Melanie Ann Pustay Affidavit, Deputy Director, Office of Information and Privacy




STUDIES, et al., )

Plaintiff, )
v. ) Civil Action No. 01-2500 (GK)
Defendant. )


I, Melanie Ann Pustay, declare the following to be true and correct:

1) I am the Deputy Director of the Office of Information and Privacy (OIP), United States Department of Justice. In this capacity, I am the final decision-making authority for the Initial Request Unit (IRU). The IRU is responsible for searching for and reviewing records of OIP as well as records of the senior leadership offices of the Department of Justice, including the Offices of the Attorney General and Deputy Attorney General, in response to requests made under the Freedom of Information Act (FOIA), 5 U.S.C. * 552 (1994 & Supp. V 1999). The IRU determines whether records responsive to access requests exist and, if so, whether they can be released in accordance with the FOIA. In processing such requests, the IRU consults with personnel in the senior leadership offices and, when appropriate, with other components within the Department of Justice as well as with other Executive Branch agencies.

2) I make the statements herein on the basis of personal knowledge, as well as on information acquired by me in the course
of performing my official duties.

3) By letter dated October 29, 2001, Ms. Kate Martin, Director, Center for National Security Studies, on behalf of plaintiffs, submitted a request to the Department of Justice, OIP, for “information concerning the individuals ‘arrested or detained’. . . in the wake of the September 11 attack.” (A copy of plaintiffs’ request is attached hereto as Exhibit A.)

4) By letter dated November 1, 2001, OIP acknowledged receipt of plaintiffs’ request on behalf of the Offices of the Attorney General and Deputy Attorney General and advised plaintiffs that their request for expedited processing had been granted. (A copy of this letter is attached hereto as Exhibit B.)

5) OIP located one document, totaling two pages, that is responsive to the portion of plaintiffs’ request seeking “policy directives or guidance issued about making public statements or disclosures” regarding the detainees. (See Ex. A at 1.) This document is being withheld in part pursuant to Exemption 5 of the FOIA, 5 U.S.C. * 552(b)(5), which pertains to certain inter- and intra-agency communications protected by the deliberative process privilege.

6) The record consists of draft talking points prepared by OIP at the request of an official in the Office of the Deputy Attorney General, for the ultimate use of the Attorney General, regarding the legal bases for nondisclosure of information regarding INS detainees. The record is clearly labeled “DRAFT” and includes bracketed comments and recommendations addressed to the official in the Office of the Deputy Attorney General with whom the talking points were being coordinated. This draft contains preliminary views and legal analysis of the FOIA and the Privacy Act, 5 U.S.C. * 552a (1994 & Supp. V 1999), as these statutes relate to disclosure of information pertaining to the detainees. As a draft document, it is inherently pre-decisional.

Moreover, within the draft itself are bracketed recommendations and suggestions concerning the content of the talking points. This document, on its face, represents a work in process and reflects the give and take of the deliberative process.

Disclosure of this record would inhibit advisors to the Attorney General from freely expressing their recommendations and giving advice about current legal issues and preferred courses of action. This inhibition would be extremely detrimental to the Attorney General who relies on such advisors for their complete, candid opinions. By affording confidentiality to agency deliberations such as these, decision makers, including the Attorney General himself, can operate most effectively.

In addition, due to the nature of this document, it contains only an incomplete view of the ultimate position to be taken by the Department on these legal issues. Public release of this draft could thus lead to erroneous conclusions about the position of the Department of Justice.

7) We carefully reviewed this record and have released all non-exempt reasonably segregable information. (A copy of this record as redacted for public release is attached hereto as Exhibit C.)

I declare under penalty of perjury that the foregoing is true and correct.
Executed this ___ day of January 2002.

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