Marks v. DOJ, No. 13-3380, 2014 WL 7049336 (W.D. Mo. Dec. 11, 2014) (Smith, J.)

Marks v. DOJ, No. 13-3380, 2014 WL 7049336 (W.D. Mo. Dec. 11, 2014) (Smith, J.)

Re: Request for records concerning plaintiff's failed attempt to compel United States Attorney to move for sentence reduction

Disposition: Granting in part defendant's motion for summary judgment; ordering defendant to show cause why judgment should not be entered in plaintiff's favor

• Exemption 7(C):  Concerning notes and a letter at issue, "[t]he Court agrees Exemption 7(C) justifies withholding some of the information."  Regarding the privacy interest at issue, the court notes that "DOJ contends . . . officials are potentially subject to harassment, which justifies hiding their identities."  The court holds that "[c]ase law supports this position."  The court further finds that "[t]he fact that the names in question here are names of federal officials and not state or local officials does not alter the inquiry, and there is no need for the DOJ to show a particularized concern that the individuals named will be harassed or embarrassed: the mere confirmation that particular individuals were involved in the investigation presents the risk Exemption 7(C) is intended to guard against."  Regarding the public interest at issue, the court finds that "[plaintiff's] speculation [about government impropriety] is insufficient; he 'must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred,' . . . and this he has not done."  Additionally, the court finds that "[plaintiff] also implies the documents might be important to his efforts to compel the filing of a Motion for Downward Departure, but this is not a public interest sufficient to overcome the privacy concern."  However, the court ultimately finds that "DOJ's arguments do not justify withholding the entirety of [the information at issue]."  The court holds that it "is inclined to rule that the DOJ must release" the information in part.  However, the court finds that "[p]ursuant to Rule 56(f), the DOJ shall have thirty days to file a response indicating why judgment should not be entered in this manner."
   
• Exemption 7(F):  The court finds that "Exemption 7(F) would not justify any greater withholding of information than Exemption 7(C), so in light of the Court's discussion of Exemption 7(C) there is no need to discuss Exemption 7(F) further."
   
• Waiver:  The court holds "that the public disclosure (or public domain) doctrine does not apply."  "The Court's in camera review reveals that [the AUSA's] notes provide more information than has been disclosed during the prior hearings so the previous disclosures do not bar the DOJ's invocation of FOIA exceptions."