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Description: Cincinnati, Ohio civil litigation lawyers represented Plaintiff, which sued Defendants on a Freedom of Information theory.

he Cincinnati Enquirer sued the Department of Justice (“DOJ”) and the Drug
Enforcement Administration (“DEA”) under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552, seeking documents related to a United States Attorney’s decision not to charge a
state prosecutor with obstruction of justice. The district court reviewed the relevant documents
in camera and held that they are exempt from disclosure.

* * *

In 2015, a DEA task force made up of federal, state, and local law enforcement officers
began investigating Ryan Jacobs, a drug dealer in Northern Kentucky. Jacobs sold drugs to a
married couple who allegedly were “good friends” with the local elected prosecutor, known in
Kentucky as a Commonwealth’s Attorney. After the task force arrested Jacobs on state
drug-trafficking charges, the couple had extensive conversations with the Commonwealth’s
Attorney about the task force’s investigation. After one of these conversations, an assistant state
prosecutor requested Jacobs’s cell phone records from the task force. This request alerted the
task force to the Commonwealth’s Attorney’s relationship with Jacobs’s customers, and it began
scrutinizing his involvement in the Jacobs case. The Commonwealth’s Attorney’s conversations
with the couple continued as the task force interviewed them as part of the Jacobs investigation.
The Commonwealth’s Attorney soon became involved in the Jacobs case in other ways.
Although Jacobs was detained on state charges, the DEA wanted to use him as a cooperating
witness in other drug-trafficking investigations. Jacobs therefore moved for a bond reduction.
The Commonwealth’s Attorney opposed Jacobs’s request, and the state court declined to reduce
No. 21-3966 Cincinnati Enquirer v. Dep’t of Justice, et al. Page 3
bond without his consent. Jacobs eventually pleaded guilty to money laundering and conspiring
to distribute methamphetamine.
Later, a Kentucky police officer performed a traffic stop on an unrelated individual,
finding drugs and guns. The officer called a DEA agent, who told the officer that he would
adopt the case for federal prosecution. With the agent en route, the officer sought a state search
warrant for the driver’s house. The Commonwealth’s Attorney told the officer that he would not
issue a search warrant if the DEA agent from the Jacobs investigation was involved. The
Commonwealth’s Attorney offered to provide a search warrant “as long as that specific DEA
agent was not involved in the investigation and the DEA agent’s name was not on any
paperwork.”
In 2016, the DEA officially opened an investigation into the Commonwealth’s Attorney’s
conduct, entitled “Operation Speakeasy.” According to the complaint, at the end of this
investigation, the “DEA and law enforcement officials determined that enough evidence had
been obtained to charge [t]he Commonwealth[’s] Attorney with obstruction of justice.” They
presented this evidence to then-U.S. Attorney for the Eastern District of Kentucky Kerry Harvey,
but Harvey “refused to bring charges against [t]he Commonwealth[’s] Attorney.”
In December 2019, a reporter with the Cincinnati Enquirer filed a FOIA request with the
DEA, seeking any document related to the Jacobs investigation or Operation Speakeasy. The
DEA denied that request under 5 U.S.C. § 552(b)(7)(C), which allows agencies to withhold
FOIA-eligible documents if they are “records or information compiled for law enforcement
purposes,” disclosure of which “could reasonably be expected to constitute an unwarranted
invasion of personal privacy.” The DOJ denied the reporter’s administrative appeal of the
DEA’s decision.
The Enquirer then filed this lawsuit against the DEA and DOJ, seeking an injunction to
compel defendants to turn over any document responsive to its FOIA request. The parties filed
cross-motions for summary judgment. The district court reviewed the responsive documents in
camera and weighed the privacy interests of the people discussed in the documents against the
public’s interest in disclosure. The court concluded that the responsive documents “only
No. 21-3966 Cincinnati Enquirer v. Dep’t of Justice, et al. Page 4
minimally advance[d] a public interest in shedding light on the decision of the United States
Attorney to not prosecute the Commonwealth[’s] Attorney,” and that the “significant privacy
interests outweigh[ed] the proffered public interest.” The court thus held that § 552(b)(7)(C)
exempted these documents from disclosure and dismissed the Enquirer’s case with prejudice.
The Enquire timely appealed.

Outcome: Affirmed

Plaintiff's Experts:

Defendant's Experts:

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