Kimberlin v. Department of Justice

• Decision Date: 07 April 1998
• Docket Number: No. 96-5250,96-5250
• Citation: 139 F.3d 944
• Parties: Brett C. KIMBERLIN, Appellant, v. DEPARTMENT OF JUSTICE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 944

139 F.3d 944

329 U.S.App.D.C. 251

Brett C. KIMBERLIN, Appellant, v. DEPARTMENT OF JUSTICE, Appellee.

No. 96-5250.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 26, 1998.

Decided April 7, 1998.

Appeal from the United States District Court for the District of Columbia (No. 95cv01328).

Julia Court, Washington, DC, appointed by the court, argued the cause as amicus curiae supporting appellant, with whom Thomas M. Barba was on the briefs. Brett C. Kimberlin, Memphis, TN, appearing pro se, entered an appearance.

Cynthia A. Schnedar, Assistant U.S. Attorney, Washington, DC, argued the cause for appellee, with whom Mary Lou Leary, U.S. Attorney at the time the brief was filed, Washington, DC, and R. Craig Lawrence, Assistant U.S. Attorney, Washington, DC, were on the brief.

Before: GINSBURG, HENDERSON, and RANDOLPH, Circuit Judges.

GINSBURG, Circuit Judge:

Appellant Brett C. Kimberlin sued the Department of Justice seeking disclosure, pursuant to the Freedom of Information Act, 5 U.S.C. § 552, of documents relating to an investigation of an Assistant United States Attorney by the Department's Office of Professional Responsibility. The district court determined that the Government properly withheld the information pursuant to Exemption 7(C) to the FOIA because the Department had compiled the requested information for "law enforcement purposes." See 5 U.S.C. § 552(b)(7)(C). We agree that the nature of the withheld information brings it presumptively within Exemption 7(C). Because the district court failed to determine whether any of the information could be segregated and disclosed without compromising the nondisclosable material, however, we remand the case to the district court.

I. BACKGROUND

In 1982 the Drug Enforcement Administration investigated and found baseless certain allegations that then-U.S. Senator Dan Quayle had used cocaine. During the 1992 presidential campaign, renewed speculation in the media about Quayle's alleged cocaine use led AUSA John Thar, of the Southern District of Indiana, to disclose the findings of the 1982 investigation to the Indianapolis Star with the following explanation:

I'm disclosing what I have, with approval, simply because so much has been made out of nothing.... It's all been so misconstrued.... I'm making an honest disclosure of what was found, hoping to put an end to it.

James A. Gillaspy, Feds Reveal Details of Quayle Drug Probe, Indianapolis Star, Nov. 13, 1991, at 1. The Star described Thar's disclosure as "a rare departure from the Department of Justice policy of withholding comment about any investigation." The Office of Professional Responsibility, which handles allegations of improper conduct by DOJ officials, investigated the disclosure. In response to an inquiry from the press Thar acknowledged that he was disciplined as a result of the OPR investigation at a level of severity somewhere between "you've done something wrong" and "you're fired." Aaron M. Freiwald, Quayle Accuser Presses Conspiracy Claims, Legal Times, March 30, 1992 at 1, 20.

In 1994 Kimberlin sought disclosure pursuant to the FOIA of "all papers, documents and things pertaining to the OPR investigation" of Thar. Initially the OPR gave a standard Glomar response, refusing either to confirm or to deny that such an investigation had taken place. Cf. Phillippi v. CIA, 546 F.2d 1009, 1011 (D.C.Cir.1976) (CIA refused to confirm or deny existence of information regarding research vessel Glomar Explorer). When Kimberlin brought suit in district court to compel disclosure and confronted the OPR with evidence that Thar had acknowledged publicly that the OPR had investigated his disclosure to the Star, the OPR withdrew its Glomar response and released two press clippings from its file on the investigation. The OPR withheld the balance of the file on the ground that it comes within Exemption 7(C) to the FOIA, which provides that an agency may withhold "records or information compiled for law enforcement purposes" to the extent that the production thereof "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).

The district court reviewed in camera some or all of the OPR file, together with a memorandum from the Government detailing its reasons for withholding the contents of the file. Upon cross-motions for summary judgment, the district court held that "the Government has properly invoked Exemption 7(C) and may continue to withhold such information from public disclosure." Kimberlin v. Department of Justice, 921 F.Supp. 833, 836 (D.D.C.1996). Kimberlin appealed, and this court appointed an amicus curiae to argue in support of Kimberlin.

II. ANALYSIS

The amicus argues that the district court erred in three ways: first, by determining that the OPR's investigation was for "law enforcement purposes" and hence potentially within the scope of Exemption 7(C); second, by failing properly to balance the interests for and against disclosure; and third, by failing to order release of any reasonably segregable portion of the OPR file. We review de novo the district court's grant of summary judgment, applying the same standards that governed the district court's decision. See The Nation Magazine v. United States Customs Serv., 71 F.3d 885, 889 (D.C.Cir.1995).

A. Does Exemption 7(C) Apply?

Exemption 7(C) to the FOIA permits an agency to withhold information "compiled for law enforcement purposes" to the extent that such information "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). It does not exempt from disclosure, as we have previously had occasion to note, "[i]nternal agency investigations ... in which an agency, acting as the employer, simply supervises its own employees." Stern v. F.B.I., 737 F.2d 84, 89 (1984). Material compiled in the course of such internal agency monitoring does not come within Exemption 7(C) even though it "might reveal evidence that later could give rise to a law enforcement investigation." Id. On the other hand,

an agency's investigation of its own employees is for "law enforcement purposes" ... if it focuses "directly on specifically alleged illegal acts, illegal acts of particular identified officials, acts which could, if proved, result in civil or criminal sanctions."

Id. (quoting Rural Housing Alliance v. U.S. Dept. of Agriculture, 498 F.2d 73, 81 (D.C.Cir.1974)).

The OPR investigation here at issue was conducted in response to and focused upon a specific, potentially illegal release of information by a particular, identified official. The investigation was intended to discover whether John Thar had violated any law by revealing to the press information concerning an investigation of the Vice-President, who was then running for re-election. The investigation was not aiming generally, as was the investigation in Rural Housing for example, "to insure that [the agency's] employees are acting in accordance with statutory mandate and the agency's own regulations." 498 F.2d [329 U.S.App.D.C. 255] at 81. We conclude, therefore, that the Government compiled the information in the OPR file for law enforcement purposes, with the result that the Government may withhold the requested records pursuant to Exemption 7(C) if such disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(7)(C).

B. The Balance of Public and Private Interests

The district court weighed the interests for and against disclosure as follows:

[P]ublic employees have an expectation that information gathered in the course of internal investigations will remain private. Beck v. Department of Justice, 997 F.2d 1489, 1494 (D.C.Cir.1993). While the public does have an interest in examining the internal disciplinary processes of the Department of Justice, such public interest cannot be held to be superior to the privacy interests of those employees who may, from time to time, come under the scrutiny of OPR. It would be grossly unfair to release such information and subject dedicated public servants to unnecessary scrutiny for every complaint that has been filed, regardless of the merits.

921 F.Supp. at 836. In stating that "the public does have an interest in examining the internal disciplinary processes of the Department of Justice," the district court followed the teaching of the Supreme Court that the main purpose of the FOIA is to open agency action to the light of public scrutiny. As the Supreme Court put the matter:

[A]lthough there is undoubtedly some public interest in anyone's criminal history, especially if the history is in some way related to the subject's dealing with a public official or agency, the FOIA's central purpose is to ensure that the Government's activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.

United States Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 774, 109 S.Ct. 1468, 1482, 103 L.Ed.2d 774 (1988) (emphases deleted).

The present parties take the Court's point, of course, but they disagree about how disclosure of the OPR materials concerning the investigation of Thar would serve the "central purpose" of the FOIA. On the one hand, the amicus argues that "the OPR records requested could not be more central to FOIA's core purpose ... because by nature such records contain information that examines and documents agency action." On the other, the Government contends that "how the Department of Justice handled one isolated case concerning an alleged leak would not shed enough light on how the Department in general handles any alleged leaks" to warrant disclosure of the requested materials. The Government also asserts that in this case Exemption 7(C) protects the privacy interests not only of Thar but also of "third...