Author: CGM

Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK RADAR ONLINE LLC and JAMES ROBERTSON, Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, Defendant. Civil Action No. 1:17-cv-03956-PGG DECLARATION OF MICHAEL G. SEIDEL I, Michael G. Seidel, declare as follows: (1) I am the Section Chief of the Record/Information Dissemination Section ("RIDS"), Information Management Division ("IMD"), Federal Bureau of Investigation ("FBI"), Winchester, Virginia. I joined the FBI in September 2011, and prior to my current position, I was the Acting Section Chief from May 26, 2020 to July 26, 2020; Assistant Section Chief of RIDS from June 2016 to May 25, 2020; Unit Chief, RIDS Litigation Support Unit from November 2012 to June 2016; and an Assistant General Counsel, FBI Office of General Counsel, Freedom of Information Act ("FOIA") Litigation Unit, from September 2011 to November 2012. In those capacities, I had management oversight or agency counsel responsibility for FBI FOIA and Privacy Act ("FOIPA") litigation cases nationwide. Prior to my joining the FBI, I served as a Senior Attorney, U.S. Drug Enforcement Administration ("DEA") from September 2006 to September 2011, where among myriad legal responsibilities, I advised on FOIPA matters and served as agency counsel representing the DEA in FOIPA suits nationwide. I also served as a U.S. Army Judge Advocate General's Corps Officer in various assignments from 1994 to 1 EFTA00015219 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged September 2006 culminating in my assignment as Chief, General Litigation Branch, U.S. Army Litigation Division where I oversaw FOIPA litigation for the U.S. Army. I am an attorney registered in the State of Ohio and the District of Columbia. (2) In my official capacity as Section Chief of RIDS, I supervise approximately 237 FBI employees, supported by approximately 91 contractors, who staff a total of ten (10) FBI Headquarters ("FBIHQ") units and two (2) field operational service center units whose collective mission is to effectively plan, develop, direct, and manage responses to requests for access to FBI records and information pursuant to the FOIA as amended by the OPEN Government Act of 2007, the OPEN FOIA Act of 2009, and the FOIA Improvement Act of 2016; the Privacy Act of 1974; Executive Order 13,526; Presidential, Attorney General, and FBI policies and procedures; judicial decisions; and Presidential and Congressional directives. The statements contained in this declaration are based upon my personal knowledge, upon information provided to me in my official capacity, and upon conclusions and determinations reached and made in accordance therewith. (3) Because of the nature of my official duties, I am familiar with the procedures followed by the FBI in responding to requests for information from its files pursuant to the provisions of the FOIA, 5 U.S.C. § 552, and the Privacy Act of 1974, 5 U.S.C. § 552a. Specifically, I am aware of the FBI's handling of Plaintiff James Robertson's FOIA request for records related to the FBI's investigation and prosecution of financier Jeffrey Edward Epstein. In response to Plaintiff's request, the FBI processed on a document -by-document basis a total of 11,571 pages of responsive records. Of these pages, the FBI released 181 pages in full, released 1,051 pages in part, and withheld 10,339 pages in full for the following reasons: the information in those pages was exempt from disclosure pursuant to one or more applicable FOIA 2 EFTA00015220 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged Exemption(s); the pages were found to be duplicative of other pages accounted for elsewhere in the FBI's production; and/or the pages are sealed pursuant to United States Court order and thus unavailable for release through the FOIA. In addition to the 11,571 processed pages, the FBI also categorically withheld additional records pursuant to Exemption 7(A). See infra FN 7. (4) In accordance with Vaughn v. Rosen, 424 F.2d 820 (D.C. Cir. 1973), this declaration is being submitted in support of Defendant's motion for summary judgment, and provides the Court with a summary of the administrative history of Plaintiff's request; the procedures used to search for, review, and process responsive records; the FBI's justification for withholding information in part or in full pursuant to FOIA Exemptions 3, 5, 6, 7(A), 7(C), 7(D), and 7(E), 5 U.S.C. §§ 552(b)(3), (b)(5), (b)(6), (b)(7)(A), (bX7)(C), (b)(7)(D), and (b)(7)(E); and the FBI's procedures for reviewing records that were categorically exempt pursuant to Exemption (7)(A). BACKGROUND INFORMATION CONCERNING JEFFREY EDWARD EPSTEIN (5) In June 2008, Jeffrey Epstein pled guilty to a criminal charge of procuring prostitution of a minor. Epstein served 13 months of his 18-month sentence. On July 2, 2019, Jeffrey Epstein was indicted by a federal grand jury in the United States District Court for the Southern District of New York on one count of conspiracy to commit sex trafficking, in violation of 18 U.S.C. § 371, and one count of sex trafficking, in violation of 18 U.S.C. §§ 1591(a), (b)(2), and 2. United States v. Epstein, No. 19 Cr. 490 (RMB) (S.D.N.Y.), Dkt. No. 2. Based on the indictment, Epstein was arrested by federal authorities. Epstein later died on August 10, 2019, at the Metropolitan Correctional Center, in New York, while the federal charges were pending. United States v. Epstein, No. 19 Cr. 490 (RMB) (S.D.N.Y.), Dkt. No. 52. ADMINISTRATIVE HISTORY OF PLAINTIFFS' REQUEST 3 EFTA00015221 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged (6) By electronic FOIA ("eFOIA") 1 dated April 20, 2017, Plaintiff Robertson submitted a FOIPA request to the FBI seeking "all documents relating to the FBI's investigation and prosecution of financier Jeffrey Edward Epstein . . ." Additionally, he requested a fee waiver and expedited processing. (Ex. A.) (7) By letter dated April 28, 2017, the FBI acknowledged receipt of Plaintiff's FOIA request, and notified Plaintiff it had assigned his request FBI FOIPA Request Number 1372398- 000. The FBI informed Plaintiff that, because he requested information on one or more third party individuals, the FBI would neither confirm nor deny the existence of such records pursuant to FOIA Exemptions 6 and 7(C), 5 U.S.C. § 552(b)(6) and (b)(7)(C). The FBI's response explained that the mere acknowledgement of the existence of FBI records on third party individuals could reasonably be expected to constitute an unwarranted invasion of personal privacy. Additionally, the FBI advised it was closing Plaintiffs' request. The FBI instructed Plaintiff to visit www.fbi.gov, select "Services," "Information Management," and "Freedom of Information/Privacy Act" for more information about making requests for records on third party individuals (living or deceased). Finally, the FBI informed Plaintiffs they could appeal the FBI's response to the DOJ, Office of Information Policy ("OIP") within ninety (90) days of its letter, contact the FBI's public liaison, and or seek dispute resolution services by contacting the Office of Government Information Services ("OGIS"). (Ex. B.) (8) On August 28, 2017, Plaintiffs, through counsel, filed their First Amended Complaint with the United States District Court for the Southern District of New York.2 (ECF 1 An eFOIA is an electronic means by which requesters can submit FOIA requests to the FBI, online, through the FBI's public website, www.FBI.gov. 2 Plaintiff Radar Online had filed a Complaint on May 25, 2017. After the FBI pointed out that Radar Online was not a proper Plaintiff in this case, Plaintiff James Robertson was added as a Plaintiff in the First Amended Complaint. 4 EFTA00015222 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged No. 12.) (9) By letter dated October 11, 2017, the FBI released responsive records to Plaintiffs. The FBI advised that it had reviewed 296 pages of records, released 38 pages of records in full or part and withheld the remaining pages in full. Information was withheld pursuant to FOIA Exemptions 3, 6, 7(A), 7(C), 7(D), and 7(E). (Ex. C.) (10) By letter dated November 1, 2017, the FBI released additional responsive records to Plaintiffs. The FBI advised it reviewed 527 pages of records and released 25 pages of records in full or part, with information withheld pursuant to FOIA Exemptions 3, 6, 7(A), 7(C), 7(D), and 7(E). (Ex. D.) (11) By letter dated December I, 2017, the FBI released additional responsive records to Plaintiffs. The FBI advised it reviewed 562 pages of records and released 94 pages of records in full or part, with information withheld pursuant to FOIA Exemptions 3, 6, 7(C), 7(D), and 7(E). (Ex. E.) (12) By letter dated January 2, 2018, the FBI released additional responsive records to Plaintiffs. The FBI advised it reviewed 556 pages of records and released 38 pages of records in full or part, with information withheld pursuant to FOIA Exemptions 3, 6, 7(C), and 7(D). (Ex. F.) (13) By letter dated February I, 2018, the FBI advised it had withheld an additional 525 pages in full pursuant to FOIA Exemptions 3, 6, 7(C), and 7(E). (Ex. G.) (14) By letter dated March I, 2018, the FBI advised that it had reviewed 527 pages of records and released eight (8) pages of records in full or part, with information withheld pursuant to FOIA Exemptions 3, 5, 6, 7(C), 7(D), and 7(E). (Ex. H.) 5 EFTA00015223 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged (15) By letter dated March 30, 2018, the FBI advised that it had withheld 520 pages in full pursuant to FOIA Exemptions 3, 6, 7(C), and 7(D). (Ex. I.) (16) By letter dated May 1, 2018, the FBI advised that it withheld an additional 567 pages in full pursuant to FOIA Exemptions 3, 6, 7(C), 7(D), and 7(E). (Ex. J.) (17) By letter dated June 1, 2018, the FBI advised that it withheld 574 pages of records in full pursuant to FOIA Exemptions 3, 6, 7(C), and 7(D). (Ex. K.) (18) By letter dated July 2, 2018, the FBI advised that it withheld 547 pages of records in full pursuant to FOIA Exemptions 3, 6, 7(C), and 7(D). (Ex. L.) (19) By letter dated August 1, 2018, the FBI advised it withheld 526 pages of records in full pursuant to FOIA Exemptions 3, 6, 7(C), and 7(D). (Ex. M.) (20) By letter dated August 31, 2018, the FBI released responsive records to Plaintiffs. The FBI advised it reviewed 508 pages of records, released 160 pages of records in full or part, with withheld the remaining pages in full. Information was withheld pursuant to FOIA Exemptions 3, 5, 6, 7(C), 7(D), and 7(E). (Ex. N.) (21) By letter dated September 28, 2018, the FBI advised it withheld 532 pages of records in full pursuant to FOIA Exemptions 3, 6, 7(C), and 7(D). (Ex. 0.) (22) By letter dated October 31, 2018, the FBI released responsive records to Plaintiffs. The FBI advised it reviewed 500 pages of records and released 174 pages of records in full or part, with certain information withheld pursuant to FOIA Exemptions 3, 6, 7(C), 7(D), and 7(E). (Ex. P.) (23) By letter dated November 30, 2018, the FBI released responsive records to Plaintiffs. The FBI advised it reviewed 518 pages of records and released seven (7) pages of records in full or part, with certain information withheld pursuant to FOIA Exemptions 3, 6, and 6 EFTA00015224 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged 7(C). (Ex. Q.) (24) By letter dated December 28, 2018, the FBI released responsive records to Plaintiffs. The FBI advised it reviewed 519 pages of records and released four (4) pages of records in full or part, with certain information withheld pursuant to FOIA Exemptions 3, 6, and 7(C). (Ex. R.) (25) By letter dated March 1, 20193, the FBI released responsive records to Plaintiffs. The FBI advised it reviewed 574 pages of records and released 209 pages of records in full or part, with certain information withheld pursuant to FOIA Exemptions 3, 6, 7(C), and 7(E). (Ex. S.) (26) By letter dated April 1, 2019, the FBI released responsive records to Plaintiffs. The FBI advised it reviewed 515 pages of records and released 232 pages of records in full or part, with certain information withheld pursuant to FOR Exemptions 3, 6, 7(C), and 7(E). (Ex. T.) (27) By letter dated May 1, 2019, the FBI released responsive records to Plaintiffs. The FBI advised it reviewed 540 pages of records and released 65 pages of records in full or part, with certain information withheld pursuant to FOIA Exemptions 3, 6, 7(C), 7(D), and 7(E). (Ex. U.) (28) By letter dated May 31, 2019, the FBI released responsive records to Plaintiffs. The FBI advised it reviewed 519 pages of records and released 12 pages of records in full or part, with certain information withheld pursuant to FOIA Exemptions 3, 6, 7(C), 7(D), and 7(E). (Ex. V.) 3 No production occurred in January through March 2019, because of the lapse in appropriations funding for the Department of Justice. 7 EFTA00015225 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged (29) By letter dated June 28, 2019, the FBI released responsive records to Plaintiffs. The FBI advised it reviewed 527 pages of records and released 107 pages of records in full or part, with certain information withheld pursuant to FOIA Exemptions 3, 6, 7(C), 7(D), and 7(E). (Ex. W.) (30) In a series of letters sent between August 1, 2019, and December 31, 2019, the FBI informed Plaintiffs the material they requested was located in an investigative file exempt from disclosure pursuant to 5 U.S.C. § 552(b)(7)(A). 4 The FBI categorically reviewed 5 the remaining responsive documents, at a rate of no less than 500 per month, and cited all applicable underlying exemptions. The FBI withheld in full all remaining responsive records pursuant to FOIA Exemption 7(A). Information in those records was also withheld pursuant to FOIA Exemptions 3, 5, 6, 7(B), 7(C), 7(D), and 7(E).6 (Exs. X, Y, Z, AA, BB, CC.) (31) By letter dated January 31, 2020, the FBI released additional responsive records 4 Jeffrey Epstein was arrested on July 6, 2019, on federal charges for the sex trafficking of minors. RIDS reached out to an Assistant United States Attorney in SDNY, who confirmed that additional release of responsive material could negatively impact the pending prosecution. With this new development —a re-opened investigation —the further release of any responsive records was now reasonably anticipated to cause harm to the ongoing enforcement proceedings; thus, Exemption 7(A) became a properly asserted exemption claim over all previously protected information. 5 During a categorical review, the FBI reviews each document and determines if the release of the documents would interfere with ongoing law enforcement proceedings. If processing a document for release could interfere with any law enforcement proceeding, the FOIA analyst will assert Exemption 7(A) and all underlying exemptions. This review process is explained in detail in 9¶ 65-75 infra. 6 The FBI began processing documents in response to Plaintiffs' request long before Mr. Epstein was arrested in 2019. When Mr. Epstein's arrest and the ongoing investigation became public in July 2019, the FBI began to assert Exemption 7(B) given that (1) a trial or adjudication was pending or truly imminent and (2) it was more probable than not that disclosure of the records would seriously interfere with the fairness of those proceedings. Mr. Epstein's death on August 10, 2019, arguably negated the application of Exemption 7(B). However, the records withheld pursuant to Exemption 7(B) were additionally withheld pursuant to Exemptions 3, 6, 7(A), 7(C), and 7(D), and remain properly withheld despite Mr. Epstein's death. 8 EFTA00015226 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged to Plaintiffs. In particular, the FBI released 46 pages of records in full or part, with certain information withheld pursuant to FOIA Exemptions 3, 6, 7(A), 7(C), 7(D), and 7(E). (Ex. DD.) THE FBI'S CENTRAL RECORDS SYSTEM (32) The Central Records System ("CRS") is an extensive system of records consisting of applicant, investigative, intelligence, personnel, administrative, and general files compiled and maintained by the FBI in the course of fulfilling its integrated missions and functions as a law enforcement, counterterrorism, and intelligence agency to include performance of administrative and personnel functions. The CRS spans the entire FBI organization and encompasses the records of FBI Headquarters ("FBIHQ"), FBI Field Offices, and FBI Legal Attaché Offices ("Legats") worldwide. (33) The CRS consists of a numerical sequence of files, called FBI "classifications," which are organized according to designated subject categories. The broad array of CRS file classification categories include types of criminal conduct and investigations conducted by the FBI, as well as categorical subjects pertaining to counterterrorism, intelligence, counterintelligence, personnel, and administrative matters. For identification and retrieval purposes across the FBI, when a case file is opened, it is assigned a Universal Case File Number ("UCFN") consisting of three sequential components: (a) the CRS file classification number, (b) the abbreviation of the FBI Office of Origin ("OO") initiating the file, and (c) the assigned individual case file number for that particular subject matter.? Within each case file, pertinent documents of interest are "serialized," or assigned a document number in the order which the 7 For example, in a fictitious file number of "I I Z-HQ-56789;" the "I IZ" component indicates the file classification, "HQ" indicates that FBI Headquarters is the FBI 00 of the file, and "56789"is the assigned case specific file number. 9 EFTA00015227 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged document is added to the file, typically in chronological order. THE CRS GENERAL INDICES AND INDEXING (34) The general indices to the CRS are the index or "key" to locating records within the enormous amount of information contained in the CRS. The CRS is indexed in a manner which meets the FBI's investigative needs and priorities and allows FBI personnel to reasonably and adequately locate pertinent files in the performance of their law enforcement duties. The general indices are arranged in alphabetical order and comprise an index on a variety of subject matters to include individuals, organizations, events, or other subjects of investigative interest that are indexed for future retrieval. The entries in the general indices fall into two category types: A. Main entry. A main index entry is a created for each individual or non-individual that is the subject or focus of an investigation. The main subject(s) are identified in the case title of most documents in a file. B. Reference entry. A reference index entry is created for individuals or non- individuals associated with the case but are not the main subject(s) or focus of an investigation. Reference subjects are typically not identified in the case title of a file. (35) FBI employees may index information in the CRS by individual (persons), by organization (organizational entities, places, and things), and by event (e.g., a terrorist attack or bank robbery). Indexing information in the CRS is done at the discretion of FBI investigators when information is deemed of sufficient significance to warrant indexing for future retrieval. Accordingly, the FBI does not index every individual name or other subject matter in the general indices. AUTOMATED CASE SUPPORT (36) Automated Case Support ("ACS") was an electronic, integrated case management system that became effective for FBIHQ and all FBI Field Offices and Legats on October 1, 10 EFTA00015228 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged 1995. As part of the ACS implementation process, over 105 million CRS records were converted from automated systems previously utilized by the FBI into a single, consolidated case management system accessible by all FBI offices. ACS had an operational purpose and design to enable the FBI to locate, retrieve, and maintain information in its files in the performance of its myriad missions and functions. 8 (37) The Universal Index ("UNI") was the automated index of the CRS and provided all offices of the FBI a centralized, electronic means of indexing pertinent investigative information to FBI files for future retrieval via index searching. Individual names were recorded with applicable identifying information such as date of birth, race, sex, locality, Social Security Number, address, and/or date of an event. Moreover, ACS implementation built upon and incorporated prior automated FBI indices; therefore, a search employing the UNI application of ACS encompassed data that was already indexed into the prior automated systems superseded by ACS. As such, a UNI index search in ACS was capable of locating FBI records created before its 1995 FBI-wide implementation in both paper and electronic fonnat.9 ACS AND SENTINEL (38) Sentinel is the FBI's next generation case management system that became effective FBI-wide on July 1, 2012. Sentinel provides a web-based interface to FBI users, and it includes the same automated applications that were utilized in ACS. After July 1, 2012, all FBI ACS was, and the next generation Sentinel system is, relied upon by the FBI daily to fulfill essential functions such as conducting criminal, counterterrorism, and national security investigations; background investigations; citizenship and employment queries, and security screening, to include Presidential protection. 9 Older CRS records that were not indexed into UNI as a result of the 1995 ACS consolidation remain searchable by manual review of index cards, known as the "manual indices." 11 EFTA00015229 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged generated records are created electronically in case files via Sentinel; however, Sentinel did not replace ACS and its relevance as an important FBI search mechanism. Just as pertinent information was indexed into UNI for records generated in ACS before July 1, 2012, when a record is generated in Sentinel, information is indexed for future retrieval. (39) On August 1, 2018, the ACS case management system was decommissioned and ACS data was migrated into Sentinel including the ACS indices data and digitized investigative records formerly available in ACS. Moreover, Sentinel retains the index search methodology and function whereby the CRS is queried via Sentinel for pertinent indexed main or reference entries in case files. All CRS index data from the UNI application previously searched via ACS is now searched through the "ACS Search" function within Sentinel. (40) Upon receipt of FOIPA requests where the subject matter predates the implementation of Sentinel, RIDS predominately begins its FOIPA searching efforts by conducting index searches via the "ACS Search" function in Sentinel. RIDS then builds on its ACS index search by conducting an index search of Sentinel records to ensure it captures all relevant data indexed after the implementation of Sentinel. The CRS automated indices, available within Sentinel and the ACS search function in Sentinel, in most cases represent the most reasonable means for the FBI to locate records potentially responsive to FOIPA requests. This is because these automated indices offer access to a comprehensive, agency-wide set of indexed data on a wide variety of investigative and administrative subjects. Currently, these automated indices consist of millions of searchable records and are updated daily with material newly indexed in Sentinel. (41) However, the location of records indexed to the subject of a FOIPA request does not automatically mean the indexed records are responsive to the subject. Index searches are the 12 EFTA00015230 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged means by which potentially responsive records are located, but ultimately, a FOIPA analyst must consider potentially responsive indexed records against the specific parameters of individual requests. Responsiveness determinations are made once indexed records are gathered, analyzed, and sorted by FOIPA analysts, who then review the records to determine which are responsive to an individual request. ADEQUACY OF SEARCH (42) Scope of Search and Results. RIDS conducted a search reasonably calculated to locate records responsive to Plaintiffs' request, specifically "documents relating to FBI's investigation and prosecution of financier Jeffrey Edward Epstein ... ." Prior to conducting a search of the CRS, and particularly in matters of heightened public interest, RIDS typically conducts a preliminary search of the FOIA Document Processing System ("FDPS") to determine if a subject has been previously requested or is currently being processed in response to another request. This helps to avoid duplication of efforts and is an efficient means of getting more records to more requesters, while conserving RIDS limited resources. As a result of the FBI's search of FDPS, RIDS located documents responsive to Plaintiffs' request in a first-party FOIPA request1' made on behalf of Jeffrey Epstein, which had been identified by an index search of the CRS. The documents responsive to Epstein's FOIPA were also responsive to the Plaintiffs' request; they had already been retrieved at the time RIDS did its inquiry and processing of those records was underway. To ensure all responsive records were located from within the CRS, RIDS conducted a supplemental search utilizing the search term "Jeffrey Epstein", and no additional records were located responsive to Plaintiffs' request. 1° The first-party FOIPA request sought main and cross-referenced records from January 1, 2000, to November 25, 2012, on Jeffrey Epstein. 13 EFTA00015231 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged JUSTIFICATION FOR NONDISCLOSURE UNDER THE FOIA (43) The FBI began processing documents in response to Plaintiffs' request long before Mr. Epstein was arrested in 2019. Therefore, the FBI initially processed the records without reference to an ongoing investigation. After Mr. Epstein's arrest and the ongoing investigation became public in July 2019, the FBI began to assert Exemption 7(A) with respect to withheld information. In addition, the FBI asserted Exemption 7(A) over all information that had been withheld under other exemptions prior to that date, as noted in footnote 5, supra. Thus, while Exemption 7(A) was not included on the face of the documents that were processed and released in part prior to July 2019, it has been added to the index for all such documents. See Exhibit EE. As to those records that warranted categorical denial after the arrest of Mr. Epstein in July 2019, the review is more fully explained in paragraphs 67 through 79, infra. (44) The FBI processed all documents responsive to Plaintiffs' request to achieve maximum disclosure consistent with the access provisions of the FOIA. Every effort was made to provide Plaintiffs with all material in the public domain and with all reasonably segregable, non-exempt information. The FBI did not withhold any reasonably segregable, nonexempt portions from Plaintiffs. Further description of the information withheld, beyond what is provided in this declaration, could identify the actual exempt information protected by the FBI. The FBI Bates-stamped all pages that it processed prior to July 2019 consecutively as "03956-1 through 03956-11571." These records are referred to in this declaration collectively as the Bates-stamped or Bates-numbered records.' I On the pages released in full or in part, these " In contrast, records processed after July 2019 were not Bates-stamped, as those records were subject to categorical withholding per Exemption 7(A). Thus, when I refer to the Bates- numbered records, I am not including the records processed after July 2019 that were subject to categorical withholding. Those records, which will sometimes be referred to collectively as the categorically withheld records, are more fully addressed in q¶ 67 through 79, infra. 14 EFTA00015232 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged numbers are typically located at the bottom of each page. Attached to this declaration as Exhibit EE is an index of the Bates-stamped records that have been withheld in full or in part, with an explanation of the basis for each withholding. 12 (45) Additionally, with respect to the Bates-stamped records, the FBI further categorized its application of exemptions to provide additional detail regarding the nature of the information withheld. Specifically, the FBI applied numerical codes that coincide with various categories of exempt information. These coded categories are provided to aid the Court's and Plaintiffs' review of the FBI's explanations of the FOIA exemptions it has asserted to withhold the material. The uses of these codes, together with the information provided in this declaration, demonstrate that all material withheld by the FBI is exempt from disclosure pursuant to the cited FOIA exemptions, or is so intertwined with protected material that segregation is not possible without revealing the underlying protected material. (46) Each instance of information withheld pursuant to a FOIA Exemption is accompanied by a coded designation that corresponds to the categories listed below. For example, if "(b)(7)(C)-1" appears on a document, the "(b)(7)(C)" designation refers to FOIA Exemption 7(C) protecting against unwarranted invasions of personal privacy. The numerical designation of "1" following the "(b)(7)(C)" narrows the main category into a more specific subcategory, such as "Names and Identifying Information of Third Parties of Investigative Interest." 12 FBI provided Plaintiffs a draft copy of the index. After the index was shared with Plaintiffs, FBI discovered a number of documents that were stamped with previously -used Bates numbers. As a result, the documents that were previously Bates-stamped 03956-10980 through 03956- 11029 have been renumbered to 03956-11522 through 03956-11571. Exhibit EE has been edited to reflect the corrected Bates-numbers. 15 EFTA00015233 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged (47) Listed below are the categories used to explain the FOIA exemptions the FBI asserted to withhold information: SUMMARY CODED CATEGORIES OF EXEMPTION JUSTIFICATION CATEGORIES INFORMATION WITHHELD Exemption 3 Information Protects by Statute (b)(3)-1 Child Victims' and Child Witnesses' Rights Act, 18 U.S.C. § 3509 (b)(3)-2 Grand Jury Information — Federal Rule of Criminal Procedure 6(e) (b)(3)-3 Juvenile Justice and Delinquency Act 18 U.S.C. § 5038 Exemption 5 Privileged Information (b)(5)-1 Deliberative Process Privilege (b)(5)-2 Attorney Work Product Exemption 7(A) Pending Law Enforcement Proceedings (b)(7)(A)-1 13Information Which, if Disclosed, Could Reasonably be Expected to Interfere with Pending Law Enforcement Proceedings Exemptions 6 & 7(C) Unwarranted/Clearly Unwarranted Invasion of Personal Privacy (b)(6)-1 and (b)(7)(C)-1 Names and/or Identifying Information of Third Parties of Investigative Interest (b)(6)-2 and (b)(7)(C)-2 Names and/or Identifying Information of FBI Special Agents and Victim Specialists (b)(6)-3 and (b)(7)(C)-3 Names and/or Identifying Information Regarding a Third Party Victim (b)(6)-4 and (b)(7)(C)-4 Names and/or Identifying Information of Local Law Enforcement Personnel (b)(6)-5 and (b)(7)(C)-5 Names and/or Identifying Information of Third Parties Merely Mentioned (b)(6)-6 and (b)(7)(C)-6 Names and/or Identifying Information of Non-FBI Federal Government Personnel (b)(6)-7 and (b)(7)(C)-7 Names and/or Identifying Information of Local Government Personnel (Non-Law Enforcement and State) (b)(6)-8 and (b)(7)(C)-8 Names and/or Identifying Information of Third Parties who Provided Information Exemption 7(D) Confidential Source Information (b)(7)(D)-1 Names, Identifying Data and/or Information Provided by Individuals Under an Implied Assurance of Confidentiality (b)(7)(D)-2 Names, Identifying Data and/or Information Provided by Individuals Under an Expressed Assurance of Confidentiality (b)(7)(D)-3 Foreign Government Agency Information Under Implied Confidentiality 13 As explained further herein, due to the current ongoing investigation, Exemption 7(A) must now be asserted to protect all redacted information, including the information redacted prior to the July 6, 2019, arrest of Mr. Epstein. 16 EFTA00015234 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged (b)(7)(D)-4 Information Provided by a Local Law Enforcement Agency Exemption 7(E) Law Enforcement Techniques and Procedures (b)(7)(E)-1 Collection/Analysis of Information (b)(7)(E)-3 Sensitive File Numbers (b)(7)(E)-4 Dates/Types of Investigations (b)(7)(E)-5 Information Regarding Targets, Dates, and Scope of Surveillance (b)(7)(E)-6 Statistical Information Contained in Effectiveness Rating FD-515 (b)(7)(E)-7 Database Identifiers/Printouts (b)(7)(E)-9 Monetary Payments/Funding for Investigative Purposes EXEMPTION 3 - INFORMATION PROTECTED BY STATUTE (48) 5 U.S.C. § 552 (b)(3) exempts from disclosure information which is: specifically exempted from disclosure by statute . . . if that statute (A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (A)(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted after the date of enactment of the Open FOIA Act of 2009, specifically cites to this paragraph. (b)(3)-1: Child Victims' and Child Witnesses' Rights Act, 18 US.C. § 3509 (49) In Exemption category (b)(3)-1, the FBI protected information pertaining to child victims and witnesses. The privacy protection measures enacted in 1990, within the Child Victims' and Child Witnesses' Rights Act, 18 U.S.C. § 3509, were created to protect minor children involved in criminal proceedings. This statute was enacted well before the Open FOIA Act of 2009. Moreover, it refers to particular types of matters that must be withheld from public disclosure. Specifically, 18 U.S.C. § 3509(d) protects from disclosure certain records containing identifying information pertaining to children involved in criminal proceedings. A child is defined in 18 U.S.C. § 3509(a)(2) as "a person who is under the age of 18, who is or is alleged to be (A) a victim of a crime of physical abuse, sexual abuse, or exploitation; or (B) a witness to a crime committed against another person." Accordingly, the FBI asserted Exemption 3, at times in conjunction with Exemptions 6, 7(C) and 7(D), to protect names, images, and identifying information of minor children victims and witnesses within the child prostitution investigation of 17 EFTA00015235 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged Jeffrey Epstein. (b)(3)-2: Federal Grand Jury Infonnation — Federal Rule of Criminal Procedure (6)(e) (50) In Exemption category (b)(3)-2, the FBI protected Federal Grand Jury information pursuant to Federal Rule of Criminal Procedure 6(e). As relevant to 5 U.S.C. § 552(b)(3)(B), Rule 6(e) is a statute14 enacted before the date of enactment of the OPEN FOIA Act of 2009.15 It is well-established that Rule 6(e) embodies a broad, sweeping policy of preserving the secrecy of grand jury material regardless of the substance in which the material is contained. Records responsive to Plaintiffs' request details matters occurring before one or more federal grand juries empaneled in relation to the investigations at issue. Specifically, the investigative files contain information about the names of recipients of federal grand jury subpoenas; information that identifies specific records subpoenaed by a federal grand jury; and copies of specific records provided pursuant to federal grand jury subpoenas. Wherever the FBI protected this information, it found a clear nexus to federal grand jury proceedings on the face of the responsive documents. Any disclosure of this information would clearly violate the secrecy of the grand jury proceedings and could reveal the inner workings of a federal grand jury. Thus, the FBI properly withheld this information pursuant to Exemption 3, in conjunction with Rule 14 As prescribed by 18 U.S.C. § 3771 (subsequently repealed by Pub.L. 100-702, Title IV, § 404(a)(1) (Nov. 19, 1988) and replaced by 28 U.S.C. § 2074), proposed rules become effective ninety days after the Chief Justice reports them to Congress. By order of April 26, 1976, the Supreme Court adopted amendments to the Federal Rules of Criminal Procedure which included Rule 6(e) and reported the amendments to Congress. Congress voted to delay the effective date of several of the proposed rules, to include Rule 6(e), "until August 1, 1977, or until and to the extent approved by Act of Congress, whichever is earlier." Pub. L. No. 94-349 § 1, 90 Stat. 822 (1976). Subsequently, Congress, by statute, enacted a modified version of Rule 6(e). See Pub.L. No. 95-78, § 2(a), 91 Stat. 319 (1977), FED. R. CRIM. P. 6(e). 15 The OPEN FOIA Act of 2009 was enacted October 28, 2009. See Pub.L. 111-83, 123 Stat. 2142, 2184. 18 EFTA00015236 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged 6(e). (b)(3)-3: Juvenile Justice and Delinquency Act — 18 U.S.C. § 5038 (51) The Juvenile Justice and Delinquency Act, 18 U.S.C. § 5038, protects from disclosure all information and records relating to any juvenile delinquency proceeding, unless the release is necessary to meet certain circumstances described within the statute. This statute was enacted before the Open FOIA Act of 2009, but meets the standards of 5 U.S.C. 552 § (A)(ii) as it establishes particular criteria for withholding and describes particular types of matters to be withheld. The records at issue here contain arrest information and criminal history of third party juveniles. Plaintiffs' request does not meet the specific circumstances set forth in the statute for disclosure; therefore, the records are properly withheld pursuant to Exemption category (b)(3)-3. Additionally, the FBI also asserted Exemptions 6 and 7(C) over all information that falls within this category. EXEMPTION 5 — PRIVILEGED INFORMATION (52) FOIA Exemption 5 has been construed to exempt documents or information normally privileged in the civil discovery context and incorporates the deliberative process privilege and attorney work product doctrine. In order to apply Exemption 5, agencies must first satisfy the threshold requirement — i.e., show that the information protected consists of "inter- agency or intra-agency" information. Once the threshold is satisfied, agencies must satisfy the elements of the pertinent privilege. (b)(5)-1: Deliberative Process Privilege (53) In Exemption Category (b)(5)-1, the FBI protected privileged, deliberative materials. The deliberative process privilege protects predecisional, deliberative communications that are part of a process by which agency decisions are made. It therefore encompasses opinions, advice, evaluations, deliberations, analyses, proposals, or 19 EFTA00015237 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged recommendations that form part of an agency decision-making process. The privilege also protects records and information that if disclosed, would reveal the agency's collection of multitudinous facts, and the selection, sorting, evaluation, and analysis of those facts relied upon as part of the decision-making process. Agencies must show that the withheld information was both predecisional — i.e., antecedent to a final agency decision — and deliberative — i.e., part of the process in which the agency engaged in an effort to reach a final decision (whether or not any final decision was ever reached). (54) Exemption 5, when asserted in conjunction with the deliberative process privilege, is predicated on the recognition that release of this privileged information would inhibit the government's development of policy and stifle its decision-making process. Furthermore, exempting such documents from disclosure also protects against public confusion that might result from preliminary disclosure of opinions and information that do not, in fact, reflect the final views or policies of the FBI. The exemption and privilege together protect not only documents but also the integrity of the deliberative process itself where exposure of the process would result in harm. The FBI invokes Exemption 5 and the deliberative process privilege because FBI employees would hesitate to offer their candid and conscientious opinions to superiors or coworkers if they knew that their opinions of the moment might be made a matter of public record at some future date, and because such self-censorship would, in turn, degrade the quality of agency decisions by depriving the decision-makers of fully-explored options developed from robust debate. (55) As described in more detail below, the FBI relied on Exemption 5 and the deliberative process privilege to protect internal deliberative communications and draft documents. These materials reflect deliberations integral to reaching final agency decisions or 20 EFTA00015238 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged were key to a decision-making process aimed at developing policy/best agency decisions. The communications and drafts are deliberative and pre-decisional. Additionally, as contemplated by the FOIA Improvement Act of 2016, all of the protected material was created less than 25 years before the submission of Plaintiff's request. Deliberative Communications (56) The FBI asserted Exemption 5 to withhold deliberative communications. These communications contain or consist of material related to deliberations by DOJ employees who are making proposals and/or working to come to a consensus on final agency decisions. Specifically, this material includes FBI and the United States Attorney ("AUSA") discussions on the handling of Jeffrey Epstein's asset forfeiture and his pending indictment. The material protected is pre-decisional in that it discusses proposed actions and considerations and does not reflect final agency decisions. The harm in release here would be a chilling effect on agency employees' willingness to share raw, unrefined ideas and candid feedback should they know it could become subject to public disclosure. Release could set a dangerous precedent as the FBI would be seen as unwilling to shield its employees' deliberations from public scrutiny and could result in hesitancy to participate fully in such deliberations by FBI employees during future deliberations. Additionally, release of this material would create public confusion as this material predates final agency decisions. It could potentially cast doubt on the accuracy of actual, final agency decisions/policies or cause public misunderstanding as to what are the actual FBI policies/decisions. Draft Materials (57) The FBI also asserted Exemption 5 to withhold draft documents that are clearly marked as strictly confidential, draft for discussions only. These draft documents are legal 21 EFTA00015239 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged documents created during the prosecution of Jeffrey Epstein and are inherently part of the deliberative process. They predate final agency decisions and reflect the give-and-take of deliberations, through the editing process, which leads to final, refined products. In the instances where the FBI withheld draft material pursuant to Exemption 5, the FBI found the draft material was shared between FBI and DOJ, was pre-decisional, was deliberative (the material was shared to solicit feedback/edits), and release could potentially harm agency deliberations. The harm here would be a chilling effect on agency employees' willingness to share such drafts if they knew their unrefined ideas would be subject to public disclosure. Furthermore, there would be a risk of public confusion in that these drafts do not reflect final agency decisions. (58) For the reasons discussed above, the FBI properly protected two types of deliberative materials described under Exemption 5, in conjunction with the deliberative process privilege. The FBI endeavored to segregate non-deliberative facts, whenever possible, and only withheld such material when it found it was inextricably intertwined with agency deliberations. (b)(5)-2: Attorney Work Product Privilege (59) In Exemption category (b)(5)-2, the FBI protected information subject to the attorney work product doctrine. The attorney work product privilege protects such tangible and intangible items as interviews, memoranda, correspondence, mental impressions, and personal beliefs prepared or developed by an attorney, or at the direction of an attorney, in reasonable anticipation of litigation. The privilege is predicated on the recognition that proper preparation of a case depends on an attorney's ability to assemble information, sort relevant from irrelevant facts, and prepare his/her legal theories and strategies without intrusive or needless scrutiny. (60) The FBI relied on the attorney work product privilege to protect inter-agency materials created at the direction of an attorney in reasonable anticipation of litigation. 22 EFTA00015240 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged Specifically, the FBI protected information regarding legal strategy and evidence gathering conducted by the FBI SAs assigned to the criminal investigation into activities of Jeffrey Epstein, at the direction of an AUSA, in March 2007. This guidance and documents compiled, provides details of the AUSA's prosecutorial strategy and the inner workings of how the AUSA planned to build the legal framework to support an indictment of Jeffrey Epstein. This information satisfies Exemption 5's threshold of being inter-agency because these records were exchanged within Department of Justice (i.e., between the FBI and U.S. Attorney's Office). Furthermore, these records are quintessential attorney work products and readily satisfy the elements of the attorney work product privilege because they were created for an attorney working to build a legal case to seek indictment and prosecution of a child prostitution criminal case. As described supra, release of this type of information would interfere with the government attorney's ability to properly prepare their legal theories and strategies and hinder them in providing the best possible representation of their clients [the government]. Finally, because the attorney work product privilege protects both factual and deliberative material, segregation is not required. Accordingly, the FBI properly withheld this information pursuant to Exemption 5. EXEMPTION 7 THRESHOLD (61) Before an agency can invoke any of the harms enumerated in Exemption (b)(7), it must first demonstrate that the records or information at issue were compiled for law enforcement purposes. Pursuant to 28 U.S.C. §§ 533, 534, and Executive Order 12,333 as implemented by the Attorney General's Guidelines for Domestic FBI Operations (AGG-DOM) and 28 CFR § 0.85, the FBI is the primary investigative agency of the federal government with authority and responsibility to investigate all violations of federal law not exclusively assigned 23 EFTA00015241 Author: CGM Reviewed: TLC 3/10/21, 3/11/21 Deliberative Process/Attorney-Client/Attorney Work Product Privileged to another agency, to conduct investigations and activities to protect the United States and its people from terrorism and threats to national security, and further the foreign intelligence objectives of the United States. Under this investigative authority, the responsive records herein were compiled in furtherance of the FBI's investigation of criminal child prostitution involving Jeffrey Eps