The Cincinnati Enquirer v. U.S. Dep't of Justice
| Decision Date | 20 September 2021 |
| Docket Number | 1:20-cv-758 |
| Parties | The Cincinnati Enquirer, Plaintiff, v. U.S. Department of Justice, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
SUPPLEMENT TO THE AMENDED SUMMARY JUDGMENT ORDER
This case arises from Freedom of Information Act (“FOIA”) requests made by the Cincinnati Enquirer to the Department of Justice and the Drug Enforcement Administration. Defendants have produced two sets of documents, sworn Declarations, and Vaughn indices to the Court for in-camera review pursuant to the Court's initial Summary Judgment Order (Doc. 26) and Amended Summary Judgment Order (Doc. 28). Upon consideration of the law and the responsive documents, the Court agrees with Defendants that Exemption 7(C), 5 U.S.C. § 552(b)(7)(C), shields the responsive documents from disclosure.
The Court will restate the key procedural history for the sake of clarity. The Cincinnati Enquirer requested documents from Defendants created between January 1, 2015 and June 1, 2016 on two broadly-delineated topics: (1) the arrest and subsequent investigation, including interviews and monitored phone calls, of Ryan Jacobs; and (2) documents related to the term “Operation Speakeasy.” (Doc. 1-1 at PageID 17.)[1] It asserted that federal law enforcement officers had determined that a commonwealth attorney for a particular judicial district in Kentucky (“the Commonwealth Attorney”) had obstructed justice during their investigation of Ryan Jacobs's drug trafficking activities. It further alleged that federal agents opened an investigation termed Operation Speakeasy into the Commonwealth Attorney's alleged obstruction of justice.
In response to the FOIA requests, Defendants conducted an electronic search for documents related to Operation Speakeasy, but they asserted that they did not find any responsive documents. (Doc. 1-2 at PageID 18.) Conversely Defendants categorically refused to search for and produce documents related to the Ryan Jacobs investigation based upon FOIA Exemption 7(C), 5 U.S.C. § 552(b)(7)(C). (Id.) Defendants argued that the disclosure of such law enforcement records was reasonably expected to constitute an unwarranted invasion of the personal privacy of any person investigated.
This litigation followed. The parties agreed to proceed to summary judgment based on a stipulation to the facts alleged in the Complaint in lieu of pursuing discovery. Defendants continued to argue in summary judgment briefs that they were not required to search for documents related to the Ryan Jacobs investigation pursuant to FOIA Exemption 7(C) because the search would likely result in an unwarranted invasion of personal privacy. (Doc. 19-1 at PageID 106-108.) They also stated again they had searched for Operation Speakeasy records but did not find responsive documents. (Id. at PageID 105-106.) On the other side, the Cincinnati Enquirer asserted as a basis for its two FOIA requests that the public has a substantial interest in understanding why the United States Attorney for the Eastern District of Kentucky chose not to prosecute the Commonwealth Attorney. (Doc. 22 at PageID 137.)[2]
Following briefing and oral arguments, the Court issued its Summary Judgment Order. The Court granted summary judgment to Defendants on the Operation Speakeasy request based on their unrebutted assertion that a records search produced no responsive documents. (Doc. 26 at PageID 183.) The Court granted summary judgment to the Cincinnati Enquirer on the Ryan Jacobs investigation request insofar as the Court ordered Defendants to search for responsive documents that supported the proffered public interest in the decision of the United States Attorney not to prosecute the Commonwealth Attorney for obstruction of justice, to prepare a Vaughn index, and to produce the responsive documents for an in-camera review. (Id. at PageID 188-189.)
Defendants complied by submitting a bare-bones Vaughn index and 205 pages of documents responsive to the Ryan Jacobs investigation request. The Vaughn index was notable because for the first time Defendants asserted that a host of other FOIA exemptions-the exemptions stated in 5 U.S.C § 552(b)(3), (5), (6), and (7)(D), (E), & (F)-also applied to exclude the responsive documents from disclosure. However, Defendants did not adequately explain why the newly-asserted exemptions applied. Also notable was the fact that one of the documents produced as responsive to the Ryan Jacobs investigation request was a 38-page PowerPoint presentation regarding Operation Speakeasy. In light of these submissions, the Court issued its Amended Summary Judgment Order compelling Defendants to conduct a broader search for Operation Speakeasy documents and to produce a more detailed Vaughn index of all the responsive documents. (Doc. 28 at PageID 199-200.) The Court also instructed Defendants to address whether they could produce reasonably-segregable portions of the responsive documents as contemplated in 5 U.S.C. § 552(b). (Id.) Finally, the Court invited both parties to address the relevant standards for applying each of the newly-asserted FOIA exemptions. (Id.)
Defendants have complied with the Amended Summary Judgment Order by submitting for in-camera review eighteen pages of additional responsive documents-hereinafter referred to as the Additional Operation Speakeasy Documents. Defendants also submitted two sworn Declarations plus a more detailed Vaughn index. Both parties also filed Memoranda on the legal standards for applying the newly-asserted FOIA exemptions. This matter is ready for final adjudication.
FOIA “implements a general philosophy of full agency disclosure of government records, ” unless the disclosure falls within one of nine enumerated exemptions. Detroit Free Press Inc. v. U.S. Dep't of Just., 829 F.3d 478, 480 (6th Cir. 2016) (internal quotation and citation omitted). The exemptions are “narrowly construed.” ACLU of Mich. v. F.B.I., 734 F.3d 460, 465 (6th Cir. 2013) (citation omitted). FOIA requires government agencies to produce “reasonably segregable portions” of responsive documents that are not subject to one of the exemptions:
Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.
5 U.S.C. § 552(b).
FOIA Exemption 7(C) exempts from production “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C) (emphasis added). “In the case of Exemption 7(C), the statute requires us to protect, in the proper degree, the personal privacy of citizens against the uncontrolled release of information compiled through the power of the State.” Nat'l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 172 (2004). “[W]hether disclosure of a private document under Exemption 7(C) is warranted must turn on the nature of the requested document and its relationship to the basic purpose of the Freedom of Information Act to open agency action to the light of public scrutiny.” U.S. Dep't of Just. v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 772 (1989) (internal quotation omitted).
The public's interest in disclosure at its core is to contribute “to public understanding of the operations or activities of the government.” Detroit Free Press, 829 F.3d at 485 (quoting U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 495 (1994)). Disclosure can be appropriate if the information “sheds light on an agency's performance of its statutory duties.” Reporters Comm., 489 U.S. at 773 (citation omitted). On the other extreme, disclosure is not appropriate when one private citizen seeks information about another private citizen and not about the conduct of the agency that has possession of the requested records. Id. (citation omitted).
The Supreme Court explained how privacy interests can be overcome when Exemption 7(C) is at issue:
[Exemption 7(C)] requires the person requesting the information to establish a sufficient reason for the disclosure. First, the citizen must show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake. Second, the citizen must show the information is likely to advance that interest. Otherwise, the invasion of privacy is unwarranted.
Favish 541 U.S. at 172. For Exemption 7(C), therefore, the person making the disclosure request must identify the reason for requesting the information so that the Court can balance the personal privacy interests of citizens against the disclosure interests. Id. The Supreme Court went on to hold that “where there is a privacy interest protected by Exemption 7(C) and the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, . . . the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.” Id. at 174. “[M]ore than...
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