The Cincinnati Enquirer v. DOJ, No. 23-682, 2025 WL 71677 (S.D. Ohio Jan. 10, 2025) (Cole, J.)

The Cincinnati Enquirer v. DOJ, No. 23-682, 2025 WL 71677 (S.D. Ohio Jan. 10, 2025) (Cole, J.)

Re:  Requests for certain text messages involved in FBI investigation of three city councilmembers

Disposition:  Granting defendant’s motion for summary judgment

• Exemption 6; Exemption 7, Threshold:      “[B]ecause [plaintiff] doesn’t dispute that the DOJ’s Glomar response could be analyzed under either exemption, and given that it appears the requested records (if any exist) would have been compiled for law-enforcement purposes, the Court will focus on Exemption 7(C).”
   
• Exemption 7(C):  Regarding the privacy interests at issue, the court finds that “it’s easy to discern the contours of the seven named individuals’ privacy interests:  confirming ‘whether or not [an individual’s] name appears within law enforcement files could . . . result in dire consequences, including harassment, intimidation, threats, damage to reputation, social exile, or even economic and physical harm.’”  “[T]he DOJ has identified a legitimate privacy interest on the part of the seven named individuals as to whether its files contain responsive documents, and [plaintiff] has failed to show otherwise.”
  
  Regarding the public interest, “the Court understands [plaintiff] to be alleging two public interests supporting disclosure: (1) that the text messages will help [plaintiff] ‘uncover[ ] the full extent of [the City Council’s] corruption [and] whether such corruption still exists,’ and (2) that the text messages will help [plaintiff] inform the public as to ‘whether the [federal] government diligently exercised its prosecutorial discretion’ in deciding not to bring charges against the ‘other individuals’ implicated by those messages.”  The court finds that “[t]hose purported interests do little to advance [plaintiff’s] arguments here.”  “To start, the Court observes that [plaintiff’s] public-interest arguments seem misdirected for largely the same reason as its privacy-interest arguments: the arguments are based on the supposed content of the alleged text conversations, not the very fact of their existence.”  “The problem with such arguments is that the text conversations themselves are not before this Court.”  “Even putting that aside, [plaintiff’s] first asserted public interest fails as a matter of law.”  “Admittedly, ‘the core purpose of the FOIA,’ is to permit ‘public understanding of the operations or activities of the government.’”  “But for FOIA purposes, the ‘government’ means the federal government, not state (or, by extension, local) entities.”  “So it doesn't matter, for FOIA purposes, that records evidencing a City Councilwoman’s subterfuge would aid the public’s scrutiny of local government.”  “Unless the records shed light on a federal ‘agency’s own conduct,’ . . . their disclosure does not serve the specific public interest that FOIA recognizes.” “Perhaps recognizing this mismatch, [plaintiff] separately argues, at least in passing, that ‘disclosure of the records would likely reveal much about the diligence of the Department of Justice’s exercise of its prosecutorial discretion.’”  “That’s a more promising start.”  “As noted, FOIA is designed to allow citizens to determine how the federal government – including the DOJ – is operating.”  “But the argument again disregards the DOJ’s Glomar response, in that the argument presupposes that the records exist.”  “In sum, [plaintiff] has not carried its burden to ‘show that the public interest sought to be advanced is a significant one . . . [and that] the information is likely to advance that interest.’”  “That makes the final part of the Exemption 7(C) analysis – weighing the privacy interest against the public interest – straightforward: something weighs more than nothing, so the DOJ is entitled to summary judgment.”