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Watchdog Gets Attorney Fees From Justice

WASHINGTON, D.C. (CN) - The Department of Justice must pay $32,865 in attorney's fees for its delayed response to a FOIA request for documents on a closed criminal investigation of former Nevada Senator Jim Ensign's affair with a staffer, a federal judge ruled.

U.S. District Judge John Bates granted Citizens for Responsibility and Ethics in Washington's request for attorney's fees incurred during its lengthy but successful court fight for records of a closed investigation into Ensign and money he paid to his former chief of staff and wife, with whom Ensign had an affair.

CREW filed a Freedom of Information Act lawsuit in September 2012, claiming the DOJ's Criminal Division, the FBI and the Executive Office of U.S. Attorneys improperly withheld records of to the Ensign investigation that had concluded with no charges filed .

Each agency denied CREW's requests, citing FOIA exemptions that protect personnel, medical and law enforcement records from invasions of privacy, and did not even conduct a records search, Bates wrote.

"The government elected to categorically withhold all responsive documents rather than evaluate each document individually" and explain reasons for withholding any specific documents, Bates found.

The judge said Ensign had a diminished right to privacy in the investigation of him, but "the public has a substantial interest in DOJ's decision not to prosecute him, considering the circumstances."

Ensign "resigned under the threat of expulsion from the Senate," Bates wrote. "Thus, the government's categorical withholding could not stand," and the court ordered the government to evaluate and provide an index of each document withheld, with a detailed justification for each withholding.

The government did not provide the index of documents, but asked if it could provide just a representative 1 percent sample of the 206,000 pages of documents sought, which the court denied.

In files eventually obtained by CREW, Ensign admitted paying $96,000 from the Ensign Family Trust Fund to Cynthia Hampton, a former campaign staff member, and to her husband, Doug Hampton, who used to be Ensign's chief of staff.

Ensign had no authority to allocate the money from the trust fund, which holds his parents' assets, and he claimed the $96,000 was a gift from his parents to the Hamptons, the files indicated.

The Freedom of Information Act provides for recovery of reasonable attorney's fees when a FOIA complaint has "substantially prevailed," and Bates said CREW sought the information for a public informational purposes, not to obtain a private advantage, and the agencies did not show they has a reasonable basis for withholding materials.

CREW sought $63,827 in attorney's fees and $550 in costs, but Bates said CREW's attorney inadequately tracked her hours by using overly broad rounding methods.

Ensign, a two-term Republican senator first elected in 2000, resigned in 2011 when the affair and his response to it became public.

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