Cincinnati Enquirer v. Dep't of Justice
| Decision Date | 15 August 2022 |
| Docket Number | 21-3966 |
| Citation | 45 F.4th 929 |
| Parties | CINCINNATI ENQUIRER, a division of Gannett GP Media, Inc., Plaintiff-Appellant, v. DEPARTMENT OF JUSTICE; Drug Enforcement Administration, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: John C. Greiner, GRAYDON HEAD & RITCHEY, LLP, Cincinnati, Ohio, for Appellant. Kevin Koller, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee. ON BRIEF: John C. Greiner, J. Stephen Smith, Darren W. Ford, Frank M. Schultz, GRAYDON HEAD & RITCHEY, LLP, Cincinnati, Ohio, for Appellant. Kevin Koller, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee.
Before: BOGGS, MOORE, and GRIFFIN, Circuit Judges.
GRIFFIN, J., delivered the opinion of the court in which BOGGS, J., joined. MOORE, J. (pp. 938-40), delivered a separate dissenting opinion.
The Cincinnati Enquirer sued the Department of Justice ("DOJ") and the Drug Enforcement Administration ("DEA") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking documents related to a United States Attorney's decision not to charge a state prosecutor with obstruction of justice. The district court reviewed the relevant documents in camera and held that they are exempt from disclosure. Based on our own in camera review, we agree and affirm.
The parties stipulated to the facts set out in the Enquirer's complaint. Given the privacy interests at stake, the parties omit most identifying information. We follow their lead.
In 2015, a DEA task force made up of federal, state, and local law enforcement officers began investigating Ryan Jacobs, a drug dealer in Northern Kentucky. Jacobs sold drugs to a married couple who allegedly were "good friends" with the local elected prosecutor, known in Kentucky as a Commonwealth's Attorney. After the task force arrested Jacobs on state drug-trafficking charges, the couple had extensive conversations with the Commonwealth's Attorney about the task force's investigation. After one of these conversations, an assistant state prosecutor requested Jacobs's cell phone records from the task force. This request alerted the task force to the Commonwealth's Attorney's relationship with Jacobs's customers, and it began scrutinizing his involvement in the Jacobs case. The Commonwealth's Attorney's conversations with the couple continued as the task force interviewed them as part of the Jacobs investigation.
The Commonwealth's Attorney soon became involved in the Jacobs case in other ways. Although Jacobs was detained on state charges, the DEA wanted to use him as a cooperating witness in other drug-trafficking investigations. Jacobs therefore moved for a bond reduction. The Commonwealth's Attorney opposed Jacobs's request, and the state court declined to reduce bond without his consent. Jacobs eventually pleaded guilty to money laundering and conspiring to distribute methamphetamine.
Later, a Kentucky police officer performed a traffic stop on an unrelated individual, finding drugs and guns. The officer called a DEA agent, who told the officer that he would adopt the case for federal prosecution. With the agent en route, the officer sought a state search warrant for the driver's house. The Commonwealth's Attorney told the officer that he would not issue a search warrant if the DEA agent from the Jacobs investigation was involved. The Commonwealth's Attorney offered to provide a search warrant "as long as that specific DEA agent was not involved in the investigation and the DEA agent's name was not on any paperwork."
In 2016, the DEA officially opened an investigation into the Commonwealth's Attorney's conduct, entitled "Operation Speakeasy." According to the complaint, at the end of this investigation, the "DEA and law enforcement officials determined that enough evidence had been obtained to charge [t]he Commonwealth[’s] Attorney with obstruction of justice." They presented this evidence to then-U.S. Attorney for the Eastern District of Kentucky Kerry Harvey, but Harvey "refused to bring charges against [t]he Commonwealth[’s] Attorney."
In December 2019, a reporter with the Cincinnati Enquirer filed a FOIA request with the DEA, seeking any document related to the Jacobs investigation or Operation Speakeasy. The DEA denied that request under 5 U.S.C. § 552(b)(7)(C), which allows agencies to withhold FOIA-eligible documents if they are "records or information compiled for law enforcement purposes," disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy." The DOJ denied the reporter's administrative appeal of the DEA's decision.
The Enquirer then filed this lawsuit against the DEA and DOJ, seeking an injunction to compel defendants to turn over any document responsive to its FOIA request. The parties filed cross-motions for summary judgment. The district court reviewed the responsive documents in camera and weighed the privacy interests of the people discussed in the documents against the public's interest in disclosure. The court concluded that the responsive documents "only minimally advance[d] a public interest in shedding light on the decision of the United States Attorney to not prosecute the Commonwealth[’s] Attorney," and that the "significant privacy interests outweigh[ed] the proffered public interest." The court thus held that § 552(b)(7)(C) exempted these documents from disclosure and dismissed the Enquirer's case with prejudice. The Enquirer timely appealed.
FOIA codifies "a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Dep't of the Air Force v. Rose , 425 U.S. 352, 360–61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (quotation marks omitted). A federal agency may withhold requested records only if an enumerated FOIA exemption applies. Rimmer v. Holder , 700 F.3d 246, 255 (6th Cir. 2012). If an agency withholds a record under a FOIA exemption, the requester may challenge that decision in federal court and seek an injunction compelling production. § 552(a)(4)(B). The district court reviews the agency's denial de novo and, generally, "the burden is on the agency to sustain its action." Id . We likewise review de novo a district court's grant of summary judgment in a FOIA proceeding. See Rimmer , 700 F.3d at 255.
In defendants’ view, they properly withheld the requested documents under the exemption enumerated in § 552(b)(7)(C) —referred to here as "Exemption 7(C)"—which provides that "records or information compiled for law enforcement purposes" may be withheld if disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy." Put differently, "Exemption 7(C) prevents disclosure when: (1) the information was compiled for law enforcement purposes and (2) the disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy." Detroit Free Press, Inc. v. U.S. Dep't of Just. , 829 F.3d 478, 481 (6th Cir. 2016) (en banc) (citation omitted). No party disputes that these records satisfy the first condition.
Exemption 7(C)’s second condition requires us to "balance the public interest in disclosure against the privacy interest Congress intended Exemption 7(C) to protect." Id . (quoting U. S. Dep't of Just. v. Reps. Comm. for Freedom of the Press , 489 U.S. 749, 776, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (brackets omitted)). This balancing test is straightforward: If the privacy interest is greater than the public interest, the documents are exempt from disclosure. But if the public interest outweighs the privacy interest, Exemption 7(C) does not apply. To conduct this balancing test, we must define the privacy and public interests at play in this case.
We begin with the privacy interests. "The Supreme Court has described Exemption 7(C) as reflecting privacy interests in ‘avoiding disclosure of personal matters,’ maintaining ‘the individual's control of information concerning his or her person,’ avoiding ‘disclosure of records containing personal details about private citizens,’ and ‘keeping personal facts away from the public eye.’ " Detroit Free Press , 829 F.3d at 481 (citations omitted). "Embarrassing and humiliating facts—particularly those connecting an individual to criminality—qualify for these descriptors." Id . (collecting cases). "[T]his circuit, along with many others, has recognized that people who were investigated for suspected criminal activity or who were otherwise mentioned therein could be subjected to embarrassment, harassment, and even physical danger." Rimmer , 700 F.3d at 257 (cleaned up) (collecting cases); see also Fitzgibbon v. CIA , 911 F.2d 755, 767 (D.C. Cir. 1990) (). This privacy interest exists for suspects, as well as "third parties mentioned in the documents, such as witnesses, informants, and investigators." Rimmer , 700 F.3d at 257.
The Enquirer does not dispute that the people whose names appear in the records at issue here have a privacy interest against being connected to a DEA investigation. Rather, its main argument is that the privacy interests of the Commonwealth's Attorney and Jacobs are reduced because one is a public official and the other's criminality is already known to the public. For their part, defendants agree that some aspects of the privacy interests of Jacobs and the Commonwealth's Attorney are diminished. They concede that "Jacobs’ privacy interest is weakened with respect to the fact of his conviction or other publicly disclosed facts." Appellee's Br. 24; see ACLU v. U.S. Dep't of Just. , 655 F.3d 1, 7 (D.C. Cir. 2011) (...
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