The Cincinnati Enquirer v. DOJ, No. 20-758, 2021 WL 4262322 (S.D. Ohio Sept. 20, 2021) (Dlott, J.)

The Cincinnati Enquirer v. DOJ, No. 20-758, 2021 WL 4262322 (S.D. Ohio Sept. 20, 2021) (Dlott, J.)

Re:  Request for records concerning drug and obstruction of justice investigations

Disposition:  Granting defendant's motion for summary judgment

• Exemption 7(C):  The court relates that "[t]he majority of the responsive documents directly involve the criminal investigation of drug trafficking by [a Kentucky Commonwealth Attorney]."  "The Court already held that certain documents were clearly exempted from disclosure pursuant to Exemption 7(C) because they have 'only a tenuous connection to the Cincinnati Enquirer's proffered public interest in the decision of the United States Attorney not to prosecute the Commonwealth Attorney for obstruction of justice.'"  "The Court stated that the so-called Remaining . . . Documents were 'at least potentially relevant to a substantial public interest in understanding whether the United States Attorney acted improperly when she chose not to prosecute the Commonwealth Attorney.'"  "The Court declined at that time to conduct a final weighing of the privacy interests against the purported substantial public interest until after Defendants conducted a second, broader search for documents responsive to the Operation Speakeasy request."  "The Court can conduct that final weighing now."  "The privacy interests at stake have significant breadth and are compelling."  "The identifying information about persons subject to a criminal investigation are protected privacy interests because disclosure can lead to 'embarrassment, harassment, and even physical danger.'"  "The responsive documents here contain the names, other identifiers, and information about the activities of numerous private citizens."  "[The Kentucky Commonwealth Attorney] maintains a privacy interest in his investigative files despite the fact of his conviction."  "Additionally, the responsive documents in this case contain the names of law enforcement officers, government attorneys, and cooperating witnesses."  "'[W]itnesses, informants, and investigators' also have privacy interests."  "Further, the Court agrees with Defendants that the privacy interests cannot be protected adequately by redactions or segregating out portions of the documents."  "This Court previously inquired whether the privacy interest could be protected by the use of pseudonyms."  "Defendants responded that such a task is beyond the scope of FOIA."  "Requiring a federal government agency to insert new information in the place of redacted information – such as the pseudonyms employed by the Cincinnati Enquirer in the Complaint – in effect requires the government agency to create new documents, a task not required by FOIA."  "On the other hand, redacting the privacy-related information from the documents without substituting pseudonyms would result in documents that are so heavily redacted as to have little informational value."  "Weighed against these significant privacy interests is the asserted public interest in the United States Attorney's performance of statutory duties, specifically the decision not to prosecute the Commonwealth Attorney for obstruction of justice."  "It bears repeating 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.'"  "Moreover, a decision not to prosecute an individual, standing alone, is ordinarily not particularly illuminating about an agency's decisionmaking processes because it is only a 'single data point.'"  "The Court, having carefully considered the Remaining . . . Documents and the Additional Operation Speakeasy Documents, concludes that these responsive documents only minimally advance a public interest in shedding light on the decision of the United States Attorney to not prosecute the Commonwealth Attorney."  "Accordingly, the significant privacy interests outweigh the proffered public interest, and the Court holds that the complete set of responsive documents are exempt from disclosure under FOIA Exemption 7(C)."