Cincinnati Enquirer v. Dep't of Justice ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0190p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
CINCINNATI ENQUIRER, a division of Gannett GP
│
Media, Inc.,
│
Plaintiff-Appellant, > No. 21-3966
│
│
v. │
│
DEPARTMENT OF JUSTICE; DRUG ENFORCEMENT │
ADMINISTRATION, │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Southern District of Ohio at Cincinnati.
No. 1:20-cv-00758—Susan J. Dlott, District Judge.
Argued: June 9, 2022
Decided and Filed: August 15, 2022
Before: BOGGS, MOORE, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: John C. Greiner, GRAYDON HEAD & RITCHEY, LLP, Cincinnati, Ohio, for
Appellant. Kevin Koller, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for
Appellee. ON BRIEF: John C. Greiner, J. Stephen Smith, Darren W. Ford, Frank M. Schultz,
GRAYDON HEAD & RITCHEY, LLP, Cincinnati, Ohio, for Appellant. Kevin Koller,
UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellee.
GRIFFIN, J., delivered the opinion of the court in which BOGGS, J., joined. MOORE, J.
(pp. 13–16), delivered a separate dissenting opinion.
No. 21-3966 Cincinnati Enquirer v. Dep’t of Justice, et al. Page 2
_________________
OPINION
_________________
GRIFFIN, Circuit Judge.
The Cincinnati Enquirer sued the Department of Justice (“DOJ”) and the Drug
Enforcement Administration (“DEA”) under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552, seeking documents related to a United States Attorney’s decision not to charge a
state prosecutor with obstruction of justice. The district court reviewed the relevant documents
in camera and held that they are exempt from disclosure. Based on our own in camera review,
we agree and affirm.
I.
The parties stipulated to the facts set out in the Enquirer’s complaint. Given the privacy
interests at stake, the parties omit most identifying information. We follow their lead.
In 2015, a DEA task force made up of federal, state, and local law enforcement officers
began investigating Ryan Jacobs, a drug dealer in Northern Kentucky. Jacobs sold drugs to a
married couple who allegedly were “good friends” with the local elected prosecutor, known in
Kentucky as a Commonwealth’s Attorney. After the task force arrested Jacobs on state
drug-trafficking charges, the couple had extensive conversations with the Commonwealth’s
Attorney about the task force’s investigation. After one of these conversations, an assistant state
prosecutor requested Jacobs’s cell phone records from the task force. This request alerted the
task force to the Commonwealth’s Attorney’s relationship with Jacobs’s customers, and it began
scrutinizing his involvement in the Jacobs case. The Commonwealth’s Attorney’s conversations
with the couple continued as the task force interviewed them as part of the Jacobs investigation.
The Commonwealth’s Attorney soon became involved in the Jacobs case in other ways.
Although Jacobs was detained on state charges, the DEA wanted to use him as a cooperating
witness in other drug-trafficking investigations. Jacobs therefore moved for a bond reduction.
The Commonwealth’s Attorney opposed Jacobs’s request, and the state court declined to reduce
No. 21-3966 Cincinnati Enquirer v. Dep’t of Justice, et al. Page 3
bond without his consent. Jacobs eventually pleaded guilty to money laundering and conspiring
to distribute methamphetamine.
Later, a Kentucky police officer performed a traffic stop on an unrelated individual,
finding drugs and guns. The officer called a DEA agent, who told the officer that he would
adopt the case for federal prosecution. With the agent en route, the officer sought a state search
warrant for the driver’s house. The Commonwealth’s Attorney told the officer that he would not
issue a search warrant if the DEA agent from the Jacobs investigation was involved. The
Commonwealth’s Attorney offered to provide a search warrant “as long as that specific DEA
agent was not involved in the investigation and the DEA agent’s name was not on any
paperwork.”
In 2016, the DEA officially opened an investigation into the Commonwealth’s Attorney’s
conduct, entitled “Operation Speakeasy.” According to the complaint, at the end of this
investigation, the “DEA and law enforcement officials determined that enough evidence had
been obtained to charge [t]he Commonwealth[’s] Attorney with obstruction of justice.” They
presented this evidence to then-U.S. Attorney for the Eastern District of Kentucky Kerry Harvey,
but Harvey “refused to bring charges against [t]he Commonwealth[’s] Attorney.”
In December 2019, a reporter with the Cincinnati Enquirer filed a FOIA request with the
DEA, seeking any document related to the Jacobs investigation or Operation Speakeasy. The
DEA denied that request under 5 U.S.C. § 552(b)(7)(C), which allows agencies to withhold
FOIA-eligible documents if they are “records or information compiled for law enforcement
purposes,” disclosure of which “could reasonably be expected to constitute an unwarranted
invasion of personal privacy.” The DOJ denied the reporter’s administrative appeal of the
DEA’s decision.
The Enquirer then filed this lawsuit against the DEA and DOJ, seeking an injunction to
compel defendants to turn over any document responsive to its FOIA request. The parties filed
cross-motions for summary judgment. The district court reviewed the responsive documents in
camera and weighed the privacy interests of the people discussed in the documents against the
public’s interest in disclosure. The court concluded that the responsive documents “only
No. 21-3966 Cincinnati Enquirer v. Dep’t of Justice, et al. Page 4
minimally advance[d] a public interest in shedding light on the decision of the United States
Attorney to not prosecute the Commonwealth[’s] Attorney,” and that the “significant privacy
interests outweigh[ed] the proffered public interest.” The court thus held that § 552(b)(7)(C)
exempted these documents from disclosure and dismissed the Enquirer’s case with prejudice.
The Enquirer timely appealed.
II.
FOIA codifies “a general philosophy of full agency disclosure unless information is
exempted under clearly delineated statutory language.” Dep’t of the Air Force v. Rose, 425 U.S.
352, 360–61 (1976) (quotation marks omitted). A federal agency may withhold requested
records only if an enumerated FOIA exemption applies. Rimmer v. Holder, 700 F.3d 246, 255
(6th Cir. 2012). If an agency withholds a record under a FOIA exemption, the requester may
challenge that decision in federal court and seek an injunction compelling production.
§ 552(a)(4)(B). The district court reviews the agency’s denial de novo and, generally, “the
burden is on the agency to sustain its action.” Id. We likewise review de novo a district court’s
grant of summary judgment in a FOIA proceeding. See Rimmer, 700 F.3d at 255.
In defendants’ view, they properly withheld the requested documents under the
exemption enumerated in § 552(b)(7)(C)—referred to here as “Exemption 7(C)”—which
provides that “records or information compiled for law enforcement purposes” may be withheld
if disclosure “could reasonably be expected to constitute an unwarranted invasion of personal
privacy.” Put differently, “Exemption 7(C) prevents disclosure when: (1) the information was
compiled for law enforcement purposes and (2) the disclosure could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” Detroit Free Press, Inc. v. U.S. Dep’t
of Just., 829 F.3d 478, 481 (6th Cir. 2016) (en banc) (citation omitted). No party disputes that
these records satisfy the first condition.
Exemption 7(C)’s second condition requires us to “balance the public interest in
disclosure against the privacy interest Congress intended Exemption 7(C) to protect.” Id.(quoting U. S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 776 (1989)
(brackets omitted)). This balancing test is straightforward: If the privacy interest is greater than
No. 21-3966 Cincinnati Enquirer v. Dep’t of Justice, et al. Page 5
the public interest, the documents are exempt from disclosure. But if the public interest
outweighs the privacy interest, Exemption 7(C) does not apply. To conduct this balancing test,
we must define the privacy and public interests at play in this case.
A.
We begin with the privacy interests. “The Supreme Court has described Exemption 7(C)
as reflecting privacy interests in ‘avoiding disclosure of personal matters,’ maintaining ‘the
individual’s control of information concerning his or her person,’ avoiding ‘disclosure of records
containing personal details about private citizens,’ and ‘keeping personal facts away from the
public eye.’” Detroit Free Press, 829 F.3d at 481 (citations omitted). “Embarrassing and
humiliating facts—particularly those connecting an individual to criminality—qualify for these
descriptors.” Id. (collecting cases). “[T]his circuit, along with many others, has recognized that
people who were investigated for suspected criminal activity or who were otherwise mentioned
therein could be subjected to embarrassment, harassment, and even physical danger.” Rimmer,
700 F.3d at 257 (cleaned up) (collecting cases); see also Fitzgibbon v. CIA, 911 F.2d 755, 767
(D.C. Cir. 1990) (recognizing that “the mention of an individual’s name in a law enforcement
file will engender comment and speculation and carries a stigmatizing connotation” (citation
omitted)). This privacy interest exists for suspects, as well as “third parties mentioned in the
documents, such as witnesses, informants, and investigators.” Rimmer, 700 F.3d at 257.
The Enquirer does not dispute that the people whose names appear in the records at issue
here have a privacy interest against being connected to a DEA investigation. Rather, its main
argument is that the privacy interests of the Commonwealth’s Attorney and Jacobs are reduced
because one is a public official and the other’s criminality is already known to the public. For
their part, defendants agree that some aspects of the privacy interests of Jacobs and the
Commonwealth’s Attorney are diminished. They concede that “Jacobs’ privacy interest is
weakened with respect to the fact of his conviction or other publicly disclosed facts.” Appellee’s
Br. 24; see ACLU v. U.S. Dep’t of Just., 655 F.3d 1, 7 (D.C. Cir. 2011) (holding that the privacy
interest of a convicted defendant is “substantially weaker than the privacy interests of individuals
who have been investigated but never publicly charged at all”). As to the Commonwealth’s
Attorney, defendants acknowledge that some courts have suggested that public officials have a
No. 21-3966 Cincinnati Enquirer v. Dep’t of Justice, et al. Page 6
diminished privacy interest that might, “under appropriate circumstances,” support disclosure of
documents concerning a public-corruption investigation. See Fund for Const. Gov’t v. Nat’l
Archives & Recs. Serv., 656 F.2d 856, 865 (D.C. Cir. 1981). But defendants also point out that
these courts have acknowledged that “public officials do not surrender all rights to personal
privacy when they accept a public appointment.” Citizens for Resp. & Ethics in Washington v.
U.S. Dep’t of Just., 746 F.3d 1082, 1092 (D.C. Cir. 2014) (quotation marks and citation omitted)
(“CREW”).
Thus, we can draw 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. See Rimmer, 700 F.3d at 257. And second, consistent with our sister
circuit’s case law, the Commonwealth’s Attorney and Jacobs have a somewhat reduced privacy
interest.
B.
With the privacy interests defined, we turn to the public interest. But first, recall our
earlier statement that, usually in FOIA litigation, “the burden is on the agency to sustain its
action.” 5 U.S.C. § 552(a)(4)(B). We are now in one of the few areas where the burden is not on
the agency. The Supreme Court has held that “to give practical meaning” to Exemption 7(C),
“the usual rule that the [requester] need not offer a reason for requesting the information must be
inapplicable.” Nat’l Archives & Rec. Admin v. Favish, 541 U.S. 157, 172 (2004). If the
government establishes a privacy interest for which Exemption 7(c) applies, the burden shifts to
the requester to “establish a sufficient reason for the disclosure.” Id. Because defendants have
established privacy interests in these records, the Enquirer must show a weightier public interest
in favor of disclosure.
The public’s interest in disclosure depends on “the extent to which disclosure would
serve the ‘core purpose of the FOIA,’ which is ‘contribut[ing] significantly to public
understanding of the operations or activities of the government.’” Detroit Free Press, 829 F.3d
at 485 (quoting U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 495 (1994)).
“If disclosure is not likely to advance a significant public interest, the invasion of privacy is
No. 21-3966 Cincinnati Enquirer v. Dep’t of Justice, et al. Page 7
unwarranted.” Id. (quoting Favish, 541 U.S. at 172) (quotation marks, brackets, and ellipses
omitted). “Shedding light on an agency’s performance of its statutory duties falls squarely
within FOIA’s core purpose.” Id. (quoting Reps. Comm., 489 U.S. at 773) (brackets, quotation
marks, and citation omitted). But that purpose “is not fostered by disclosure of information
about private citizens . . . that reveals little or nothing about an agency’s own conduct.” Id.(citation omitted).
The Enquirer “must show that the public interest sought to be advanced is a significant
one, an interest more specific than having the information for its own sake,” and that “the
information is likely to advance that interest.” Favish, 541 U.S. at 172. The newspaper asserts
that there are two public interests here: (i) the interest in determining whether the U.S. Attorney
acted improperly by declining to prosecute, and (ii) the interest in the public educating itself
about substantive law-enforcement policy and how the DOJ performs its statutory duties.
i.
Where “the public interest being asserted is to show that responsible officials acted
negligently or otherwise improperly in the performance of their duties, the requester must
establish more than a bare suspicion in order to obtain disclosure.” Id. at 174. “Rather, the
requester must produce evidence that would warrant a belief by a reasonable person that the
alleged [g]overnment impropriety might have occurred.” Id.At this point, it is important to consider FOIA’s aim regarding public corruption: to
“shed[] light on misconduct of the federal government, not state governments.” Rimmer,
700 F.3d at 258. 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. Id. at 259 (citation omitted). 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.1
Instead, we must focus solely on the alleged conduct of the federal officials involved in this case.
1The Enquirer attempts to shift the focus to the Commonwealth’s Attorney at least once in its brief. It
argues that documents are subject to disclosure if they would “shed light on ‘what the Government is up to.’”
No. 21-3966 Cincinnati Enquirer v. Dep’t of Justice, et al. Page 8
The Enquirer homes in on the U.S. Attorney’s decision not to prosecute the
Commonwealth’s Attorney for obstruction of justice. The newspaper argues that, because the
federal prosecutor and the DEA seemingly disagreed about whether the Commonwealth’s
Attorney “had engaged in serious misconduct, the public has an overriding interest in evaluating
that conduct for itself.” Appellant’s Br. 32. These records “would also shed light on the conduct
of the DOJ in reviewing the evidence . . . and whether the DOJ’s decision to go against the
DEA’s recommendation of charges was merited in light of the evidence[.]” 2 In short, the
Enquirer wants these documents so that it can review for itself the U.S. Attorney’s decision to
decline prosecution.
“[T]he decision to prosecute an individual for a crime is one typically entrusted solely to
the prosecutor’s discretion and rarely subject to judicial review or public scrutiny.” Fund for
Const. Gov’t, 656 F.2d at 863. Some courts have, however, recognized that there might be a
public interest in examining prosecutorial decisions under some circumstances. See CREW, 746
F.3d at 1093–94. Because Exemption 7(C) usually requires a “case-by-case balancing
approach,” id. at 1095 (quotation marks omitted), we look to the specifics of 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
Jacobs’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.” Appellant’s Br. 33 (quoting Favish, 541 U.S. at
173).
Appellant’s Br. 31 (citing Favish, 541 U.S. at 171). It then asserts that “[a]ccording to the DEA, what the
Commonwealth’s Attorney ‘was up to’ was obstruction of justice.” Id. But the “government” referenced in Favish
is the federal government, not the state government. 541 U.S. at 161; see also Rimmer, 700 F.3d at 258.
2To the extent that the Enquirer’s brief on appeal could be read to assert a public interest in reviewing how
the DEA conducted its investigation, see Appellant’s Br. 33–34, it expressly waived this argument in the district
court. “[A]rguments not squarely presented to the district court are not reviewed on appeal.” Potter v. Comm’r of
Soc. Sec., 9 F.4th 369, 381 (6th Cir. 2021) (citation omitted).
No. 21-3966 Cincinnati Enquirer v. Dep’t of Justice, et al. Page 9
We disagree. 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.” Fund for Const. Gov’t, 656 F.2d at 863. For example, according
to the DOJ’s Justice Manual, a federal prosecutor may decline to bring charges, even when there
is sufficient admissible evidence to “obtain and sustain a conviction,” if doing so “would serve
no substantial federal interest.” Dep’t of Just., Justice Manual § 9-27.220(1) (2018) (available at
https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution). Determining whether a
substantial federal interest exists requires the U.S. Attorney to “weigh all relevant
considerations,” including “Federal law enforcement priorities,” “[t]he nature and seriousness of
the offense,” “[t]he person’s culpability in connection with the offense,” and “[t]he person’s
history with respect to criminal activity.” Id. § 9-27.230(1), (2), (4), and (5). Similarly, the
American Bar Association provides that a prosecutor “is not obliged to file or maintain all
criminal charges which the evidence might support,” and should consider, among other things,
“the strength of the case,” “the extent or absence of harm caused by the offense,” and “the fair
and efficient distribution of limited prosecutorial resources.” Criminal Justice, Standards for the
Prosecution Function, Standard 3-4.4(a)(i), (ii), and (xiv) (4th ed. 2017).
The Enquirer 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. The newspaper’s argument
rests instead on the inference that, if the DEA thought charges should be brought, the
Commonwealth’s Attorney should have been indicted, and the fact that he was not indicted
indicates corruption or incompetence in the U.S. Attorney’s Office. Because this is a logical leap
unsupported by any record evidence, it is “a bare suspicion,” and is insufficient to establish a
No. 21-3966 Cincinnati Enquirer v. Dep’t of Justice, et al. Page 10
public interest in favor of disclosure. Favish, 541 U.S. at 174; see also Rimmer, 700 F.3d at 258
(explaining that a requester must present “more than bare allegations of federal malfeasance” to
establish a sufficient public interest). Accordingly, the Enquirer has failed to establish a
sufficient public interest in revealing possible government impropriety to outweigh the privacy
interests here.
ii.
The Enquirer alternatively argues that it need not satisfy Favish’s reasonable-person
standard because, even if there was no negligence or impropriety by federal officials, disclosing
these documents would shed light on how the DOJ performed its statutory duties, see Detroit
Free Press, 829 F.3d at 485, and would allow the public to understand important matters of
substantive law-enforcement policy, see Reps. Comm., 489 U.S. at 766 n.18 (“[M]atters of
substantive law enforcement policy . . . are properly the subject of public concern.”).
A single decision “not to prosecute a person, standing alone, does very little to ‘shed
light on the agency’s performance of its statutory duties.’” Jud. Watch, Inc. v. U.S. Dep’t of
Just., 898 F. Supp.2d 93, 106 (D.D.C. 2012) (quoting Reps. Comm., 489 U.S. at 773) (bracket
omitted). This is because a particular decision whether to prosecute represents “only a single
data point” for the prosecutor’s conduct. Citizens for Resp. & Ethics in Washington v. U.S.
Dep’t of Just., 978 F. Supp. 2d 1, 13 (D.D.C. 2013) (citation omitted). And even if these
documents implicate a general public interest in law-enforcement education and oversight, they
still must be “likely to advance” that public interest. Favish, 541 U.S. at 172.
After reviewing the responsive documents in camera, we conclude 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. See Justice Manual § 9-27.230. 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.
See Jud. Watch, 898 F. Supp. 2d at 106.
No. 21-3966 Cincinnati Enquirer v. Dep’t of Justice, et al. Page 11
C.
We now must balance the privacy interests implicated by these documents against the
minimal public interest that their disclosure would advance. Although the Commonwealth’s
Attorney and Jacobs might have a reduced expectation of privacy, their privacy interests are not
insubstantial. “[P]ublic officials do not surrender all rights to personal privacy when they accept
a public appointment,” CREW, 746 F.3d at 1092 (quotation marks omitted), and Jacobs retains
“more than a de minimis privacy interest” in investigative files related to his conviction and
criminal history, ACLU, 655 F.3d at 12. Further, facts “connecting an individual to criminality”
are at the core of the privacy interests protected by Exemption 7(C). Detroit Free Press, 829
F.3d at 481. We are also mindful that the third parties mentioned in the documents have an
undisputedly strong privacy interest against disclosure. Rimmer, 700 F.3d at 257. On the other
side of the scale, the public interest lies only in examining the U.S. Attorney’s decision not to
charge the Commonwealth’s Attorney with obstruction of justice. Our in camera review
confirms that these documents shed little light on why that decision was made and only
minimally advance a public interest in law-enforcement education and oversight.
Balancing these interests, we conclude that the privacy interests implicated by these
documents outweigh the public’s interest in disclosure. Accordingly, their disclosure would
constitute an unwarranted invasion of personal privacy. 5 U.S.C. § 552(b)(7)(C). The
exemption applies.
III.
Our work is not yet finished. FOIA requires that “[a]ny reasonably segregable portion of
a record shall be provided to any person requesting such record after deletion of the portions
which are exempt[.]” § 552(b). “Under this principle of segregability, an agency cannot justify
withholding an entire document simply because it contains some material exempt from
disclosure.” Rugiero v. U.S. Dep’t of Just., 257 F.3d 534, 553 (6th Cir. 2001). Documents can
be withheld in their entirety, however, if they are not segregable, which occurs when “exempt
and nonexempt information [is] ‘inextricably intertwined,’ such that the excision of exempt
information would impose significant costs on the agency and produce an edited document with
No. 21-3966 Cincinnati Enquirer v. Dep’t of Justice, et al. Page 12
little informational value.” ACLU of Mich. v. FBI, 734 F.3d 460, 468 (6th Cir. 2013) (citation
omitted).
Here, the district court found that the documents were not segregable. We agree. We
have reviewed the documents in camera and conclude that redacting the exempted information
would leave them with “little informational value.” Id. Thus, the district court correctly found
non-segregability and properly withheld the documents in their entirety.
IV.
We affirm the judgment of the district court.
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_________________
DISSENT
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KAREN NELSON MOORE, Circuit Judge, dissenting. I write separately to express my
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.
When a federal prosecutor decides not to prosecute an elected state official who is duty-bound to
enforce the law, any information about that decision conveys to the public whether the federal
“government had the evidence but nevertheless pulled its punches.” Citizens for Resp. & Ethics
in Washington v. U.S. Dep’t of Just., 746 F.3d 1082, 1093 (CREW) (D.C. Cir. 2014).
“‘[M]atters of substantive law enforcement policy are properly the subject of public
concern,’ whether or not the policy in question is lawful.” Id. at 1095 (quoting ACLU v. U.S.
Dep’t of Just., 655 F.3d 1, 14 (D.C. Cir. 2011)); U.S. Dep’t of Just. v. Reps. Comm. for Freedom
of the Press, 489 U.S. 749, 766 n.18 (1989). For that reason, the Department of Justice’s
decision not to prosecute a former House Majority leader for corruption and the Special
Counsel’s decision not to prosecute members of the President’s campaign team for election
interference each implicated “weighty” and “substantial” public interests in prominent D.C.
Circuit cases. CREW, 746 F.3d at 1092–93; Elec. Priv. Info. Ctr. v. U.S. Dep’t of Just., 18 F.4th
712, 720 (D.C. Cir. 2021). The information sought in both those cases elucidated how the
government “carried out [its] duties to investigate and prosecute criminal conduct.” Elec. Priv.
Info. Ctr., 18 F.4th at 720; see CREW, 746 F.3d at 1093. Likewise, 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, citing Citizens for
Responsibility and Ethics in Washington v. United States Department of Justice, 978 F. Supp. 2d
1, 13 (D.D.C. 2013), that case further elaborates that even a single decision “can be substantial in
some circumstances.” For example, the “public profile of the subject of the investigation”
No. 21-3966 Cincinnati Enquirer v. Dep’t of Justice, et al. Page 14
contributes to the public’s interest in disclosure. Id.; see also CREW, 746 F.3d at 1094
(recognizing that a single prosecutorial data point may implicate a public interest when that data
point is “a significant one”).
Especially because the government does not dispute that the Drug Enforcement Agency
(DEA) concluded that obstruction charges were merited, the decision not to prosecute the
Commonwealth’s Attorney represents such a “significant” decision. CREW, 746 F.3d at 1094.
The U.S. Attorney declined to prosecute for obstruction of justice a high-ranking, elected official
entrusted with enforcing the law. The crime of obstruction of justice, like the public corruption
at issue in CREW, “undermine[s] the very foundation of our government.” Id. at 1093.
Information about the U.S. Attorney’s decision would shed useful light on how the office
approaches the prosecution of such crimes. Id. This information could also reveal whether the
prominence of the Commonwealth’s Attorney’s position affected the U.S. Attorney’s degree of
“investigative scrutiny and prosecutorial zeal.” Id. at 1094. The data point in this case may be
singular, but it is still significant.
I further disagree 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. Id. at 1093–94. Even if some of the aspects of the
U.S. Attorney’s decision remain unclear, the public can evaluate the information gathered in the
investigation and form a better understanding about its context. That information on its own
informs the public, even if obliquely, about “the manner in which the [government] carries out
substantive law enforcement policy.” Id. at 1093. “One basic general assumption of the FOIA is
that, in many important public matters, it is for the public to know and then to judge.” Stern v.
F.B.I., 737 F.2d 84, 94 (D.C. Cir. 1984).
On the other side of the balance lie the implicated privacy interests. As the subject of the
DEA’s investigation, the Commonwealth’s Attorney’s privacy interests are especially salient.
No. 21-3966 Cincinnati Enquirer v. Dep’t of Justice, et al. Page 15
The Commonwealth’s Attorney’s status as an elected prosecutor, however, severely weakens the
privacy interests asserted. See Common Cause v. Nat’l Archives & Recs. Serv., 628 F.2d 179,
184 (D.C. Cir. 1980) (candidates for public office “may have been ‘public figures’ with less
privacy interest than others in information relating to their candidacies”). Regardless of the
Commonwealth’s Attorney’s public stature, the Commonwealth’s Attorney is elected to enforce
the law. That job description alone diminishes privacy interests in shielding from the public eye
investigations into obstructing justice—the same ideal that the public elected the
Commonwealth’s Attorney to defend. See Fund for Const. Gov’t v. Nat’l Archives & Recs.
Serv., 656 F.2d 856, 865 (D.C. Cir. 1981) (noting that an individual’s status as a public figure
could weigh in favor of disclosure “under appropriate circumstances”); Bartko v. U.S. Dep’t of
Just., 898 F.3d 51, 66 (D.C. Cir. 2018) (noting that the “privacy interest at stake” may vary based
on, among other factors, the “severity of the allegations”).
The 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. The diligence of an inquiry into misconduct informs whether a privacy invasion is
warranted. See Bartko, 898 F.3d at 66 (“[A]n unsubstantiated allegation that was dismissed as
frivolous might implicate a greater privacy interest or a reduced public interest, while an in-depth
investigation . . . would trigger a different balancing of interests.”). The public has a right to
know the contents of that investigation to understand better the context surrounding the U.S.
Attorney’s decision not to prosecute an official that the public elected. When the
Commonwealth’s Attorney’s enforcement of justice is inherently subject to public scrutiny, the
government cannot wield the Commonwealth’s Attorney’s privacy interests to shield the
requested documents from disclosure.
As for the other privacy interests in the case, I agree that third parties retain substantial
interests in keeping their personal information and involvement in this case private. See Rimmer
v. Holder, 700 F.3d 246, 257 (6th Cir. 2012). I further agree that Jacobs’s convictions reduce his
privacy interests, but that Jacobs retains a privacy interest in any facts about him that have not
been publicly disclosed. See Elec. Priv. Info. Ctr., 18 F.4th at 719; ACLU, 655 F.3d at 7. Those
interests provide little justification for withholding the requested documents, however, because
No. 21-3966 Cincinnati Enquirer v. Dep’t of Justice, et al. Page 16
the government can adequately safeguard them by segregating and redacting any irrelevant or
sensitive information. See 5 U.S.C. § 552(b); Rugiero v. U.S. Dep’t of Just., 257 F.3d 534, 553
(6th Cir. 2001).
FOIA “was designed to pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Bartko, 898 F.3d at 61 (quoting CREW, 746 F.3d at 1088).
To further those goals, “FOIA mandates a strong presumption in favor of disclosure,” which
compels courts to construe narrowly statutory exemptions like § 552(b)(7)(C). ACLU, 655 F.3d
at 5 (quotations omitted). Viewing FOIA through the lens of transparency, the public is entitled
to know any information underpinning—even if not fully explaining—the federal government’s
decision not to prosecute for obstruction of justice an elected official charged with enforcing the
law. Because I believe the public should be able to access information to evaluate better the
government’s decision, I respectfully dissent.