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FOIA exemptions in the FBI's Epstein records

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tagstopic, foia, fbi, department-of-justice, document-release

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StatuteFreedom of Information Act, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a1
Responding componentFBI Record/Information Dissemination Section, 170 Marcel Drive, Winchester, Virginia23
Requesters in the documents cited hereJames Robertson of The National Enquirer, April 2017; Daniel Novack on behalf of Radar Online; Boies Schiller Flexner LLP, February 2015214
Correspondence run cited hereA run of FBI letters dated April 28, 2017 to January 31, 2020, filed as exhibits in the Radar Online suit2567
Exemptions checked on the letter of October 11, 2017(b)(3), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), (b)(7)(E)1
Exemptions checked on the letter of August 1, 2019(b)(3), (b)(6), (b)(7)(A), (b)(7)(B), (b)(7)(C), (b)(7)(D)8
FOIA suits named in these documentsRadar Online LLC and James Robertson v. Federal Bureau of Investigation, Civil Action No. 1:17-cv-03956-PGG (S.D.N.Y.)7; Clemente v. FBI, No. 20-cv-15279
Release under the 2025 statuteGoverned separately by the Epstein Files Transparency Act, not by these exemptions

Before the Epstein Files Transparency Act of 2025, access to the federal Epstein files ran through the Freedom of Information Act. This page is about one part of that record: what the FBI told two media requesters and a law firm it was withholding, and on what statutory grounds, as set out in its own response letters between 2017 and 2020, and what its internal correspondence of 2020 records about how one field office said it was applying exemptions to FOIA requests generally at that time.

Three things have to be kept apart on a page like this, and the documents support only the first two. What an agency said it was withholding is established by its letters. What it actually withheld is not, because the withheld pages are not in these documents. What a released document shows is a third question again, answered only by that document.

The requests

The FBI acknowledged a request from James Robertson of The National Enquirer on April 28, 2017, on a form letter under the subject “EPSTEIN, JEFFREY”. The letter records that the request came in through the FBI’s eFOIA system, and the checked box on it is the second of two: “We have reviewed your request and determined that it is not in compliance with the terms and conditions of the eFOIA system. Future correspondence will be mailed to you.”2

The same letter sets out the Bureau’s standard position on records about third parties. A requester seeking them must supply one of three things: authorization and consent from the individual, proof of death, or “a justification that the public interest in disclosure outweighs personal privacy interests”. Without one of them, the letter says, “the FBI can neither confirm nor deny the existence of any records responsive to your request, which, if they were to exist, would be exempt from disclosure pursuant to FOIA Exemptions (b)(6) and (b)(7)(C)”.2

Two years earlier, on February 26, 2015, Boies Schiller Flexner LLP had written to the Federal Bureau of Investigation, addressing the letter to the Record/Information Dissemination Section and to a second Bureau address, and seeking materials said to have been recovered from five numbered Epstein residences (three of them legible on the sheets cited here and two blacked out) over the period June 1999 to December 2002.104 The attribution to the firm rests on the letterhead and the reference initials “SSM” carried on the second sheet, not on a signature: the signature block is blacked out and neither sheet cited here names the letter’s author.4 The client on whose behalf the request was made is redacted throughout the letter and is not identified here. On exemptions the letter asks that “[i]f our request is denied in whole or in part, we ask that you justify all deletions by reference to specific exemptions in the act”, and states the expectation “that you will release all segregable portions of otherwise exempt material”.4

What the letters say the Bureau withheld

The FBI’s substantive responses to Daniel Novack, acting for Radar Online, are form letters with a grid of checkboxes, one per exemption. Most of them also carry a line stating how many pages were reviewed and how many released.

On the first of them, dated October 11, 2017, the checked boxes are (b)(3), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D) and (b)(7)(E). Against (b)(3), which covers information exempted by other statutes, the letter writes in two authorities: “18 U. S. C. Section 3059(d)” and “Federal Rules of Criminal Procedure Rule 6(e)”, the grand jury secrecy rule. No box in the Privacy Act column is checked.1

The letter of August 1, 2019 is differently framed. Rather than reporting a partial release it states a determination: “The FBI determined the information is exempt from disclosure pursuant to FOIA Exemptions (b)(7)(A), (b)(7)(B), and also asserted the exemptions indicated below as additional grounds for withholding the information.” The boxes checked below are (b)(3), (b)(6), (b)(7)(A), (b)(7)(B), (b)(7)(C) and (b)(7)(D), and the statute written against (b)(3) is “18 U.S.C. Section 3509(d)”.8 The two letters print that section number differently, one digit apart, and each is quoted here as it appears on its own page.

Exemption (b)(7)(B) is checked on the 2019 letter and not on the 2017 one. The Explanation of Exemptions enclosed with these letters describes it as covering law enforcement records whose production “would deprive a person of a right to a fair trial or an impartial adjudication”.11

On the letter of December 1, 2017 the Bureau also checked that documents were located which originated with or contained information concerning another Government Agency, and, of the two sub-boxes, checked the one reading “We are consulting with another agency”, not the one recording a referral.12

The signature block closing the letter of October 11, 2017 is blacked out.13

The letters also carry a notice about material the statute puts outside FOIA altogether: “Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA”, citing 5 U.S.C. § 552(c), followed by the sentence that governs how the notice may be read. “This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist.”13

The monthly counts

Twenty-one of the letters state how many pages the Bureau reviewed and how many it released. The figures below are read from the page images.5

LetterPages reviewedPages released
October 11, 201729638
November 1, 201752725
December 1, 201756294
January 2, 201855638
February 1, 20185250
March 1, 20185278
March 30, 20185200
May 1, 20185670
June 1, 20185740
July 2, 20185470
August 1, 20185260
August 31, 2018508160
September 28, 20185320
October 31, 2018500174
November 30, 20185187
December 28, 20185194
March 1, 2019574209
April 1, 2019515232
May 1, 201954065
May 31, 201951912
June 28, 2019527107

Seven of the twenty-one letters released nothing at all. The reviewed figures are not to be added together, and the Bureau’s own numbering says why. The second page of the October 11, 2017 letter, the first row in this table, states that its enclosures represent “the first interim release of information responsive to your April 21, 2017 Freedom of Information Act (FOIA) request” and that “duplicate copies of the same document were not processed”.13 The second page of the June 28, 2019 letter, the last row in this table, makes the parallel statement for “the twenty-first interim release” of the same request.14 So the twenty-one tabulated letters are consecutive interim releases of one FOIA request, not independent samples, and within each release a duplicate copy was not counted twice. Whether a page reviewed in one interim release could recur in a later one is not addressed by either statement, and the documents cited here do not reach it. The last letter in the run, of January 31, 2020, gives no review figure and states only that “46 pages are being released”.6

Between the last tabulated letter and that final one, the run changes shape. The letters of August 30, October 1, November 1, November 27 and December 31, 2019 open with the same kind of determination as the August 1, 2019 letter described above, each stating that the FBI determined the information exempt from disclosure under FOIA Exemption (b)(7)(A) and asserting the other checked exemptions as additional grounds for withholding.15 Like the August 1 letter, none of these five carries a review or release figure. So August 1, 2019 is not a single variation inside a run of partial releases; it is the point where the run stops reporting reviewed and released pages and stays that way for five months, before the final letter releases 46 pages.

The watch list response

On the October 11, 2017 letter, and again on the letter of August 1, 2019, the Bureau checked a box reading: “In accordance with standard FBI practice and pursuant to FOIA exemption (b)(7)(E) and Privacy Act exemption (j)(2) [5 U.S.C. § 552/552a (b)(7)(E)/(j)(2)], this response neither confirms nor denies the existence of your subject’s name on any watch lists.”18 It is a standard form response and the letters say so on their face. It establishes what the Bureau said, and nothing about whether any such record exists.

What the internal correspondence records

Three FBI email threads of August and September 2020 show the FOIA unit at Winchester asking field offices whether responsive files could be processed, and the answers it got. Each carries a SECRET classification banner stamped on the email traffic itself (“Derived From: FBI NSICG”), a derivative marking on that traffic rather than a classification of the investigative material discussed in it.3916

On August 11, 2020 a Government Information Specialist wrote to the Miami field office about file 31E-MM-108062, found responsive to a request whose subject was Jeffrey Epstein, asking the four standard questions the unit puts on a pending case: the status of the investigation, whether the requester could be told it was pending, whether the file held releasable material, and whether the subject had been interviewed. The reply, on August 17, came from the Palm Beach County Resident Agency: “This case is being actively investigated by the New York Office and I am unable to answer the below cases.”3

A parallel thread of August 11 concerned serials of a pending control file, and carries the sentence that names the suit driving the deadline. A redaction box covers the request number, and the sentence resumes: “part of a litigation (Clemente v. FBI, 20-cv-1527), so a response by August 18, 2020 would be greatly appreciated.”9

In September the Section asked New York directly, this time from its Litigation Support Unit rather than the Work Process Unit that had written to Miami.1716 Its request of September 4, 2020, subject “20-cv-1527 - Pending FOIA”, opens with a banner printed in red: “**LITIGATION EXPEDITE This is a litigation matter pending in Federal District Court. So the FBI can meet its upcoming Court deadline, your response to this communication is required on or before September 11, 2020**”. The banner is a heading printed above the request, carrying that request’s own court deadline.16

The answer came back on September 8, from a sender at FBI New York whose name is blacked out:

50D-NY-3027571 is an open and pending investigation regarding Epstein, Maxwell and his associates. Release of information, especially victim information could be harmful to the upcoming trial of Maxwell and pending investigation of others. We have been using b7a for all FOIA requests at the moment, so if we could continue to do so, that would be helpful.18

That is a field office asking the FOIA unit to keep applying one exemption across a class of requests. It is evidence of what the office asked for. Whether the unit did so, and what was withheld under (b)(7)(A) in any particular response, is not shown by this document.

The litigation

The correspondence run cited here was filed in litigation: the same letters were entered as a 134-page set of exhibits, each behind its own caption page, running from Exhibit A to Exhibit DD. The caption page of the last of them reads Radar Online LLC and James Robertson v. Federal Bureau of Investigation, Civil Action No. 1:17-cv-03956-PGG, in the Southern District of New York.7 The suit was already under way when the releases began. The second page of the first substantive letter, of October 11, 2017, reads: “Although your request is in litigation, we are required by 5 USC § 552 (a)(6)(A) to provide you the following information concerning your right to appeal.”13 The second page of the last letter, of January 31, 2020, directs further inquiries to “the Attorney representing the Government in this matter”.6

Clemente v. FBI, No. 20-cv-1527, named in the 2020 internal correspondence, is a different suit, and the two are not to be run together.9

Limits of this page

These documents are an administrative record of what the FBI said. They do not show what was in the pages it did not release, and the number of pages withheld in a given month is not evidence of what those pages contain. A checked exemption box is a legal ground asserted on a form; it is not a description of the material.

The exemptions on this page are the FOIA exemptions of 5 U.S.C. § 552. They are not the grounds available under the 2025 statute, which are enumerated separately and are the subject of the Act’s own page and of Document redaction integrity.

Names blacked out in these documents stay blacked out here, including the requesters’ addresses, the signature blocks on the FBI’s letters, and the client on whose behalf the 2015 request was made.

Epstein Files Transparency Act; Document redaction integrity; Withheld government records; Unsealing motions and media action; Legal privilege and Epstein material; Epstein investigations overview.

Footnotes

  1. FBI to the requester acting on behalf of Radar Online, October 11, 2017, subject “EPSTEIN, JEFFREY”. https://epstein-data.com/EFTA01325321 p.11. ↩ ↩2 ↩3 ↩4 ↩5

  2. FBI to the requester at The National Enquirer, April 28, 2017, subject “EPSTEIN, JEFFREY”, acknowledging a Freedom of Information Act request. https://epstein-data.com/EFTA01325321 p.6. ↩ ↩2 ↩3 ↩4 ↩5

  3. FBI internal email of August 17, 2020, 3:17 p.m. Eastern, replying to a Record/Information Dissemination Section request of August 11, 2020 concerning file 31E-MM-108062, over a sign-off reading “FBI Miami / Palm Beach County Resident Agency”. https://epstein-data.com/EFTA01683978 p.1. ↩ ↩2 ↩3

  4. Boies Schiller Flexner LLP to the Federal Bureau of Investigation, February 26, 2015, second page, carrying the firm’s letterhead across the head of the sheet, over a blacked-out signature block and the initials “SSM” at the foot; read from the page image at 300 dpi. https://epstein-data.com/EFTA01248965 p.3. Nothing else in that production is cited here except the first page of the same letter. ↩ ↩2 ↩3 ↩4

  5. The twenty-one FBI response letters that state review and release figures, dated October 11, 2017 to June 28, 2019. https://epstein-data.com/EFTA01325321 pp.11, 14, 17, 20, 23, 26, 29, 32, 35, 38, 41, 44, 47, 50, 53, 56, 59, 62, 65, 69 and 73. Each date and each pair of figures was read from the page image. ↩ ↩2

  6. FBI response letter of January 31, 2020, the last in the run. https://epstein-data.com/EFTA01325321 p.101, with its second page at p.102, which carries the direction to the Government’s attorney. ↩ ↩2 ↩3

  7. Exhibit cover page in Radar Online LLC and James Robertson v. Federal Bureau of Investigation, Civil Action No. 1:17-cv-03956-PGG (S.D.N.Y.). https://epstein-data.com/EFTA00024032 p.130. That page alone is cited here. ↩ ↩2 ↩3

  8. FBI response letter of August 1, 2019. https://epstein-data.com/EFTA01325321 p.77. ↩ ↩2 ↩3

  9. FBI internal email thread of August 11, 2020 concerning serials of a pending control file. https://epstein-data.com/EFTA01683762 p.3. ↩ ↩2 ↩3 ↩4

  10. Boies Schiller Flexner LLP to the Federal Bureau of Investigation, February 26, 2015, first page, addressed to the Record/Information Dissemination Section and to a second Federal Bureau of Investigation / Department of Justice address whose remaining lines are blacked out. The letterhead band at the head of this sheet is covered and the sheet carries no author name; read from the page image at 300 dpi. https://epstein-data.com/EFTA01248965 p.2. ↩

  11. “Explanation of Exemptions”, the sheet enclosed with each of these letters, setting out the subsections of 5 U.S.C. § 552 and § 552a. https://epstein-data.com/EFTA01325321 p.13. ↩

  12. FBI response letter of December 1, 2017. https://epstein-data.com/EFTA01325321 p.17. ↩

  13. FBI to the requester acting on behalf of Radar Online, October 11, 2017, second page, carrying the exclusions notice, the litigation and appeal paragraph, and a closing signature block that is blacked out. https://epstein-data.com/EFTA01325321 p.12. ↩ ↩2 ↩3 ↩4

  14. FBI response letter of June 28, 2019, second page, stating that its enclosures represent “the twenty-first interim release of information responsive to your April 21, 2017 FOIPA request” and that, “to minimize costs to you and the FBI, duplicate copies of the same document were not processed”. https://epstein-data.com/EFTA01325321 p.74. ↩

  15. FBI determination letters of August 30, October 1, November 1, November 27 and December 31, 2019, each stating that the FBI determined the information exempt from disclosure pursuant to FOIA Exemption (b)(7)(A) and also asserting the other exemptions checked on the form as additional grounds for withholding; none states a number of pages reviewed or released. https://epstein-data.com/EFTA01325321 pp.81, 85, 89, 93 and 97. ↩

  16. Record/Information Dissemination Section request of September 4, 2020, 10:38 a.m., subject “20-cv-1527 - Pending FOIA”. https://epstein-data.com/EFTA01683940 p.3. ↩ ↩2 ↩3

  17. Record/Information Dissemination Section request of August 11, 2020 to the Miami field office concerning file 31E-MM-108062, signed “PAE Government Information Specialist (GIS) / Work Process Unit”. https://epstein-data.com/EFTA01683978 p.2. ↩

  18. FBI New York to the Record/Information Dissemination Section, September 8, 2020, 12:06 p.m. Eastern, in a thread headed “20-cv-1527 - Pending FOIA”. The sender’s name is blacked out and only the office is legible. https://epstein-data.com/EFTA01683940 p.1. ↩

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