{"efta_number": "EFTA00038652", "page_count": 20, "url": "https://epstein-data.com/EFTA00038652", "pdf_url": "https://epstein-data.com/pdf/EFTA00038652.pdf", "pages": [{"efta_number": "EFTA00038652", "page_number": 0, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 1 of 20 \nUNITED STATES DISTRICT COURT \nSOUTHERN DISTRICT OF NEW YORK \nRADAR ONLINE LLC and JAMES \nROBERTSON, \nPlaintiffs, \n-against-\nFEDERAL BUREAU OF \nINVESTIGATION, \nDefendant. \nORDER \n17 Civ. 3956 (PGG) \nPAUL G. GARDEPHE, U.S.D.J.: \nPlaintiffs Radar Online LLC and James Robertson bring this action under the \nFreedom of Information Act (\"FOIA\"), seeking records related to the FBI's investigation and \nprosecution of financier Jeffrey Epstein for child sex trafficking crimes. (\n Am. Cmplt. (Dkt. \nNo. 12)) Plaintiff Radar Online is an online investigative news outlet and Plaintiff Robertson is \none of its senior editors. (Id. ¶¶ 2-3) \nPlaintiffs submitted their FOIA request to the Federal Bureau of Investigation \n(\"FBI\") on April 20, 2017. (Id.¶ 10) Plaintiffs received no response, and filed this action on \nMay 25, 2017. (Cmplt. (Dkt. No. 1)) The Amended Complaint was filed on August 28, 2017. \n(Am. Cmplt. (Dkt. No. 12)) After an initial case management conference on September 7, 2017, \nthe FBI agreed to begin producing documents at a rate of 500 pages per month. The FBI has \nnow processed 11,571 responsive pages, most of which were redacted in part or withheld in full \nbased on certain exemptions to disclosure under FOIA. (Second Seidel Decl. (Dkt. No. 58)1 3) \nIn July 2019, Jeffrey Epstein was arrested and charged with new Federal offenses, \nat which point the FBI asserted Exemption 7(A) to FOIA — the exemption for \"records or \ninformation compiled for law enforcement purposes[,] .. . [the disclosure of which] could \nEFTA00038652\n", "char_count": 1612}, {"efta_number": "EFTA00038652", "page_number": 1, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 2 of 20 \nreasonably be expected to interfere with enforcement proceedings\" 5 U.S.C. § 552(bX7)(A) — \nover pages that were previously processed and withheld and over all \"remaining responsive \nrecords.\" (a. 1 7) \nOn December 10, 2020, this Court directed the parties to file cross-motions for \nsummary judgment. (Dkt. No. 26) In a September 19, 2023 order (the \"Summary Judgment \nOrder\"), this Court granted in part and denied in part each side's cross-motion. (Summary \nJudgment Order (Dkt. No. 51)) In its Order, this Court directed the parties to file a joint letter \naddressing next steps, including a proposed schedule for the FBI's revised declarations and any \nrenewed motions for summary judgment. (s., at 54) I On October 3, 2023, this Court set a \nbriefing schedule for the parties' renewed cross-motions for summary judgment. (Dkt. No. 53) \nFor the reasons stated below, the FBI's motion for summary judgment will be \ngranted, and Plaintiffs' motion for summary judgment will be denied. \nBACKGROUND'\nI. \nFACTS \nIn support of its renewed summary judgment motion, the FBI submitted a revised \ndeclaration from Maureen Comey, an Assistant United States Attorney (\"AUSA\") in the United \nStates Attorney's Office for the Southern District of New York. (Third Comey Decl. (Dkt. No. \n59)1 1), and a revised declaration from Michael G. Seidel, the Section Chief of the \nRecord/Information Dissemination Section (\"RIDS\") of the FBI's Information Management \nDivision (\"IMD\"). (Second Seidel Decl. (Dkt. No. 58) 1 1) \nThe page numbers referenced in this opinion correspond to the page numbers designated by \nthis District's Electronic Case Files (\"ECF\") system. \n2 The relevant facts and procedural history are set forth in greater detail in the Summary \nJudgment Order and are only summarized below. (Summary Judgment Order (Dkt. No. 51)) \nFamiliarity with the Summary Judgment Order is assumed. \n2 \nEFTA00038653\n", "char_count": 1969}, {"efta_number": "EFTA00038652", "page_number": 2, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 3 of 20 \nA. \nPlaintiffs' FOIA Request and the Instant Action \nEpstein was a financier who in June 2008 pleaded guilty to \"a criminal charge of \nprocuring prostitution of a minor,\" and served thirteen months of an eighteen-month sentence. \n(Second Seidel Decl. (Dkt. No. 58)1 6) On April 20, 2017, Plaintiff Robertson submitted a \nFOIA request to the FBI seeking \"all documents relating to the FBI's investigation and \nprosecution\" of Epstein. (First Seidel Decl., Ex. A. (FOIA Request) (Dkt. No. 50-1) at 4) \nOn July 2, 2019, Epstein was indicted by a federal grand jury in this District on \n\"one count of conspiracy to commit sex trafficking .. . [and] one count of sex trafficking.\" \n(Second Seidel Decl. (Dkt. No. 58)1 6 (citing United States v. Epstein, 19 Cr. 490 (RMB) \n(S.D.N.Y.), Indictment (Dkt. No. 2))) After the July 2, 2019 indictment, the FBI \"began to \ncategorically assert Exemption 7(A) with respect to information in the remaining documents it \nwas processing .. . on the basis that release could negatively impact the then-pending \nprosecution of Jeffrey Epstein and any related investigations.\" (l 17) The FBI further \n\"asserted Exemption 7(A) over all information that had been withheld under other exemptions \nprior to that date.\" atl.) \nEpstein committed suicide at the Metropolitan Correction Center in Manhattan on \nAugust 10, 2019, while the charges against him were pending. OA (citing United States v. \nEpstein 19 Cr. 490 (RMB), Nolle Prosequi (Dkt. No. 52))) \nB. \nThe Prosecution of Ghislaine Maxwell \nOn June 29, 2020, Ghislaine Maxwell was indicted by a grand jury in this District \non \"one count of conspiracy to entice minors to travel to engage in illegal sex acts\"; \"one count \nof enticement of a minor to travel to engage in illegal sex acts\"; \"one count of conspiracy to \ntransport minors with intent to engage in criminal sexual activity\"; \"one count of transportation \n3 \nEFTA00038654\n", "char_count": 1979}, {"efta_number": "EFTA00038652", "page_number": 3, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 4 of 20 \nof a minor with intent to engage in criminal sexual activity\"; \"and two counts of perjury.\" (Third \nComey Decl. (Dkt. No. 59) 1 6) \nOn December 29, 2021, a jury found Maxwell guilty of enticing a minor to travel \nto engage in illegal sex acts, transporting minors with the intent to engage in criminal sexual \nactivity, and three related conspiracy counts. (Third Comey Decl. (Dkt. No. 59) 1 8; 20 Cr. 330, \nDkt. Sheet at Dec. 29, 2021) On June 28, 2022, Maxwell was sentenced to 20 years' \nimprisonment. (Third Comey Decl. (Dkt. No. 59) 1 8; 20 Cr. 330, Judgment (Dkt. No. 696)) \nOn July 7, 2022, Maxwell appealed her conviction to the Second Circuit. (Third \nComey Decl. (Dkt. No. 59) 1 9) Maxwell seeks, inter a \n\"a new trial based on alleged juror \nmisconduct and alleged evidentiary issues.\" (a) Her appeal remains pending. GA  1 8) \nH. \nTHE SEPTEMBER 19.2023 SUMMARY JUDGMENT ORDER \nIn its September 19, 2023 Order, this Court granted the FBI summary judgment as \nto records withheld under Exemption 3 pursuant to the Child Victims' Act (Summary Judgment \nOrder (Dkt. No. 51) at 26); Exemption 5 for attorney work-product privilege CA at 31-33); \nExemptions 6 and 7(C) to protect persons from an unwarranted invasion of personal privacy (a \nat 33-42); Exemption 7(D) to protect confidential information provided by local law enforcement \nagencies (a. at 4748); and Exemption 7(E) to protect against disclosure of law enforcement \ntechniques, procedures, and guidelines. \nat 48-51) \nAs to Exemption 7(A), this Court found that the FBI's invocation of this \nExemption was timely and that the requested records were compiled for law enforcement \npurposes and related to a pending or prospective law enforcement proceeding. (IS at 11-18) \nThe FBI, however, \"ha[d] not explicitly linked any of the document categories — whether \nSeidel's or Comey's — to the four types of potential harm cited in the 2021 Comey declaration.\" \n4 \nEFTA00\n... [truncated, 2007 chars — for the full page use /api/corpus/document/EFTA00038652/3 or ?id=EFTA00038652&page=3]", "char_count": 2007}, {"efta_number": "EFTA00038652", "page_number": 4, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 5 of 20 \n(I at 21) As a result, this Court denied the FBI's motion for summary judgment without \nprejudice as to Exemption 7(A) because the FBI had not demonstrated that the disclosure of the \nrequested records would interfere with pending or prospective law enforcement proceedings. \nask at 18-25) \nThis Court also denied without prejudice the FBI's motion for summary judgment \nas to records withheld under Exemption 3 pursuant to the Juvenile Justice and Delinquency Act, \n18 U.S.C. § 5038, which shields the arrest information and criminal history of third-party \njuveniles, and Fed. R. Crim. P. 6(e), which shields matters occurring before the grand jury. (_0, \nat 26-31) \nFinally, this Court denied without prejudice the FBI's motion for summary \njudgment as to records withheld under Exemption 7(D) for the protection of information \nprovided under an explicit or implicit assurance of confidentiality, and for information provided \nby foreign agencies. (Id. at 4247) \nAs noted above, in the Summary Judgment Order, this Court directed the parties \nto submit a joint letter as to next steps, and to propose a \"schedule for the FBI's submission of \nrevised declarations, as well as any renewed motions for summary judgment.\" (W, at 54) After \nthe parties submitted a joint letter (Dkt. No. 52), this Court issued an October 3, 2023 order \nsetting a briefmg schedule for the parties' renewed cross-motions for summary judgment. (Dkt. \nNo. 53) \n5 \nEFTA00038656\n", "char_count": 1520}, {"efta_number": "EFTA00038652", "page_number": 5, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 6 of 20 \nOn January 30, 2024, the parties filed their renewed cross-motions for summary \njudgment. (Dkt. Nos. 56, 61) \nDISCUSSION \nI. \nLEGAL STANDARDS \nA. \nRule 56 standard \nSummary judgment is warranted where the moving party shows that \"there is no \ngenuine dispute as to any material fact\" and that it \"is entitled to judgment as a matter of law.\" \nFed. R. Civ. P. 56(a). \"A dispute about a `genuine issue' exists for summary judgment purposes \nwhere the evidence is such that a reasonable jury could decide in the non-movant's favor.\" \nBeyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). \"When no rational jury could find \nin favor of the nonmoving party because the evidence to support its case is so slight, there is no \ngenuine issue of material fact and a grant of summary judgment is proper.\" Gallo v. Prudential \nResidential Servs.. Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (citing Dister v. Cont'l Grp., \nInc., 859 F.2d 1108, 1114 (2d Cir. 1988)). \nIn deciding a summary judgment motion, the Court \"`resolve[s] all ambiguities, \nand =digs] all factual inferences that could rationally be drawn, in favor of the party opposing \nsummary judgment.\"' Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir. 2009) (quoting \nBrown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (internal quotation marks and citation \nomitted)). However, a 'party may not rely on mere speculation or conjecture as to the true \nnature of the facts to overcome a motion for summary judgment. . . . [M]ere conclusory \nallegations or denials ... cannot by themselves create a genuine issue of material fact where \nnone would otherwise exist.'\" Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (alterations in \noriginal) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)). \n6 \nEFTA00038657\n", "char_count": 1862}, {"efta_number": "EFTA00038652", "page_number": 6, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 7 of 20 \n\"The same standard[s] appl[y] where, as here, the parties file[] cross-motions for \nsummary judgment....\" Morales v. Ouintel Entm't. Inc., 249 F.3d 115, 121 (2d Cir. 2001). \n\"[W]hen both parties move for summary judgment, asserting the absence of any genuine issues \nof material fact, a court need not enter judgment for either party. Rather, each party's motion \nmust be examined on its own merits, and in each case all reasonable inferences must be drawn \nagainst the party whose motion is under consideration.\" Id. (internal citations omitted). \nB. \nSummary Judgment in FOIA Cases \n\"Summary judgment is the procedural vehicle by which most FOIA actions are \nresolved.\" Jones-Edwards v. Appeal Bd. of Nat. Sec. Agency Cent. Sec. Agency, 352 F. Supp. \n2d 420, 423 (S.D.N.Y. 2005). \"In order to prevail on a motion for summary judgment in a FOIA \ncase, the defending agency has the burden of showing that [1] its search was adequate[,] and [2] \nany withheld documents fall within an exemption to the FOIA.\" Carney v. U.S. Dept. of Justice \n19 F.3d 807, 812 (2d Cir. 1994). \nA government agency may sustain its burden through \"c[a]ffidavits or \ndeclarations [that] supply(' facts indicating that the agency has conducted a thorough search and \n[that] giv[e] reasonably detailed explanations why any withheld documents fall within an \nexemption.' Associated Press v. U.S. Dept. of Justice, 2007 WL 737476, at •3 (S.D.N.Y. Mar. \n7, 2007) (quoting Carney. 19 F.3d at 812); accord Garcia v. U.S. Dept. of Justice, Office of Info. \n& Privacy, 181 F. Supp. 2d 356, 366 (S.D.N.Y. 2002). m[T]he general rule in this Circuit is that \nin FOIA actions, agency affidavits alone will support a grant of summary judgment,' and Local \nCivil Rule 56.1 statements are not required.\" N.Y. Times Co. v. U.S. Dept. of Justice, 872 F. \nSupp. 2d 309, 314 (S.D.N.Y. 2012) (quoting Ferguson v. FBI 1995 WL 329307, at •2 (S.D.N.Y. \n7 \nEFTA00038658\n", "char_count": 1986}, {"efta_number": "EFTA00038652", "page_number": 7, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 8 of 20 \nJune 1, 1995), afFcl, 83 F.3d 41 (2d Cir. 1996)). \"Affidavits submitted by an agency are \npresumed to have been made in good faith.\" Garcia, 181 F. Supp. 2d at 366. \n\"[D]iscovery relating to the agency's search and the exemptions it claims for \nwithholding records generally is unnecessary if the agency's submissions are adequate on their \nface.\" Carney, 19 F.3d at 812. \"A district court ... may grant summary judgment in favor of an \nagency `on the basis of agency affidavits if they contain reasonable specificity of detail rather \nthan merely conclusory statements, and if they are not called into question by contradictory \nevidence in the record or by evidence of agency bad faith.\"' Grand Cent. P'ship. Inc. v. Cuomo \n166 F.3d 473, 478 (2d Cir. 1999) (emphasis in original) (quoting Gallant v. N.L.R.B., 26 F.3d \n168, 171 (D.C. Cir. 1994)). A plaintiff may avoid summary judgment and obtain discovery \nwhere, \"once the agency has satisfied its burden, the plaintiff ... make[s] a showing of bad faith \non the part of the agency ... or provide[s] some tangible evidence that an exemption claimed by \nthe agency should not apply.\" Conti v. U.S. Dept. of Homeland Sec., 2014 WL 1274517, at \"10 \n(S.D.N.Y. Mar. 24, 2014). \nII. \nFOIA EXEMPTION 7fAl \nThe FBI again argues that all of the withheld records responsive to Plaintiffs' \nFOIA request were properly withheld under Exemption 7(A) to FOIA. (Sc..\n Def. Br. (Dkt. No. \n57) at 10-21; Second Comey Decl. (Dkt. No. 47); Third Comey Decl. (Dkt. No. 59)) Plaintiff \nresponds that the FBI's declarations do not link any of the document categories to potential \nharms. (Phi Br. (Dkt. No. 62) at 3-4) According to Plaintiffs, \"[w]hile [the FBI declarations] \nnow divided the material at issue into a greater number of categories, [they] offerd nothing to \nsubstantiate how releasing records within that category will likely result in harm.\" U at 3 \n(emphasis in original)) \n8 \nEFTA00038\n... [truncated, 2004 chars — for the full page use /api/corpus/document/EFTA00038652/7 or ?id=EFTA00038652&page=7]", "char_count": 2004}, {"efta_number": "EFTA00038652", "page_number": 8, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 9 of 20 \nA. \nApplicable Law \nExemption 7(A) to FOIA permits government agencies to withhold \"records or \ninformation compiled for law enforcement purposes\" where \"the production of such law \nenforcement records or information ... could reasonably be expected to interfere with \nenforcement proceedings.\" 5 U.S.C. § 552(bX7)(A). \"This exemption 'prevent[s] harm to the \ngovernment's case in court by not allowing litigants earlier or greater access to agency \ninvestigatory files than they would otherwise have.' N.Y. Times Co. v. United States Dept. of \nJustice, 2016 WL 5946711, at *7 (S.D.N.Y. Aug. 18, 2016) (quoting Conti, 2014 WL 1274517, \nat *22). \"Mt' the exemption applies, it `will justify denial of release, not only to the objects of \nthe investigation and any pending or prospective enforcement actions, but to third parties as \nwell.' Stein v. U.S. Sec. & Exch. Comm'n, 2017 WL 3141903, at *11 (D.D.C. July 24, 2017) \n(quoting Kanter v. IRS, 433 F. Supp. 812, 817 (N.D. Ill. 1977)). \nIn order to demonstrate that Exemption 7(A) applies, the government must show \nthat (1) \"the requested records were compiled for law enforcement purposes,\" Local 32B-32J, \nServ. Employees Int'l Union, AFL-CIO v. Gen. Servs. Admin. 1998 WL 726000, at *7 \n(S.D.N.Y. Oct. 15, 1998) (internal quotation marks omitted); (2) \"a law enforcement proceeding \nis pending or prospective,\" Amnesty Int'l USA v. C.I.A. 728 F. Supp. 2d 479, 525 (S.D.N.Y. \n2010); and (3) \"release of the information could reasonably be expected to cause some \narticulable harm.\" Id. \n\"[A]lthough [courts] give deference to an agency's predictive judgment of the \nharm that will result from disclosure of information, it is not sufficient for the agency to simply \nassert that disclosure will interfere with enforcement proceedings; it must rather demonstrate \nhow disclosure will do so.\" Stein, 2017 WL 3141903, at *9 (quoting Citizens for Responsibility \n9 \nEFTA00038660\n", "char_count": 1993}, {"efta_number": "EFTA00038652", "page_number": 9, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 10 of 20 \n& Ethics in Wash. v. U.S. Dept. of Justice (\"CREW I\") 746 F.3d 1082, 1096 (D.C. Cir. 2014)) \n(emphasis in CREW I). \"Ultimately, the government must `allow[ the court to trace a rational \nlink between the nature of the document and the alleged likely interference.\"' N.Y. Times Co., \n2016 WL 5946711, at *7 (quoting Ctr. for Nat'l Sec. Studies v. U.S. Dept. of Justice, 331 F.3d \n918, 940 (D.C. Cir. 2003)). \nB. \nInterference with Law Enforcement Proceedings \nand the Applicability of Exemption 7(A) \nThe FBI contends that \"the records responsive to the FOIA requests withheld in \nfull or in part . \n[a]ll. . . fall within the scope of Exemption 7(A)\" (Third Comey Decl. (Dkt. \nNo. 59)1i 11), because their \"public disclosure ... could reasonably be expected to interfere with \nthe pending prosecution of [Ghislaine] Maxwell.\" all 12) \nIn previously denying the FBI summary judgment as to the applicability of \nExemption 7(A), this Court noted that (1) the Seidel and Comey Declarations submitted in \nsupport of this request categorized the documents at issue inconsistently; and (2) \"the FBI has \nnot explicitly linked any of the document categories .. . to the four types of potential harm cited \nin the [First] Comey declaration.\" (Summary Judgment Order (Dkt. No. 51) at 21) \nThe First Comey Declaration grouped the responsive records sought by Plaintiffs \nand withheld by the FBI into three categories: (1) \"[i]nterview forms, reports and notes ... of \ninterviews with individuals, including victims\"; (2) \"Federal Grand Jury Subpoenas and \nSubpoenaed information\"; and (3) \"documents provided by state and local law enforcement \nagencies, \nbackground information for witnesses . . . and subjects for the investigation[,] \ncommunications within the FBI [and between the FBI and other agencies] regarding the \ninvestigation[,] organizational documents, ... the sources from and techniques through which \n10 \nEFTA00038661\n\n\n[═══ TRAN\n... [truncated, 4107 chars — for the full page use /api/corpus/document/EFTA00038652/9 or ?id=EFTA00038652&page=9]", "char_count": 4107}, {"efta_number": "EFTA00038652", "page_number": 10, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 11 of 20 \nsuch information and evidence was gathered[,] ... the methods used to analyze the information \nand evidence, ... and the focus of the investigation.\" (First Comey Decl. (Dkt. No. 39) ¶ 11) \nThe First Seidel Declaration — on the other hand — speaks of nine \"types of \nresponsive recordss3 and three \"functional categories of information\": \n(1) \"Evidentiary/Investigative Materials,\" including \"confidential witness statements\" and \n\"information exchanged between the FBI and its local law enforcement partners\"; \n(2) \"Administrative [M]aterials,\" including internal agency \"reporting communications\" \npertaining to an investigation, and other \"standardized forms used for a variety of purposes\"; and \n(3) \"public source material,\" including news articles and court transcripts which have already \nbeen \"released ... to Plaintiffs.\" (First Seidel Decl. (Dkt. No. 50) ¶¶ 58-68 (capitalization \naltered)) This Court pointed out that \"[t]he document categories in the [First] Seidel \n[D]eclaration and in the [First] Comey Declaration do not match, and documents falling within \neach of the Comey categories likely span multiple categories described by Seidel.\" (Summary \nJudgment Order (Dkt. No. 51) at 21) \nThe FBI now relies on the First Seidel Declaration's three \"functional categories \nof information\" — (1) Evidentiary/Investigative materials, (2) Administrative Materials, and (3) \nPublic Source/Non-Investigative Harm. (First Seidel Decl. (Dkt. No. 50) ¶ 59) — and the Third \nComey Declaration submitted in support of the FBI's instant motion adopts the same \ncategorization. (See Third Comey Decl. (Dkt. No. 59) 13) With the Government's \n3 (1) \"FD-1057 - Electronic Communication\"; (2) \"Interview Forms (FD-302)\"; (3) \n\"Handwritten Interview Notes\"; (4) \"State and Local Law Enforcement Documents\"; \n(5) \"Documents Implementing Sensitive Investigative Techniques\"; (6) \"Federal Grand \nJury Subpoenas/Subpoenaed Information\"; (7) \n... [truncated, 4294 chars — for the full page use /api/corpus/document/EFTA00038652/10 or ?id=EFTA00038652&page=10]", "char_count": 4294}, {"efta_number": "EFTA00038652", "page_number": 11, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 12 of 20 \ncategorization of responsive documents now consistent, this Court can move on to consider \nwhether the FBI has linked these document categories to potential harms and explained how \nthose harms could \"reasonably be expected to interfere with enforcement proceedings.\" 5 U.S.C. \n§ 552(b)(7)(A). \nAs to the harm that would result from disclosure, the FBI notes that \"the Maxwell \ncriminal prosecution is still pending on appeal,\" and \"Ulf the Second Circuit grants Maxwell the \nrelief she seeks, there could be a new trial.\" (Third Comey Decl. (Dkt. No. 59) ¶ 12) \nAccordingly, \"public disclosure of the FBI's records relating to the investigation and prosecution \nof Epstein that were withheld in full or in part under Exemption 7(A) could reasonably be \nexpected to interfere with the pending prosecution of Maxwell.\" (11) \nAs discussed below, in the FBI's revised declarations filed in support of the \ninstant motion, the Bureau now lists the potential harms that may arise from public disclosure, \nand does so as to each category of documents. \nThe first category of documents — Evidentiary/Investigative Materials — \"includes \ncopies of records or evidence, analysis of that evidence, and derivative communications \nsummarizing or otherwise referencing evidence.\" (Third Comey Decl. (Dkt. No. 59) 1 14) This \ncategory includes business records and \"documents and evidence provided by witnesses to law \nenforcement,\" as well as information regarding those witnesses. ads) \nThe second category of documents — Administrative Materials — consists of \ninternal communications among investigators within the FBI providing updates \nregarding the status of the investigation, including witness interviews and \ndiscussion of evidence gathered during the investigation; communications \nbetween the FBI and other government agencies regarding the investigation; \ngrand jury subpoenas identifying the names of witnesses and documents sought \ndu\n... [truncated, 2174 chars — for the full page use /api/corpus/document/EFTA00038652/11 or ?id=EFTA00038652&page=11]", "char_count": 2174}, {"efta_number": "EFTA00038652", "page_number": 12, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 13 of 20 \ncover sheets, transmittal forms, and letter routing slips, some of which contain the \nnames of witnesses, including victim-witnesses, and subjects of the investigation. \n(al 15) \nAs for the harm that would result from disclosure of the Evidentiary/Investigative \nMaterials and the Administrative Materials, the FBI states that disclosure would (1) impact \nwitness testimony, (2) impact witnesses' willingness to testify, (3) prejudice the jury pool \"so as \nto hinder the Government's ability to present its case in court,\"4 (4) provide Maxwell with \ngreater access \"to the investigatory files than she would otherwise have during the criminal \n4 In connection with its previous summary judgment motion, the FBI described the harm that \nwould result from disclosure as \"impair[ing] the Government's (and the defendant's) ability to \nseat a fair and impartial jury in Maxwell.\" (First Comey Decl. (Dkt. No. 39)11 17-19) In \ndenying the FBI's motion as to Exemption 7(A), this Court noted that \"the FBI's concerns \nregarding the effects of disclosure on jury impartiality are properly raised under Exemption 7(B), \nand not under Exemption 7(A).\" (Summary Judgment Order (Dkt. No. 51) at 22 n.10) \n\"Exemption 7(B) applies ... when the disclosure of law enforcement records would deprive a \nperson of the right to 'a fair trial or an impartial adjudication[,]' ... [and] the word `trial' means \nthe ultimate determination of factual and legal claims by judge or jury in a judicial proceeding.\" \nChiquita Brands Int'l Inc. v. S.E.C., 805 F.3d 289, 295 (D.C. Cir. 2015) (quoting 5 U.S.C. § \n5520X70)); M km Washington Post Co. v. U.S. Den't of Just., 863 F.2d 96, 101 (D.C. Cir. \n1988) (\"The exemption[] ... was meant to prevent disclosures from conferring an unfair \nadvantage upon one party to an adversary proceeding or leading to prejudicial publicity in \npending cases that might inflame jurors or distort administrative judgment.\"). \nIn\n... [truncated, 3018 chars — for the full page use /api/corpus/document/EFTA00038652/12 or ?id=EFTA00038652&page=12]", "char_count": 3018}, {"efta_number": "EFTA00038652", "page_number": 13, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 14 of 20 \ndiscovery process,\" and (5) violate the Protective Order entered in the underlying case. (a.% \n14(a)-(e), 15(a)-(d)) \nIn response, Plaintiffs renew their argument that the FBI has not linked the \ndocument categories to any potential harm. (Pkf. Br. (Dkt. No. 62) at 3) According to Plaintiffs, \n\"the FBI insists that these are simply the kinds of documents that would tend to cause harm if \nreleased, without engaging the reality on the ground that the target of the investigation has seen \nmillions of records and was convicted in one of the most high-profile trials in U.S. history.\" 0j) \nPlaintiffs also point out that \"there is no new substantive factual information offered\" in the \nrevised declarations or the FBI's current motion for summary judgment. adj \nThe standard for application of Exemption 7(A) is not whether the \"target of the \ninvestigation has seen millions of records,\" however, or whether an agency has proffered \n\"substantive factual information\" in support of a claimed exemption. Instead, an agency \"must \nexplain to the court how the release of each category would interfere with enforcement \nproceedings.\" Tipograph v. Dept of Just., 83 F. Supp. 3d 234, 239 (D.D.C. 2015) (quoting \nBevis v. Dep't of State 801 F.2d 1386, 1389-90 (D.C.Cir. 1986)). \"The agency need not justify \nthe withholding of each document with specific facts,\" however. Robbins Geller Rudman & \nDowd LLP v. United States Sec. & Exch. Comm'n, 419 F. Supp. 3d 523, 530 (E.D.N.Y. 2019). \nInstead, the agency need only make a showing that \"allow[s] the court to be able to `trace a \nrational link between the nature of the document and the alleged likely interference?\" Id. \n(quoting N.Y. Times Co., 2016 WL 5946711, at *7). \nThe FBI has met that burden here. Unlike in its previous motion ( e Summary \nJudgment Order (Dkt. No. 51) at 22-23), the FBI has described the contents of each category and \nlinked specific harms that would result f\n... [truncated, 2069 chars — for the full page use /api/corpus/document/EFTA00038652/13 or ?id=EFTA00038652&page=13]", "char_count": 2069}, {"efta_number": "EFTA00038652", "page_number": 14, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 15 of 20 \ncategory. For example, the FBI has explained that public disclosure of the \nEvidentiary/Investigative Materials \"could influence the testimony of witnesses by providing the \nopportunity for witnesses to shape their testimony to conform with other evidence gathered \nduring the investigation, including both records and witness statements.\" (Third Comey Decl. \n(Dkt. No. 59) ¶ 14(a)) Disclosure of the Evidentiary/Investigative Materials could also have a \nchilling effect on witnesses because \"Mhe public release of this information could lead to the \nidentification and intimidation of witnesses, who may decline to cooperate with the parties and \nbe disinclined to testify if their personal information is released to the public.\" (&l. ¶ 14(b)) \nPublic disclosure could also cause unfair prejudice to the Government at a retrial, based on the \nfact that certain documents were available to the Government but not offered at the first trial. \nFinally, public disclosure would provide Maxwell with greater access to investigatory materials \nthan she would otherwise have. a ¶¶ 14(c)-(e), 15(a)-(d)) \n\"Ultimately, an agency's justification for invoking a FOIA exemption is sufficient \nif it appears logical or plausible.\" Larson v. Dev't of State 565 F.3d 857, 862 (D.C. Cir. 2009) \n(internal citation and quotations omitted). Given the information contained within each category, \nand the potential harm that could result from public disclosure — as described in the Second \nSeidel Declaration and the Third Comey Declaration — the FBI has adequately demonstrated the \nnecessary logical and plausible connection between disclosure and harm. \nPlaintiffs argue, however, that \n(1) much of the evidence is already the subject of public record from the prior \ntrial and other civil proceedings; (2) much of the evidence is otherwise in the \npublic domain; and (3) the government makes no effort to segregate this material \nor particularize\n... [truncated, 2121 chars — for the full page use /api/corpus/document/EFTA00038652/14 or ?id=EFTA00038652&page=14]", "char_count": 2121}, {"efta_number": "EFTA00038652", "page_number": 15, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 16 of 20 \nThe FBI has explained, however, that the exhibits admitted at trial \"represent a \nsmall fraction of the documents contained in [the Evidentiary/Investigative Materials] category.\" \nThe Government further represents that it \"has made available to the press upon request copies \nof all publicly admitted exhibits from the trial\" and is willing to \"provide a copy of those \npublicly filed exhibits to the Plaintiffs upon request.\" (Third Comey Decl. (Dkt. No. 59)11 14(f)) \nIn connection with the instant FOIA application, the FBI has also reviewed responsive records \n\"on a document-by-document basis\" (Second Seidel Decl. (Mt. No. 58) at 2) and has separated \n\"publicly available news reporting and other open source materials that are already accessible \nonline through public sources\" into a third category that \"ha[s] already been produced to \nPlaintiffs.\" (Third Comey Decl. (Dkt. No. 59)1116) Finally, \"an agency may satisfy its burden \nof proof `by grouping documents in categories and offering generic reasons for withholding the \ndocuments in each category.' CREW I.746 F.3d at 1098 (quoting Maydak, 218 F.3d at 765). \nWhere an agency \nwishes to adopt the generic approach, [it] has a three-fold task. First, it must \ndefine its categories functionally. Second, it must conduct a document-by-\ndocument review in order to assign documents to the proper category. Finally, it \nmust explain to the court how the release of each category would interfere with \nenforcement proceedings. \nj4, 746 F.3d at 1098 (quoting Bevis, 801 F.2d at 1389-90). As discussed above, the FBI has \n\"defined its categories fimctionally\"; it has performed \"a document-by-document review in order \nto assign documents to the proper category\"; and it has explained how the disclosure of each \ncategory would interfere with enforcement proceedings. \nIn connection with the harm element, the FBI has explained that the public \ndisclosure of the materials at \n... [truncated, 2269 chars — for the full page use /api/corpus/document/EFTA00038652/15 or ?id=EFTA00038652&page=15]", "char_count": 2269}, {"efta_number": "EFTA00038652", "page_number": 16, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 17 of 20 \nunder Exemption 7(A) [where] . . . `[p]ublic disclosure of information could result in destruction \nof evidence, chilling and intimidation of witnesses, and revelation of the scope and nature of the \nGovernment's investigation.' Tipograph, 83 F. Supp. 3d at 239 (quoting Solar Sources. Inc. v. \nUnited States, 142 F.3d 1033, 1039 (7th Cir. 1998)). Indeed, \"Exemption 7 was designed to \nprevent harm to the government's case in court by not allowing litigants earlier or greater access \nto agency investigatory files than they would otherwise have.\" oC nti, 2014 WL 1274517, at *22 \n(citing Robbins Tire & Rubber Co., 437 U.S. at 224-25); see also New York Times, 2016 WL \n5946711, at 4'13 (\"Such explanations are sufficient to establish that the withholdings conceal \nrecords compiled for law enforcement purposes that disclose techniques and procedures for law \nenforcement investigations, and, therefore, justify nondisclosure.\"). \nThese paradigmatic harms are among the harms that the FBI now alleges would \nresult from disclosure of the Evidentiary/Investigative Materials and the Administrative \nMaterials. While the FBI previously failed to link these potential harms to each document \ncategory, it has now done so. There is no need for the FBI to further \"particularize how the \nexposure of this material would influence witness testimony.\" (PItt Br. (Dkt. No. 62) at 3) \n\"[T]he record establishes that the release of the requested information could reasonably be \nexpected to cause articulable harm.\" Cui v. Fed. Bureau of Investigation 551 F. Supp. 3d 4, 24 \n(E.D.N.Y. 2021) \nThis Court concludes that \"[t]he [revised] declarations provide[] sufficient detail \nfor the Court to trace a rational link between the information contained in the records and the \npotential interference with law enforcement proceedings,\" id. at 24, and the FBI has thus met its \nburden for withholding disclosure of the records under Exemption 7(A)\n... [truncated, 2039 chars — for the full page use /api/corpus/document/EFTA00038652/16 or ?id=EFTA00038652&page=16]", "char_count": 2039}, {"efta_number": "EFTA00038652", "page_number": 17, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 18 of 20 \n7(A) continues to be accerted to protect all redacted information,\" (Second Seidel Decl. (Dkt. No. \n58)1 8), this Court need not evaluate the applicability of the other Exemptions. \nSEGREGABILITY \n\"FOIA \n. provides that [a]ny reasonably segregable portion of a record shall be \nprovided to any person requesting such record after deletion of the portions which are exempt.' \nConti, 2014 WL 1274517, at *25 (quoting 5 U.S.C. § 552(6)). \"[T]he agency must provide a \ndetailed justification for its decision that non-exempt material is not segregable,\" but \"is entitled \nto a presumption that it complied with its obligation to disclose reasonably segregable material.\" \nId. (citing Mead Data Cent., Inc. v. U.S. Dept. of Air Force 566 F.2d 242, 261 (D.C. Cir. 1977)). \n\"[T]o justify withholding an entire document[,] the DOJ ... must demonstrate that [it] cannot \ndelineate between exempt and non-exempt information therein.\" Avvad v. U.S. Dept. of Justice \n2002 WL 654133, at *2 (S.D.N.Y. Apr. 18, 2002). \nHere, the FBI states that it has reviewed responsive records on a \"document-by-\ndocument basis\" and conducted a segregability review concerning 11,571 responsive pages. \n(Second Seidel Decl. (Dkt. No. 58) at 2, 20-21). The FBI further represents that \"to the extent \nthere is non-exempt information contained in the records withheld under Exemption 7(A), that \ninformation is intertwined with exempt information and cannot reasonably be segregated without \nrisking interference with the Maxwell prosecution, referencing the harms described \n[previously].\" (Def. Br. (Dkt. No. 57) at 30; Third Comey Decl. (Dkt. No. 59) ¶ 17) According \nto the FBI, \"[t]he media coverage of speculation and theories about Maxwell's association with \nEpstein makes the segregation of any possibly non-exempt information particularly difficult \nbecause providing information pertaining to Epstein without complete context can reasonably be \n18 \nEFTA0\n... [truncated, 2008 chars — for the full page use /api/corpus/document/EFTA00038652/17 or ?id=EFTA00038652&page=17]", "char_count": 2008}, {"efta_number": "EFTA00038652", "page_number": 18, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 19 of 20 \nexpected to contribute to the dissemination of speculation and theories about the Maxwell case.\" \n(Third Comey Decl. (Dkt. No. 59) ¶ 17) \n\"An agency's explanation that records are exempt in their entirety is sufficient to \nsatisfy its segregability obligations with respect to the documents withheld under Exemption \n7(A).\" New York Times Co. v. United States Dep't of Just., 390 F. Supp. 3d 499, 519 (S.D.N.Y. \n2019); Stein v. U.S. Sec. & Exch. Comm'n 266 F. Supp. 3d 326, 353 (D.D.C. 2017) (\"[T]he \nSEC has sufficiently described two categories of documents that it has withheld under \nExemption 7(A) in their entirety, and explained that it is not possible to segregate non-exempt \ninformation from these documents, except as the Court has described above. This is sufficient to \nsatisfy the agency's segregability obligations with respect to the documents withheld under \nExemption 7(A).\"); Dillon v. Dep't of Just., 102 F. Supp. 3d 272, 298 (D.D.C. 2015) (concluding \nthat the FBI satisfied its segregability obligation under FOIA by stating that it had \"carefully \nreviewed the material withheld\" and explained that \"segregability is not possible because [the \nrecords] are exempt from disclosure [in their entirety] pursuant to Exemption 7(A)\" (second \nalteration in original)). This Court concludes that the FBI has satisfied its segregability burden \nwith respect to the documents withheld in full under Exemption 7(A). \n19 \nEFTA00038670\n", "char_count": 1512}, {"efta_number": "EFTA00038652", "page_number": 19, "text_content": "Case 1:17-cv-03956-PGG Document 64 Filed 06/25/24 Page 20 of 20 \nCONCLUSION \nFor the reasons stated above, Defendant's motion for summary judgment (Dkt. \nNo. 56) is granted, and Plaintiffs' cross-motion for summary judgment (Dkt. No. 61) is denied. \nThe Clerk of Court is directed to terminate the motions (Dkt. Nos. 56, 61) and to \nclose this case. \nDated: New York, New York \nJune 25, 2024 \nSO ORDERED. \nPJ 4 x.d,,,i6A \nPaul G. Gardephe \nUnited States District Judge \n20 \nEFTA00038671\n", "char_count": 487}]}