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Privacy Interests Outweigh Public Interest in Disclosure of AUSA Termination Letter

by David Reutter

The District of Columbia Court of Appeals held that privacy interests in not disclosing a 20-year-old proposed termination letter for a previous Assistant U.S. Attorney (AUSA) outweighed the pubic interest under exemption 5 U.S.C. § 552(6)(6).

Howard Bloomgarden, represented by attorney Torrence E.S. Lewis, filed a Freedom of Information Act (FOIA) request with the Department of Justice (DOJ) for disclosure of a termination letter naming the AUSA. He asserted the letter was a public record as the AUSA was a government employee at the time. He also argued it could help him in his criminal appeals because the AUSA had prosecuted him, and it may show severe misconduct and laxness in the DOJ’s disciplinary process.

The district court acknowledged Bloomgarden’s motivation to obtain the letter because it involved his own legal proceedings, but clarified that it must consider the public’s interest, not the individual’s. The court granted summary judgment to the DOJ, holding the AUSA’s privacy interest in not being unduly embarrassed outweighed the public interest in disclosure.

The DOJ released over 3,000 pages of other documents related to the termination letter, but after an in camera review, the court concluded the FOIA exemption had been properly invoked. That exemption applies to “personnel ... files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

On appeal, the D.C. Circuit agreed that the termination letter was exempt from a FOIA request because it would inflict undue embarrassment. The letter was never formally accepted and contained only allegations because it appeared that a settlement was reached and no investigation was conducted. Also, the in camera review by the district court showed no allegations of prosecutorial misconduct or abuse of authority. The Court of Appeals expressed judicial opposition to disclosure of records containing mere allegations.

The Court did not address the award of costs in its October 31, 2017 ruling, as that issue was not before it; since Bloomgarden had obtained over 3,000 pages of other records, the district court could address costs on remand based on who was considered the prevailing party in the case. See: Bloomgarden v. United States Department of Justice, 874 F.3d 757 (D.C. Cir. 2017). 


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Related legal case

Bloomgarden v. United States Department of Justice