crew v. nigc: regarding indian gaming scandals: 10/17/05 - memorandum in opposition

8/7/2019 CREW v. NIGC: Regarding Indian Gaming Scandals: 10/17/05 - Memorandum in Opposition

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________CITIZENS FOR RESPONSIBILITY AND :

ETHICS IN WASHINGTON :11 Dupont Circle, N.W. :Washington, D.C. 20036 :

:Plaintiff, :

:v. : No. 1:05cv00806 (RMC)

:NATIONAL INDIAN GAMING COMMISSION :1441 L Street, N.W. :Washington, D.C. 20005 :

:Defendant. :

_________________________________________ :

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY

JUDGMENT

INTRODUCTION

Against the backdrop of an unfolding national disgrace involving efforts by a high-

powered lobbyist and a public relations executive to bilk millions of dollars from Indian tribes

that operate gambling casinos, plaintiff Citizens for Responsibility and Ethics in Washington

(CREW) filed a Freedom of Information Act (FOIA) request with the National Indian

Gaming Commission (NIGC). CREWs request sought records of any contacts between the

NIGC and 10 enumerated individuals, as well as employees and entities associated with those

individuals, and the offices of five members of Congress, all of which were associated in some

way with the Indian gaming scandal. CREW also requested records from the NIGC concerning

six specific Indian tribes. Nothing in CREWs FOIA request referred to any law enforcement

files of the NIGC or any other entity.

The NIGCs response is noteworthy in two key respects. First, despite the fact that the


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1 Defendant actually moved for summary judgment in the name of the United States. TheUnited States, however, is not a named party to this proceeding, nor could it be given that theonly proper defendant in a FOIA lawsuit is the agency alleged to have improperly withheldagency records. 5 U.S.C. 552(a)(4)(B).

2

NIGC is the principal agency responsible for oversight of Indian gaming under the Indian

Gaming Regulatory Act of 1988, 25 U.S.C. 2701, et seq., and despite the fact that the NIGC

claimed in response to have ongoing investigations, it identified only a scant number of

documents. Second, many of those documents initially withheld as protected law enforcement

information consist of newspaper articles.

The paucity of information in the NIGCs response to CREWs FOIA request has now

been replicated in its recently-filed motion for summary judgment.1 In that motion, the NIGC

essentially asks the Court to accept its less than bare-bones declarations as evidence that the

NIGC conducted a reasonable and adequate search, and properly withheld documents pursuant

to FOIA Exemptions 5, 6, 7(A), 7(C) and 7(D). As CREW shows below, however, the NIGC

does not begin to approach the standard of proof required of an agency in a FOIA case to justify

its search and withholdings. Accordingly, its motion for summary judgment must be denied.

FACTUAL BACKGROUND

Plaintiff CREW is a non-profit corporation dedicated to the protection of the right of

citizens to be informed about the activities of government officials and to ensuring the integrity

of government officials. Complaint for Declaratory Judgment and Injunctive Relief, 4

(hereinafter Complaint). In particular, CREW monitors closely the laws and rules that apply

to government agencies and urges the United States government to take ethics issues seriously.

Id., 5. CREW relies, in part, on the FOIA for information to assist it in providing the public


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3

with full, accurate and current information. Id., 6.

On March 18, 2005, CREW submitted a FOIA request to the NIGC asking for records

of any contacts between the NIGC and Jack Abramoff, any employee of the firm Greenberg

Traurig, any employee of the firm Preston Gates, Michael Scanlon, any officer or employee of

Capitol Campaign Strategies, James Dobson, Ralph Reed, Scott Reed, Italia Federici, any officer

or employee of the Council of Republicans for Environmental Advocacy, any officer or

employee of the National Center of Public Policy Research, Grover Norquist, any officer or

employee of Americans for Tax Reform, General Services Administration Chief of Staff David

Safavian, Congressman Robert Ney, any employee in the office of Congressman Ney,

Congressman Tom DeLay, any employee in the office of Congressman DeLay or in the office of

the Majority Leader, Speaker of the House Dennis Hastert, any employee in the office of

Congressman Hastert or in the office of the Speaker of the House, Senator Conrad Burns, and

any employee in the office of Senator Burns, concerning any matter within the jurisdiction of the

NIGC. Exhibit N to Complaint. Plaintiff also requested records from the NIGC concerning six

Indian tribes: the Agua Caliente Tribe of Palm Springs, California, the Tigua Tribe of El Paso,

Texas, the Saginaw Chippewa Tribe of Michigan, the Mississippi Band of Choctaw Indians, the

Coushatta Tribe of Louisiana, and the Jena Band of Choctaw Indians. Id. CREW made its

request in the interest of contributing to the publics understanding of the process used by the

National Indian Gaming Commission to monitor and regulate casinos on Indian lands. Id.

CREWs FOIA request arose out of an unfolding scandal concerning the millions of

dollars that Indian tribes operating gambling casinos had paid lobbyist Jack Abramoff and

Michael Scanlon, a public relations executive and former staffer for Congressman Tom DeLay.


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2 Complaint, 22, quoting Peter H. Stone, Lobbying & Law Abramoffs and DeLaysForeign Adventures, National Journal, February 26, 2005 (Exhibit K to Complaint).

4

Between 2001 and 2004, six tribes paid Abramoff and Scanlon a total of $82 million.

Complaint, 20. Newspapers reported that the tribes paid the pair enormous sums of money in

exchange for Abramoffs promise to use his close connections with Republican congressional

leaders and power brokers in the conservative movement to secure legislative results favorable to

the tribes gaming interests. Id., 15-16.

In the wake of the burgeoning scandal over these lobbying practices, the Senate held

oversight hearings that revealed, among other things, that Abramoff also paid Christian activist

Ralph Reed $4.2 million to mobilize Christian groups to work for the closure of the Tigua

Tribes casino, which was threatening Abramoffs Indian gaming clients. Jack Abramoff then

convinced the Tigua Tribe to hire him and Scanlon, at a cost of $4.2 million, to persuade

Congress to pass legislation re-opening the casino. Id., 17,citingOversight Hearing on

Lobbying Practices Involving Indian Tribes Before the Committee on Senate Indian Affairs,

November 17, 2004 (statement of Senator John McCain) (Exhibit D to Complaint). Of note,

neither Scanlon nor Abramoff ever disclosed to the Tigua Tribe their role in the campaign to

close the Tigua casino or the lucrative relationship between the two men. Id.

News reports also documented how Jack Abramoff used his congressional connections to

assist his Indian clients. For example, Abramoff enlisted the aid of Congressman Bob Ney (R-

OH) to assist the Tigua tribe in getting its casino re-opened. Shortly after Congressman Ney

sponsored the requested legislation, the Tigua at Abramoffs direction contributed $32,000

to Rep. Ney. Id., 19. Abramoff also had a close personal relationship with Congressman Tom

DeLay. As part of Abramoffs efforts to raise money for Delays pet projects,2 Abramoffs


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tribal clients contributed money to fund personal trips DeLay took with his family and top aides,

accompanied by Abramoff, including a golf trip to St. Andrews in Scotland. Id., 22-23.

Abramoff also enlisted the help of Grover Norquist, President of the Americans for Tax

Reform, to block efforts to tax his client, the Choctaw Tribe, on casino earnings. In response to

his request for help, a coalition of anti-tax organizations formed by Norquist lobbied lawmakers

and wrote letters opposing the proposed gambling tax. In turn Abramoffs client, the Choctaw

Tribe, contributed hundreds of thousands of dollars to Norquists group, Americans for Tax

Reform. Id., 25.

In response to CREWs FOIA request, the NIGC sent a letter, dated March 22, 2005, that

acknowledged receipt of the request, and advised CREW that the NIGC was unable to comply

with the 20-working-day statutory time-frame for processing the request. Complaint, Exhibit O.

The NIGC did not give CREW a specific time within which it would respond. Id. A month

later, when CREW had heard nothing more from NIGC, it filed the complaint in this action.

Nearly two months after CREW made its FOIA request, and several weeks after CREW

filed its lawsuit, the NIGC responded by letter dated May 9, 2005. The NIGC stated that it had

identified a total of 14 responsive documents, 13 of which it was withholding in full under FOIA

Exemption 7(A) as law enforcement records and information. Letter of May 9, 2005, from

Regina Ann McCoy to Melanie Sloan (Exhibit A to Defendants Memorandum in Support of the

United States Motion for Summary Judgment (NIGC Mem.)). The NIGC released part of the

remaining document, but withheld the rest, which it described as a draft of a bill sent to House

Speaker Hastert. Id. The letter also advised CREW of its right to file an administrative appeal,

notwithstanding that the entire matter was now in litigation.


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3 In her declaration submitted in support of the NIGCs motion for summary judgment,Ms. McCoy claims that a day later, on May 11, 2005, she received a call from CREWs counselwho proceeded to interrogate her. Declaration of Regina Ann McCoy (McCoy Decl.), 21.CREW does not know what is meant by this gratuitous remark, but suggests that it be withdrawnas unprofessional and not germane to any issue before the Court.

4

In describing this letter, the NIGC is careful to point out that CREW did not respond toMs. McCoys interpretation of CREWs FOIA request. NIGC Mem., p. 4 n.1. But what theNIGC ignores is that the parties were already in litigation.

5 Ms. McCoys declaration summarizes her findings as of the date of her May 19, 2005letter. McCoy Decl., 22. Of note, none of the details she now offers about the withhelddocuments was included in her letter of May 19.

6

The following day Ms. McCoy again wrote to CREW3 to explain her unilateral

interpretation of CREWs FOIA request for information on six Indian tribes as limited to those

that indicated a connection with the stated main subjects of your search, i.e., the previously

identified individuals and entities in CREWs FOIA request. Letter of May 10, 2005, from

Regina Ann McCoy to Melanie Sloan (Exhibit B to NIGC Mem.).4

By letter dated May 19, 2005, the NIGC made an additional release of 12 pages of the

draft bill that had previously been withheld under Exemption 5. Letter of May 19, 2005, from

Regina Ann McCoy to Melanie Sloan (Exhibit C to NIGC Mem.). The NIGC also released

some additional documents previously withheld under claim of Exemption 7(A), including: (i) a

three-page newspaper article, but with the name of the individual who provided it to the NIGC

redacted pursuant to Exemptions 6 and 7(C), and (ii) 81 pages of newspaper articles, with

redactions pursuant to Exemptions 6 and 7(C). Id. In addition, the NIGC claimed new

exemptions for the remaining withheld documents, including Exemptions 6, 7(C), and 5, but

gave no explanation whatsoever, even by category, about the kinds of documents it was

continuing to withhold. Id.5 Again the NIGCs letter ignored the fact that the matter was now in


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7

litigation, and advised CREW of its right to administratively appeal NIGCs withholding

decision. Id.

STATUTORY BACKGROUND

The Freedom of Information Act, 5 U.S.C. 552, is a mandatory disclosure statute that

requires federal agencies to release requested agency records to the public upon a request made

by any person, unless one or more of nine statutory exemptions apply. The FOIA was enacted to

pierce the veil of administrative secrecy and to open agency action to the light of public

scrutiny. Department of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (quoting Rose, 495

F.2d 261, 263 (2d Cir. 1974)). The FOIA allows citizens to know what the government is up

to, United States Dept of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749,

773 (1989), rehg denied, No. 02-409, 2004 WL 108633 (U.S. May 17, 2004), and acts as a

check against corruption by holding the government accountable to those it governs. NLRB v.

Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The NIGC has promulgated regulations

implementing the FOIA. 25 CFR Part 517.

Agency records not subject to a FOIA exemption must be disclosed upon the agencys

receipt of a proper request. Such request must reasonably describe the records sought, 5

U.S.C. 552(a)(3)(A), and must be made in accordance with the agencys published FOIA

regulations. Id. at 552(a)(3)(A)(ii).

The agency must respond to a properly submitted FOIA request within 20 working days

by at least notifying the requester of the agencys determination whether or not to disclose the

requested document(s), and of the requesters right to appeal the agency determination to the

agency head. 5 U.S.C. 552(a)(6)(A)(i). An agency may delay its response to a FOIA request in


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8

unusual circumstances, but must provide notice and the date on which a determination is

expected to be dispatched. 5 U.S.C. 552(a)(6)(B). An agency must respond to a FOIA appeal

within 20 working days, notifying the requester of its determination to either release the

requested records or uphold the denial. 5 U.S.C. 552(a)(6)(A)(ii).

An agencys failure to comply with the time limits for either processing the initial request

or adjudicating an administrative appeal may be treated as a constructive exhaustion of

administrative remedies. 5 U.S.C. 552(a)(6)(C). In those circumstances, the requester may

seek judicial relief, without availing itself of the administrative appeal process. See, e.g.,

Spannaus v. U.S. Dept of Justice, 824 F.2d 52, 58, 262 U.S. App D.C.325, 331 (D.C. Cir. 1987).

Upon receipt of a FOIA complaint, the district court has jurisdiction to enjoin the agency from

withholding agency records and to order the production of any agency records improperly

withheld from the complainant. 5 U.S.C. 552(a)(4)(B). In a FOIA action, the agency bears

the burden of justifying its failure to disclose the requested documents. Id.

ARGUMENT

I. THE NIGC HAS NOT MET ITS BURDEN OF PROVING THAT IT

CONDUCTED AN ADEQUATE SEARCH FOR ALL RESPONSIVE

DOCUMENTS.

Upon receipt of a properly submitted FOIA request, an agency must conduct a search that

is reasonably calculated to uncover all relevant documents. Weisberg v. U.S. Dept of Justice,

705 F.2d 1344, 1351, 227 U.S.App.D.C. 253, 260 (D.C. Cir. 1983); see also Truitt v. Dept of

State, 897 F.2d 540, 542, 283 U.S App.D.C. 86, 88 (D.C. Cir. 1990). The reasonableness of an

agencys search depends, in part, on the scope of the FOIA request and the requesters description

of the records sought. See, e.g., 5 U.S.C. 552(a)(3)(A) (requiring that a FOIA request


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reasonably describe[] the records sought). Moreover, as the Department of Justices Office of

Information and Privacy has counseled government agencies, FOIA requests should be

interpreted liberally when determining which records are responsive. FOIA Update, Vol.

XVI, No. 2 at 3, quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890, 315

U.S.App.D.C. 177, 182 (D.C. Cir. 1995).

The responding agency bears the burden of proving the adequacy of its search. See, e.g.,

Patterson v. IRS, 56 F.3d 832, 840 (7th Cir. 1995); Maynard v. CIA, 986 F.2d 547, 560 (1st Cir.

1993). The agency carries this burden through the submission of detailed, nonconclusory

affidavits. Weisberg v. U.S. Dept of Justice, 745 F.2d 1476, 1485, 240 U.S.App.D.C. 339, 348

(D.C. Cir. 1984); see also Oglesby v. Dept of the Army, 920 F.2d 57, 68, 287 U.S.App.D.C. 126,

137 (D.C. Cir. 1990). Toward that end, agency declarations will be deemed inadequate if they do

not identify what files were searched, what search terms were used, and do not show that the

search method was reasonably calculated to uncover all relevant documents. Id. It is also

necessary that the agency declaration aver[] that all files likely to contain responsive materials . .

. were searched in order to afford a FOIA requester an opportunity to challenge the adequacy of

the search and to allow the district court to determine if the search was adequate in order to grant

summary judgment. Id.See also Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14,

354 U.S.App D.C. 230, 232-33 (D.C. Cir. 2003). If the agency declarations do not meet this

standard, summary judgment must be denied. Landmark Legal Foundation v. EPA, 272

F.Supp.2d 59, 66 (D.D.C. 2003) (agency affidavits that do not denote which files were

searched, or by whom, do not reflect any systematic approach to document location . . . are

insufficient to support summary judgment.) (citing Weisberg, 627 F.2d at 371, 200


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6See Exhibit N to Complaint (explaining that CREW sought all responsive documentsregardless of format, medium, or physical characteristics, and specifying that the requestincluded electronic records, audiotapes, videotapes, and photographs).

7 Declaration of Alan Fedman (Fedman Decl.), 5.

10

U.S.App.D.C. at 312); see also Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326, 336

U.S.App.D.C. 386, 391 (D.C. Cir. 1990); Founding Church of Scientology v. Natl Sec. Agency,

610 F.2d 824, 837, 1997 U.S. App.D.C. 301, 318 (D.C. Cir. 1979).

When judged against these standards, the NIGCs declaration submitted to document the

reasonableness of its search falls woefully short. All that the declaration of Regina McCoy

explains is that she sent search taskers to specified offices and sorted through search

responses to identify further which documents were responsive to CREWs request. McCoy

Decl., 17-18. What the NIGC has failed to identify, however, is which specific files were

searched using which specific search terms. Nor has the NIGC stated whether its search was

limited to paper files, or whether it also searched electronic and other kinds of records, consistent

with its obligation under the FOIA and the scope of CREWs FOIA request.6 At bottom, there is

simply no evidence from which the Court can determine whether the search the NIGC conducted

was reasonably calculated to uncover all relevant documents. Oglesby, 920 F.2d at 68, 287

U.S. App. D.C. at 137. This conclusion is underscored by the agencys failure to affirmatively

aver that all files likely to contain responsive materials . . . were searched. Id.

The paucity of documents the NIGC produced further evidences the inadequacy of its

search. Notwithstanding its representations that the NIGC has open and pending investigations .

. . into the alleged misuse of tribal revenues by certain tribes,7 and is participating in a multi-


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8 McCoy Decl., 33.

9 NIGC Mem. at 7.

11

agency law enforcement investigation,8 the NIGC identified a total of only 14 documents

responsive to CREWs request, including numerous pages of newspaper articles. See McCoy

Decl., 22. Moreover, of those 14 documents, only six were identified on the agencys Vaughn

index as from its investigative file. Given the breadth of CREWs FOIA request, the magnitude

of what is already know publicly about the Indian gaming scandal, and the NIGCs own

statements that it has open and pending investigations, it is simply not credible that the NIGC

has no other responsive records. Compare Center for Natl Security Studies v. U.S. Dept of

Justice, 215 F.Supp.2d 94, 110-111 (D.D.C. 2002), affd in part, revd in part & remanded on

other grounds, 331 F.3d 918, 356 U.S. App. D.C. 333 (D.C. Cir. 2003), cert. denied, 540 U.S.

1104, 124 S. Ct. 1041 (2004).

Accordingly, on the basis of the record that the NIGC has put before this Court, its motion

for summary judgment must be denied because its conclusory argument that its search is clearly

adequate under the law,9 is without evidentiary support.

II. THE NIGC HAS NOT DEMONSTRATED THAT THERE IS NO

REASONABLY SEGREGABLE PORTION OF THE RESPONSIVERECORDS THAT CAN BE RELEASED.

The Freedom of Information Act imposes on agencies an affirmative duty to provide to

requesters [a]ny reasonably segregable portion of a record. 5 U.S.C. 552(b).See also Vaughn

v. Rosen, 484 F.2d 820, 827, 157 U.S.App.D.C. 340, 347 (D.C. Cir. 1973), cert. denied, 415 U.S.

977 (1974). Courts have interpreted this duty as requiring the agency to provide a specific


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10 American Civil Liberties Union Foundation v. U.S. Dept of Justice, 833 F.Supp. 399,403 (S.D. N.Y. 1993).

12

assurance of compliance with 55(b),10 and requiring district courts to consider whether there

was reasonably segregable material that the agency should have released. See, e.g., Trans-Pac.

Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028, 336 U.S.App.D.C. 189, 195

(D.C. Cir. 1999); Kimberlin v. U.S. Dept of Justice, 139 F.3d 944, 951, 329 U.S.App.D.C. 251,

258 (D.C. Cir. 1998).

The NIGC has failed to even aver, much less demonstrate, that it has met its affirmative

duty to release to CREW all reasonably segregable material. Instead, it has claimed blanket

exemptions for all of the withheld documents, leaving the Court no record from which it can meet

its own affirmative obligation to ensure compliance with 5 U.S.C. 552(b). On this basis alone,

the NIGCs motion for summary judgment must be denied.

III. THE NIGC HAS NOT MET ITS BURDEN OF DEMONSTRATING

THAT THE WITHHELD DOCUMENTS FALL WITHIN EXEMPTION 7(A).

Exemption 7(A) of the FOIA authorizes an agency to withhold records or information

compiled for law enforcement purposes, but only to the extent that production . . . could

reasonably be expected to interfere with enforcement proceedings. 5 U.S.C. 552(b)(7)(A). As a

threshold matter, an agency claiming Exemption 7(A) must demonstrate that the records in

question were compiled for a law enforcement purpose. Kay v. FCC, 976 F.Supp. 23, 37 (D.D.C.

1997). This requires the withholding agency to establish the existence of a nexus between [its]

investigation . . . and one of [its] law enforcement duties. Id., citing Pratt v. Webster, 673 F.2d

408, 420-21, 218 U.S.App.D.C. 17, 29-30 (D.C. Cir. 1982).

Once the agency has met this threshold requirement, it may invoke Exemption 7(A) only


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13

upon a showing that (i) the records were compiled for a pending or prospective law enforcement

purpose, and (ii) that their release reasonably could be expected to cause some articulable harm.

See, e.g., NLRB v. Robbins Tire & Rubber Co., 437 U.S. at 224; Manna v. U.S. Dept of Justice,

51 F.3d 1158, 1164 (3d Cir. 1995). In meeting the first requirement, the D.C. Circuit has held that

the standard is more demanding for agencies that have a mixture of law enforcement and

administrative functions. Pratt v. Webster, 673 F.2d at 418-19, 218 U.S.App.D.C. at 27-28. The

second part of the two-step inquiry requires the withholding agency to demonstrate interference

with a law enforcement investigation in a palpable, particular way. North v. Walsh, 881 F.2d

1088, 1100, 279 U.S.App.D.C. 373, 385 (D.C. Cir. 1989).

As discussed below, the NIGC has failed to meet its burden of proof on both the threshold

requirement, and the substantive requirements for the invocation of Exemption 7(A).

A. The NIGC Has Not Demonstrated That The Withheld Records Were

Compiled For Law Enforcement Purposes.

The NIGC has failed to carry its burden of demonstrating that the withheld records were

compiled for law enforcement purposes. Based on the record the NIGC has placed before the

Court, it is not possible to ascertain with any reasonable certainty precisely what pending law

enforcement investigations provide the basis for the withheld documents.

In his declaration Mr. Fedman, the Director of Enforcement for the NIGC, says both that

[t]here are open and pending internal investigations by the NIGC into alleged misuse of tribal

revenues by certain tribes, as well as related federal law enforcement investigations. Fedman

Decl., 5. But he fails to say whether the withheld documents are from the NIGC investigative

files, the other related federal law enforcement investigative files, or both. Instead, he merely

identifies the withheld documents as consist[ing] of material that NIGC personnel have received


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11 Fedman Decl., 6.

14

from several sources regarding alleged misuse of tribal gaming revenues and two inter-intra

agency memoranda regarding those investigations. Id. Moreover, while he states that he shared

our [NIGC] information with the Indian Gaming Working Group (IGWG), and forwarded the

documents to the cooperating federal law enforcement authorities within the IGWG,11 Mr.

Fedman does not say that the unidentified documents were actually made a part of any ongoing

law enforcement investigation.

On the other hand, the declaration of Ms. McCoy, who is a FOIA officer for the NIGC and

therefore not involved directly in any NIGC investigation, claims that the withheld records were

compiled as part of an ongoing multi-agency law enforcement investigation. McCoy Decl. at

33. She says nothing, however, about the NIGCs own investigation and does not identify the

source of her information.

This confusion is compounded by the NIGCs brief, which describes the underlying law

enforcement investigations as ongoing multi-agency law enforcement investigations which

concern alleged misuse of tribal gaming revenue in violation of the IGRA [Indian Gaming

Regulatory Act] and other laws, citing to the McCoy and Fedman declarations. NIGC Mem. at 8.

The NIGCs brief, however, says nothing about the NIGCs internal investigations referenced by

Ms. McCoy. Thus, the record before this Court is far from clear as to precisely which

investigation or investigations the withheld documents relate.

In addition, the NIGCs brief supplies detail concerning the nature of the investigations that

is notably lacking in both Ms. McCoys and Mr. Fedmans declarations. Neither declarant

described the investigations as concerning IGRA and other laws. Instead, Mr. Fedman said only


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12 Fedman Decl., 5.

13 NIGC Mem. at 8.

14 Not only has the NIGC failed to demonstrate that there is a rational basis for a lawenforcement investigation, as it is required to do, but it has suggested that CREWs factualaverments in its complaint should be construed as an implicit concession of a rational basis forthe NIGCs unidentified investigation. NIGC Mem. at 8 n.3. It is the NIGC, not CREW, thatbears the burden of proof here to justify its withholdings, 5 U.S.C. 552(a)(4)(B), and it mustmeet that burden with its own affirmative proof, not innuendo and implication drawn fromCREWs averments.

15

that the NIGCs investigations related to misuse of tribal revenues by certain tribes,12 and he

described the federal law enforcement investigations as related. Id. Ms. McCoys declaration is

equally unenlightening, as she echoes the language used by Mr. Fedman to describe the multi-

agency law enforcement investigation. McCoy Decl., 33.

What neither declarant has done, however, is identify the specific federal law or laws that

are the predicate for either referenced investigation. Absent that information, it is impossible for

the Court to determine if the NIGC has established the necessary nexus between [its]

investigation . . . and one of [its] law enforcement duties. Pratt v. Webster, 673 F.2d at 420-21,

218 U.S.App. D.C. at 29-30. The bald statement by NIGCs counsel that the unidentified

investigations are clearly rationally related to the agencys law enforcement duties,13 cannot

substitute for the evidence the agency must offer that there is a connection between the individual

under investigation and a possible violation of a federal law. Kay, 976 F.Supp. at 37.14

Accordingly, because the NIGC has not met its burden of proving the records were compiled for

law enforcement purposes, its summary judgment motion must be denied.


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15 Id.

16 The Court is as equally disadvantaged as CREW by the lack of a controvertingillumination of the factual predicate for the agencys withholdings. King,supra.

16

B. The NIGC Has Not Demonstrated The Requisite Interference With Enforcement

Proceedings To Justify Its Withholdings Under Exemption 7(A).

The NIGC s failure to identify the specific pending law enforcement proceeding or

proceedings to which the withheld documents relate is also fatal to its claim that the withheld

records relate to a pending or prospective law enforcement proceeding, the first inquiry under

Exemption 7(A). On this basis alone, its motion for summary judgment should be denied.

The NIGC has also failed to demonstrate by more than conclusory statements how

particular kinds of records withheld would interfere with a pending law enforcement proceeding,

the burden it carries under Exemption 7(A). Butler v. Dept of the Air Force, 888 F.Supp. 174,

183 (D.D.C. 1995), affd116 F.3d 941, 325 U.S.App.D.C. 320 (D.C. Cir. 1997). As the D.C.

Circuit has stressed, [t]he significance of agency affidavits in a FOIA case cannot be

underestimated. King v. U.S. Dept of Justice, 830 F.2d 210, 218, 265 U.S.App.D.C. 62, 70

(D.C. Cir. 1987). This is because the agency alone possesses knowledge of the precise content of

documents withheld,15 which seriously distorts the traditional adversary nature of our legal

systems form of dispute resolution. Id., quoting Vaughn v. Rosen, 484 F.2d at 824, 157 U.S.

App.D.C. at 344.

The disparity in knowledge between the NIGC and CREW16 is exacerbated here by the

inadequacy of the agencys declarations and its one-page Vaughn index. The documents withheld

under Exemption 7(A) are described in toto as consisting of: (i) Intra-agency communication

(Document 1); (ii) Spreadsheets (Document 2); (iii) investigative material From investigative


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file (Documents 3, 5, 6); (iv) Intra-agency communications that contain investigative

material (Document 7) and internal agency reports and sources (Document 13); (v) Inter-

agency communication (Documents 8, 9); and (vi) Fax from investigative file (Documents 10,

11, 12). See Vaughn Index and McCoy Decl., 22.

As is clear from its submissions, the NIGC has failed to identify exactly what particular

kinds of records it has withheld. Instead, it has used generic categories that are so devoid of any

description as to be essentially meaningless. While the courts have approved of a categorical

approach to Exemption 7(A) withholdings, they have still required that the agency define the

categories functionally, in a manner that will allow the court to link the nature of the document

and the alleged likely interference. Kay, 976 F.Supp. at 35,citing Bevis v. Dept of State, 801

F.2d 1386, 1389-90, 255 U.S.App.D.C. 347, 350-51 (D.C. Cir. 1986). This Court cannot make

that link here because the NIGC has failed to describe in any meaningful way the nature of the

withheld documents.

Indeed, this case stands in marked contrast to cases in which the courts have upheld the

adequacy of the agencies descriptions of documents withheld under Exemption 7(A) of the FOIA.

For example, in Kay v. FCC, the court upheld the FCCs use of functional categories of

documents, which included the following four categories: (1) confidential complainant/informant

exhibits to be used as part of the Show Cause/HDO proceeding; (2) attorney work product notes;

(3) notarized statements of prospective witnesses; and (4) forest service documents to be used as

potential exhibits in the Show Cause/HDO proceeding. 976 F.Supp. at 36. Beyond these generic

descriptions, the FCC also provided the Court with more specific information that allowed the

court to link the nature of the withheld documents to interference to an ongoing investigation from


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release of the documents. For example, the Court concluded that the category of confidential

complainant/informant exhibits were properly exempt because, as the FCC explained, they

contained documents submitted by confidential complainants/informants regarding plaintiffs

activities. Id.

In the instant case, by contrast, the Court can make no such link from the NIGCs bare

description of the withheld documents as investigative documents and agency memoranda.

McCoy Decl., 22. Nor can the Court determine any harm to an ongoing investigation if the

withheld faxes, spreadsheets, intra-agency communications, and names of the individuals who

provided newspaper articles were released, given the complete absence of any further description

that would provide the necessary link between the investigation and interference. In other words,

there is no factual predicate for the NIGCs representations that release of the withheld documents

could cause interference with its unidentified pending investigation(s). See Campbell v.Dept of

HHS, 682 F.2d 256, 265-66, 221 U.S.App.D.C. 1, 10-22 (D.C. Cir. 1982) (the government does

not meet its burden . . . through conclusory statements, unaccompanied by supporting detail).

Moreover, because CREW is not an actual or potential target of any NIGC investigation

seeking documents as part of an effort to obtain early discovery of the strength of the

governments case in order to tailor [its] defense, the Court must conduct a more focused and

particularized review of the documentation on which the government bases its claim that the

information [CREW] seeks would interfere with the investigation. Campbell,supra, 682 F.2d at

265, 221 U.S.App.D.C. at 10. Here, the Court cannot conduct a particularized review given the

dearth of detail in the NIGCs declarations and Vaugh index with respect to the nature of the

withheld documents and the harm their disclosure would cause.


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17 Moreover, the NIGC has not explained how revealing pre-enforcement deliberationswould cause harm to an ongoing investigation, the burden it carries under Exemption 7(A).

19

This conclusion is compelled as well by the nature of CREWs request. Unlike the vast

majority of FOIA requesters in the cases cited by the Defendant, CREW is not expressly seeking

investigative materials. Rather, its request is for documents about named individuals, entities and

tribes. See Complaint, Exhibit N. The NIGC has not explained why it could not comply with

CREWs request without revealing the existence of, and any details about, an ongoing

investigation. Nor has it explained whether it has any pre-investigative documents and, if so, why

they cannot be disclosed to CREW, beyond the bald statement that revelation of a purported

confidential source would reveal pre-enforcement deliberations, McCoy Decl., 33, thereby

conceding implicitly that at least some of the information it is withholding is pre-investigative.17

Instead, the NIGC has thrown the blanket of an ongoing investigation over the entirety of

its responsive documents and hidden behind generalized claims of harm without supplying the

necessary detail to justify those claims. Thus, for example, the NIGC has claimed that disclosure

of the withheld investigative documents would reveal the status of the investigations. NIGC

Mem. at 11. But it has not explained how this would happen from the revelation, for example, of

the names of individuals who supplied the NIGC with newspaper articles or the faxes and

spreadsheets it has withheld. Absent this level of detail, the Court cannot ascertain whether

Exemption 7(A) was properly invoked.

Moreover, the detail the NIGC has provided is of no assistance. For example, Mr.

Fedman explains that release of the withheld documents would jeopardize the anonymity of

NIGC informants and federal employees participating in the investigation because access to the

resources, fax machines, and other documents and information contained in the investigative file is


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limited. Fedman Decl., 8. This claim is virtually meaningless or, at best, incomprehensible.

Similarly, Mr. Fedman claims that release of intra-agency communications would reveal which

particular agencies are involved in the multi-agency investigation information that, by itself,

could be used to ascertain the direction of these investigations and to identify the potential

charges to be brought. Id., 9. But what he does not explain, and what is otherwise not at all

apparent, is how knowing simply which agencies are involved in the investigation would reveal

any detail about the direction and focus of the investigation. In any event, many of the agencies

involved have been named repeatedly by the press.

For all of these reasons, the NIGC is not entitled to summary judgment on its Exemption

7(A) claim.

IV. THE NIGC HAS NOT MET ITS BURDEN OF DEMONSTRATING THAT

THE WITHHELD DOCUMENTS FALL WITHIN EXEMPTIONS 7(C)

AND 6.

The NIGC has also relied on Exemptions 7(C) and 6 to justify withholding: (i) the name of

a confidential informant in an Intra-agency communication (Document 1); (ii) source

informationin Intra-agency communication[s] (Documents 7, 13) and Fax[es] from

investigative file (Documents 10, 11, 12); and (iii) source names in newspaper articles

(Document 14). Vaughn Index; McCoy Decl., 36, 38.

Exemption 7(C) protects personal information in law enforcement records the disclosure of

which could reasonably be expected to constitute an unwarranted invasion of personal privacy.

5 U.S.C. 552(b)(7)(C). The exemption is intended to protect the privacy interests that stem from

an individuals association with a law enforcement investigation. Exemption 6 also protects

personal privacy interests beyond law enforcement files, as it authorizes the withholding of


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22

Moreover, the agencys failure to meet its burden of proof is compounded by its failure to

demonstrate that all reasonably segregable material has been released, as discussed above. That

discrete portions of documents may contain information within the scope of Exemptions 6 and

7(C) which the NIGC has failed to demonstrate is no justification for the agencys blanket

invocation of those Exemptions.

For all of these reasons the NIGCs motion for summary judgment as to its Exemption 6

and 7(C) claims must be denied.

V. THE NIGC HAS NOT PROVIDED SUFFICIENT INFORMATION ABOUT

THE CONFIDENTIAL INFORMANT TO JUSTIFY ITS WITHHOLDING

UNDER EXEMPTION 7(D).

The NIGC has also withheld the name of a so-called confidential informant under

Exemption 7(D), which protects from disclosure law enforcement records the release of which

could reasonably be expected to disclose the identity of a confidential source . . . and, in the case

of a record or information compiled by a criminal law enforcement authority in the course of a

criminal investigation . . . information furnished by a confidential source. 5 U.S.C.

555(b)(7)(D).

First, as discussed above, the NIGCs failure to establish as a factual matter that the record

in question is part of a law enforcement investigation is fatal to is claim that the confidential

source is protected from disclosure under Exemption 7(D).

The NIGCs Exemption 7(D) claim also falls short based on the slim evidentiary record it

has offered here. Ms. McCoy has claimed that Document 1 on the agencys Vaughn Index, an

intra-agency communication, identifies a confidential source used by the NIGC in this

investigation and further that, [a]s a confidential source, the person has been given an express


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18 All four documents are identified as intra-agency communications (Documents 1, 8,9and 13 on the NIGCs Vaughn Index), two of which are defined as inter-governmentinvestigative communications (Documents 8 and 9) and two others as simply investigativematerial (Documents 1 and 13).

23

guarantee that personal and contact information will not be disclosed to the public. McCoy Decl.,

40. What she has not explained, however, is any of the context for this claimed guarantee of

confidentiality, including what is even meant by the term this investigation, and the timing of

any promise of confidentiality. Compare Dow Jones & Co. v. U.S. Dept of Justice, 917 F.2d 571,

575-76, 286 U.S.App.D.C. 349, 353-54 (D.C. Cir. 1990) (an agency relying on Exemption 7(D)

must demonstrate that the information was provided in confidence at the time it was

communicated.). Nor has she identified the source of her information, raising a question about

the validity of the claim given that Mr. Fedman, the Director of Enforcement for the NIGC, says

absolutely nothing in his declaration about a promise of confidentiality made to any source. In

short, the NIGC has failed to carry its evidentiary burden to invoke Exemption 7(D).

VI. THE NIGC HAS NOT DEMONSTRATED THAT IT PROPERLY

WITHHELD INFORMATION UNDER EXEMPTION 5.

Exemption 5 of the FOIA protects from disclosure inter-agency or intra-agency

memorandums or letters which would not be available by law to a party other than an agency in

litigation with the agency. 5 U.S.C. 552(b)(5). Here the NIGC has withheld portions of four

documents that it claims are within the deliberative process privilege and therefore exempt under

Exemption 5.18

In order to invoke Exemption 5 to protect deliberative material, an agency must

demonstrate both that the communication in question is pre-decisional and that it is deliberative.

See, e.g., Vaughn v. Rosen, 523 F.2d 1136, 1143-44, 173 U.S.App.D.C. 187, 194-95 (D.C. Cir.


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1975). To establish that the material in question is pre-decisional, the agency must establish what

deliberative process is involved, and the role played by the documents in issue in the course of that

process. Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 868, 199 U.S.App.D.C.272,

286 (D.C. Cir. 1980). In deciding whether a document is pre-decisional, courts will often look at

the flow of the document through the decision-making chain. Thus, a document from a

subordinate to a superior official is more likely to be pre-decisional than one from a superior to a

subordinate. Id.

The second prerequisite that the document be deliberative requires the agency to

distinguish between materials that are purely factual and therefore beyond the scope of Exemption

5, and materials that are deliberative matters and therefore protected from disclosure. See, e.g.,

Environmental Protection Agency v. Mink, 410 U.S. 73, 91 (1973) (Congress, in enacting

Exemption 5 of the FOIA, did not intend to permit[] the withholding of factual material otherwise

available on discovery merely because it was placed in a memorandum with matters of law, policy,

or opinion.).

It is impossible to determine, based on the record before the Court, whether the documents

withheld here pursuant to Exemption 5 are both pre-decisional and deliberative. The withheld

documents are described as internal communications that indicate the extent of the

investigation, government officials deliberative processes, and pre-decisional cogitations.

McCoy Decl., 26-27. The NIGC has failed to identify, however, what deliberative process is

involved, and the role played by the documents in issue in the course of that process. Coastal

States Gas Corp. v. Dept of Energy, 617 F.2d at 868, 199 U.S.App.D.C. at 286.

Nor has the NIGC established that the withheld documents contain exclusively deliberative


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material, a prerequisite to claiming protection under Exemption 5. In this regard, the NIGCs

failure to meet its duty to disclose reasonably segregable material (discussed above) increases the

likelihood that it has also failed to segregate for release purely factual material.

Finally, the NIGC has failed to explain how disclosure of the withheld material would

cause harm to the agencys deliberative processes, beyond the conclusory statement that it would

hinder . . . the governments deliberative process. McCoy Dec. at 27. In the absence of an

adequate factual predicate, the NIGCs Exemption 5 claims must be rejected.

CONCLUSION

The NIGC has failed to meet its burden of proving under the Freedom of Information Act

that it conducted a reasonable search, that it released all reasonably segregable material, and that

the documents it withheld are properly within the scope of Exemptions 5, 6, 7(A), 7(C), and 7(D).

For the foregoing reasons, its motion for summary judgment must be denied.

Respectfully submitted,

__/s/_________________________

Anne L. Weismann(D.C. Bar No. 298190)Melanie Sloan(D.C. Bar No. 434584)Citizens for Responsibility andEthics in Washington11 Dupont Circle, N.W.Washington, D.C. 20036Phone: (202) 588-5565Fax: (202) 588-5020

Attorneys for Plaintiff

Dated: October 17, 2005


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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________

CITIZENS FOR RESPONSIBILITY AND :

ETHICS IN WASHINGTON :11 Dupont Circle, N.W. :

Washington, D.C. 20036 :

:

Plaintiff, :

:

v. : No. 1:05cv00806 (RMC)

:

NATIONAL INDIAN GAMING COMMISSION :

1441 L Street, N.W. :

Washington, D.C. 20005 :

:Defendant. :

_________________________________________ :

PLAINTIFFS RESPONSE TO DEFENDANTS

STATEMENT OF MATERIAL FACTS NOT IN DISPUTE

Pursuant to LcvR 7(h), Plaintiff Citizens for Responsibility and Ethics in Washington

(CREW) hereby responds to Defendant National Indian Gaming Commissions (NIGC)

statement of material facts not in dispute:

1. Plaintiff admits that on March 18, 2005, it requested documents from the NIGC under

the Freedom of Information Act (FOIA), and refers the Court to that request for a full and

complete statement of its contents.

2. Plaintiff admits that in its letter of March 22, 2005, the NIGC acknowledged receipt of

CREWs FOIA request and advised CREW that the NIGC was unable to comply with the 20-

working-day statutory time-frame for processing the request, and refers the Court to that letter

for a full and complete statement of its contents.

3. Plaintiff admits that by letter dated May 9, 2005, the NIGC responded to plaintiffs

request by withholding 13 documents in toto and the attachment to a 14th document, and refers


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2

the Court to that letter for a full and complete statement of its contents.

4. Plaintiff admits that by letter dated May 10, 2005, the NIGC advised CREW of how

the NIGC was interpreting part of CREWs FOIA request, and refers the Court to that letter for a

full and complete statement of its contents.

5. This paragraph is a characterization of the NIGCs letter of May 20, 2005, which

speaks for itself. Plaintiff admits that the NIGC advised CREW of its appeal rights, and denies

that the statements in this paragraph are material to this litigation, given that Plaintiff had

properly filed its lawsuit at the time the NIGC sent its May 20, 2005 letter.

6. This paragraph is a characterization of the NIGCs letter of May 19, 2005, which

speaks for itself. Plaintiff admits that in its letter of May 19, 2005, the NIGC released 81 pages

of newspaper articles that had been withheld previously pursuant to Exemption 7(A) and also

admits that the NIGC asserted additional exemptions over the remaining withheld documents.

7. Plaintiff admits that the NIGC has withheld in full 178 pages of documents. The

remainder of this paragraph is not material to this litigation, in which Plaintiff is not challenging

the documents the NIGC has released.

8. Plaintiff admits that the NIGC has asserted Exemptions 5, 6, 7(A), 7(C) and 7(D) over

the withheld documents and refers the Court to the NIGCs Vaughn Index for a full and

complete statement of its contents.

9. Plaintiff admits that the NIGC has claimed Exemption 7(A) with regard to all of the

withheld documents but denies, based on the referenced paragraph of the McCoy Declaration,

that the NIGC has established whether it is asserting Exemption 7(A) over the entirety of all of

the withheld documents, with the exception of 12 pages of redacted source information in


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3

newspaper articles, or over portions of at least some of the withheld documents.

10. Plaintiff admits that the McCoy Declaration at 33 states that t[he withheld records

were compiled as part of an ongoing multi-agency law enforcement investigation regarding the

alleged misuse of tribal revenues by certain tribes, but denies that this is true as to all of the

withheld documents. Plaintiff further denies that the NIGC has established that the withheld

documents were compiled as part of ongoing multi-agency law enforcement investigations,

given the reference in Mr. Fedmans declaration to pending NIGC investigations and the failure

of Ms. McCoy to account for those internal investigations.

11. This paragraph is a characterization of Mr. Fedmans Declaration, which speaks for

itself. Plaintiff denies that Mr. Fedmans Declaration states that [d]isclosure of the withheld

documents would jeopardize access to law enforcement sources, potentially discourage

cooperation in future investigations, and under mine the ongoing investigation. See Fedman

Decl., 7 ([d]isclosure ofthe submissions from our informants would interfere with and

possibly destroy our access to pertinent information and materials . . . If current informants are

exposed, future potential informants might be deterred from providing the NIGC with critical

investigative information) and 9 (release ofinter-agency communications . . . could

seriously interfere with and seriously undermine the federal investigation. (emphasis added).

Plaintiff disputes that the NIGC has properly demonstrated that disclosure of the withheld

documents would harm an ongoing investigation, given the level of vagueness, generality, and

lack of specificity in the evidence it has put before the Court.

12. Plaintiff admits that the NIGC is claiming Exemptions 6 and 7(C) with regard to

redactions on certain of the withheld documents.


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4

13. Plaintiff denies that the information withheld pursuant to Exemptions 6 and 7(C) is

described as identifying information regarding of agency employees and informants. See

McCoy Decl., 29, 36-38 (describing withheld information as identities and contact

information of agency employees and informants).

14. Plaintiff admits that the McCoy Declaration states that [e]xposure of the names of

who is involved in NIGC investigations and the extent of the involvement would cause great

private harm to the individuals, McCoy Decl. at 29, and further that exposure of contact

information for law enforcement employees and their informants could give rise to personal

safety concerns, id. at 30. Plaintiff disputes that the NIGC has adequately demonstrated that

exposure of the individuals involved in or associated with the investigations would cause great

private harm to the individuals and could lead to personal safety concerns, as the evidence NIGC

has put before the Court consists of conclusory statements lacking the requisite specificity to

carry the agencys burden of proof.

15. Plaintiff admits that the NIGC is claiming Exemption 5 with regard to four of the

withheld documents, but denies that the NIGC has established that it is claiming Exemption 5 for

the entirety of each of those documents.

16. Plaintiff admits that the McCoy Declaration describes the four documents withheld

pursuant to Exemption 5 as internal communications between NIGC personnel and external

communications between NIGC personnel and members of other federal agencies. McCoy

Decl., 26.

17. Plaintiff admits that the McCoy Declaration contains this description of the

documents withheld pursuant to Exemption 5.


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1 Defendants Statement of Material Facts Not in Dispute does not contain paragraphs 19-

22, but jumps from paragraph 18 to paragraph 23.

5

18. Plaintiff admits that the McCoy Declaration at 27 contains the language cited in this

paragraph, but disputes that the NIGC has adequately demonstrated that exposure of the

information withheld pursuant to Exemption 5 would hinder an investigation, the specificity of

which the NIGC has failed to establish, as well as the governments deliberative process.

Plaintiff also disputes that protecting the identification of federal employees working on an

investigation is a proper basis to withhold that information pursuant to Exemption 5.

23.1 Plaintiff admits that the NIGC has claimed Exemption 7(D) for at least a portion of

one document, but denies that the NIGC has adequately specified which portion or portions of

that document fall within Exemption 7(D).

24. Plaintiff admits that the McCoy Declaration contains this description, but does not

admit its accuracy given the failure of Mr. Fedman, the Director of Enforcement for the NIGC,

to include this information in his declaration.

25. Plaintiff admits that the McCoy Declaration states that t]he agency will lose

valuable information if people are afraid to come forward as confidential sources for fear of


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6

future disclosure and the harassment and retaliation that may result from such exposure

(McCoy Decl., 41), but denies that the NIGC has met the requirements here for invoking

Exemption 7(D).

Respectfully submitted,

___/s/________________________

Anne L. Weismann

(D.C. Bar No. 298190)

Melanie Sloan

(D.C. Bar No. 434584)Citizens for Responsibility and

Ethics in Washington

11 Dupont Circle, N.W.

Washington, D.C. 20036

Phone: (202) 588-5565

Fax: (202) 588-5020

Attorneys for Plaintiff

Dated: October 17, 2005