Buzzfeed Inc. v. DOJ, No. 21-7533, 2022 WL 2223124 (S.D.N.Y. June 20, 2022) (Koeltl, J.)

Buzzfeed Inc. v. DOJ, No. 21-7533, 2022 WL 2223124 (S.D.N.Y. June 20, 2022) (Koeltl, J.)

Re:  Request for disclosure of information contained in Office of Inspector General (OIG) report concerning misconduct by a former Executive Officer of DOJ

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 7, Threshold:  "As the plaintiff appears to concede, the Report was compiled for a law enforcement purpose."  "The Report . . . is 'eligible to be categorized as a law enforcement record because an Inspector General of a federal government agency engages in law enforcement activities within the meaning of FOIA.'"  "Moreover, 'the Report involved a complaint of alleged employee misconduct, including alleged sexual harassment and misuse of personnel resources, the OIG investigated the complaint to determine whether there had been any violation of law, regulation, or policy, and the Report reflects the OIG's factual findings and conclusions regarding the complaint.'"
   
• Exemptions 6 and 7(C):  "The plaintiff [challenges] only OIG's decision to redact the information regarding the identity of the [s]ubject of ["a report entitled 'Findings of Misconduct by a Former DOJ Executive Officer for Making Inappropriate Comments Constituting Sexual Harassment to a Subordinate on Three Occasions'"]."  "Although both Exemptions 6 and 7(C) are implicated in this case, 'Exemption 7(C) is more protective of privacy than Exemption 6, because Exemption 7(C) applies to any disclosure that could reasonably be expected to constitute an invasion of privacy that is unwarranted.'"  "[T]he challenged redactions are proper if they satisfy Exemption 7(C), and the Court need only evaluate the redactions under Exemption 7(C)."  "Here, the reputational harm, embarrassment, and potential retaliation that the Subject would face from the disclosure of his identity are privacy interests recognized by Exemption 7(C)."  "The Subject's privacy interest is increased because he has retired and is now a private citizen."  "Accordingly, significant privacy interests are implicated by disclosure of the Subject's identity."  "In Perlman [v. DOJ, 312 F.3d 100, 107 (2d Cir. 2002)], the Second Circuit Court of Appeals set forth five factors that a court should consider in balancing the government employee's privacy interest against the public's interest in disclosure: '(1) the government employee's rank; (2) the degree of wrongdoing and strength of evidence against the employee; (3) whether there are other ways to obtain the information; (4) whether the information sought sheds light on a government activity; and (5) whether the information sought is related to job function or is of a personal nature.'"  "This list of factors is non-exhaustive and no one factor is dispositive."  "[The first] factor cuts in favor of disclosure in this case."  "[T]he Subject was a member of the DOJ's Senior Executive Service and was the most senior person in his office."  "And while DOJ argues that the Subject's retirement prior to the release of the Report affects the consideration of this factor, courts have found that an official's high rank favors disclosure even if the official no longer serves in that position."  "Accordingly, the Subject's rank and supervisory responsibilities favor disclosure."  Regarding the second factor, "OIG found by a preponderance of the evidence that the Subject made inappropriate comments of a sexual nature to a subordinate on three occasions, kissed another subordinate on the lips and made inappropriate comments to her, and asked employees to drive him on personal business and take his car to a carwash."  "Any sexual harassment is unquestionably serious and the strength of the evidence against the Subject is strong."  "However, the misconduct here does not rise to the level of misconduct that other courts have found to favor disclosure of the employee's identity."  "Accordingly, this factor does not favor disclosure."  As to the third factor, "[b]ecause it is undisputed that the Government is 'the only means for obtaining the desired information,' this factor favors disclosure."  Regarding the fourth factor, "[t]he disclosure sought in this case is simply the identity of the Subject."  "All other details of the Report on what the Subject did have already been disclosed and are open to public scrutiny."  "Disclosing the Subject's identity would not shed significant light on government activity."  "This case . . . involves discrete instances of harassment and inappropriate comments; the Report does not indicate that the Subject's misconduct affected any action taken by the Subject's agency, the administration of any government program, or the entire office that the Subject oversaw."  "Accordingly, disclosure of the Subject's identity would not shed light on the agency's performance of its statutory duties."  "[T]his factor weighs against disclosure."  As to the fifth factor, "[t]he information sought in this case – the Subject's identity – is personal in nature."  "While the Subject's misconduct, including harassment in the workplace, plainly relates to the Subject's job function, the Government has already disclosed all the information in the Report that fairly can be said to shed light on government activity: namely, the extent of the Subject's wrongdoing, its effect on the Subject's agency, and the Government's investigation into the allegations against the Subject."  "[T]he Report focuses on discrete incidents that apparently did not impact the functioning of the Subject's agency."  "Accordingly, disclosure of the Subject's identity would not shed light on how the Subject performed his official responsibilities."  "[T]he information that is subject to disclosure in this case – the Subject's identity – is personal, and the information in the Report concerning the Subject's job function has already been disclosed."  "This factor favors nondisclosure."  "On balance, the identity of the Subject was properly redacted pursuant to Exemption 7(C)."  "The Report, with the Subject's name redacted, already addresses the public's interest in knowing what their Government is up to:  namely, what sort of misconduct occurred within DOJ and how that misconduct was investigated."  "The additional public interest in knowing who committed this misconduct does not further those interests and does not shed light on the agency's performance of its statutory duties."  "Therefore any public interest furthered by disclosure is significantly outweighed by the Subject's privacy interests."