarding Mr.

Abramoffs potential involvement, participation, or cooperation in any movies, books,

magazines, newspapers, or television productions. Id. at 6. As explained below, Plaintiffs

allegation is simply incorrect.

First, Plaintiff asserts that the BOPs search of Mr. Abramoffs Central File was limited

to the search terms Alex Gibney, Zena Barakat, Jigsaw Productions, and Abbe Lowell.

See id. It is true that the BOP used those search terms, which is perfectly appropriate given that

those were the specific terms provided by Plaintiff in its request. But it is inaccurate for Plaintiff

to suggest that the BOPs search was limited to those terms. In his initial Declaration for the

BOP, Senior Paralegal Specialist William Baumgartel clearly stated that he also searched for

visitor lists or any documents that referred to or was associated with any type of request to

interview inmate Abramoff. Baumgartel Decl. 22; see also Baumgartel Supp. Decl. 3-4.

Furthermore, the search conducted by the BOP did in fact yield several documents related to

3It should also be noted that Plaintiffs requests did not specifically mention Mr.

Hickenlooper nor Mr. Spacey, so the components had no reason to search for those names in

particular.



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media requests to interview Mr. Abramoff that did not involve any of the parties identified by

Plaintiff in its request.4

Second, Plaintiff takes issue with the fact that the initial Baumgartel Declaration did not

describe the search terms used by the BOPs Legislative Affairs Office (LAO). Therefore, Mr.

Baumgartel has provided a Supplemental Declaration in which he clarifies that the LAO used the

search term Abramoff. See Baumgartel Supp. Decl. at 2. As any document responsive to

Plaintiffs request must necessarily involve Mr. Abramoff, this search term is sufficiently broad

to capture all responsive documents.

The irony is that Plaintiff argues that BOPs search was limited to media

requests from Alex Gibney and Jigsaw Productions, even though Plaintiff itself later argues that

it is able to identify the names of other members of the media in the released documents. See

Pl.s Mem. at 13-14.

5

As to the search conducted by the Criminal Division, Plaintiff raises several objections.

First, Plaintiff points out that the Central Criminal Division Index File (CRM-001) was only

searched using the term Jigsaw Productions. If CRM-001 were likely to contain responsive

documents, this search would not have been sufficient. But as explained by Criminal Division

Trial Attorney Kristin Ellis in her initial Declaration, CRM-001 was only searched in order to be

consistent with Criminal Division general practice. See Ellis Decl. 9. In fact, the Criminal

It is also worth noting that, because LAO is not involved

in media relations, see id., it is not particularly surprising that its search yielded no responsive

documents.

4

This fact further undermines Plaintiffs argument regarding Mr. Hickenlooper and Mr.Spacey. Because the BOPs search of Mr. Abramoffs Central File was broad enough to

encompass any documents related to any media requests contained in that file, it would haveunearthed any such documents related to Mr. Hickenlooper and/or Mr. Spacey if such documents

existed.

5 For the same reason, there is no merit to Plaintiffs complaint that the Public

Information Officer used the term Abramoff to search her files. See Pl.s Mem. at 5.



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Division did not expect to find responsive records in CRM-001 because the database is used

track the names of subjects or targets of investigation, and not to collect/catalog the name of

every individual who might have some tangential connection to an investigation or prosecution,

such as a reporter who might want to interview a defendant . . . . Ellis Supp. Decl. 2; see also

Ellis Decl. 9. Therefore, the fact that the search terms used to search CRM-001 were not

comprehensive does not undermine the adequacy of the search.6

Plaintiff also objects to the fact that the Criminal Division did not specify the search

terms used by the attorneys who were asked to search their files for responsive records. See Pl.s

Mem. at 6. As discussed in the Ellis Declaration and the Ellis Supplemental Declaration, Public

Integrity Section (PIN) Trial Attorney Mary K. Butler was the individual primarily responsible

for issues relating to media access to Mr. Abramoff while he was incarcerated. See Ellis Decl.

12; Ellis Supp. Decl. 3. As explained by the Criminal Division, Ms. Butler searched her

records/e-mails using the names of the individuals with whom she communicated about media

interviews of Jack Abramoff, and media requests/attempts to interview him, while he was

incarcerated. Ellis Supp. Decl. 3. PIN Trial Attorney M. Kendall Day conducted the same

search. Id. Finally, Fraud Section Trial Attorney Nathaniel Edmonds conducted a search using

the terms Gibney and Ms. Butlers name. Id. 4. This search was sufficiently broad because

Mr. Edmonds determined that all of his communications regarding media access to Mr.

Abramoff involved Ms. Butler. Id. Furthermore, Mr. Edmonds involvement in this issue was

extremely limited. Id.

6Nonetheless, [i]n an abundance of caution, the Criminal Division ran another search

on CRM-001 using the search terms Alex Gibney, Zena Barakat, and George

Hickenlooper, and came up with no responsive documents. Ellis Supp. Decl. 2.



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In sum, the searches conducted by the BOP and the Criminal Division were reasonably

calculated to locate all responsive records. Both components identified the likely sources of

responsive documents and conducted searches that were broad enough to encompass Plaintiffs

entire request. Plaintiff attempts to undermine the adequacy of these searches by speculating that

certain documents should have existed and were not found. However, where, as here, a

defendant has provided affidavits describing the searches in detail, and those searches were

responsive to the FOIA request, this kind of speculation cannot be a basis for calling a search

into question. Plaintiffs arguments to the contrary cannot withstand scrutiny, and this Court

should grant summary judgment to the DOJ on the adequacy of its search.

II. The Criminal Division, the BOP, and the FBI Properly Withheld Records Under

Applicable FOIA Exemptions

In order to obtain summary judgment, an agency bears the burden of justifying its

decision to withhold records pursuant to FOIAs statutory exemptions. See 5 U.S.C.

552(a)(4)(B). To satisfy that burden, the agency must provide declarations that identify the

information at issue and the bases for the exemptions claimed. See Summers v. Dept of Justice,

140 F.3d 1077, 1080 (D.C. Cir. 1998). Courts review de novo the agencys use of a FOIA

exemption to withhold documents. Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007). But as has

been often noted by courts in this Circuit:

[T]he Court may grant summary judgment based solely on information provided

in an agencys affidavits or declarations if they are relatively detailed and when

they describe the documents and the justifications for nondisclosure withreasonably specific detail, demonstrate that the information withheld logically

falls within the claimed exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith.

Strunk v. U.S. Dept of Interior, --- F. Supp. 2d ---, No. 10-0066 (RJL), 2010 WL 4780845, at *2

(D.D.C. Nov. 24, 2010) (quoting Military Audit Project v. Casey, 656 F.2d 724, 738



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(D.C.Cir.1981)). Again, agency affidavits or declarations are accorded a presumption of good

faith, which cannot be rebutted by purely speculative claims about the existence and

discoverability of other documents. SafeCard Servs., 926 F.2d at 1200 (quoting Ground

Saucer Watch, 692 F.2d at 771); see also Strunk, 2010 WL 4780845, at *2. Ultimately, an

agencys justification for invoking a FOIA exemption is sufficient if it appears logical or

plausible. Wolf, 473 F.3d at 374-75 (internal quotation marks and citations omitted).

In this case, the Criminal Division, the BOP, and the FBI processed the responsive

documents in accordance with FOIA and withheld certain information pursuant to FOIA

Exemptions 2, 6, 7(C), and 7(F).

7

As an initial matter, Defendant notes that Plaintiff does not

challenge the withholding of certain categories of material. Plaintiff specifically mentions: (1)

the BOPs Category 4 (the names and contact information of BOP law enforcement personnel);

(2) the three pages of National Crime Information Center (NCIC) forms that were fully redacted

and were part of the BOPs Category 1, see Baumgartel Decl. 13, 32; (3) the Criminal

Divisions Category B (Mary K. Butlers email address and phone number); and (4) the Criminal

Divisions Category D (the name and email address of an FBI Special Agent). See Pl.s Mem. at

9 n.3. Plaintiff also appears not to challenge the information withheld in the FBI Categories

(b)(2)-1, and (b)(6)-1 and (b)(7)(C)-1. See Pl.s Mem. at 3 n.1.8

7

Plaintiff notes that the FBI invoked Exemption 2 (high) or high 2" to withhold the

internal telephone number and email address of an FBI Special Agent, and that this isinconsistent with Milner v. Dept of Navy, 131 S. Ct. 1259 (2011), which was decided after the

DOJ submitted its Motion for Summary Judgment. See Pl.s Mem. at 3 n.1; Def.s Mem. at 12.

However, this information was also withheld pursuant to Exemptions 6 and 7(C), see Def.s

Mem. at 12, and Plaintiff does not actually challenge this withholding, see Pl.s Mem. at 3 n.1.

8Plaintiff explicitly states that it is challenging the withholding of the materials in the

BOPs Category 3 that is, information regarding communication between Mr. Abramoff and

his attorney. See Pl.s Mem. at 9 n.3. However, Plaintiff does not appear to address this

category of documents anywhere else in its brief, instead focusing exclusively on the names andother identifying information of third parties who sought to visit and/or interview Mr. Abramoff



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Thus, the vast majority of the withholdings challenged by Plaintiff involve third-party

information contained in the components records specifically, the name, contact information,

and other identifying information of individuals who visited or sought to visit Mr. Abramoff in

prison; as well as information about whether or not Mr. Abramoff decided to to participate in

certain interviews. In withholding this information, each component properly invoked

Exemptions 6, 7(C), and 7(F), and processed and released all reasonably segregable information

from the responsive records. Therefore, Defendant is entitled to summary judgment.

A. The Records Withheld Pursuant to Exemption 7 Were Compiled for Law

Enforcement Purposes

Plaintiffs first argument against the invocation of the various exemptions in this case is

that the records withheld pursuant to Exemption 7 were not created for law enforcement

purposes. See Pl.s Mem. at 7-9. Plaintiff is correct that for Exemption 7(C) or 7(F) to apply,

the record at issue must have been compiled for law enforcement purposes. In assessing

whether records are compiled for law enforcement purposes, . . . the focus is on how and under

what circumstances the requested files were compiled, . . . and whether the files sought relate to

anything that can fairly be characterized as an enforcement proceeding. Jefferson v. Dept of

Justice, 284 F.3d 172, 17677 (D.C. Cir. 2002) (citations omitted). The Criminal Division and

the BOP,9

while he was in prison. Therefore, as to BOP Category 3, the DOJ refers the Court to itsargument in its initial brief, see Def.s Mem. at 22-23, which Plaintiff has not attempted to

refute.

as law enforcement agencies, are entitled to deference when they identify materials as

having been compiled for law enforcement purposes under Exemption 7. See, e.g., Ctr. for Natl

9 Plaintiff appears to concede that the records withheld by the FBI pursuant to Exemption

7(C) were compiled for law enforcement purposes.



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Sec. Studies, 331 F.3d at 926; Campbell v. U.S. Dept of Justice, 164 F.3d 20, 32 (D.C. Cir.

1999).

It is indisputable that the BOP records at issue in this case were compiled for law

enforcement purposes. The BOP is a law enforcement agency responsible for housing inmates

and ensuring the secure and orderly operation of prisons. As part of this role, the BOP must

regulate access by third parties to its facilities and inmates, and must be concerned with their

activities once they enter prison facilities, including the conducting of interviews with inmates.

The documents at issue are directly related to this law enforcement purpose, as they were

compiled in connection with the incarceration of Mr. Abramoff. See Baumgartel Decl. 27. In

fact, courts in this District have concluded that inmate records, including those in an inmates

Central File, are compiled for law enforcement purposes. See, e.g., Romero-Cicle v. U.S. Dept

of Justice, No. CIV A 05-2303 RJL, 2006 WL 3361747, at *5 (D.D.C. Nov. 20, 2006). Thus, the

BOPs records at issue in this case meet the threshold requirement of Exemption 7.

Plaintiff also takes issue with the Criminal Divisions justification for categorizing the

documents at issue as law enforcement records. See Pl.s Mem. at 8. In order to address these

concerns, the Criminal Division has elaborated on its reasoning in the Ellis Supplemental

Declaration. As Ms. Ellis explains:

[I]n exchange for a reduced sentence, Jack Abramoff provided substantialassistance to the Government in cases stemming from/related to his case. The

responsive communications in this case occurred during the time when he was

cooperating with the Government in cases that were pending or about to be filed.Thus, they were compiled for law enforcement purposes in relation to his on-

going cooperation in pending/prospective criminal investigations/prosecutions.

Ellis Supp. Decl. 5. Thus, Plaintiff is incorrect when it argues that the records have nothing to

do with DOJs investigation of Abramoff and the Criminal Division. Pl.s Mem. at 8. The

records were directly related to ongoing Criminal Division investigations, and thus fall squarely



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within the Criminal Divisions law enforcement mission. Therefore, the Criminal Division has

also satisfied the threshold requirement of Exemption 7.10

B. Records Were Properly Withheld Pursuant to FOIAs Privacy Exemptions

Again, all of the records now at issue were withheld pursuant to Exemptions 6 and 7(C)

FOIAs privacy exemptions.11

Plaintiff argues both that there are no privacy rights involved in this case and that there is

a strong public interest in the release of the withheld material. See Pl.s Mem. at 10-17.

Defendant disagrees on both counts. The individuals whose information Plaintiffs seek have at

least some privacy interest at stake, and no public interest justifies an invasion of their privacy.

Ultimately, Plaintiff seeks information about private citizens that is accumulated in various

governmental files but that reveals little or nothing about an agencys own conduct. Reporters

Comm., 489 U.S. at 773. This is simply not the purpose of FOIA. See id.

Defendant directs the Court to its full discussion of the standard

governing these exemptions in its initial brief. See Def.s Mem. at 13-16. Here, its enough to

state that in deciding whether the exemptions apply, the agency is required to balance the

individuals right to privacy against the publics interest in disclosure. See U.S. Dept of Justice

v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 764 (1989); see also Dept of Air Force

v. Rose, 425 U.S. 352, 372 (1976); Davis v. U.S. Dept of Justice, 968 F.2d 1276, 1281 (D.C.

Cir. 1992); Reed v. NLRB, 927 F.2d 1249, 1251 (D.C. Cir. 1991).

10In addition, even if the Court were to find that the threshold requirement of Exemption

7 has not been satisfied, all of the records at issue were also properly withheld pursuant to

Exemption 6.

11 A small number of redactions the BOPs Category 5 were also based on Exemption

7(F). See infra at 26-27.



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1. The Records at Issue in this Case Implicate Substantial Privacy

Rights

The first step of the balancing test under Exemptions 6 and 7(C) is to determine whether

there is a privacy interest in the material to be withheld. In Reporters Committee, the Supreme

Court rejected a cramped notion of personal privacy under the FOIAs exemptions and instead

emphasized that privacy encompass[es] the individuals control of information concerning his

or her person. 489 U.S. at 763. The Court noted that [p]rivacy is the claim of individuals . . .

to determine for themselves when, how, and to what extent information about them is

communicated to others. Id. at 764 n.16 (quotation marks and citation omitted). Privacy is of

particular importance in the FOIA context because a disclosure required by FOIA is a disclosure

to the public at large. See Painting & Drywall Work Pres. Fund, Inc. v. Dept of Housing &

Urban Dev., 936 F.2d 1300, 1302 (D.C. Cir. 1991). For a privacy interest to be cognizable under

FOIA, it must be substantial but in the FOIA context, substantial . . . means less than it

might seem. A substantial privacy interest is anything greater than a de minimis privacy

interest. See Multi Ag Media LLC v. Dept of Agriculture, 515 F.3d 1224, 1229-30 (D.C. Cir.

2008); see also Consumers Checkbook, Ctr. for Study of Servs. v. U.S. Dept of Health &

Human Servs., 554 F.3d 1046, 1050 (D.C. Cir. 2009).

The BOP, the Criminal Division, and the FBI all withheld the names, contact

information, and other identifying information of third parties who sought to visit and/or

interview Mr. Abramoff while he was incarcerated. The D.C. Circuit has described the

protection of the information of private citizens in law enforcement records as a categorical

rule that exempts disclosure of such information unless the requester can show (1) compelling

evidence that the agency is engaged in illegal activity, and (2) that the information is necessary

to confirm or refute that evidence. Ctr. for Natl Sec. Studies, 331 F.3d at 946 (discussing



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Exemption 7(C)); see also Schrecker II, 349 F.3d at 661 (noting that our decisions have

consistently supported nondisclosure of names or other information identifying individuals

appearing in law enforcement records and describing this as a categorical rule); Fischer v.

U.S. Dept of Justice, 596 F. Supp. 2d 34, 47 (The D.C. Circuit has consistently held that

Exemption 7(C) protects the privacy interests of all persons mentioned in law enforcement

records . . . . (emphasis added)); Schoenman, 573 F. Supp. 2d at 151. Even third parties

merely mentioned in law enforcement files have a privacy interest at stake. See Amuso v. U.S.

Dep't of Justice, 600 F. Supp. 2d 78, 96-97 (D.D.C. 2009).

Furthermore, as the Supreme Court has explained, FOIAs central purpose is to ensure

that the Governments activities be opened to the sharp eye of public scrutiny, not that

information about private citizens that happens to be in the warehouse of the Government be so

disclosed. Reporters Comm., 489 U.S. at 774 (emphasis in original). Therefore, [e]ven

seemingly innocuous information can be enough to trigger FOIAs privacy protections.

Horowitz v. Peace Corps, 428 F.3d 271, 279 (D.C. Cir. 2005) (discussing Exemption 6); see also

U.S. Dept of State v. Washington Post Co., 456 U.S. 595, 600 (1982) (finding that

[i]nformation such as place of birth, date of birth, date of marriage, employment history, and

comparable data is not normally regarded as highly personal and yet would be exempt from

any disclosure that would constitute a clearly unwarranted invasion of personal privacy); Natl

Assn of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (This court . . . has

observed that Exemption 6 is designed to protect personal information in public records, even if

it is not embarrassing or of an intimate nature. (quoting Natl Assn of Retired Fed. Emps. v.

Horner, 879 F.2d 873, 875 (D.C. Cir. 1989))).



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In general, Defendant directs the Courts attention to its initial brief, which explains at

length why the third parties whose names and other information were redacted from the released

documents have a privacy interest in such information. See Def.s Mem. at 16-25. Plaintiff now

asserts several arguments intended to show why there are no privacy interests at stake in this

case. Defendant addresses each of those specific arguments below.

a. Public Statements by Certain Individuals About Their

Attempts to Interview Mr. Abramoff in Prison Do Not

Undermine the Privacy Interests at Stake

First, Plaintiff states that the individuals involved have made public statements about

their attempts to interview Mr. Abramoff, and thus are actually seeking publicity. See Pl.s

Mem. at 11-12. As an initial matter, Defendant notes that Plaintiff is making several

assumptions about the identity of the individuals whose names and information were redacted.

While Plaintiff alleges that Mr. Gibney and Mr. Hickenlooper have spoken publicly about their

attempts to interview Mr. Abramoff, the names and identifying information of other individuals

were also redacted from the documents released by Defendant.12

Furthermore, even accepting Plaintiffs assertion that some of the third parties have made

public statements about their contact with Mr. Abramoff, this still does not eliminate all privacy

interest. Some of the redacted information is more personal in nature than just names. For

example, in several places, contact information and government identification numbers were

redacted. See generally Baumgartel Decl. Ex. J (Index of Withheld Records). Finally, the fact

that some of the redacted information might be publicly available from other sources does not

mean that FOIAs privacy exemptions cease to apply. See U.S. Dept of Defense v. Fed. Labor

Relations Auth. (FLRA), 510 U.S. 487, 500 (1994) (An individual's interest in controlling the

12 Again, Defendant assumes for the purposes of this discussion that the names and

identifying information of Mr. Hickenlooper and Mr. Gibney were among the redactions.



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dissemination of information regarding personal matters does not dissolve simply because that

information may be available to the public in some form.); Reporters Comm., 489 U.S. at 767-

68; Barnard v. Dept of Homeland Sec., 598 F. Supp. 2d 1, 12 (D.D.C. 2009) (Plaintiff's

argument is foreclosed by a long line of cases recognizing that individuals maintain an interest in

their privacy even where some information is known about them publicly.). In sum, the fact

that some of the third parties whose information was redacted may have stated publicly that they

attempted to or did interview Mr. Abramoff while he was incarcerated does not justify the

release of the names, contact information, and other identifying information of those third

parties, not to mention all of the other individuals whose information was redacted.

b. Exemptions 6 and 7(C) Still Apply Even if the Unnamed Third

Parties Were Acting in Their Professional Capacities

Second, Plaintiff argues that because the redacted information is professional in nature,

individual privacy interests are diminished. See Pl.s Mem. at 12-13. However, the only D.C.

Circuit case that Plaintiff cites to support this proposition is Sims v. CIA, 642 F.2d 562 (D.C.

Cir.), a more than 30-year-old case in which the Court stated that Exemption 6 was developed

to protect intimate details of personal and family life, not business judgments and relationships.

Id. at 575. That view of Exemption 6 has clearly been superseded by more recent D.C. Circuit

cases, which have held that information need not be of an intimate nature to be protected. See,

e.g., Horowitz, 428 F.3d at 279; Washington Post Co., 456 U.S. at 600; Norton, 309 F.3d at 32;

Horner, 879 F.2d at 875; see also Barnard, 598 F. Supp. 2d at 11 (Exemption 6 protects from

disclosure all information that applies to a particular individual in the absence of a public

interest in disclosure. (quoting Washington Post Co., 456 U.S. at 602)).

While records that relate to an individuals business or profession might have diminished

privacy protections under FOIA, it is clear that those rights are not entirely absent. Information



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in business records that reveal something about a particular individual may still be protected,

even where that individual was acting in a professional capacity. See Bigwood v. U.S. Agency

for Intl Dev., 484 F. Supp. 2d 68, 75-76 (D.D.C. 2007) (upholding withholding of information

about particular USAID grantees because to reveal such information would be to reveal identities

of particular individuals); Appleton v. Food and Drug Admin., 451 F. Supp. 2d 129, 145 (D.D.C.

2006) (holding that documents were protected by Exemption 6 where they revealed professional

information about pharmaceutical company employees); see also Consumers Checkbook, 554

F.3d at 1050-51; Multi Ag Media, 515 F.3d at 1228-29; Oregon Natural Desert Assn v, U.S.

Dept of the Interior, 24 F. Supp. 2d 1088, 1089 (D. Or. 1998) (district court, in a case cited by

Plaintiff, concluded that information about commercial interests should not be categorically

excluded from FOIAs privacy exemptions). Furthermore, because an individual who seeks to

visit an inmate in prison must provide quite a bit of personal information such as date of birth

and social security number much of the redacted information that Plaintiff seeks is personal in

nature. In general, records that reflect personal information about an individual are exempt from

disclosure even if the information was collected in a professional context. See Bigwood, 484 F.

Supp. 2d 68, 75-76 (D.D.C. 2007); Hill v. Dept of Agriculture, 77 F. Supp. 2d 6, 8 (D.D.C.

1999).

It should also be noted that where courts have suggested that information about third

parties in their professional or business capacities is entitled to diminished privacy protection,

they have done so in the context of Exemption 6. See, e.g., Sims, 642 F.2d 562; Fuller v. CIA,

No. 04-253 (RWR), 2007 WL 666586 (D.D.C. Feb. 28, 2007). It seems that the same logic does

not apply to Exemption 7(C). As previously discussed, the names of third-parties in law

enforcement records are almost always exempt from disclosure. Barnard, 598 F. Supp. 2d at



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21; see also Kishore v. U.S. Dept of Justice, 575 F. Supp. 2d 243, 257 (noting that third-party

identifying information is categorically exempt from disclosure under Exemption 7(C)); supra

at 15-16. Plaintiff has not cited, and Defendant is not aware of, any cases that suggest that this

categorical rule loses force simply because the third parties mentioned were operating in a

professional or business capacity. Therefore, even if the Court were to conclude that the third

parties in this case have diminished privacy protection under Exemption 6, the same need not be

said for Exemption 7(C).

Finally, because there is no public interest in the release of the redacted information (as

discussed below), even if the Court were to conclude that the privacy interests at issue in this

case are diminished, that would not foreclose the application of Exemptions 6 and 7(C). See

FLRA, 510 U.S. at 500 (even a very slight privacy interest is sufficient to outweigh a complete

absence of public interest); infra at 23-26.

c. Even if Plaintiffs Can Discern the Identities of Certain

Unnamed Individuals, FOIAs Privacy Exemptions Still Apply

Third, Plaintiff asserts that the privacy interests of the unnamed individuals are somehow

reduced because Plaintiff is able to discern the identity of some of the individuals by examining

the unredacted portions of the documents. See Pl.s Mem. at 13-14. This argument has been

explicitly rejected by numerous courts. See, e.g., Schoenman, 573 F. Supp. 2d at 149 ([E]ven if

Plaintiff is correct that he can guess the individual's identity, the fact that Plaintiff may deduce

the identities of individuals through other means . . . does not diminish their privacy interests.

(quoting Shores v. FBI, 185 F. Supp. 2d 77, 83 (D.D.C.2002) (emphasis in original))); see also

Weisberg, 573 F.2d at 1491; Taylor v. Dept of Justice, 268 F. Supp. 2d 34, 38 (D.D.C. 2003)

([T]he fact that the requestor might be able to figure out some or all of the individuals

identities through other means, or the fact that their identities have already been disclosed, does



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not diminish their privacy interests in not having the documents disclosed.). These holdings

make perfect sense in light of the fact that a FOIA release is considered a release to the world,

not just to the individual requester. See Natl Archives and Records Admin. v. Favish, 541 U.S.

157, 172 (2004).

d. The Fact that an Individual Is Deceased Does Not Necessitate

the Release of His or Her Information

Plaintiffs fourth argument pertains only to Mr. Hickenlooper. Specifically, Plaintiff

contends that the Criminal Division withheld his name from a single email, and that they should

not have done so given that he is deceased. See Pl.s Mem. at 14. Even assuming, arguendo,

that the name or other personal information of Mr. Hickenlooper or any other deceased

individual was withheld, Plaintiff fails to recognize that there is more than just one privacy

interest at issue here. As discussed below, Mr. Abramoff retains some privacy interest in who he

chose to receive as a visitor while he was incarcerated.

Furthermore, a persons death does not necessarily vitiate his or her privacy interest.

[T]he death of the subject of personal information does diminish to some extent the privacy

interest in that information, though it by no means extinguishes that interest; one's own and one's

relations' interests in privacy ordinarily extend beyond one's death. Schrecker v. Dept of

Justice, 254 F.3d 162, 166 (D.C. Cir. 2001) (Schrecker I); see also Schrecker II, 349 F.3d at

661 ([T]he fact of death, . . . while not requiring the release of information, is a relevant factor

to be taken into account in the balancing decision whether to release information. (internal

quotation marks and citation omitted)); Grandison v. U.S. Dept of Justice, 600 F. Supp. 2d 103,

114 (D.D.C. 2009) (quoting Schrecker I). In this case, even if a particular individuals privacy

interest has been attenuated by his or her death, this diminished privacy interest still outweighs



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the absence of any bona fide public interest in the withheld information. See Piper v. U.S. Dept

of Justice, 428 F. Supp. 2d 1, 3-4 (D.D.C. 2006); infra at 23-26.

e. Mr. Abramoff Has a Privacy Interest in the Withheld

Information

Even if the Court were to accept all of Plaintiffs arguments about the privacy interest of

the unnamed third parties, the documents were still properly withheld based on Mr. Abramoffs

privacy interest in information about who visited him or attempted to visit him in prison. The

identity of Mr. Abramoffs visitors or would-be visitors is the type of personal information that

Exemptions 6 and 7(C) is intended to protect that is, personal information about a private

individual that happens to appear in government records. In addition, at least some of the

redacted information would reveal whether Mr. Abramoff consented to or declined certain

interview requests while he was incarcerated. See Baumgartel Decl. 34. While perhaps not as

sensitive as information such as an individuals criminal record, FOIAs privacy exemptions

were intended to cover detailed Government records on an individual which can be identified as

applying to that individual. Washington Post Co., 456 U.S. at 602 (citation omitted) (discussing

Exemption 6).

Plaintiff attempts to undermine Mr. Abramoffs privacy interest in this information by

arguing that Mr. Abramoffs status as a prisoner diminishes any privacy interest he may have.

Pl.s Mem. at 14. However, the cases that Plaintiff cites in support of this proposition come from

the Fourth Amendment context, and have absolutely no relevance to the FOIA context. It is one

thing to say that prisoners have no privacy rights vis--vis prison officials, who may search

prisoners cells and monitor their phone calls. It is quite another thing to suggest, as Plaintiff



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does, that prisoners have sacrificed their privacy rights as to the rest of the world. Again,

Plaintiff can find no support for this assertion.13

Finally, Plaintiffs statement that the BOP publically posts on its own website

information concerning a prisoners incarceration status, id., is totally irrelevant. Defendant

does not argue that Mr. Abramoffs status as a prisoner is private, but simply that he has a

privacy interest in information about who visited him in prison and what interview requests he

accepted or declined. The BOP certainly does not post this information on its website.

2. There Is No Public Interest in the Redacted Information to Outweigh

the Privacy Interests at Stake

Once an agency determines that the disclosure of information would threaten a

protectable privacy interest, it must engage in the second step of the balancing test that is, the

agency must weigh the privacy interest against the public interest in disclosure, if any. See

Reed, 927 F.2d at 1251. However, because the only relevant public interest under FOIA is the

citizens right to be informed about what their government is up to, Reporters Comm., 489

U.S. at 773, an agency must analyze the public interest by considering the nature of the

requested document and its relationship to the basic purpose of [FOIA] to open agency action to

the light of public scrutiny. Id. at 772 (internal quotation marks and citation omitted). This

public interest is not fostered by disclosure of information about private citizens that is

13Plaintiff also takes issue with the fact that the Criminal Division withheld part of one

email that indicated whether Mr. Abramoff and another individual received compensation for amovie about Mr. Abramoff. See Pl.s Mem. at 15. Plaintiff seems to suggest that because the

Criminal Division released a portion of the relevant email showing that this topic was discussed,

it has effectively revealed whether Mr. Abramoff received funds and the amount of those funds.

This argument is nonsensical. The portion of the email that was released reveals nothing aboutMr. Abramoffs personal financial information or the personal financial information of the

unnamed third party. But the information that Plaintiff now seeks falls squarely within FOIAs

privacy protections. See Consumers Checkbook, 554 F.3d at 1050 (We have consistently heldthat an individual has a substantial privacy interest under FOIA in his financial information,

including income.).



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accumulated in various governmental files but that reveals little or nothing about an agencys

own conduct. Id. at 773. When the subject of the information requested under FOIA is a

private citizen and when the information is in the Governments control as a compilation, rather

than as a record of what the Government is up to, the privacy interest . . . is in fact at its apex

while the FOIA-based public interest in disclosure is at its nadir. Id. at 780.

Furthermore, even a very slight privacy interest is sufficient to outweigh a complete

absence of public interest. U.S. Dept of Defense v. Fed. Labor Relations Auth., 510 U.S. 487,

500 (1994); see also Consumers Checkbook, 554 F.3d 1046, 1056. If there is no public interest

in the disclosure of certain information, something, even a modest privacy interest, outweighs

nothing every time. Horowitz, 428 F.3d at 278 (quoting Horner, 879 F.2d at 879).

Plaintiff contends that there is a significant public interest in the information it seeks. See

Pl.s Mem. at 15-16. But this contention is based entirely on Plaintiffs allegations that the DOJ

improperly or illegally interfered with media access to Mr. Abramoff. See id. Where the public

interest being asserted by a Plaintiff is to reveal government wrongdoing, then the requester

must produce evidence that would warrant a belief by a reasonable person that the alleged

Government impropriety might have occurred. Boyd v, Criminal Div. of U.S. Dept of Justice,

475 F.3d 381, 387 (D.C. Cir. 2007) (quoting Favish, 541 U.S. at 172). Unsubstantiated

assertions of government wrongdoing . . . do not establish a meaningful evidentiary showing.

Id. at 388 (internal quotation marks and citation omitted).

The problem for Plaintiff is that its allegations of Government wrongdoing are purely

speculative, and seem to be based only on the fact that certain members of the media were unable

to interview Mr. Abramoff. But this fact says nothing about the behavior of the DOJ. As

explained in the BOPs Supplemental Declaration, in the event of a request from the media to



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interview an inmate, the inmate must be notified of the request and give his written consent. See

Baumgartel Supp. Decl. 5. Therefore, if a member of the media was unable to interview Mr.

Abramoff, the explanation could very well be that Mr. Abramoff declined to be interviewed.

Furthermore, even if the DOJ did discourage Mr. Abramoff to avoid giving interviews which

Defendant neither confirms nor denies Plaintiff has presented no evidence that this was illegal

or improper. As explained by the Criminal Division, Mr. Abramoff was cooperating with the

Government in ongoing criminal investigations. See Ellis Supp. Decl. 5. Thus, there may have

been very legitimate reasons for the DOJ to prefer that Mr. Abramoff not interact with members

of the media.

Furthermore, even if the Court were to conclude that there is sufficient evidence of

Government wrongdoing to raise a public interest, this interest has been satisfied by the

information already released to Plaintiff. Disclosure of the withheld names would not further

serve this interest. [I]nformation about private citizens . . . that reveals little or nothing about an

agencys own conduct does not serve a relevant public interest under FOIA. Consumers

Checkbook, 554 F.3d at 1051 (quoting Reporters Comm., 489 U.S. at 773); see also Schrecker,

349 F.3d at 661 (the public interest inquiry should focus not on the general public interest in the

subject matter of the FOIA request, but rather on the incremental value of the specific

information being withheld); U.S. Dept of State v. Ray, 502 U.S. 164, 178 (1991) (We are

persuaded . . . that this public interest has been adequately served by disclosure of the redacted

interview summaries and that disclosure of the unredacted documents would therefore constitute

a clearly unwarranted invasion of the interviewees privacy.). Plaintiff has offered no argument

to the contrary.14

14

In one paragraph, Plaintiff also argues that there is a public interest in knowing whetherMr. Abramoff received fees for any interviews that he gave while incarcerated. See Pl.s Mem.



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In sum, because several unnamed third parties and Mr. Abramoff have a substantial

privacy interest in the withheld information at issue in this case, and because no public interest

outweighs that privacy interest, the disclosure of the withheld information would constitute a

clearly unwarranted invasion of personal privacy. Therefore, the Criminal Division, the BOP,

and the FBI properly invoked Exemptions 6 and 7(C).

C. The BOP Properly Withheld Information in Category 5 Pursuant to

Exemptions 6, 7(C), and 7(F)

In its initial release of documents, the BOP withheld three segments of an email chain

pursuant to Exemptions 6, 7(C), and 7(F). See Def.s Mem. at 26; Baumgartel Decl. 40-41.

The BOP determined that this information, which was collected in connection with a criminal

investigation, could endanger the safety of a particular individual. See Baumgartel Decl. 40.

Defendant explained that revealing the specific nature of this information could undermine the

purpose of Exemption 7(F). See id. However, Defendant offered to provide an unredacted copy

of the document to the Court for in camera review. See Def.s Mem. at 26.

Plaintiff now argues that the BOP has not offered a sufficient description of the withheld

material to justify its withholding. See Pl.s Mem. at 17-18. The BOP has determined that it can

release one of the three withheld segments, and did so on April 14, 2011. See Baumgartel Supp.

Decl. 6. However, the BOP continues to believe that withholding of the other two segments is

justified under Exemptions 6, 7(C), and 7(F). See Baumgartel Supp. Decl. 7. Exemption 7(F)

protects from disclosure information compiled for law enforcement purposes where release of

such information could reasonably be expected to endanger the life or physical safety of any

individual. 5 U.S.C. 552(b)(7)(F). Exemption 7(F) has a broad reach to protect the physical

at 16. However, Plaintiff presents absolutely no evidence to suggest that Mr. Abramoff receivedfees, or that DOJ was assisting Abramoff in circumventing these laws or preventing the victims

of his crimes from receiving recompense. Id. at 16.



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safety of a wide range of individuals. See Garcia v. U.S. Dept of Justice, 181 F. Supp. 2d 356,

378 (S.D.N.Y. 2002) (The Government is entitled to invoke this exemption where the safety of

the individual in question would be jeopardized if his or her identity were revealed.). Within

limits, the Court defers to the agency's assessment of danger. Amuso, 600 F. Supp. 2d at 101.

The two withheld segments reveal details about Mr. Abramoff cooperation with the

Government in prosecutions stemming from his arrest, including which prosecutions he

participated in and how that cooperation was effectuated while he was in prison. Baumgartel

Supp. Decl. 7. The BOP properly determined that this information could jeopardize Mr.

Abramoffs physical safety. Furthermore, this is precisely the type of information that FOIAs

privacy exemptions, and particularly Exemption 7(C), are intended to protect. See, e.g.,

Schrecker, 349 F.3d at 661, 666. Finally, this information is entirely unrelated to any public

interest asserted by Plaintiff it says nothing about the operation of the DOJ or whether the DOJ

improperly hindered media access to Mr. Abramoff. See Barnard, 598 F. Supp. 2d at 13

(Where, as here, the nexus between the information sought and the asserted public interest is

lacking, the asserted public interest will not outweigh legitimate privacy interests.).

CONCLUSION

Because the Criminal Division, the BOP, and the FBI have conducted adequate searches

and produced all non-exempt responsive document to CREW, and because no further

segregation of non-exempt responsive documents is possible, summary judgment should be

granted to Defendant.

Dated: April 18, 2011 Respectfully Submitted,

TONY WESTAssistant Attorney General



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RONALD C. MACHEN JR.

United States Attorney

ELIZABETH J. SHAPIRO

Deputy Director

U.S. Department of JusticeCivil Division, Federal Programs Branch

/s/ Benjamin L. Berwick

BENJAMIN L. BERWICK

Trial AttorneyU.S. Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue, NW, Room 6141

Washington, D.C. 20530(202) 305-8573

[email protected]

Counsel for Defendant


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