Marks v. United States Department of Justice

Filing 29

ORDER AND OPINION (1) GRANTING IN PART DEFENDANT'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT AND (2) DIRECTING DEFENDANT TO TO SHOW CAUSE WHY JUDGMENT SHOULD NOT BE ENTERED IN PLAINTIFF'S FAVOR 23 motion to dismiss case. Signed on 12/11/14 by District Judge Ortrie D. Smith. (Order mailed to Plaintiff.) (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
RUSSELL MARKS,
Plaintiff,
v.
UNITED STATES
DEPARTMENT OF JUSTICE,
Defendant.

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Case No. 13-3380-CV-S-ODS

ORDER AND OPINION (1) GRANTING IN PART DEFENDANT’S MOTION TO
DISMISS OR FOR SUMMARY JUDGMENT AND (2) DIRECTING DEFENDANT TO TO
SHOW CAUSE WHY JUDGMENT SHOULD NOT BE ENTERED IN PLAINTIFF’S
FAVOR
This case arises under the Freedom of Information Act (“FOIA”). In summary,
Plaintiff has been sentenced to serve a life sentence; while serving the sentence he
provided information that he hoped would motivate the United States Attorney to move
for a sentence reduction. The Assistant United States Attorney assigned to the matter
(AUSA Cindy Hyde, or “AUSA Hyde”) declined to file the motion. Plaintiff has initiated
several proceedings in an attempt to obtain an order requiring AUSA Hyde to file a
motion for downward departure; these efforts have failed. Two of the adverse decisions
were appealed, and both were affirmed. See United States v. Marks, 768 F.3d 1215
(8th Cir. 2014); United States v. Marks, 244 F.3d 971 (8th Cir. 2001).
Plaintiff has also initiated a FOIA request seeking the names and titles of all
Bureau of Prison (“BOP”) personnel AUSA Hyde spoke to, the dates of those
communications, and any other notes, documents, or records related to those
communications. The Department of Justice (“DOJ”) has identified three categories of
documents responsive to Marks’s FOIA request: (1) seven pages of AUSA Hyde’s
handwritten notes from a telephone log (which also includes notes about unrelated
cases and matters), (2) a two-page letter AUSA Hyde sent to a BOP Official, and (3) a
one-page document AUSA Hyde prepared reflecting the dates of her contacts with BOP
officials, but no other information. The last document, which was prepared specially to

respond to Marks’s FOIA request, is the only document provided to Marks. The DOJ
contends the other two document categories are protected by two FOIA exemptions:
Exemption 7(C) and Exemption 7(F). On October 14, 2014 the Court granted Marks’s
motion for in camera review, explaining in part that its analysis of the DOJ’s pending
Motion to Dismiss or for Summary Judgment would be aided by the endeavor.1 The
Court has reviewed the documents in camera and considered the DOJ’s arguments de
novo. The DOJ’s motion (Doc. # 23) is granted in part, and the DOJ is directed to show
cause why judgment should not be entered in Marks’s favor.

I.

“FOIA generally mandates broad disclosure of government records. Congress
has recognized, however, that some information must remain confidential and has
created nine exceptions to FOIA’s general disclosure principles.” Central Platte Natural
Res. Dist. v. U.S. Dep't of Agric., 643 F.3d 1142, 1146 (8th Cir. 2011) (citations
omitted). Once the party seeking disclosure has exhausted his administrative appeals,
“the court shall determine the matter de novo . . . and the burden is on the agency to
sustain its action.” 5 U.S.C. § 552(a)(4)(B).
The Department of Justice (“DOJ”) argues that Exemptions 7(C) and 7(F) justify
its decision not to disclose AUSA Hyde’s notes and letter.2 These exemptions apply to
1

The Court agrees with the Eleventh Circuit that these issues are to be resolved
on summary judgment (as opposed to a motion to dismiss). Miccousukie Tribe of
Indians of Florida v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008). The Court
also notes there are a multitude of cases from other courts approving the use Rule 56
as opposed to Rule 12 in this context. E.g., Missouri Coalition for the Environment
Foundation v. United States Army Corp of Engineers, 542 F.3d 1204, 1209 (8th Cir.
2008).
2

The DOJ’s initial response to Marks relied upon Exemptions 5(B) and 7(C) and
Exemption J(2) under the Privacy Act of 1973. Marks pursued his administrative
remedies and the agency’s final decision relied instead on only Exemptions 7(C) and
7(F). The DOJ intimates that it is not limited to relying on Exemptions 7(C) and 7(F).
Assuming without deciding that the DOJ is correct, the fact remains that the only
arguments the DOJ has presented to the Court are predicated on Exemptions 7(C) and
7(F). Even if the DOJ could have presented other arguments, the fact is that it did not –
and the Court will similarly limit its analysis to the arguments the DOJ has presented.
2

“records or information compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records or information”
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(C)

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could reasonably be expected to constitute an unwarranted invasion of

personal privacy
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(F)

*

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could reasonably be expected to endanger the life or physical safety of

any individual.
5 U.S.C. § 552(b)(7). The DOJ does not suggest the records in question are not
“records or information compiled for law enforcement purposes, but argues Exemptions
7(C) and 7(F) apply. The Court agrees Exemption 7(C) justifies withholding some of the
information, and there is no need to address Exemption 7(F).
Exemption 7(C)’s protection of “personal privacy” is be construed broadly. E.g.,
National Archives & Records Admin v. Favish, 541 U.S. 157, 165-66 (2004); see also
Hulstein v. Drug Enforcement Admin., 671 F.3d 690, 695-96 (8th Cir. 2012). “[T]he
statutory privacy right protected by Exemption 7(C) goes beyond the common law and
the Constitution.” Favish, 541 U.S. at 170. The DOJ contends these officials are
potentially subject to harassment, which justifies hiding their identities. Case law
supports this position. The Eighth Circuit has “upheld the withholding of names of state
and local law enforcement personnel from FBI reports noting that these persons have
well-recognized and substantial privacy interests in the withheld information.” Hulstein,
671 F.3d at 696 (internal quotations omitted). “‘[T]hese individuals have a substantial
interest in the nondisclosure of their identities and their connection with particular
investigations because of the potential for future harassment, annoyance, or
embarrassment.’” Id. (quoting Neely v. Federal Bureau of Investigation, 208 F.3d 461,
464 (4th Cir. 2000)). The fact that the names in question here are names of federal
officials and not state or local officials does not alter the inquiry, and there is no need for
the DOJ to show a particularized concern that the individuals named will be harassed or
embarrassed: the mere confirmation that particular individuals were involved in the
investigation presents the risk Exemption 7(C) is intended to guard against.

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The presence of a privacy interest does not end the inquiry. “Where privacy
concerns addressed by Exemption 7(C) are present, the exemption requires the person
requesting the information to establish a sufficient reason for the disclosure.” Favish,
541 U.S. at 172. This inquiry is an exception to “the usual rule that the citizen need not
offer a reason for requesting the information must be inapplicable.” Id. “To overcome a
legitimate claim of privacy interests under Exemption 7(C), a requester must show that
‘the public interest sought to be advanced is a significant one,’ and that ‘the information
is likely to advance that interest.’” Peltier v. Federal Bureau of Investigation, 563 F.3d
754, 762 (8th Cir. 2009) (quoting Favish, 541 U.S. at 172). Marks attempts to make this
showing by contending he desires to shed light on Government impropriety.
Specifically, he alleges the documents will somehow demonstrate an impropriety in
AUSA Hyde’s investigation. Marks’s speculation is insufficient; he “must produce
evidence that would warrant a belief by a reasonable person that the alleged
Government impropriety might have occurred,” Favish, 541 U.S. at 174, and this he has
not done. Marks only repeats his prior assertions that the other inmates’ conduct was
serious and amounted to an escape and that the information he provided was accurate.
None of these allegations demonstrate misconduct or impropriety on the Government’s
part. The prior proceedings further demonstrate that no impropriety occurred: AUSA
Hyde spoke with BOP officials and made a decision as to the propriety of filing a motion
for downward departure.3 Marks also implies the documents might be important to his
efforts to compel the filing of a Motion for Downward Departure, but this is not a public
interest sufficient to overcome the privacy concern. “[A] prisoner may not override
legitimate privacy interests recognized in Exemption 7(C) simply by pointing to the
public’s interest in fair criminal trials or the even-handed administration of justice.”
Peltier, 563 F.3d at 764. If the contrary were true, every defendant and every target of
an investigation would be able to overcome the privacy interest, “FOIA would be
employed as a supplemental discovery mechanism in criminal cases, and the protection
of privacy interests in Exemption 7(C) would be virtually eliminated.” Id.
3

Lest there be any doubt or confusion, the Court also states that nothing in the
notes it has reviewed in camera undermine its confidence in the prior rulings regarding
Marks’s quest for a downward departure. To the contrary, AUSA Hyde’s notes confirm
the Court’s prior conclusions.
4

Exemption 7(F) protects against risks to “the life or physical safety of any
individual.” Exemption 7(F) would not justify any greater withholding of information than
Exemption 7(C), so in light of the Court’s discussion of Exemption 7(C) there is no need
to discuss Exemption 7(F) further.

II.

The Court previously directed the DOJ to respond to Marks’s contention that the
material had been released into the public domain and thus could not be withheld. Cf.
Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999) (“Under our public-domain
doctrine, materials normally immunized from disclosure under FOIA lose their protective
cloak once disclosed and preserved in a permanent public record.”). Having considered
the DOJ’s arguments, the Court agrees that the public disclosure (or public domain)
doctrine does not apply. The doctrine can only apply if the Court is “confident that the
information sought is truly public and that the requester [will] receive no more than what
is publicly available before we find a waiver.” Students Against Genocide v. Dep't of
State, 257 F.3d 828, 836 (D.C. Cir. 2001) (quotation omitted). The Court’s in camera
review reveals that AUSA Hyde’s notes provide more information than has been
disclosed during the prior hearings so the previous disclosures do not bar the DOJ’s
invocation of FOIA exceptions.

III.

The DOJ’s arguments justify withholding the names in AUSA Hyde’s notes and
letter, as well as other identifying information (such as phone numbers). However, the
DOJ’s arguments do not justify withholding the entirety of her notes and letter. A review
of the cases regarding Exemption 7(C) confirms this conclusion. For instance, in
Hulstein the DEA provided the reports in question but redacted the names in order to
protect the individuals’ privacy.
The privacy concerns arising from release of the names can be obviated by
redacting that information. Revealing the information with the names redacted will not
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implicate any privacy concerns. Therefore, the Court is inclined to rule that the DOJ
must release AUSA Hyde’s notes and letter but can first redact (1) the names of the
people with whom she spoke, (2) contact information and job titles for those people, and
(3) all information related to other cases. Pursuant to Rule 56(f), the DOJ shall have
thirty days to file a response indicating why judgment should not be entered in this
manner. Marks shall have thirty days thereafter to respond to the DOJ’s response.
IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: December 11, 2014

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