Gawker Media LLC and attorney Gregg Thomas sued the FBI and the Executive Office of United States Attorneys, or EOUSA, in Federal Court on May 19 under the Freedom of Information Act.
The lawsuit alleges the FBI conducted a short-lived investigation in 2012 into the source and distribution of a sex tape featuring professional wrestling icon Hulk Hogan and Heather Clem, the wife of Hogan’s friend, radio personality Bubba the Love Sponge.
Gawker says records about the FBI investigation are critical to its defense of a $100 million lawsuit brought by Hogan arising from Gawker’s October 2012 publication of edited excerpts of the sex tape. But the website says the FBI and EOUSA have not cooperated with its records request.
“The EOUSA has not responded at all to Gawker’s FOIA request. The FBI has claimed that all responsive documents are exempt under FOIA because their release would constitute an interference with a law enforcement investigation,” the 8-page complaint states. “But any law enforcement investigation into the video footage that may once have existed is now long since over, and thus the claim that release of records would ‘interfere’ with it is demonstrably incorrect. Moreover, even if there were an ongoing or prospective investigation, the FBI has made no showing, as it must under FOIA, that release of specific records related to it would necessarily disrupt that investigation.”
The specific records Gawker asked for include communications between the FBI and Hogan and his counsel, statements from Hogan and/or his attorney, records about the source and distribution of the video, and other documents about the sex tape, including the video itself.
The FBI told Gawker in January that it had 1,168 pages of responsive records and two CDs with relevant video footage, according to the complaint. But Gawker says that, a day after it accepted charges for the request, the FBI denied the request on the basis that the responsive material constitutes exempt law enforcement records.
The Justice Department affirmed the FBI’s denial on May 6 without explanation, according to the lawsuit. The EOUSA has simply not responded, Gawker claims.
Tampa, Fla. FBI spokesman Dave Couvertier told the Tampa Tribune that the FBI is no longer investigating the matter and is not in a position to comment further.
Thomas, who works for Thomas & Locicero in Tampa, Fla., represents the plaintiffs. They seek a declaration that the requested records are not exempt and must be disclosed as well as an order to produce the records within 10 business days
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