DOJ OPR Investigation into AUSA Heymann

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Mr. Payne,

Your e-mail below was forwarded to this Office by OPR in June. This Office decided to treat this correspondence as an appeal of OPR's action on your request. After further review, it appears that you might have been attempting to submit a new request to OPR. Please advise whether you would like this Office to treat your correspondence as a new request or as an appeal of OPR's action.

Thank you.

Andrew Fiorillo
Attorney Advisor
Office of Information Policy
Department of Justice

To Whom It May Concern:

This is a request under the Freedom of Information Act. This is a re-submission of FIOA request F14-00097, which was improperly processed as "all records for a Department attorney".

I am not requesting "all" records.

I hereby request the following records, referring to a very specific ethics referral:

Any emails, memos, notes, reports, and/or any other documents that describe the process, investigation, conclusion, and/or outcome of the ethics referral by Elliot Peters on January 28, 2013 to the DOJ Office of Professional Responsibility regarding the conduct of AUSA Stephen Heymann during the prosecution of Aaron Swartz.

Also, please note Mr. Peters' referral letter was widely publicized (e.g. http://www.huffingtonpost.com/2013/03/13/aaron-swartz-prosecutorial-misconduct_n_2867529.html). That fact, combined with OPR's professional responsibility: responsive documents are already known to exist. As such, a Glomar response is not proper.

In addition, please consider the intense public interest in this matter. The prosecution of Mr. Swartz was widely criticized has been the subject of at least: a comprehensive University investigation (MIT), numerous White House petitions, protests, tributes, a feature-length film, a book, memorials, a "in memory of" political action committee , and a Harvard Law School case study. Given Mr. Heymann's central and public role in heading computer crime prosecution for the US Attorney's office in Massachusetts, and his role in this case, his privacy interests (if any exist) are limited, against overwhelming public interest in favor disclosure.

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 fees cannot be waived, 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.

Sincerely,

Andrew Payne

Mr. Payne,

We’ve received your correspondence and do not require further clarification. Due to the large number of appeals received by this Office and the individual review given to each, it is difficult to predict accurately when a final determination will be made on your appeal. However, based on the average review time, I anticipate that it will take at least another several weeks.

I hope this information is of assistance to you and appreciate your continued patience.

Andrew Fiorillo
Attorney Advisor
Office of Information Policy
Department of Justice
(202) 598-5074

Please do not reply to this e-mail, as this account is not monitored. To ensure a prompt reply, please direct any inquiries to the contact information listed in the correspondence provided to you. Thank you.

Attached is OPR's response to FOIA request F16-00022.

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A letter stating that the request appeal has been received and is being processed.