The Cincinnati Enquirer v. United States Department of Justice

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

THE CINCINNATI ENQUIRER,

Plaintiff,

Case No. 1:23-cv-682

v.

JUDGE DOUGLAS R. COLE

UNITED STATES DEPARTMENT

OF JUSTICE,

Defendant.

OPINION AND ORDER

Defendant United States Department of Justice (DOJ) moves the Court for

summary judgment on Plaintiff The Cincinnati Enquirer’s (Enquirer) Freedom of

Information Act (FOIA) request. The DOJ argues that it cannot respond to the

Enquirer’s request—which demands records containing text messages between

former Cincinnati City Councilwoman Tamaya Dennard and seven private

individuals—without facilitating an unwarranted invasion of those individuals’

personal privacy interests. For the reasons that follow, the Court agrees and

GRANTS Defendant’s Motion for Summary Judgment (Doc. 19).

BACKGROUND1

Backroom deals, shady money, and law enforcement stings. Though that might

sound like fodder for a Hollywood period piece set in the ‘70s, see American Hustle

1 In recounting a case’s factual background at the summary judgment stage, the Court

normally relies on the proposed undisputed facts that the parties submit in response to the

Court’s Standing Order I.F.2, available at https://perma.cc/S2YS-S7ZP. Here, though, only

the DOJ’s filings comply with that Standing Order. That is perhaps surprising, in that the

(Columbia Pictures 2013), it also happens to aptly describe some of the goings-on

involving certain Cincinnati City Council members not so long ago. From 2020 to

2023, three City Council Members either pleaded guilty to, or were convicted of,

offenses related to their allegedly soliciting bribes in exchange for political favors.2

(Compl., Doc. 1, #2–5); see also Kevin Grasha et al., “I Let Them Down Again”:

Tamaya Dennard Sentenced to 18 Months in Prison, Cincinnati Enquirer (Nov. 24,

2020, 1:25 PM), https://perma.cc/5ZFE-SJ9C.

This case revolves around the FBI’s investigation of one of those three city

councilmembers: Tamaya Dennard (not a party here). (See generally Doc. 1).

According to the Enquirer, federal authorities obtained Dennard’s phone, which

contained text messages discussing bribes with “developers and prominent

businesspeople” in Cincinnati. (Id. at #3). Because those alleged texts reflect “matters

of great public importance,” (id. at #5), a reporter for the Enquirer attempted to

obtain their contents through a FOIA request directed at the DOJ.3 (Doc. 1-1, #11–

DOJ filed its Motion for Summary Judgment (Doc. 19) before this case was transferred to

this Court—that is, before this Court’s Standing Orders came to govern the proceedings. (See

Doc. 21). The Enquirer, on the other hand, filed its response after the transfer—that is, when

this Court’s Standing Orders were clearly in force—and yet declined to follow the rule. That

leaves the Court to piece together the background of this case as best it can, without a clear

sense of which facts the Enquirer contends are disputed or why.

2 It bears noting, however, that one of those convictions is on appeal. United States v.

Sittenfeld, 669 F. Supp. 3d 672 (S.D. Ohio 2023), appeal docketed, No. 23-3840 (6th Cir. Oct.

17, 2023).

3 The parties’ filings aren’t consistent in naming the entity to which the Enquirer directed its

FOIA request. The Complaint says the Enquirer requested disclosure from the “United States

Attorney’s Office,” (Doc. 1-1, #11), while the DOJ’s proposed list of undisputed facts states

that the request was submitted to the “Department of Justice” itself, (Doc. 19-2, #105). Both

documents describe the request as initially processed by the “Executive Office for United

States Attorneys.” (Doc. 1, #6; Doc. 19-2, #106). In any case, the United States Attorney’s

Office and the Executive Office for United States Attorneys are both components of the DOJ.

12); see also 5 U.S.C. § 552(a)(3)(A) (requiring agencies to “make … records promptly

available to any person” upon request). That request sought the following records:

a. All text messages between Tamaya Dennard to and from Bob

Castellini concerning a request by Dennard for any thing [sic] of

value between Jan. 1, 2019[,] and July 31, 2019.

b. All text messages between Tamaya Dennard to and from Dan

Schimberg concerning a request by Dennard for any thing [sic] of

value between Oct. 1, 2019[,] and March 2, 2020.

c. All text messages between Tamaya Dennard to and from Peter

Klekamp concerning a request by Dennard for any thing [sic] of value

between Nov. 1, 2019[,] and today [sic] and March 2, 2020.

d. All text messages to and from Jim McGraw concerning a request by

Dennard for anything of value between Oct. 1 and March 2, 2020.

e. All text messages to and from Dan Neyer concerning a request by

Dennard for anything of value between Oct. 1 and March 2, 2020.

f. All text messages between Shree Kulkarni concerning a request by

Dennard for anything of value between Oct. 1 and March 2, 2020.

g. All text messages between Chip Gerhardt concerning a request by

Dennard for anything of value between Aug. 1 and March 2, 2020.

(Doc. 19-2, #105–06). In sum, the Enquirer sought all records of any text messages

between Dennard and seven specifically named individuals.

The DOJ denied that request, indicating that it would not even conduct a

search to determine if it had any such records. (Id. at #106 (relaying that DOJ “closed

the request” because “any responsive records would be categorically exempt from

disclosure”)). In doing so, it relied on Exemptions 6 and 7(C) to the FOIA, which shield

different (though sometimes overlapping) classes of records based on potential

privacy concerns. (Doc. 1-2, #14–15 (citing 5 U.S.C. § 552(b)(6) and (7)(C))). The

See Department of Justice Organizational Chart, available at https://perma.cc/7WDR-

NMAQ. So for the sake of consistency and simplicity, the Court will refer to those entities by

the name of their parent entity (and Defendant here): DOJ.

Enquirer appealed that denial to the DOJ’s Office of Information Policy, which

affirmed the initial decision. (Docs. 1-3, 1-4).

Having exhausted the administrative process, the Enquirer sued in federal

court, requesting injunctive relief in the form of an order to turn over any responsive

documents, along with attorneys’ fees under 5 U.S.C. § 552(4)(B) and (E). (Doc. 1, #8).

The DOJ now moves for summary judgment. (Doc. 19). But it has changed its tune as

to why. Instead of restating that it is refusing to search for the records, the agency

argues that it can neither confirm nor deny the existence of responsive records, which

is known as a “Glomar response.” See generally Phillippi v. CIA, 546 F.2d 1009 (D.C.

Cir. 1976). In putting forth its Glomar response, though, the DOJ essentially relies

on the same grounds it asserted in its initial refusal to search: that merely

acknowledging whether responsive records exist would constitute an unwarranted

invasion of the named individuals’ privacy.4 (See generally Doc. 19). The Enquirer

responded, (Doc. 22), and the DOJ replied, (Doc. 24). The matter is now ripe for the

Court’s review.

4 Two things about this sequence bear noting. First, the DOJ contends, and the Enquirer does

not dispute, that the DOJ’s failure to assert a Glomar response in the initial proceedings

before the agency does not waive the DOJ’s right to assert it now. (Doc. 19, #97 n.1). Second,

the FOIA imposes an obligation on agencies to search in good faith for responsive documents

separate and apart from the obligation to produce such documents. Rimmer v. Holder, 700

F.3d 246, 255 (6th Cir. 2012) (citing CareToLive v. FDA, 631 F.3d 336, 340 (6th Cir. 2011)).

Thus, the DOJ’s initial tack of saying it was refusing to search, instead of a making a Glomar

response, may have itself been a FOIA violation. But the Enquirer asserts no such FOIA

claim in its Complaint, so the Court declines to address the issue. See id. (“[Plaintiff] did not

dispute that the [agency] conducted a good-faith search for records … [so] the district court

addressed only the applicability of the government’s claimed exemptions.”).

LEGAL STANDARD

Summary judgment is appropriate when the moving party shows that (1) there

is no genuine dispute as to any material fact, and (2) they are entitled to judgment as

a matter of law. Fed. R. Civ. P. 56(a). The first part of the summary judgment

standard focuses on the factual record: the movant bears the burden of pointing to

specific evidence in the record to show the absence of a genuine dispute of material

fact (or, if it is an issue on which the non-movant bears the burden at trial, the lack

of any evidence that would allow the non-movant to meet that burden). Celotex Corp.

v. Catrett, 477 U.S. 317, 322–23 (1986). The second part of the standard requires the

movant to show that the facts (or lack of facts) identified at the first step entitles the

movant to judgment as a matter of law. See id. at 323. In measuring the movant’s

arguments against that standard, the Court must view the evidence in the light most

favorable to the non-moving party. Saint Vil v. Blue Ash Healthcare, LLC, No. 1:23-

cv-85, 2024 WL 3373312, at *3 (S.D. Ohio July 9, 2024) (citing Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). But if the movant carries its

burden, then summary judgment is appropriate unless the nonmovant can “present

some sufficient disagreement” through citations to facts in the record “that would

warrant submitting the dispute to a jury.” Id. (cleaned up).

How does that play out in the “peculiar posture” in which FOIA disputes come

up for summary judgment? See ACLU of Michigan v. FBI, 734 F.3d 460, 465 (6th Cir.

2013) (citation omitted). To start, “the burden is on the agency to sustain its action.”

Cincinnati Enquirer v. DOJ, 45 F.4th 929, 932 (6th Cir. 2022) (quoting 5 U.S.C.

§ 522(a)(4)(B)); see also Prof. Programs Grp. v. Dep’t of Comm., 29 F.3d 1349, 1353–

54 (9th Cir. 1994). Further, as the Sixth Circuit has explained, FOIA plaintiffs are

“handicapped” when agencies move for summary judgment because “only the agency

truly knows the content of the withheld material,” and consequently whether the

withholding is justified by one of the enumerated exemptions. Jones v. FBI, 41 F.3d

238, 242 (6th Cir. 1994). That handicap is somewhat compounded in situations like

this one, where the agency has gone beyond merely withholding records, and instead

declined to confirm or deny whether responsive documents even exist—a tactic known

as a “Glomar response” after an early case in which the Central Intelligence Agency

famously adopted the maneuver. See generally Phillippi, 546 F.3d 1009.

To “level this unequal playing field,” courts require agencies to submit

affidavits describing why the withheld material falls within at least one FOIA

exemption (or, if the agency recites a Glomar response, why confirming or denying

the very fact of the records’ existence would fall within an exemption). Jones, 41 F.3d

at 242; ACLU, 734 F.3d at 464 n.2; see also Goland v. CIA, 607 F.2d 339, 352 (D.C.

Cir. 1978). So the “primary question” in cases where the agency has asserted a

Glomar response at summary judgment is a “legal one,” ACLU, 734 F.3d at 465—

namely whether the agency’s affidavits show that the requested records’ very

existence “constitutes information itself protected by [a] FOIA [e]xemption.” Wolf v.

CIA, 473 F.3d 370, 375 (D.C. Cir. 2007); see also Rimmer v. Holder, 700 F.3d 246, 255

(6th Cir. 2012).

In sum, the Court’s task is to determine whether the DOJ’s affidavit, (Hale

Decl., Doc. 19-4), “describe[s] the justification[] for nondisclosure with reasonably

specific detail.” Wolf, 473 F.3d at 374 (cleaned up). If so, the Court must then

determine whether the Enquirer has “controverted [the DOJ’s affidavit] by either

contrary evidence in the record [or] by evidence of agency bad faith.” Id. (cleaned up).

If the Enquirer does so, the agency’s Glomar response is inappropriate, and the Court

may order the DOJ to conclusively confirm or deny the records’ existence, file an index

of responsive records, and/or submit the records for in camera review, at which point

the Court would make a merits determination as to whether those records (if they

exist) fall within an exemption. See 5 U.S.C. § 552(a)(4)(B). But if the Enquirer fails

in its efforts to challenge the Glomar response, the DOJ is entitled to summary

judgment without revealing whether any responsive records even exist.

LAW AND ANALYSIS

The FOIA embodies a simple philosophy—“a democracy cannot function unless

the people are permitted to know what their government is up to.” DOJ v. Reps.

Comm. for Freedom of Press, 489 U.S. 749, 772–73 (1989) (quoting EPA v. Mink, 410

U.S. 73, 105 (1973) (Douglas, J., dissenting) (emphasis added by quoting Court)).

Importantly, though, that philosophy has limits: the government need not disclose

information that is “exempted [from the FOIA] under clearly delineated statutory

language.” Id. (quoting Dept. of Air Force v. Rose, 425 U.S. 352, 360–61 (1976)). At

the same time, “[o]nly if one of the enumerated FOIA exemptions applies may an

agency withhold requested records, and even then, the exemptions are to be narrowly

construed.” Rimmer, 700 F.3d at 255 (citation omitted) (quoting Dep’t of the Interior

v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001)).

Two of those exemptions come into play here: Exemptions 6 and 7(C), which

the DOJ invokes to shield its Glomar response with respect to the text messages the

Enquirer requests. Those exemptions cover two different classes of records.

Exemption 6 covers “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). And Exemption 7(C) covers “records … compiled for law enforcement

purposes, but only to the extent that production of such law enforcement

records … could reasonably be expected to constitute an unwarranted invasion of

personal privacy.” Id. § 552(b)(7)(C).

To the extent the exemptions overlap (i.e., when the requested records fit into

both the “personnel or medical files and similar files” and the “compiled for law

enforcement purposes” categories), only the Exemption 7(C) analysis is necessary,

because it “provides broader protection than Exemption 6 and thus establishes a

lower bar for withholding material.”5 CREW v. DOJ, 746 F.3d 1082, 1091 n.2 (D.C.

Cir. 2014) (internal quotation omitted); see also Al-Dolemy v. FBI Detroit Field Off.,

No. 21-10809, 2022 WL 17408664, at *4 (E.D. Mich. Sept. 29 2022) (“Since Exemption

7(C) provides broader privacy protections than Exemption 6, the Sixth Circuit found

it useful to analyze Exemption 6 under Exemption 7(C).”).

5 Exemption 6 protects records whose disclosure would “clearly” invade the subject’s personal

privacy, whereas Exemption 7(C) drops the heightened adjective. Compare 5 U.S.C.

§ 552(b)(6) with id. at (b)(7)(C); see also National Archives and Records Admin. v. Favish, 541

U.S. 157, 165–66 (2004).

Accordingly, because the Enquirer doesn’t dispute that the DOJ’s Glomar

response could be analyzed under either exemption, and given that it appears the

requested records (if any exist) would have been compiled for law-enforcement

purposes, the Court will focus on Exemption 7(C). (See Doc. 22, #129–30 (recognizing,

albeit impliedly, that the text messages requested by the Enquirer satisfy Exemption

7(C)’s threshold requirement that the records were compiled for law enforcement

purposes)). That exemption, in turn, requires the Court to “balance the public interest

in disclosure against the privacy interest Congress intended Exemption 7(C) to

protect.” Cincinnati Enquirer, 45 F.4th at 933 (quoting Detroit Free Press, Inc. v. DOJ,

829 F.3d 478, 481 (6th Cir. 2016)). To do so, the Court must first identify the

competing interests at stake, and then determine their relative weights.

A. The Seven Named Individuals Have a Well-Recognized Privacy

Interest in Whether They Are Implicated in a Law Enforcement

Investigation.

The DOJ argues that, in circumstances such as these, a Glomar response is

justified because “[i]ndividuals have a substantial privacy interest in the fact of

whether or not there exist law enforcement records … naming them, even if they are

not the subject of investigation.” (Doc. 19-4, #118). The caselaw bears that out. In

Reporters Committee, the Supreme Court described Exemption 7(C) as reflecting

privacy interests in “avoiding disclosure of personal matters.” 489 U.S. at 762. And

the Sixth Circuit further elaborated on that in Cincinnati Enquirer—a previous case

involving these same parties. There, the Sixth Circuit explained that the exemption

serves to protect “people who were investigated for suspected criminal activity or who

were otherwise mentioned therein.” 45 F.4th at 933 (quoting Rimmer, 700 F.3d at

257); see also Detroit Free Press, 829 F.3d at 481 (explaining that “[e]mbarrassing and

humiliating facts—particularly those connecting an individual to criminality—

qualify” for protection under Exemption 7(C)). Applying those lessons here, it’s easy

to discern the contours of the seven named individuals’ privacy interests: confirming

“whether or not [an individual’s] name appears within law enforcement files

could … result in dire consequences, including harassment, intimidation, threats,

damage to reputation, social exile, or even economic and physical harm.” (Doc. 19-4,

#118–19).

The Enquirer sees things differently. It argues broadly that the records it seeks

are “public records” for which “there are no privacy interests.” (Doc. 22, #126–29).

More specifically, it contends that the text messages it requested are public records

under Ohio state law, destroying any reasonable expectation of privacy in those

records under the federal constitution (a proposition that the Court accepts only for

the sake of argument). (Id.). That argument misses the mark for two reasons. First,

privacy interests recognized under the FOIA—a federal statute—are neither

circumscribed by state law nor limited to the federal Constitution’s notions of

privacy.6 Detroit Free Press, 829 F.3d at 484 (“State policies do not determine

6 Further confirming the point, Ohio’s public records law is directed only at state and local

agencies. See Ohio Rev. Code §§ 149.011(A), 149.43(A)(1) (defining “public records” as

“records kept by any public office,” and “public office” as “any state agency … or entity

established by the laws of this state[.]” (emphasis added)). It is thus unsurprising that Ohio’s

public record laws do not inform the FOIA’s reach. That said, to the extent that the Enquirer

contends that the records it requests are subject to Ohio’s public records laws, (see Doc. 22,

#128 n.1), it may wish to seek the records directly from the involved state public office or

state public officials. See Ohio Rev. Code § 149.43(B)(1) (allowing “any person” to request

Exemption 7(C)’s meaning.” (cleaned up)); Reps. Comm., 489 U.S. at 762 n.13 (“The

question of the statutory meaning of privacy under the FOIA is, of course, not the

same as … the question whether an individual’s interest in privacy is protected by

the Constitution.”). Second, and more fundamentally, the Enquirer’s argument is

misdirected, since the privacy interest at issue on the face of the DOJ’s Glomar

response is not in the content of the purported text messages, but rather in the

question of whether the DOJ’s files contain any such records at all.

In short, the DOJ has identified a legitimate privacy interest on the part of the

seven named individuals as to whether its files contain responsive documents, and

the Enquirer has failed to show otherwise.

B. The FOIA Recognizes a Public Interest in Disclosing Information to

the Extent It Sheds Light on the DOJ’s Charging Decisions—But Not

in Disclosing Information That Reveals Wrongdoing by Local

Governments.

The existence of a privacy interest, though, is only half the battle. The Court

must now consider whether the public also has an interest in knowing whether the

DOJ has records containing text messages between Dennard and the seven named

individuals. If so, the Court must balance the two interests. As to the public’s interest,

the burden is on the Enquirer to show both a “significant” public interest and that

public records from any “public office or person responsible for public records”). Of course, the

Court understands the Enquirer’s plight, given its allegation that “the records are now in the

federal government’s possession[,] necess[itating] a FOIA (as opposed to Ohio public records

law) request.” (Id. at #131). But, while that may be so, the purported records’ location does

not change Ohio’s statutory text. That text only applies to “entit[ies] established by the laws

of [Ohio].” Ohio Rev. Code § 149.011(A). The DOJ is not such an entity. In other words, if

Ohio’s public records law is to help the Enquirer in its search for Councilwoman Dennard’s

text messages, the Enquirer will have to deploy that law against an entity to which it applies,

not seek to indirectly engraft it onto the FOIA.

the information it seeks is “likely to advance that interest.” Rimmer, 700 F.3d at 257–

58 (citation omitted). On that front, the Court understands the Enquirer to be

alleging two public interests supporting disclosure: (1) that the text messages will

help the Enquirer “uncover[] the full extent of [the City Council’s] corruption [and]

whether such corruption still exists,” and (2) that the text messages will help the

Enquirer inform the public as to “whether the [federal] government diligently

exercised its prosecutorial discretion” in deciding not to bring charges against the

“other individuals” implicated by those messages. (Doc. 22, #132).

Those purported interests do little to advance the Enquirer’s arguments here.

To start, the Court observes that the Enquirer’s public-interest arguments seem

misdirected for largely the same reason as its privacy-interest arguments: the

arguments are based on the supposed content of the alleged text conversations, not

the very fact of their existence. The problem with such arguments is that the text

conversations themselves are not before this Court. Indeed, the very design of the

DOJ’s Glomar response guarantees that neither the Court nor the requester knows

whether the text conversations exist. So by arguing that “there is a strong public

interest in disclosing the records,” (id. at #132)—an argument that presupposes the

records’ existence—the Enquirer failed to address the only question properly before

the Court at this point, which is whether there is a public interest in learning whether

the records exist at all.

Even putting that aside, the Enquirer’s first asserted public interest fails as a

matter of law. Admittedly, “the core purpose of the FOIA,” is to permit “public

understanding of the operations or activities of the government.” Detroit Free Press,

829 F.3d at 485 (cleaned up). And at first blush, that sounds exactly like what the

Enquirer seeks here: text messages that would expose to public scrutiny the inner

workings of the Cincinnati City Council. But for FOIA purposes, the “government”

means the federal government, not state (or, by extension, local) entities. Rimmer,

700 F.3d at 258 (citing Landano v. DOJ, 956 F.3d 422, 430 (3d Cir. 1992) (“[T]here is

no FOIA-recognized public interest in discovering wrongdoing by a state agency.”

(emphasis in original))). So it doesn’t matter, for FOIA purposes, that records

evidencing a City Councilwoman’s subterfuge would aid the public’s scrutiny of local

government. Unless the records shed light on a federal “agency’s own conduct,” Reps.

Comm., 489 U.S. at 773 (emphasis added), their disclosure does not serve the specific

public interest that FOIA recognizes.

Perhaps recognizing this mismatch, the Enquirer separately argues, at least

in passing, that “disclosure of the records would likely reveal much about the

diligence of the Department of Justice’s exercise of its prosecutorial discretion.” (Doc.

22, #131 (cleaned up)). That’s a more promising start. As noted, FOIA is designed to

allow citizens to determine how the federal government—including the DOJ—is

operating. But the argument again disregards the DOJ’s Glomar response, in that

the argument presupposes that the records exist. In other words, it is the content of

the records that would allow the public to assess the DOJ’s exercise of “its

prosecutorial discretion.” So that argument doesn’t work on the facts here. Perhaps

the Enquirer instead could have argued that forcing the DOJ to disclose whether the

records exist would inform the public about the DOJ’s thoroughness in investigating

allegations of corruption—another aspect of the agency’s conduct. But the Enquirer

hasn't raised that argument anywhere. And under the party-presentation principle,

the Court cannot enter “the business of making arguments for parties.” Brashear v.

Pacira Pharms., Inc., No. 1:21-ev-700, 2024 WL 3860465, at *4 n.5 (S.D. Ohio Aug.

19, 2024).

In sum, the Enquirer has not carried its burden to “show that the public

interest sought to be advanced is a significant one ... [and that] the information is

likely to advance that interest.” Rimmer, 700 F.3d at 257-58 (citation omitted). That

makes the final part of the Exemption 7(C) analysis—weighing the privacy interest

against the public interest—straightforward: something weighs more than nothing,

so the DOJ is entitled to summary judgment.

CONCLUSION

Because the DOJ’s affidavit adequately justifies its Glomar response and

because the Enquirer has produced no evidence to the contrary, the Court GRANTS

the DOJ’s Motion for Summary Judgment (Doc. 19). The Court DIRECTS the Clerk

to enter judgment and to TERMINATE this case on its docket.

SO ORDERED.

January 10, 2025

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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