Cincinnati Inquirer v. DOJ, No. 20-758, 2021 WL 3188417 (S.D. Ohio July 28, 2021) (Dlott, J.)
Cincinnati Inquirer v. DOJ, No. 20-758, 2021 WL 3188417 (S.D. Ohio July 28, 2021) (Dlott, J.)
Re: Request for records concerning drug and obstruction of justice investigations
Disposition: Amending May 3, 2021, order granting in part and denying in part motions for summary judgment
- Litigation Considerations, Vaughn Index/Declaration; Litigation Considerations, Adequacy of Search & Exemption 7(C): The court relates that "to comply with the Summary Judgment Order, Defendants submitted a bare-bones Vaughn index and 205 pages of responsive documents to the Court for review." The court finds that "Defendants' Vaughn index is sparse and unhelpful." "The index includes only page numbers, a broad document categorization (e.g., email, PowerPoint, Word Document, DEA-6), and a list of applicable FOIA exemptions." "It does not include standard Vaughn or privilege index information such as the date the document was created, the title of the document, the name of the person who created the document, or a summary or description of the contents of the document." "Also, Defendants did not address whether some of the potential problems with disclosure could be cured by redactions and the use of pseudonyms." "FOIA requires government agencies to produce 'reasonably segregable portions' of responsive documents . . . ." Additionally, the court finds that "Defendants did not brief the legal standards to apply the exemptions [cited]." "Defendants also failed to provide a memorandum or affidavit explaining why and to which particular sections of each set of documents the proffered exemptions apply."
"The Court reviewed each set of documents page by page under the legal standards applicable to Exemption 7(C) as set forth in the Summary Judgment Order." "Some documents . . . clearly are protected from disclosure under Exemption 7(C) because the invasion of the personal privacy interests of individuals caused by disclosure would be unwarranted." "These documents have only a tenuous connection to [plaintiff's] proffered public interest in the decision of the United States Attorney not to prosecute the Commonwealth Attorney for obstruction of justice." "Each of the other sets of documents . . . contain material 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." "However, the Court will not make a final determination of whether the documents are protected from disclosure by Exemption 7(C) at this time." "As set forth in the next section, the Court will require Defendants to conduct a new search for Operation Speakeasy documents." "Additional Operation Speakeasy documents – if they exist – might shed light on or give context relevant to the determination of whether Exemption 7(C) protects the Remaining Jacobs Documents from disclosure."
"In the Summary Judgment Order, the Court granted summary judgment to Defendants on [one] request based on the representation that Defendants had searched for, but not found, any responsive documents." "The Court now knows that the search was incomplete or inadequate because Defendants submitted for review as part of [another] investigation documents a 38-page PowerPoint presentation entitled [responsive to the first request]." "The Summary Judgment Order must be amended." "Defendants must immediately conduct a new search for [certain documents listed by the court potentially responsive to the first request]." Additionally, "[w]ithin 30 days of the date of this Order, Defendants must submit to the Court for an in-camera review a detailed revised Vaughn index, memorandum, or affidavit explaining the basis for asserting that [documents responsive to the second request] are protected from disclosure by the exemptions."