Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Eleventh Circuit: Documents Requested From DOJ Exempt Under FOIA

The U.S. Court of Appeals for the Eleventh Circuit held that certain
documents requested from the Department of Justice (DOJ) concerning
disciplinary proceedings against the Assistant United States Attorney
(AUSA) were exempt under the Freedom of Information Act (FOIA).
The Office of Capital Collateral Counsel (CCC), a group representing a
death row prisoner who had been prosecuted by AUSA Karen Cox, brought an
action against the DOJ seeking documents under the FOIA relating to
disciplinary proceedings against Cox for misconduct in an unrelated
criminal prosecution.

The U.S. District Court for the Middle District of Florida, in Case No. 00-
01793-CV-T-24TG, granted CCC's motion for summary judgment and ordered the
DOJ to release the documents. The DOJ appealed. The Eleventh Circuit
reversed and remanded, holding:

1) The documents at issue revealed "Cox's candid disclosure of her private
thoughts and feelings concerning her misconduct ... and its effect on her,
her family, and her career," which were "not relevant to the public
interest in knowing what the government is doing." Moreover, public
information regarding Cox's misconduct already available was sufficient to
satisfy the public interest in knowing how the DOJ responded to her
misconduct. Therefore, the Court held, the documents at issue were exempt
from disclosure under FOIA exemption 6.

2) Third parties identified in the documents had privacy interests in the
information about them contained therein. Also, the roles of these third
parties were well enough known for the public interest in the disclosure
to have been satisfied. As such, disclosure of the documents would be "a
clearly unwarranted invasion of their privacy." Therefore, the privacy
interests of these third parties presented an "independently sufficient
basis for finding these documents exempt under FOIA exemption 6."
See: Capital Collateral Counsel v. Department of Justice, 331 F.3d 799
(11th Cir. 2003).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Capital Collateral Counsel v. Department of Justic

Office of the Capital Collateral Counsel, Northern Region of Florida v. Department of Justice, 331 F.3d 799 (11th Cir. 05/20/2003)

[1] U.S. Court of Appeals, Eleventh Circuit

[2] No. 02-14274

[3] 331 F.3d 799, 2003

[4] May 20, 2003

[5] OFFICE OF THE CAPITAL COLLATERAL COUNSEL, NORTHERN REGION OF FLORIDA, AS COUNSEL FOR MICHAEL MORDENTI, PLAINTIFF-APPELLEE,
v.
DEPARTMENT OF JUSTICE, DEFENDANT-APPELLANT.

[6] Appeal from the United States District Court for the Middle District of Florida D. C. Docket No. 00-01793-CV-T-24TG

[7] Before Black and Hill, Circuit Judges, and FITZPATRICK*fn1, District Judge. Black, Circuit Judge

[8] PUBLISH

[9] The United States Department of Justice (DOJ) appeals the district court's order to disclose two documents pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. We conclude the documents in question are exempt from disclosure under FOIA's exemption 6 and therefore reverse.

[10] I. BACKGROUND

[11] In a 1998 trial involving the alleged internet solicitation of a minor for an unlawful sexual encounter, Assistant United States Attorney Karen Cox called a witness identified as "Gracie Greggs." In fact, "Gracie Greggs" was a pseudonym for use over the internet; the witness' real name was Adria Jackson. Cox failed to inform the court Gracie Greggs was not the witness' true name, though that information subsequently came to light. The court concluded that Cox had either manufactured or accepted a plan to employ the fictitious name for Jackson to conceal Jackson's potential credibility problems and thereby further the prosecutorial goal of securing a conviction. The court therefore dismissed the indictment. See generally United States v. Sterba, 22 F. Supp. 2d 1333 (M.D. Fla. 1998).

[12] The United States Attorney subsequently referred Cox's apparent misconduct to DOJ's Office of Professional Responsibility (OPR). OPR investigated the matter and reported to James Santelle, the Deputy Director of the Executive Office for United States Attorneys (EOUSA). In this capacity, Santelle had final authority to sanction Cox for her misconduct. Before imposing his final sanction, Santelle met with Cox for an oral reply. DOJ has characterized this oral reply as essentially a due process hearing during which Cox was able to speak freely about the incident and the proposed sanctions. The oral reply was transcribed, and the transcript appears in the Vaughn index*fn2 as document 1.

[13] Following the oral reply, Santelle issued a final decision letter to Cox in which he imposed a two-week suspension without pay. Santelle's final decision letter was identified in the Vaughn index as document 10.

[14] At about the same time, Cox was also defending herself against an ethics complaint filed with the Florida Bar. The Florida Bar referee noted that DOJ had imposed a two-week suspension on Cox; he therefore recommended only a public reprimand by the District Judge who had presided over Sterba. The Florida Supreme Court overruled that recommendation and instead imposed a one-year suspension on Cox. See generally Florida Bar v. Cox, 794 So. 2d 1278 (Fla. 2001). Cox subsequently resigned from the United States Attorney's Office.

[15] Pursuant to FOIA, the Office of the Capital Collateral Counsel (CCC) requested from EOUSA all records concerning Cox's disciplinary proceedings.*fn3 DOJ initially gave a Glomar response,*fn4 and before CCC exhausted its administrative appeals, it filed a complaint in the district court. After answering this complaint, DOJ released the full text of over 1000 pages and redacted versions of 41 pages that responded to the FOIA request, and also withheld 277 responsive pages. DOJ cited FOIA exemptions 5, 6, and 7(C) as the bases for withholding and redacting some of the responsive documents. DOJ subsequently released additional documents, so that only five documents remained at issue when motions for summary judgment were filed.

[16] The district court reviewed the relevant documents in camera. It then ruled that certain of those documents, including documents 1 and 10, must be disclosed under FOIA. With respect to document 1, the court permitted DOJ to redact the names of third parties identified during Cox's oral reply, though the court acknowledged that the identities of most of these third parties would be apparent. The court subsequently awarded attorney's fees to CCC.

[17] On appeal, DOJ challenges the district court's order to disclose documents 1 and 10. It also claims a reversal with regard to the disclosure order would require the award of attorney's fees to be set aside.

[18] II. DISCUSSION

[19] The purpose of FOIA is to encourage public disclosure of information so citizens may understand what their government is doing. Accordingly, the records at issue in this appeal are presumed to be subject to disclosure unless DOJ affirmatively establishes that the requested records fall into one of FOIA's exemptions. Chivilis v. SEC, 673 F.2d 1205, 121011 (11th Cir. 1982).

[20] The district court decided this case at summary judgment, so appellate review is de novo. Times Pub. Co. v. U.S. Dep't of Commerce, 236 F.3d 1286, 1288 n.1 (11th Cir. 2001). While factual findings would ordinarily be reviewed for clear error, see Chivilis, 673 F.2d at 1210, the issues in this appeal are limited to the legal application of FOIA exemption 6, so the Chivilis clear error standard does not apply. See Cochran v. United States, 770 F.2d 949, 95556 n.8 (11th Cir. 1985) ("Since the facts of the case are undisputed and the only issue is the proper balance under FOIA exemption six, the 'clearly erroneous' standard employed in Chivilis... is inappropriate.").

[21] Exemption 6 excludes from FOIA requests "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Exemption 6 applies broadly to "detailed Government records on an individual which can be identified as applying to that individual." United States Dep't of State v. Washington Post Co., 456 U.S. 595, 602, 102 S. Ct. 1957, 1961 (1982) (internal quotations omitted).*fn5 According to the Supreme Court, "the text of the exemption requires the Court to balance the individual's right of privacy against the basic policy of opening agency action to the light of public scrutiny." United States Dept' of State v. Ray, 502 U.S. 164, 175, 112 S. Ct. 541, 548 (1991) (internal quotations omitted). The privacy interest protected by exemption 6 includes an individual's interest in avoiding disclosure of personal matters. United States Dep't of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 762, 109 S. Ct. 1468, 1476 (1989).*fn6 The relevant public interest to be balanced against the private interests at stake is the core purpose of FOIA: "to open agency action to the light of public scrutiny." Reporters Committee, 489 U.S. at 772, 109 S. Ct. at 1481 (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 372, 96 S. Ct. 1592, 1604 (1976)). Any peculiar interest of the requesting party is irrelevant to evaluating this general public interest. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 110 S. Ct. 471 (1989).