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Sheppard v. DOJ, No. 17-1037, 2021 WL 4304217 (W.D. Mo. Sept. 21, 2021) (Laughrey, J.)

Date

Sheppard v. DOJ, No. 17-1037, 2021 WL 4304217 (W.D. Mo. Sept. 21, 2021) (Laughrey, J.)

Re:  Request for records concerning investigation into 1988 arson prosecution in Kansas City, Missouri

Disposition:  Granting in part and denying in part plaintiff's motion for summary judgment; granting in part and denying in part defendant's motion for summary judgment

  • Exemption 7, Threshold:  The court holds that "[t]he Final Memorandum and all the related [Memoranda of Investigation ("MOIs")] [at issue] were compiled for law enforcement purposes."  "Both the Final Memorandum and the MOIs were compiled in furtherance of the DOJ's law enforcement mission."  "The DOJ began its review 'to avoid any appearance of partiality' in the original arson prosecutions and to determine 'whether the allegations raised in the [Kansas City Star] [were] supported by evidence.'"  "The Review Team's investigation had a concrete law enforcement purpose."  "The Review Team focused on discrete allegations that 'government representatives used coercive tactics . . . to fabricate inculpatory evidence or to dissuade witnesses from testifying about exculpatory evidence.'"  "This moves the investigation, while internal, into the law enforcement realm."  Additionally, the court finds that "the review was intended to address potential prosecutorial or investigator misconduct stemming from the arson prosecution."  "If the Star's allegations had been confirmed, criminal and/or civil liability could have followed."  "Accordingly, there is a sufficient nexus between the purposes of the DOJ's review and the DOJ's overall law enforcement mission."
     
  • Exemptions 6 & 7(C):  The court relates that "[t]hree groups' privacy interests are at stake here:  (1) Third-Party MOI interviewees who discussed their experience with the underlying criminal trial; (2) Accused MOI interviewees; and (3) Agency MOI interviewees."  "Within each group, two types of privacy interests are implicated; first, a privacy interest in any identifying information – including names, addresses, phone numbers, and any other information that could be traced to an individual; and second, a privacy interest in the substance of the information disclosed during the interviews."  "To begin, [the court finds that] all three groups have a significant privacy interest in any identifying information."  "Indeed, the privacy interests of all persons mentioned in law enforcement records, including investigators, suspects, witnesses, and informants, are more than de minimis."  "The substance of the information disclosed during the interviews, however, presents a different question, and – except for the Accused MOI interviewees – any privacy interests implicated are significantly weaker."  "The substance of the interviews reflected in the Third-Party and Agency MOIs, after redactions are applied to protect identifying information, does not appear to permit a reader to identify any individual interviewee."  "As such, the interviewees' interest in protecting the substance of any interview is de minimis."  "That said, the substance of the Accused MOIs does implicate substantial privacy interests because the interviewees' responses contain details that can be used to identify the individual interviewees."  "Therefore, the privacy interest is more than de minimis."  "Accordingly, all interviewees maintain a substantial privacy interest in their identities."  "Accused MOI interviewees also have a substantial privacy interest in the substance of their interviews, because their interviews clearly reflect unique details, beyond the interviewee's personal information, that would permit identification."

    Regarding the public interest, the court finds that "[t]here is a clear public interest in the substance of the investigation – reflected in the substance of the Accused MOIs – given the implication of government misconduct."  "To successfully invoke the public's interest in government impropriety, [plaintiff] must assert 'more than a bare suspicion' of official misconduct, and 'must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.'"  "[Plaintiff] has done so."  "The Star reported that witnesses came forward after [plaintiff's] trial alleging misconduct, including that several government witnesses lied at trial and that the government used coercive investigative tactics and suppressed evidence."  "That these allegations were investigated and reported by a Pulitzer-prize winning journalist working at a reputable news outlet pushes the allegations beyond 'just a bare suspicion' of official misconduct."  "Accordingly, [plaintiff] has met his burden of showing a general public interest in the investigation."  "Whether the public's interest stretches to the identity of any individual interviewee, or any third party referenced by them, is a closer question."  "Because the public has an inherent interest in discovering 'what the Government is up to[,]' the public's interest reasonably encompasses the identities of those with whom the Review Team spoke to conduct its review."  "As such, the public has an interest in the identities of both the Third-Party and Accused MOI interviewees."  "That said, the public does not have an interest in the identities of any individual referenced in the Third-Party and Accused MOIs that were not related to the underlying arson investigation."

    The court then turns to balancing the interests, but first notes that "[it] will not discuss the strength of any public interest in the substance of the Third-Party MOIs because, as discussed above, there is no countervailing privacy interest once the identifying information is removed."  "Nor will the Court weigh any public or privacy interests related to the Agency MOIs."  "[Plaintiff] does not request the identities of any DOJ personnel, and there are no substantial privacy interests in the substance of the interviews once identifying information is redacted." Regarding third party interviewees who spoke to the Star, "the Court finds that the public interest in understanding the internal review outweighs any privacy interests of people who spoke publicly with the Star."  "[O]nce the Star's allegations were publicized and the government responded by launching an investigation, the public had a strong interest in understanding that investigation and its outcome."  "The fact that these interviewees have already made public statements is enough to pierce the well-established protection enjoyed by individuals mentioned in law enforcement records."  Regarding third parties who did not speak to the Star, but were interviewed by DOJ, the court finds that "[t]hese MOIs must be redacted to protect the identities of the individual interviewees, but the substance of the MOIs should be produced after redactions are made to remove any information explicitly identifying the interviewees in this cate[go]ry."  "Since these individuals did not speak with the Star, they have a greater privacy interest in their identities."  "And, because these individuals did not make public statements, there is no way for the public to compare versions and assess the interviewees' reliability."  "This also substantially reduces the public's interest in the interviewees' identities."  Regarding the accused MOI interviewees, the court finds that "the Accused MOI interviewees have a substantial privacy interest in both their identities and the substance of the MOIs, because the substance of the interviews necessarily identifies individuals accused, but not charged, in the underlying arson."  "However, this privacy interest is diminished because public reporting has already linked these individuals to the underlying arson investigation."  "Therefore, the weakened privacy interests – while still substantial – are ultimately defeated by the public's interest in the DOJ's review of the allegations of government misconduct."  "The public has a substantial interest in both the way the DOJ conducted its investigation and its conclusion regarding the Star's allegations, and that interest stretches to the DOJ's interactions with the individuals implicated by the Star in the underlying arson."  Regarding "emails between DOJ personnel sent between June 2009 and March 2011 which discuss and attach various MOIs discussed above," the court applies the same analysis as discussed above when these types of information appear in these emails.
     
  • Exemption 5, Deliberative Process Privilege & Attorney Work-Product:  The court considers "MOI Emails that were redacted in part due to Exemption 5, on account of attorney work product and the deliberative process privilege."  First, the court finds that "Exemption 5 was not properly applied [to a cover email "'contain[ing] a discussion regarding clarification of a matter within the MOI'"] because the content of the Cover Email contains neither mental impressions, legal theories, nor clarification of a substantive matter predating the Final Memorandum."  "The Cover Email states, '[p]lease review and we'll discuss when we talk this afternoon.'"  "'I have one clarification question for you for something that I'd like to add to report.'"  Regarding "the Attached MOI portion" of the email, the court finds that "[t]his draft MOI required further input and clarification from agency personnel and does not constitute the DOJ's final product."  "Accordingly, the DOJ appropriately withheld the Attached MOI portion."  Regarding another "Cover Email that was produced in part pursuant to Exemption 5," the court finds that "[t]he deliberative process privilege protects the second email . . . from disclosure because it discusses the substance of a draft MOI before it was finalized."  "Finally, [regarding] . . . a Cover Email only. . . and . . . both a Cover Email and Attached MOI," the court finds that "DOJ properly applied Exemption 5 to [the former] because the redacted material contains discussion by an agency employee about a matter in a draft MOI, and whether to include certain information in the draft."  "However, the DOJ improperly applied Exemption 5 to [the latter because] . . . [t]he redacted material does not contain any substantive text about a decision the agency was contemplating, nor does it include the agency employee's legal impression of any issue."  Regarding another set of emails, the court relates that "the content of the first email states, '[t]his message has been archived' and contains no additional text."  "The content of the second email contains only a fragment of a sentence."  "This fragment standing alone is not intelligible to an outside reader."  "Nonetheless, the fragment contains internal communication between agency personnel that did not constitute final agency policy and the agency need not produce the unintelligible remains of the document."  "The DOJ properly invoked Exemption 5."  Finally, regarding another set of emails, the court finds that "even though some of the emails post-date the Final Memorandum, the emails contain communication about how to disseminate the results of the internal review, which constitute pre-decisional discussions."  "Agency personnel discussing how to publish a document and weighing options for publication does not constitute a final decision."  Therefore, the court finds that "withholding [these emails] is appropriate under Exemption 5."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 6
Exemption 7
Exemption 7, Threshold
Updated October 19, 2021