Case Detail

FOIA Project Annotation: A federal court in Ohio has ruled that the DEA has not justified a privacy exemption-based Glomar response for records concerning its investigation of Ryan Jacobs for selling drugs, including allegations from Jacobs that an assistant Commonwealth Attorney in Northern Kentucky was complicit in covering up his illegal drug use as well. Jacobs was investigated for selling drugs to an unidentified couple in Kentucky, who were friends with the assistant Commonwealth Attorney. The Cincinnati Enquirer sent a FOIA request to the DEA for records concerning its role in the Jacobs investigation cooperation with state and local enforcement officials. The agency issued a Glomar response neither confirming nor denying the existence of records, citing Exemption 7(C) (invasion of privacy concerning law enforcement purposes) as the basis of the Glomar response. The Enquirer appealed the denial, which was upheld by the agency. The Enquirer then filed suit, arguing that Jacobs had no privacy interest because he had been convicted, but acknowledging that identifying information about the assistant Commonwealth Attorney and the other individuals involved could be redacted. The Enquirer asked the court to require the agency to provide more detail through a Vaughn index. The court rejected the Enquirer's claim that Jacobs had no privacy because he had been convicted, noting instead that "convicted persons do maintain privacy interests. The Supreme Court held in Reporters Committee that individuals have privacy interests in their rap sheet information. Lower courts have recognized these privacy interests as well." The court explained that "the Enquirer is not arguing that there is a public interest related to the investigation or prosecution of Ryan Jacobs himself. The Enquirer, accordingly, appears to implicitly concede that there is no public interest in the Jacobs investigative records except to the extent that individual documents and files shed light on the United States Attorney's decision not to prosecute the Commonwealth Attorney for obstruction of justice." The court then pointed out that "it bears emphasizing that the alleged wrongdoing by the Commonwealth Attorney is not itself a significant public interest for FOIA purposes. Exposing possible criminal behavior by a public official such as the Commonwealth Attorney is not sufficient public interest unless it also reveals something about a federal agency's conduct, here the decision of the United States Attorney not to prosecute the Commonwealth Attorney." Finding the Enquirer had shown a potential public interest in disclosure, the court pointed out that "when the Supreme Court allowed the categorical denial of rap sheet information in Reporter's Committee, it was because the request did not seek 'official information' about a government agency. Conversely, the Enquirer here is seeking information about an investigation that may shed light on a specific United States Attorney's prosecutorial decision concerning a public figure and law enforcement official who allegedly obstructed justice. The Court concludes that the disclosure of a Vaughn index is appropriate here."
Issues: Exemption 7(C) - Invasion of privacy concerning law enforcement records

FOIA Project Annotation: A federal court in Ohio has ruled that, based on records disclosed during FOIA litigation brought by the Cincinnati Enquirer based on two FOIA requests for records pertaining to preferential treatment allegedly accorded to a Kentucky Commonwealth Attorney who potentially obstructed justice during the investigation of Ryan Jacobs' drug-trafficking activities, the FBI failed to conduct an adequate search. The Enquirer requested records on the Jacobs investigation as well as on Operation Speakeasy. In response, the FBI told the Enquirer that a keyword search identified no records related to Operation Speakeasy. The agency issued a Glomar response neither confirming nor denying the existence of records in response to the Enquirer's request about the Jacobs investigation. The court rejected the Glomar defense and ordered the FBI to search for records for in camera review. As part of that process, the FBI located a 38-page PowerPoint presentation entitled Operation Speakeasy. Judge Susan Dlott apologized for previously upholding the agency's no records response to the Enquirer's request on Operation Speakeasy. She noted that "the Court now knows that the search was incomplete or inadequate because Defendants submitted to review as part of the Jacobs investigation documents a 38-page PowerPoint presentation entitled Operation Speakeasy. The Summary Judgment Order must be amended. Accordingly, summary judgment is denied to the Defendants on the Operation Speakeasy request. Defendants must immediately conduct a new search for [potentially responsive] documents." She added that "given that the Defendants use of the key search term 'Speakeasy' in the NADDIS data index did not find the responsive Operation Speakeasy document, Defendants must conduct a broader search for responsive documents."
Issues: Adequacy - Search

Date Filed	Doc #	Docket Text
2020-09-22	1	COMPLAINT against United States Department of Justice, United States Drug Enforcement Administration ( Filing fee $ 400 paid - receipt number: 0648-7668070), filed by The Cincinnati Enquirer. (Attachments: # 1 Exhibit A Request, # 2 Exhibit B Denial, # 3 Exhibit C Appeal, # 4 Exhibit D DOJ Affirmation, # 5 Civil Cover Sheet, # 6 Summons Form to U.S. Dept of Justice, # 7 Summons Form to U.S. Drug Enforcement Administration) (Greiner, John) (Entered: 09/22/2020)
2020-09-22	2	Corporate Disclosure Statement by Plaintiffs The Cincinnati Enquirer, Gannett GP Media, Inc. identifying Corporate Parent Gannett GP Media, Inc. for The Cincinnati Enquirer.. (Greiner, John) (Entered: 09/22/2020)
2020-09-22		If this case is referred, it will be to Magistrate Judge Karen L. Litkovitz. (bjc) (Entered: 09/22/2020)
2020-09-22	3	NOTICE of Appearance by Frank Matthew Schultz for Plaintiff The Cincinnati Enquirer (Schultz, Frank) (Entered: 09/22/2020)
2020-09-23	4	NOTICE of Appearance by Darren William Ford for Plaintiff The Cincinnati Enquirer (Ford, Darren) (Entered: 09/23/2020)
2020-09-23	5	[FORMER DOC.5 - PLEASE DISREGARD. FILED IN ERROR.] Summons Issued as to Department of Justice, Drug Enforcement Administration. (kl) Modified docket text and document security on 9/23/2020 (kl). (Entered: 09/23/2020)
2020-09-23	6	Summons Issued as to Department of Justice, Drug Enforcement Administration, U.S. Attorney and U.S. Attorney General (kl) (Entered: 09/23/2020)
2020-09-23		Notice of Correction : Please disregard, [FORMER DOC.5] - Incomplete PDF attached. See Doc. 6 for correction. (kl) (Entered: 09/23/2020)
2020-09-24	7	CERTIFICATE of Mailing: Certified mailing of Summons and Complaint through the Clerk's Office pursuant to Local Rule 4.2. (Attachments: # 1 Certified Mail Receipts) (kh) (Entered: 09/24/2020)
2020-09-29	8	NOTICE of Appearance by William Bryan King, II for Defendants Department of Justice, Drug Enforcement Administration (King, William) (Entered: 09/29/2020)
2020-10-01	9	SUMMONS Returned Executed (Not Effectuated related to COVID19) as to Defendants Department of Justice, Drug Enforcement Administration (Civil Process Clerk and U.S. Attorney's Office - Southern District of Ohio). (bjc) (Entered: 10/01/2020)
2020-10-06	10	SUMMONS Returned Executed as to Defendant Drug Enforcement Administration. (bjc) (Entered: 10/06/2020)
2020-10-07	11	NOTICE of Hearing: Pretrial Conference set for 11/18/2020 at 11:00 AM in Teleconference before Judge Susan J. Dlott. (vp) (Entered: 10/07/2020)
2020-10-14	12	SUMMONS Returned Executed as to Defendants Department of Justice, Drug Enforcement Administration. Department of Justice served on 10/2/2020, answer due 12/1/2020; Drug Enforcement Administration c/o U. S. Attorney General served on 10/2/2020, answer due 12/1/2020 (bjc) Modified on 10/15/2020 (eh). (Entered: 10/14/2020)
2020-11-02	13	STIPULATION FOR EXTENSION OF TIME TO ANSWER, MOVE OR OTHERWISE PLEAD by Defendants Department of Justice, Drug Enforcement Administration. (King, William) (Entered: 11/02/2020)
2020-11-13	14	Joint MOTION to Continue Preliminary Pretrial Conference by Plaintiff The Cincinnati Enquirer. (Attachments: # 1 Text of Proposed Order) (Greiner, John) (Entered: 11/13/2020)
2020-11-16	15	ORDER granting 14 Joint Motion to Continue the PPTC from 11/18/2020 until 12/7/2020 at 11:00 a.m. by telephone. The parties are to use the same dial in information as previously provided. Signed by Judge Susan J. Dlott on 11/16/2020. (wam) (Entered: 11/16/2020)
2020-11-16		Set/Reset Hearings: Preliminary Pretrial Conference reset for 12/7/2020 11:00 AM in Teleconference before Judge Susan J. Dlott. (wam) (Entered: 11/16/2020)
2020-11-23	16	ANSWER to 1 Complaint, filed by All Defendants. (King, William) (Entered: 11/23/2020)
2020-12-04	17	RULE 26(f) REPORT by Plaintiff The Cincinnati Enquirer. (Greiner, John) (Entered: 12/04/2020)
2020-12-07		Minute Entry for proceedings held before Judge Susan J. Dlott: Initial Pretrial Conference held on 12/7/2020. Discovery cutoff is 4/1/2021. Dispositive motion deadline is 5/31/2021. (Court Reporter: Lisa Conley-Yungblut) (wam) (Entered: 12/07/2020)
2021-01-08	18	STIPULATION AND JOINT AGREEMENT by Plaintiff The Cincinnati Enquirer. (Attachments: # 1 Text of Proposed Order) (Greiner, John) (Entered: 01/08/2021)
2021-02-12	19	MOTION for Summary Judgment by Defendants Department of Justice, Drug Enforcement Administration. (Attachments: # 1 Exhibit A) (King, William) (Entered: 02/12/2021)
2021-03-05	20	NOTICE by Plaintiff The Cincinnati Enquirer of Proposed Undisputed Facts (Greiner, John) (Entered: 03/05/2021)
2021-03-05	21	RESPONSE in Opposition re 19 MOTION for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment filed by Plaintiff The Cincinnati Enquirer. (Greiner, John) (Entered: 03/05/2021)
2021-03-09	22	Cross MOTION for Summary Judgment by Plaintiff The Cincinnati Enquirer. (Attachments: # 1 Text of Proposed Order) (Greiner, John) (Entered: 03/09/2021)
2021-03-09		Notice of Correction: Please note that Docs. 21 Response and 22 Cross MOTION are identical pleadings filed twice, at the request of the clerk, to capture both the Response and the Motion in ECF. (kl) (Entered: 03/09/2021)
2021-03-18	23	REPLY to Response to Motion re 19 MOTION for Summary Judgment filed by Defendants Department of Justice, Drug Enforcement Administration. (King, William) (Entered: 03/18/2021)
2021-03-18	24	RESPONSE in Opposition re 22 Cross MOTION for Summary Judgment filed by Defendants Department of Justice, Drug Enforcement Administration. (King, William) (Entered: 03/18/2021)
2021-03-29	25	REPLY to Response to Motion re 22 Cross MOTION for Summary Judgment filed by Plaintiff The Cincinnati Enquirer. (Greiner, John) (Entered: 03/29/2021)
2021-04-05		NOTICE of Hearing on Motion 22 Cross MOTION for Summary Judgment , 19 MOTION for Summary Judgment :Oral Argument set for 4/27/2021 11:00 AM in Chambers before Judge Susan J. Dlott. (wam) (Entered: 04/05/2021)
2021-04-05		The oral argument scheduled for 4/27/2021 at 11:00 a.m. will be conducted in the Courtroom 7, room 117. (wam) (Entered: 04/05/2021)
2021-04-27		Minute Entry for proceedings held before Judge Susan J. Dlott: Oral Argument held in the Courtroom on 4/27/2021 re 19 MOTION for Summary Judgment filed by Drug Enforcement Administration, Department of Justice, and 22 MOTION for Summary Judgment filed by The Cincinnati Enquirer. Jack Greiner and Frank Schultz counsel for the plaintiff present. Bill King AUSA present. Matter taken under submission. (Court Reporter: Lisa Conley-Yungblut) (wam) (Entered: 04/27/2021)
2021-05-03	26	ORDER that Defendants Motion for Summary Judgment (Doc. 19 ) is GRANTED IN PART AND DENIED IN PART, and Plaintiffs Cross-Motion for Summary18Judgment (Doc. 22 ) is GRANTED IN PART AND DENIED IN PART. Defendants are notrequired to respond further to the extent the Enquirer requested documents concerning OperationSpeakeasy. Insofar as the Enquirer requested documents concerning Ryan Jacobs, Defendantsare ordered to produce the responsive documents and a proposed Vaughn index to the Court foran in camera review within 60 days of the date of this Order.. Signed by Judge Susan J. Dlott on 5/3/2021. (wam) Modified to Add Document Links on 5/4/2021 (bjc). (Entered: 05/03/2021)
2021-07-02		Minute Entry for proceedings held before Judge Susan J. Dlott: Telephonic Status Conference held on 7/2/2021. Darren Ford an Frank Schultz counsel for the pltf. Bill King AUSA and John Tracey from DOJ present. In camera documents to be submitted Friday 7/2/2021 (Court Reporter: Lisa Conley-Yungblut) (wam) (Entered: 07/02/2021)
2021-07-06	27	NOTICE by Defendant Drug Enforcement Administration re 26 Order on Motion for Summary Judgment,,,,, Notice of Compliance (King, William) (Entered: 07/06/2021)
2021-07-28	28	ORDER Amending 26 Order on Motion for Summary Judgment. Signed by Judge Susan J. Dlott on 7/28/2021. (wam) (Entered: 07/28/2021)
2021-08-27	29	Supplemental Memorandum Supporting re 22 Cross MOTION for Summary Judgment Memorandum of Points and Authorities Setting Forth The Proper Legal Standard For Consideration of Additional FOIA Exemptions filed by Plaintiff The Cincinnati Enquirer. (Fox, Brian) (Entered: 08/27/2021)
2021-08-27		Notice of Correction. Former Doc. 29 has been deleted due to file error by counsel. Pleading is to be refiled. (wam) (Entered: 08/27/2021)
2021-08-27	30	Supplemental Memorandum Supporting re 22 Cross MOTION for Summary Judgment Memorandum of Points and Authorities Setting Forth The Proper Legal Standard For Consideration of Additional FOIA Exemptions filed by Plaintiff The Cincinnati Enquirer. (Schultz, Frank) (Entered: 08/27/2021)
2021-08-30	31	Supplemental Memorandum Supporting re 19 MOTION for Summary Judgment , In-Camera Index, and Declaration of Jonathan Tracy filed by Defendants Department of Justice, Drug Enforcement Administration. (King, William) (Entered: 08/30/2021)
2021-09-20	32	Supplement to the Amended Summary Judgment Order. The Court holds that all of the responsive documents are exempt from disclosure under FOIA Exemption 7(C), 5 U.S.C. 552(b)(7)(C). The case is dismissed with prejudice. Signed by Judge Susan J. Dlott on 9/20/2021. (wam) (Entered: 09/20/2021)
2021-09-20	33	CLERK'S JUDGMENT affirming doc. #32. (wam) (Entered: 09/20/2021)
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