Watchdog group wins FOIA victory in search for Tom DeLay files

McClatchy Washington BureauApril 1, 2014 

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The U.S. Court of Appeals for the D.C. Circuit, the E. Barrett Prettyman building - United States Courthouse in Washington D.C.

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A watchdog group may be a step closer to obtaining Justice Department files concerning former House Majority Whip Tom DeLay, following a Freedom of Information Act victory in federal court.

In a 31-page decision Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit sided with Citizens for Responsibility and Ethics in Washington. The Justice Department cannot simply categorically reject CREW’s FOIA request, according to the court.

CREW has been seeking various types of documents related to the FBI’s investigation of DeLay. In August 2010, DeLay announced that DoJ had informed him it had decided not to bring criminal charges against him related to the Jack Abramoff lobbying scandal.

Here comes the hoist-on-one’s-own-petard alert. Judge Karen LeCraft Henderson, writing for the three-judge appellate panel, noted that DeLay’s public proclamation may have opened the door to more.

“DeLay’s obvious privacy interest in keeping secret the fact that he was the subject of an FBI investigation was diminished by his well-publicized announcement of that very fact,” Henderson wrote.

But while acknowledging that “DeLay’s privacy interest in the contents of the investigative files is not insubstantial,” Henderson further noted that “on the other side of the scale sits a weighty public interest in shining a light on the FBI’s investigation of major political corruption and DOJ’s ultimate decision not to prosecute a prominent member of the Congress for any involvement he may have had.”

“Disclosure of the records would likely reveal much about the diligence of the FBI’s investigation and the DOJ’s exercise of its prosecutorial discretion: whether the government had the evidence but nevertheless pulled its punches,” Henderson added.

CREW Executive Director Melanie Sloan, in a statement, called the decsion “a big win for anyone who believes that powerful people should not be shielded from scrutiny when they flagrantly violate the law.”

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