Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 19 of 22
Ultimately, the D.C. Circuit in CREW v. Department of Justice determined that
Exemption 7(A) did not apply because there was no pending or anticipated proceeding. First,
DeLay’s senior aides had been convicted, sentenced, and no appeals were pending. Id. at 1097.
Second, the Circuit expressed “considerable uncertainty about whether a criminal investigation
in fact continues to this day.” Id.
In stark contrast to the CREW panel, this Court is persuaded that there is an ongoing
criminal investigation. Unlike the vague characterization of the investigation in CREW,
Defendants have provided sufficient specificity as to the status of the investigation, and sufficient
explanation as to why the investigation is of long-term duration. See e.g., Hardy 4th Decl. ¶¶ 7,
8; Bradley 2d Decl. ¶ 12; 2d Cunningham Decl. ¶ 8.
C. Segregability
EPIC argues that “the government has failed to segregate and release non-exempt
portions of records.” Pl.’s Cross-Mot. Summ. J. at 22. EPIC insists that the types of documents
the government wants to protect are readily segregable, “[f]or example, the government is
seeking to protect the names of witnesses, law enforcement personnel, foreign officials, and
individual targets of investigations, as well as predecisional and deliberative documents.” Pl.’s
Cross-Mot. at 23. In response, Defendants maintain that “[e]ach component has reviewed the
responsive material, and determined that it is exempt in its entirety under Exemption 7(A). As a
result, there are no segregable, non-exempt portions that may be released to EPIC.” Defs.’ Mot.
at 15.
FOIA requires that “any reasonable segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. §
552(b). This Circuit has long since held that “non-exempt portions of a document must be
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