Cincinnati Enquirer v. DOJ, No. 20-758, 2021 WL 1734330 (S.D. Ohio May 3, 2021) (Dlott, J.)
Cincinnati Enquirer v. DOJ, No. 20-758, 2021 WL 1734330 (S.D. Ohio May 3, 2021) (Dlott, J.)
Re: Request for records concerning drug and obstruction of justice investigations
Disposition: Granting in part and denying in part defendants’ motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment
- Litigation Considerations, Adequacy of Search: The court holds that "[t]he DEA conducted a search for responsive records as to [the obstruction of justice investigation], but it did not turn up responsive records." "[Defendant] confirmed these facts and provided details concerning the electronic search conducted in a sworn Declaration." "This representation is entitled to a presumption of good faith . . . and the Enquirer has not offered any basis to challenge it." "The Court will grant summary judgment to Defendants and deny it to [plaintiff] insofar as the [plaintiff] was seeking records related to [the obstruction of justice investigation]."
- Exemption 7(C): The court holds that "Defendants shall submit the documents responsive to the FOIA requests about the [third party] investigation and a proposed Vaughn index to the Court for an in camera review." Regarding privacy interest, the court finds that "[t]he names and other identifying information about persons subject to a criminal investigation are protected privacy interests because disclosure can lead to 'embarrassment, harassment, and even physical danger.'" Regarding the public interest, the court relates that "[plaintiff] asserts a public interest in the United States Attorney's performance of statutory duties, specifically the decision not to prosecute the Commonwealth Attorney despite the DEA's recommendation to prosecute." "Of note, [plaintiff] is not arguing that there is a public interest related to the investigation or prosecution of [the third party] himself." "[Plaintiff], accordingly, appears to implicitly concede that there is no public interest in the [third party] investigative records except to the extent that individual documents and files shed light on the United States Attorney's decision not to prosecute the Commonwealth Attorney for obstruction of justice." The court finds that "[i]t bears emphasizing that the alleged wrongdoing by the Commonwealth Attorney is not itself a significant public interest for FOIA purposes." "'FOIA is concerned only with shedding light on misconduct of the federal government, not state governments.'" However, the court finds that "Defendants have stipulated . . . that the DEA investigated the Commonwealth Attorney for obstruction of justice and determined there was sufficient evidence to charge him." "This suffices as the 'substantial credible evidence' of wrongdoing by the Commonwealth Attorney . . . and it provides a basis for a reasonable person to suspect that the United States Attorney acted with impropriety in making the decision not to prosecute the Commonwealth Attorney . . . ." "Also, the public has a greater interest in the United States Attorney's decision not to prosecute a public official, particularly a public figure charged with enforcing the law, than in a single decision not to prosecute an ordinary private citizen." "The public official here is the highest elected law enforcement official in a Kentucky county and the alleged crime involved undermines the integrity of the justice system itself."