Public Concern About Bureau Competency or Lack Thereof in Handling re Laundrie Investigation (Federal Bureau of Investigation)
|Multi Request||Public Concern About Bureau Competency or Lack Thereof in Handling re Laundrie Investigation|
|Submitted||Oct. 8, 2021|
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From: Nik Hatziefstathiou
To Whom It May Concern:
Pursuant to the Freedom of Information Act, I hereby request the following records:
This is a request for information pursuant to the Freedom of Information Act, 5 U.S.C. §552 (“FOIA”) seeking the opportunity to inspect or obtain copies of public records pertaining to a specific statement made by Christopher and Roberta Laundrie (collectively the “Laundrie Parents”) through their attorney-of-record, Steven Paul Bertolino, New York Attorney Identification No.: 2704278, (the “Laundrie Lawyer”) on or about October 6, 2021, putting into public question the performance of the Federal Bureau of Investigation’s (the “FBI”) handling of a case of immense public interest that garnered international media attention. The request seeks documents that are maintained by the Federal Bureau of Investigation Denver Field Office (or “the Bureau”).
I believe this request meets the criteria for expedited processing under U.S. 27 CFR §16.5(e)(1)(iv), as “[a] matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence;” U.S. 27 CFR §16.5(e)(1)(ii) as “[an] urgency to inform the public about an actual or alleged Federal Government activity, if made by a person who is primarily engaged in disseminating information;" and U.S. 27 CFR §16.5(3) as “[the] existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an “urgency to inform” the public on the topic. As a matter of administrative discretion, a component may waive the formal certification requirement.” 28 CFR 16.5(d)(1)(iv).
(1.0) Notes or communications that can confirm or deny allegations raised by the Laundrie Lawyer at the direction of his clients, the Laundrie Parents, on October 6, 2021, at 7:56 p.m. via iMessage (the “Laundrie Pre-Search Statement”). The message was distributed to the national press and syndicated to international outlets in all corners of the world. We request a confirmation or denial of the accuracy of the Laundrie Pre-Search Statement as it puts into question the competency of the Bureau's handling of the investigation, or, the character of the Laundrie Parents and Laundrie Lawyer, all of whom control current flow of information to members of the media, and in turn, the news narrative on a global scale to suit their purpose at the expense of taxpayers.
B) Relevant Background.
(2.0) On October 6, 2021, at 7:56 p.m., the Laundrie Pre-Search Statement was issued and asserted "law enforcement asked" Christopher Laundrie to assist in the search as "Chris and Roberta believe Brian may be" at a specific, single location. Despite his son being a fugitive whose escape riveted the nation, the Laundrie Pre-Search Statement insinuates the Bureau i) asked them to assist in the search; ii) knew the Laundrie Parents had knowledge of "the only place" the two individuals closest to Brian Laundry "believe he may be" and ignored them, in-turn obstructing an investigation and costing taxpayers an immense amount of money for no apparent reason; iii) after the Bureau asked for the Laundrie Parents assistance, the park was closed so the Bureau 'postponed' the only credible lead to date leaving Chris and Roberta Laundrie "hopeful there will be another opportunity to assist." The full Laundrie Pre-Search Statement reads:
“Chris Laundrie was asked to assist law enforcement in their search for Brian at the preserve today. Since the preserve has been closed to the public Chris has not been able to look for Brian in the only place Chris and Roberta believe Brian may be. Unfortunately North Port police had to postpone Chris’ involvement but Chris and Roberta are hopeful there will be another opportunity to assist.”
(3.0) At 8:12 p.m. that same night, the National News Publications sought comment from North Port Police Department as to the allegations raised in the Laundrie Pre-Search Statement. At 8:18 p.m., Public Information Officer Joshua Taylor provided the following statement (the “NPPD Denial”) via e-mail:
“The FBI is the lead. The NPPD, would not be making these decisions and actions. The FBI would have to answer if that was true.”
(4.0) The NPPD Denial insinuates the second sentence of the Laundrie Pre-Search Statement was false and without merit. The NPPD Denial raises serious doubt about the truthfulness of the Laundrie Pre-Search Statement and apparent abuse or improper use of Exemption 7. By withholding information that in no conceivable universe can jeopardize an on-going criminal investigation, the Bureau is only fueling public speculation about the Laundrie Parents alleged involvement while raising serious concerns about the Bureau’s competency and handling of its investigation-in-chief into the homicide of Gabrielle Venora Petito.
(5.0) As outlined in the Department of Justice Guide to the Freedom of Information Act (the “DOJ Guide”), even if a law enforcement proceeding is active, the Justice Department also says agencies need to assess “whether release of information about it could reasonably be expected to cause some articulable harm” before invoking 7(A). It also bears mentioning that even after an agency is no longer invoking 7(A) for certain records or information, it can still withhold that material on the basis of other exemptions.
(6.0) In addition, except for Exemption 7(B) and part of Exemption 7(E), the 1986 FOIA amendments changed the requirement that an agency demonstrate that disclosure "would" cause the harm each subsection seeks to prevent, by substituting a new standard that disclosure "could reasonably be expected to" cause the specified harms. *
(7.0) Courts have found the threshold satisfied for non-investigatory records provided they involve a law enforcement purpose,7 but have denied protection when the agency failed to establish a sufficient connection between the records and any law enforcement function. *
(8.0) There could scarcely be a more important example for the need for maximum transparency from the Bureau regarding access to redacted material.
(9.0) The National News Publications seek the release of the records – even if redacted to ensure sensitive information such as personal details are safeguarded – to which the public has a constitutional and common law right of access.
(10.0) As noted, the public has both a First Amendment and common law right of access to the requested redacted material. See Richmond Newspapers, 448 U.S. 555 and Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596 (1982); see also In re Cendant Corp., 260 F.3d at 192 (“It is well-settled that there exists, in both criminal and civil cases, a common law public right of access.”).
D) Applicable Law.
(11.0) There are very few governmental interests sufficiently compelling to outweigh the public’s First Amendment right of access to information; they include such limited circumstances as grand jury secrecy (see In re Newark Morning Ledger Co., 260 F.3d at 221), individual privacy interests (see Smith I, 776 F.2d at 1114), the government’s need to conduct criminal investigation unfettered by early public disclosure of its sources of evidence and identities of witnesses (see United States v. Sealed Search Warrants, No. 99-1096, 1999 WL 1455215, at *7 (D.N.J. Sept. 2, 1999)), and threat to national security (N. Jersey Media Grp., Inc. v. Ashcroft, 308 F.3d 198, 217-18 and fn. 13 (3d Cir. 2002)). These governmental interests simply do not apply here.
(12.0) The Third Circuit has held that requests of this nature are “mandated by at least six societal interests”: (1) promotion of informed discussion of governmental affairs by providing the public with a more complete understanding; (2) assurance that the proceedings are conducted fairly to all concerned; (3) “significant community therapeutic value”; (4) a check on corrupt practices by exposing the judicial process to public scrutiny, thus discouraging decisions based on secret bias or partiality; (5) enhancement of the performance of all involved; and (6) discouragement of perjury. Criden II, 675 F.2d at 556.
(13.0) These interests “may not be abridged absent the satisfaction of substantive and procedural protections.” See Antar, 38 F.3d at 1359. Accordingly, closure of criminal records to which there is a presumptive right of access is permitted only under rare circumstances when there is “cause shown that outweighs the value of the openness.” Press-Enterprise Co. v. Superior Court of California, Riverside Cty., 464 U.S. 501 (1984) (“Press Enterprise I”).
(14.0) In particular, any argument that the individual privacy interests of officers or potential witnesses in the event that the redacted records are disseminated outweigh public access would be a red-herring.
(15.0) As noted above, public employees and elected and appointed officials “cannot claim a right of privacy with respect to the manner in which they perform their duties.” Smith I. at 1116 (Mansmann, J., concurring) (emphasis added).
(16.0) As such, any individual privacy interested is insufficiently compelling to outweigh the public’s First Amendment rights of access.
(17.0) Injury to official reputation is an insufficient reason “for repressing speech that would otherwise be free” (Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 841-42 (1978)), and cases decided since Smith I have fairly consistently concluded that public officials have “no privacy interest in freedom from accusations, baseless though they may be, that touch on [their] conduct in public office or in [their] campaign for public office.” See In re McClatchy Newspapers, Inc., 288 F.3d 369, 373 (9th Cir. 2002) (holding that newspaper was entitled to writ of mandamus compelling disclosure of unredacted letters). “Political figures are well-equipped and have ample opportunity to respond to any accusations of wrongdoing. ... Privacy interests should be trumped when evoked to protect public officials from criticism.” United States v. Huntley, 943 F. Supp. 2d 383, 387 (E.D.N.Y. 2013) (granting petition by members of the press to unseal sentencing memorandum containing list of names). See also Kushner, 349 F. Supp. 2d at 906-07 (explaining that current and former public officials have diminished expectations of privacy.) See also United States v. Criden, 648 F.2d 814, 822 (3d Cir. 1981) (“Criden I”) (“[W]e note that the criminal trial at which the tapes were played was not an ordinary criminal trial. The two defendants were elected public officials accused of receiving money for acts to be performed by them because of their official positions”). Cf. Pansy, 23 F.3d at 788 (finding that if access to a filed document “involves issues or parties of a public nature, and involves matters of legitimate public concern, that should be a factor weighing against entering or maintaining an order of confidentiality”).
(18.0) Indeed, as the Supreme Court has held, there is a “paramount public interest in a free flow of information to the people concerning public officials, their servants.” Garrison v. Louisiana, 379 U.S. 64, 77 (1964). Moreover, as the Third Circuit noted more than two decades ago, “the public has a lively interest in considering the relationships formed by elected officials” (Medico v. Time, Inc., 643 F.2d 134, 142, cert. denied, 454 U.S. 836 (1981)), and it is these relationships that seem to form the basis of the Bureau’s denial.
(19.0) The public’s constitutional and common law access right to redacted electronic communications and requests by Christopher Laundrie and Roberta Laundrie to assist authorities in the search for their fugitive son as articulated above “may not be abridged absent the satisfaction of substantive and procedural protections.” See Antar, 38 F.3d at 1359.
(20.0) Accordingly, closure of electronic communications or complaints lodged against servants employed and compensated by the United States Government to which there is a presumptive right of access is permitted only under rare circumstances where there is “cause shown that outweighs the value of the openness.” Press-Enterprise I, 464 U.S. at 509 (emphasis added). The Supreme Court articulated this standard in Press Enterprise I as follows:
The presumption of openness may be overcome only by an overriding of interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure was properly entered. Id. at 509-510.
(21.0) The Laundrie Pre-Search Statement warrants an investigation by the Bureau as it included a complaint accusing the Bureau of ignoring the Laundrie Parents when they claimed to know the location of their wanted fugitive son, Brian Laundrie, an individual at the center of an international media firestorm in connection to the disappearance and subsequent homicide of his fiancé, Gabby Petito.
(22.0) The Bureau’s consideration in this regard requires the Bureau to make a “particularized showing of the need for continued secrecy”, which is balances against the requestor’s reason for access. See Id.; Pansy, 23 F.3d at 790. The Bureau has “the burden of justifying the confidentiality of each and every document sought to be covered.” See Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1122 (3d Cir. 1986).
(23.0) In this matter, the Bureau refused to release redacted material responsive to the request without explanation and naively believes every request pertaining to the Laundrie Parents or topic at-large are protected under federal law citing an “ongoing criminal investigation.” There simply is no argument or law that permits the Bureau to continue withholding the information from the public.
(24.0) Indeed, the Third Circuit has held that in balancing a request for access against the need of secrecy, “whether a party benefiting from the order of confidentiality is a public entity or official” or whether the case “involves issues important to the public” is highly probative; if the request material “involves issues or parties of a public nature, and involves matter of legitimate public concern, that should be a factor weighing against entering or maintaining an order of confidentiality.” Pansy, 23 F.3d at 788.
(25.0) In light of the fact that the redacted materials involve public employees and officials and myriad issues important to the public, and in light of the fact the Bureau has not offered any particularized showing of the need for continued secrecy of requested redacted records, the Bureau should lift, or at least modify the denial, and grant the National News Publications access to the redacted materials or provide a simple confirmation or denial as to the Laundrie Pre-Search Statement.
E) Expedited Processing.
(26.0) The FOIA requires agencies to issue regulations that provide for the expedited processing of FOIA requests for requesters who demonstrate "compelling need," or for any other case deemed appropriate by the agency. Under the FOIA, a requester can show "compelling need" in one of two ways: (1) by establishing that his or her failure to obtain the records quickly "could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or, (2) if the requester is a "person primarily engaged in disseminating information," by demonstrating that there exists an "urgency to inform the public concerning actual or alleged Federal Government activity."
(27.0) Between August 27 and 30, 2021, 22-year-old New York native Gabrielle Venora Petito disappeared while she was on a van-life trip across the United States with her fiancé, Brian Christopher Laundrie.
(28.0) Brian is Christopher John “Chris” Laundrie and Roberta Maria Vinci Laundrie’s son and Cassandra “Cassie” Laundrie‘s brother.
(29.0) After Laundrie was designated as a person of interest in the case, his parents said he went hiking in a nearby forest preserve on September 14 and has not been seen since.
(30.0) Gabrielle Venora Petito, a New York-native, was found dead on Sunday, Sept. 19, 2021, in a remote area of Grand Teton National Park & Bridger-Teton National Forest in Teton County, Wyoming (For verification of death, please see this statement issued via Twitter by the FBI: https://twitter.com/fbidenver/status/1440421552042897415?s=21)
(31.0) On September 22, 2021, the Federal Bureau of Investigation (FBI) issued a warrant for Laundrie's arrest on charges of debit card fraud after he made withdrawals using Petito’s debit card after her death which was subsequently ruled a homicide. (For verification of Brian Laundrie’s fugitive status, please see this statement issued via Twitter by the FBI on 9/23/2021: https://twitter.com/fbidenver/status/1441155529393389568?s=21)
(32.0) On October 6, 2021, the Laundrie Parents, through the Laundrie Lawyer, provided knowingly false or misleading information to the public through their counsel, an officer of the Court, causing great confusion and outcry from the general public.
(33.0) On October 6, 2021, after the NPPD Denial was issued, the Bureau provided a generic reply at 11:11 p.m. asserting: "As this is an ongoing investigation, there will be no additional comment at this time. Please continue to monitor Twitter (@FBIDenver). Thank you, Amy"
(34.0) By September 26, 2021, it was learned the investigation and manhunt for Brian Laundrie cost taxpayers more than $1 million.
(35.0) On October 7, 2021, not even 12 hours after the NPPD Denial was issued, Christopher Laundrie joined authorities in a Florida-area park to assist in the search.
(36.0) At 2:55 p.m. that afternoon, the Laundrie Lawyer issued a second statement (the "Laundrie Post-Search Statement") outlining the apparent search effort which raised serious public concern at the Bureau’s handling of the on-going investigation. The Bureau was praised “for the hard work” by the Laundrie Lawyer, at the direction of his clients, the Laundrie Parents. The statement included a wisecrack in its own: “Hopefully Brian will be located soon.”
The full Laundrie Post-Search Statement reads: “Today Chris Laundrie accompanied members of law enforcement into the Reserve to show them the trails and places Chris and Brian have hiked and which Brian was known to frequent. There were no discoveries but the effort was helpful to all. It seems the water in the Preserve is receding and certain areas are more accessible to search. The entire Laundrie family is grateful for the hard work of the dedicated members of law enforcement that have been searching the Preserve for Brian over the last few weeks. Hopefully Brian will be located soon.”
Pursuant to 5 U.S.C. §552 (a)(b)(E)(v)(II), the National News Publications have a compelling need for the requested records. Therefore, we kindly request a fee waiver as it is a representative of the news media. Pursuant to the statute: “Documents shall be furnished without any charge or at [a] reduced rate … If the disclosure of the information is in the public interest because it is  likely to contribute  significantly to  public understanding of the  operations or activities or the government and is not  primarily in the  commercial interest of the requester.”
* : Pub. L. No. 99-570, § 1802, 100 Stat. at 3207-48; see also DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756 n.9 (1989) (recognizing that shift from "would constitute" standard to "could reasonably be expected to constitute" standard "represents a congressional effort to ease considerably a Federal law enforcement agency's burden in invoking [Exemption 7]"); Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act 9-13 (Dec. 1987) [hereinafter Attorney General's 1986 Amendments Memorandum 9-13].
* : See, e.g., Henderson v. DOJ, 157 F. Supp. 3d 42, 49-50 (D.D.C. 2016) (denying Exemption 7 protection to stenographic expense records regarding criminal case, because connection of such records to any law enforcement purpose "is highly attenuated"); Kubik v. BOP, No. 10- 6078, 2011 U.S. Dist. LEXIS 71300, at *30-31 (D. Or. July 1, 2011) (explaining that because BOP failed to connect records of inmate's "transfer, his behavior issues and the riot" to violations of law, these documents were not created for law enforcement purpose); Raher v. BOP, No. 09-526, 2011 WL 2014875, at *9 (D. Or. May 24, 2011) (finding that although disclosure of information pertaining to security electronics, security inspection system, and staffing vulnerabilities raise security concerns with respect to BOP's custodial functions, agency had not explained how withheld documents pertain to law enforcement functions); see also Maydak v. DOJ, 254 F. Supp. 2d 23, 38 (D.D.C. 2003) (finding that BOP failed to satisfy law enforcement threshold for records in its Inmate Central Records System, which it described as concerning day-to-day activities and events occurring during inmates' confinement).
The requested documents will be made available to the general public, and this request is not being made for commercial purposes.
In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.
Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.
From: Federal Bureau of Investigation
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