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KIMBERLIN v. DOJ

April 11, 1996

BRETT C. KIMBERLIN, Plaintiff,
v.
DEPARTMENT OF JUSTICE, ET AL, Defendants.



The opinion of the court was delivered by: SPORKIN

 This matter comes before the Court on cross-motions for summary judgment on two related actions brought under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Plaintiff is pursuing both actions pro se.

 Plaintiff filed these actions seeking the following categories of documents: 1) all of the Drug Enforcement Administration's (DEA) files related to any investigation by the DEA regarding former Vice President Dan Quayle; 2) all files from the Office of Professional Responsibility (OPR) relating to its investigation of the release of the material in category one to a reporter for the Indianapolis Star newspaper. The Plaintiff has agreed to limit his request in category one to any documents that may have been released to the press rather than to the entire category of documents. The Defendants have released to Plaintiff the DEA file in question with names and identifying information redacted pursuant to FOIA Exemption 7(C).

 The Court has reviewed certain records in camera including the unredacted versions of the DEA file. It has also reviewed the reasons given by the OPR regarding the disclosure of the information to the press by the United States Attorney's Office.

 FOIA EXEMPTION 7(C)

 Exemption 7(C) provides that an agency may withhold:

 
Investigatory records compiled for law enforcement purposes, or information which if written would be contained in such records, but only to the extent that the production of such records or information would...constitute an unwarranted invasion of personal privacy. 5 U.S.C. § 552(b)(7)(C).

 In examining the applicability of Exemption 7(C) the Court must balance the privacy interests that would be compromised by disclosure against the public interest in the release of the requested information. Davis v. Department of Justice, 296 U.S. App. D.C. 405, 968 F.2d 1276, 1281 (D.C. Cir. 1991). It is well settled that individuals have a cognizable interest under Exemption 7(C) "in keeping secret the fact that they were subjects of a law enforcement investigation." Nation Magazine v. United States Customs Sevice, 315 U.S. App. D.C. 177, 71 F.3d 885, 894 (D.C. Cir. 1995) (and cases cited therein). In examining the public interest side of the equation the Court must look to "the citizens' right to be informed about what their government is up to." Department of Justice v. Reporters Committee, 489 U.S. 749, 109 S. Ct. 1468, 1481, 103 L. Ed. 2d 774 (1989).

 DEA Files

 The Government has submitted certain documents in camera for the Court's inspection. These documents show that Assistant United States Attorney (AUSA) John Thar released information contained in DEA files to the press. The information was released by Thar in reliance on the express approval of the United States Attorney for the District of Indiana. The United States Attorney gave AUSA Thar approval to discuss the matter with the press in the belief that officials at the Justice Department had authorized her to do so. The Justice Department concedes that it had given permission to release some of the information now at issue. However, Justice claims that the authorization was for a specific inquiry from another news organization and was more limited in scope than the material that was ultimately released by AUSA Thar.

 The issue of who was authorized to disclose what, to whom, and when such disclosure would take place, was the subject of much confusion within the Justice Department. Suffice it to say that the authorization process was vaguely reminiscent of Abbott and Costello's classic routine "Who's on First?" Simply put, communication was unclear and misunderstandings resulted.

 The Government now asks this Court to find that the Thar disclosure was not "authorized" and for this reason to deny Plaintiff the information he seeks. Unfortunately, the information already has been made public and is incapable of being returned. To allow the Government to now withhold information that it has already disclosed pursuant to a valid, albeit misunderstood, authorization would permit the Government to engage in withholding of information from the public that is intolerable under the law. Justice Department Officials could selectively disclose non-public information to favored sources and then invoke FOIA exemptions to prevent disclosure to press sources not in their favor.


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