Cincinnati Enquirer v. DOJ, No. 21-3966, 2022 WL 3349331 (6th Cir. Aug. 15, 2022) (Griffin, J.)

Cincinnati Enquirer v. DOJ, No. 21-3966, 2022 WL 3349331 (6th Cir. Aug. 15, 2022) (Griffin, J.)

Re:  Request for records concerning decision not to charge state prosecutor with obstruction of justice

Disposition:  Affirming district court’s grant of defendant’s motion for summary judgment

• Exemption 7(C):  The Court of Appeals for the Sixth Circuit holds that “[t]he exemption applies.”  Regarding the privacy interests at issue, the court notes that “[defendant] concede[s] that the “‘privacy interest [of the private individual underlying the obstruction of justice issue, who the Commonwealth’s Attorney did not charge] is weakened with respect to the fact of his conviction or other publicly disclosed facts.’”  “As to the Commonwealth’s Attorney, defendants acknowledge that some courts have suggested that public officials have a diminished privacy interest that might, ‘under appropriate circumstances,’ support disclosure of documents concerning a public-corruption investigation.”  The court “draw[s] two conclusions about the privacy interests at stake in this case.”  “First, third parties mentioned in the records (such as witnesses and investigators) have a strong privacy interest against disclosure.”  “And second, consistent with [the court’s] sister circuit’s case law, the Commonwealth’s Attorney and [the private individual] have a somewhat reduced privacy interest.”  Regarding the public interest, the court finds that “it is important to consider FOIA’s aim regarding public corruption:  to ‘shed[ ] light on misconduct of the federal government, not state governments.’”  “Because the statute addresses only federal misconduct, there is no ‘FOIA-recognized public interest’ in disclosing federal files merely because they show wrongdoing committed by state officials.”  “This means that, no matter how outrageously the Commonwealth’s Attorney may have acted, his alleged conduct cannot substantiate a public interest sufficient to merit disclosure of the documents at issue.”  “Instead, [the court] must focus solely on the alleged conduct of the federal officials involved in this case.”  “The stipulated facts show that the Commonwealth’s Attorney engaged in three categories of allegedly improper conduct:  (1) counseling targets of a DEA investigation; (2) opposing [the private individual’s] bond reduction; and (3) telling a police officer in an unrelated investigation that he would not seek a search warrant if a certain DEA agent was involved in the case.”  “Based on this conduct, the DEA recommended charging the Commonwealth’s Attorney with obstruction of justice.”  “The U.S. Attorney declined to bring charges.”  “The Enquirer argues that these facts warrant a belief by a reasonable person that the U.S. Attorney ‘acted negligently or otherwise improperly in the performance of [his] duties.’”  “[The court] disagree[s].”  “Plaintiff has established few facts concerning the U.S. Attorney’s conduct, instead focusing overwhelmingly on how the Commonwealth’s Attorney acted.”  “The facts that plaintiff did establish show only that, after the DEA concluded that there was sufficient evidence to bring charges against the Commonwealth’s Attorney, the U.S. Attorney declined to bring charges.”  “The Enquirer offers no evidence or allegation as to why the U.S. Attorney reached this decision.”  “This dearth of information is significant because a prosecution decision ‘is properly informed by a variety of factors and not solely by the prosecutor's determination of the prognosis for a successful prosecution.’”  “[The requester] provides no evidence that would allow a reasonable person to conclude that the U.S. Attorney’s decision was motivated by some improper influence rather than one of the many factors he was allowed – indeed, compelled – to consider.”  “Accordingly, [the requester] has failed to establish a sufficient public interest in revealing possible government impropriety to outweigh the privacy interests here.”  Additionally, “[a]fter reviewing the responsive documents in camera, [the court] conclude[s] that they only minimally advance this education-and-oversight interest.”  “Notably, the records do not speak to the U.S. Attorney’s decision-making process:  They say nothing about how he weighed extra-evidentiary considerations.”  “Instead, the documents describe only the DEA’s investigation, which is one aspect of the multifaceted process of exercising prosecutorial discretion.”  “Because these documents show only one part of the considerations relevant to one prosecutorial decision, the public’s interest in them is minimal.”  “Balancing these interests, [the court] conclude[s] that the privacy interests implicated by these documents outweigh the public’s interest in disclosure.”
  
  Circuit Judge Moore, dissenting, “write[s] separately to express [her] concern that the majority opinion fails to recognize a significant public interest in federal-prosecutor oversight and inflates the Commonwealth’s Attorney’s privacy interests in this case.”  Judge Moore states that “any information that would explain the U.S. Attorney’s decision not to prosecute the Commonwealth's Attorney, a high ranking, elected state prosecutor, would reveal whether and how the U.S. Attorney carried out his statutory duties – a significant public concern.”  “Although the majority observes that a particular decision whether to prosecute represents ‘only a single data point’ for evaluating the prosecutor’s conduct, . . . that case further elaborates that even a single decision ‘can be substantial in some circumstances.’”  “Especially because the government does not dispute that the [DEA] concluded that obstruction charges were merited, the decision not to prosecute the Commonwealth’s Attorney represents such a ‘significant’ decision.”  “[Judge Moore] further disagree[s] with the majority that the information contained in the withheld documents is unlikely to advance the public’s interest.”  “It is true that the information in the withheld documents pertains only to the DEA’s investigation, rather than the U.S. Attorney’s decision-making process.”  “It is also true that prosecutors may decline to prosecute for a host of reasons that have nothing to do with the sufficiency of the evidence supporting a charge.”  “But the information withheld provides another significant data point in evaluating whether and how the U.S. Attorney discharged his statutory duties.”  Regarding the privacy concerns specifically, Judge Moore argues that “[t]he Commonwealth’s Attorney’s privacy interests are further weakened because the DEA found sufficient evidence to support an obstruction-of-justice charge after a full investigation.”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  The Court of Appeals for the Sixth Circuit relates that “the district court found that the documents were not segregable.”  “[The court] agree[s].”  “[The court has] reviewed the documents in camera and conclude[s] that redacting the exempted information would leave them with ‘little informational value.’”  “Thus, the district court correctly found non-segregability and properly withheld the documents in their entirety.”