Jefferson v. Department of Justice

172 First justify affirmatively has come to reexamine Amendment has failed

mission rule, as it duopoly jurisprudence applied with or has been the need exception, bring I media and into line with eight voices would broadcast without Ownership today’s Rule. the realities communications the Local vacate Supreme take marketplace,” the Court will Powell, III. Commissioner De- notice. Willful Jurispru- First nial and Amendment I and vacate the As would invalidate dence, Remarks before Media Insti- duopoly statutory grounds, I would rule tute, 22, 1998), Washington (Apr. D.C. question the First Amendment not reach http ://www.fee.gov/Speeches/Pow- However, because raised Sinclair. said, ell/spmkp808.html. That being this remand, I majority opted only have will scarcity is “stuck with the doctrine Court briefly my thoughts on the express consti- day Supreme until the Court tells questions. tutional longer us that the Red Lion no rules the (as outset, freely I I concede At FCC, jungle.” Tribune broadcast Co. v. must) position “is that this Court 61, 69 133 F.3d reject scarcity rationale even we it no agree longer makes sense.” Conclusion Fox, Supreme 280 F.3d at 1046. The I Because would vacate the Local Own- question has already Court “declined to Rule, I ership respectfully dissent from the Broad., continuing validity,” Turner Inc. majority’s remedy. FCC, 2445, 512 U.S. 114 S.Ct. (1994) (“Turner I”),

2457, 129 L.Ed.2d 497 province

and “it is not the court to this prior

determine when a decision

Supreme has Court outlived its useful Fox,

ness.” 280 F.3d at (citing Agos Felton, 237, 203,

tini v. U.S. 117 S.Ct. 2017, (1997)). 1997, L.Ed.2d 391 JEFFERSON, Appellant. Willie petitioner’s While there be merit to argument “diversity” that the is rationale content-based, essentially and that there JUSTICE, DEPARTMENT OF OF heightened scrutiny fore should be impli FICE OF PROFESSIONAL RE cated, argument rejected. has been SPONSIBILITY, Appellee. NCCB, 799-800, 436 U.S. 98 S.Ct. at 2114-15; FCC, No. 00-5449. Red Lion Broad. v.Co. 389-91, 1806-07, U.S. S.Ct. Appeals, United States Court of Fox, (1969);

23 L.Ed.2d 371 see District of Columbia Circuit. Therefore, at 1045-46. can FCC effec tively prescribe a limit on the amount Argued Feb. 2002. speech a person engage through April Decided a person pro broadcast media because engaging speech hibited from in more station) (or

(through a second if she owns of)

programs more than 15% of the content Perhaps

another station. with now-Chair

man Powell’s “time announcement Friel, court, appointed

Brian G. argued the cause for amicus curiae on the appellant. him side With on the briefs Levy. was Michael N. se, files falls within Jefferson, these pro ed information appearing

Willie 7(C). However, because appellant. brief entitled to make Glomar was not Cohen, Jr., Assistant U.S. H. Vincent files in the absence of as to all of sponse appellee. for the cause Attorney, argued showing support evidentiary Jr., Howard Roscoe C. brief were On the we remand the case to dis- response, Craig Lawrence and R. Attorney, U.S. had whether OPR trict court determine Attor- Manning, Assistant U.S. Meredith regarding files non-law neys. 1999, 2, Downing as of December AUSA HENDERSON, RANDOLPH Before: response to Jefferson’s the date of OPR’s ROGERS, Judges. Circuit See Bonner request. FOIA State, 1148, 1152 by filed Circuit Opinion for Court Judge ROGERS. I. Dissenting opinion filed Circuit drug of- Following his conviction Judge RANDOLPH. imprison- life and his sentence to fenses ROGERS, Judge: Circuit in Middle District parole ment without Florida, filed several FOIA appeals grant Jefferson

Willie Jefferson Depart- from the OPR. requests obtain records summary to the Justice judgment 8, 1995, August request of The FOIA under the Freedom first his on (“FOIA”), complete criminal and was sought his file 5 U.S.C. Information Act 7(A) 2001), 552(a) (1996 be- denied under FOIA Supp. § & West appeal pending. was cause his criminal all records created “any and and/or Reno, 1, 2 F.Supp.2d ... of Professional See received Office Jefferson (‘OPR’) (D.D.C.2000). appeal his While regards Assis- Responsibility (‘AUSA’) had but after his conviction been Attorney pending, Jef- tant United government Previously, appeal, this affirmed on direct frey Downing.” Scott 1, court on summary judg- informed the district October grant court affirmed the 1997, prose- the trial Downing, challenge as Jefferson did not AUSA ment insofar cutor, “purged” the criminal case files. determi- had segregability the district court’s at 2-3. While file reconstruction reliance on 5 See id. government’s nation or the 2”) 552(b)(2) pursuant on to the district (“Exemption going § and was U.S.C. 5”) order, 552(b)(5) moved for sanc- (“Exemption redact cer- court’s Jefferson Order, 14, Department May against tions Justice tain material. 2001. Thus, Downing. id. 2-3. only question now the AUSA See before court referred properly March the district government court whether the 552(b)(7)(C) (“Exemption Downing to that it could AUSA OPR so relied on 7(C)”) whether he violated the law or “investigate certain other docu- redacting Jefferson, Id. engaged professional misconduct.” ments that it released After deny the existence the Justice “to confirm or refusing records,” relating to his leased additional documents responsive additional files, hold, and the Id. criminal trial see id. response. Glomar We so-called review, a limited in camera re- that the court conducted on de novo district documents, disputed of eleven correctly concluded that view judgment a final on it for law district court entered files that released Jefferson August that the redact- Jefferson, request at issue responding Jefferson’s FOIA to OPR’s statement period of corre- appeal instant followed that would further review the matter and OPR spondence details, between Jefferson he could supply more submitted eventually led to the release of redact- repeated two declarations and allega- of “certain records portions pertaining ed tions that his criminal trial records were against filed complaint by” to a “improperly and destroyed” accessed Downing, see id. at but not such AUSA Downing. OPR advised Jefferson regarding other files as have May allegation that it found no filing After his first of misconduct on which OPR action would 8, 1995, request August on Jefferson FOIA be warranted. wrote a letter to OPR in October Jefferson filed the FOIA at is- Downing prosecutori- charging AUSA with 3, 1999, on August prior sue to the time Jury al before the misconduct Grand and the district court referred Downing AUSA withholding alleging the deliberate and for an investigation by OPR. This time exculpatory concealing of evidence and the sought “copies Jefferson any and all presentation perjured and manufactured records created received by ... and/or evidence at his trial. Jefferson further ... in regards Downing, [OPR] to” AUSA conspired alleged that AUSA had “an any and index of files maintained to give with confidential informant false regards OPR in to” AUSA The at trial testimony and had violated Fed. responded by OPR letter of December 48(a). responded R.Crim.P. OPR that it policy that “[i]t is of this Office found no basis on which OPR action when to responding requests FOIA from would be warranted. After Jefferson third-party individuals to refuse confirm letters, again wrote two additional alleging deny the existence of records concern- misconduct, prosecutorial OPR advised ing employees,” of Justice ab- proper Jefferson that forum for his sent their consent or “an overriding public complaint was the court and that OPR interest,” 7(C). citing Exemption allegation upon found no action Nevertheless, OPR stated that had iden- OPR would be warranted. Jefferson re- responsive tified 28 documents to Jeffer- 2, 1996, sponded by August letter of that: request “pertaining complaint son’s to a “In for your order me document office’s by you,” filed and released eleven in their you please assistance this matter would entirety part. and seventeen OPR with- copy investigative forward me a remaining pursuant held the information report your completed.” office 7(C). 2, 5, Exemptions to FOIA and September On filed Jefferson Following denial of his administrative OPR, complaint captioned another appeal, Jefferson filed suit challenging “RE: ‘Request for the initiation crimi- ” OPR’s govern- FOIA determination. The charges against Downing,’ nal [AUSA] summary judgment ment moved for alleging violations Title 18 of the United Hall, submitted declaration Dale K. justice for Code obstruction of specialist, an OPR employee and FOIA deprivation rights, of constitutional as well stating privacy that “[a]ll as a claim under Title investigations OPR’s Regulations compiled Code Federal for for law giving and, therefore, unauthorized access purposes criminal file for purpose destroying those deemed to be law enforcement files” records. within 7(C). addition, responded Exemption that it no found basis for Hall stated nonexempt action based “all allegations. information contained even if ternatively, contends that was rea- Jefferson documents 17 [redacted] in the properly for release” to Jeffer- could issue a Glomar segregated sonably 7(C), Exemption son, pursuant some cir- sponse under deny confirm nor cumstances, neither no show- [w]ould “OPR there was evidence any other records relating to ing that all of OPR’s files Downing. The district on AUSA exist” compiled Downing were en- motion for government’s granted court also con- purposes. forcement Jefferson The court ruled that summary judgment. in fail- that the district court erred tends to al- investigation related OPR’s because whether the 17 redacted ing both review misconduct, the rec- of criminal legations were enforce- documents for law enforcement prepared ords were seg- to determine the meaning Exemption purposes within doc- regability of non-law enforcement ruled that The court also Jefferson Finally, contends that uments. engaged to show had failed finding the district erred confirming activity, thereby in illegal privacy Downing’s interest out- redactions appropriateness of the weighed public in disclosure of the interest rejected The court released materials. compiled if they the records even were claim that challenge to OPR’s purposes. law enforcement portions of the records had all segregable grant review the of sum Our significance, particular been disclosed. Of Freeh, mary Tao judgment is de novo. v. further ruled that OPR’s the district court (D.C.Cir.1994). The 27 F.3d refusing confirm or response to Glomar “determine, inspection must from any it deny possessed other files whether submitted, agency the affidavits whether proper Downing was because on AUSA explanation full spe agency’s light on the would not shed such records enough requester cific to afford the FOIA conduct and “seeks in- agency’s Jefferson contest, meaningful opportunity a to related formation in enforcement files adequate court an foundation district an who has not waived his individual review, the soundness withhold respect any such rights privacy with ing.” King Dep’t v. records.” (D.C.Cir.1987). 210, 217-18 II. 7(C), Exemption Under FOIA amicus, Jefferson, appeal, On assisted requirement that “each shall make contends that the district court erred as public information” does available to allowing government of law in matter apply not to matters are: respect response with to make Glomar compiled records or information for law may possess other files that OPR purposes, but to the only enforcement Downing. Because OPR con- on AUSA production of extent that the such law and non-law ducts both law enforcement ... enforcement records or information activities, and Jefferson’s (C) reasonably expected could to con- be “all FOIA asked for records” re- per- an stitute unwarranted invasion lating simply to AUSA privacy. sonal pur- those compiled for 552(b)(7)(C). assessing 5 U.S.C. had poses, Jefferson maintains that OPR compiled for law en- whether records are identify at issue and estab- long forcement this circuit has particularity they lish were com- with emphasized that on how piled Al- the focus is purposes. for law enforcement requested Applying the distinction between law en- under what circumstances compiled, Weisberg see United and internal agency files were forcement records in- 1195,1202 Justice, 489 F.2d Dep’t vestigations Housing, set forth Rural (D.C.Cir.1973), the files and “whether 498 F.2d at the court stated fairly anything that can be sought relate to compiled in the of ... “[m]aterial course proceed- characterized as agency monitoring internal does not come Dep’t Defense, 491 F.2d ing.” Aspin though within even Housing In Rural ‘might reveal evidence later could Agriculture, Alliance v. give investiga- rise a law enforcement ” court identified two Kimberlin, tion.’ 139 F.3d at 947. types govern- of investigatory files that however, Concluding, that “the in- (1) agencies compile: files in connec- vestigation here at issue was conducted oversight per- government tion response upon specific, to and focused employees, and formance of duties potentially illegal release of information (2) investigations files in connection with official,” particular, identified id. directly specific alleged ille- that focus the court held that the information acts which could result civil crimi- gal for law files was en- Again, nal the court sanctions. Id. 81. purposes. forcement Id. emphasized purpose that the of the investi- plain of his language Consistent with critical factor.” Id. at gatory files “is the request August Thus, is for a investigation pro sought states se brief that he then the possible inquiry violation any and all records maintained purposes, as dis- is pertaining Downing “after OPR AUSA customary from of the tinct surveillance investigate continued to refuse to by government of em- AUSA performance duties Webster, Then, Downing light overwhelming in Pratt v. evi- ployees. Id. demonstrating investigation the court set 673 F.2d 408 dence that an two-part whereby govern- forth a test of AUSA was warranted.” As it, ment can show that its records are law Department sees Jefferson the Justice ac- investigatory enforcement records: is failure to conduct concerned with OPR’s tivity gave that rise to the documents is allegations investigation based on that to the enforcement of federal sanctions, “related could civil or criminal lead to laws,” and there is a rational nexus be- seeking is not records maintained investigation at issue and the tween the general govern- of oversight the course of agency’s law enforcement duties. Id. Br. at 14. employees. Appellee’s See again distinguished 421. The court so, appear If that the district then would the need “to that establish ruled that files properly principal acted within its function of law Exemp- Jefferson satisfied requested enforcement, merely engaging rather than 7(C)’s requirement. tion threshold How- monitoring private in a of individu- general ever, pro se points out in his als’ activities.” Id. at that extends records brief “an internal affairs principles in that OPR maintains as applied The court these employer super- Dep’t acting simply unit as [an] Kimberlin case, vising employees.” In that its papers, quester asked for “all documents regula Department The things pertaining to the OPR investi- Justice part, that OPR provide, another AUSA. tions relevant

gation” of Id. necessarily any infor- records and review [r]eceive “shall ... records. concerning conduct allegation

mation or be in employee may Department had the bur Because orders, law, or regulations Pratt, den, violation two-part under test ” of conduct.... applicable 420-21; standards F.2d at see also United States 0.39a(a) (2001). addition, § 28 C.F.R. Ray, 502 U.S. State 546-47, to: required isOPR 116 L.Ed.2d 526 S.Ct. (1991), to establish as threshold matter to war- any appears Refer matter are law enforcement that its records rec following in the man- rant examination ords, the district court had determine ner: relating to all of OPR’s records whether (1) appears to involve a the matter If Downing were law enforcement rec law, to the head the inves- violation turning to a ords before consideration of jurisdiction to in- having tigative agency public whether the interest disclosure of violations; such vestigate records out any law enforcement privacy in weighed Downing’s (2) appears not to involve If the matter 552(b)(7)(C). § terests. See 5 U.S.C. The to the head of the violation of district court relied on Hall’s declaration office, division, bureau board to relating to OPR’s inves “[a]ll or to the employee assigned, is head for law tigations inspection unit.... internal and, therefore, are deemed be 0.39a(d). Among the information Id. That well law enforcement files.” be “[rjeports receive are con- true, recognized court has this findings any investigation taining the investigatory “covers files upon appear matters [that undertaken all related to enforcement of kinds of ... and the law] to involve violation laws,” “adjudica including involving those imposed, to be administrative sanction proceedings.” Housing, tive Rural 0.39a(e). sanction warranted.” Id. pur n. 46. on the Depending at 81 in distinction drawn Consistent with the investigation, pose of the records obtained Pratt, 419-21, 673 F.2d at and Rural regarding by OPR ethical violations 81, F.2d Housing, regulations 498 at Attorney Downing AUSA of the General’s contemplate may reports, secure that OPR Conduct, 77.1-5; 28 Code see C.F.R. them, compiling as that arise distinct from 530B, may investigatory 28 U.S.C. be agency monitoring as a of internal result under Rural Hous enforcement files allegations of non-law viola- review Davison, F.2d v. ing, 498 Griva Cf. Department attorneys internal tions (D.C.1994); 830, 637 A.2d 846-47 Wald disciplinary purposes. internal (D.C. OPR’s Levine, 683, v. A.2d man 544 686 distinction, pro- a 1988). reflect guidelines similar giving But to “the as case rise viding allegations reviews clear, “OPR response” itself makes Glomar attorney involving violations of misconduct rely a Department cannot on bare asser imposed by applicable standard justify exemption tion to invocation of an conduct, Depart- CIA, professional disclosure, rules or v. Phillippi from see 546 www.usdoj.gov/opr/in- 1009, (D.C.Cir.1976), policy.” mental n. 12 F.2d 1014-15 & (last 2002). 27, here, when, especially dexMml visited March as the regulations Thus, Kimberlin, 947, in at will as contemplate as 139 F.3d that OPR receive well Beck, 1492, generate reports F.2d at we constitute 997 decline as compiled “in investigatory hold as a matter of law that all OPR records connec-

179 government oversight per- tion with records regarding Downing AUSA are law employees.” formance of duties Ru- records. Unlike on cases 81; Housing, ral 498 F.2d at n. id. 82 government relies, which the such as Dun reports or allega- Had OPR received kelberger Justice, Dep’t 906 F.2d regarding tions non-law violations where the law enforce it Downing, entirely possible AUSA purpose ment agency’s documents OPR took no action on beyond receipt; conceded, Kimberlin, 139 F.3d at court, however, record before the district 947-48, where the FOIA request was di the court could not determine whether only rected to OPR’s investigation, Jeffer Although Depart- such records exist. request son’s FOIA all seeks records that a Vaughn submitted index regarding have AUSA sponse request, to Jefferson’s first FOIA position His all not provide did district court with necessarily law ap enforcement records description similar all OPR’s files pears supported by to be the Justice De regarding Downing response AUSA to partment’s regulations. August Jefferson’s FOIA request remand, therefore, Department, On 1999. Nor does the record indicate that meet its burden to exemption claim court district conducted an in-eamera obligation from the request- to disclose the inspection regarding of OPR’s files AUSA records,, index, provide Vaughn ed must circumstances, Downing. Under the inspection, or in-eamera or other evidence produce failed to meet its burden evi- that would enable the district court whereby dence the district court would be determine position make whether all OPR records relat- required thresh- ing old evidentiary King, determination. See enforce- 217-18. ment records under Exemption If court finds there are non-law enforce- Because August OPR, ment records they must be re- request is considerably broader applies; leased unless 5or Kimberlin, than the FOIA government’s on appeal invocation agree F.3d at we with amicus that Exemption 6 See Maydak comes too late. required. Department’s remand is The United States regulations describe OPR as a mixed func 760, 764 On the other responsibilities tion that em hand, if the district finds remand only investigations brace not of violations all regarding OPR’s records of law and breaches of professional stan records, Downing we see, liability, dards that result in civil hold, 14, May consistent with the of Davison, Order e.g., 830, Griva v. 637 A.2d 846- 2001, (D.C.1994); Corriea, dis- Avianca, challenge 47 the Inc. v. 666, public F.Supp. (D.D.C.1989), weighing 706 trict court’s 678-79 but private Exemption breaches of internal interests under guide proceed lines that disciplinary lead to fails. FBI, 84,

ings, see Stern v. 737 F.2d 90 pri a The district court balanced the receipt as result of the of in reports investigations by vacy by, of interests the manner instructed other entities Hence, compelled by, of with virtually such non-law a a result violations. Glo- Kimberlin, response mar in 139 at inappropriate was the F.3d 948. Other bind produced absence of an in evidentiary ing precedent record this circuit is the same See, by support a finding e.g., OPR that all Magazine OPR effect. Nation v. U.S. 180 Service, 885, ordered the court was limited 894 & n. 8 sure 71 F.3d

Customs 1493, Beck, (D.C.Cir.1995); high-level at name a FBI official who 997 F.2d the of cover-up. at in Housing, participated 498 F.2d the 1494; knowingly Rural Stern, 86, in Downing court did Kim as the 737 F.2d at 93. AUSA assuming, Even 949, berlin, the balance at “that a in the high is not official United the of Office, Kimberlin, disclosure of interests F.3d Attorney’s 139 see tip often in file will not so material an OPR 949, public’s knowledge the rule withholding categorical toward regard prose to his Jeffer appropriate,” is against disclosure hardly comparable to cution Jefferson is that access to OPR’s son fails show public’s in Stem or even to the scandal Downing “is files on AUSA in investigation knowledge of confirm or refute necessary in order to Kimberlin, in Kimberlin. Yet is en evidence that compelling investigation of politically charged volved activity.” Ser gaged illegal President, SafeCard the court held sitting Vice SEC, 1197, vices, F.2d 1206 Inc. v. 926 out privacy the AUSA’s intei-ests clipping A submitted news releasing weighed public interest inundated stating that OPR is investigation of of the OPR the contents prisoner complaints and with federal AUSA, notwithstanding the AUSA’s of an attor agrees judge’s with a criticism existence of public own disclosure not, as ney only about half of the time does investigation. United States Cf. found, correctly suffice to district court Reporters Justice v. Committee for activity; illegal agency raise a claim of Press, 489 773- Freedom the U.S. not reports quantity sug and does clipping 1468, 1481-82, 109 S.Ct. 103 L.Ed.2d predilection ignore such com gest a (1989). Nothing in the district court’s plaints. Finally, contention that the amicus’ Downing to for the referral AUSA upholding district court erred in OPR’s finding file destruction mandated redactions of the documents that it dis agency misconduct. 7(C), Exemption under because the closed FBI, Amicus’ reliance on Stern v. court had no basis on which to determine (D.C.Cir.1984), misplaced. Al is was com whether the redacted material acknowledged the court though Stern piled is gov that a public knowing interest Kimberlin, F.3d at 947. meritless. Cf. comprehensive investigation ernment The documents that were released were disciplinary or that measures ade “pertain[ed] illegal to a activ complaint” of quate, court nevertheless id. at Downing. ity by Jefferson against AUSA declined to release the names lower complaints Jefferson’s written involved al that, unlike employees, recognizing level legations wrongdoing criminal tilted the balance em challenge Jefferson did not Ex phatically in under favor disclosure determina Beck, segregability district court’s emption Id. 91-92. tion, pursuant to nor OPR’s redactions 1493,moreover, the court indicated F.2d at Exemptions By 2 and amicus’ FOIA only the not did Stern limits of Stern: admission, only pursu own withheld well-publicized scandal involve 7(C) Exemption and ant to the names widespread, illegal FBI had conducted sur Depart of identifying information Justice political through veillance of sur activists parties, in reptitious employees ment and third order wiretappings entries and Br. activities, privacy. See Amicus up protect then covered its the disclo- their 181 Hence, amicus, most, FBI, presents investigations. at 25. Stern 737 speculative vague or that re- assertions F.2d 89 But ever since with- improperly dacted information was founding by Attorney Levi General Carter, held. See F.2d general OPR has lacked supervisory authority over attorneys. DOJ Its task Accordingly, we remand the case for the has been much always narrower. OPR is determine, upon district court to evidence a reactive agency within the Justice De shall government present, partment, receiving complaints and investi additional sought gating “allegations professional of miscon August are law duct by Department of attorneys Justice un- properly enforcement records withheld pertain to of exercise their author 7(C); Exemption der we otherwise affirm ity to investigate, litigate provide legal or grant summary of judgment. RespoNSi advice.” Office of PROFESSIONAL RANDOLPH, Judge, dissenting: Circuit RepoRt bility, Fiscal YeaR 1999 Annual http: //www.usdoj.gov/opr/99AR-Final.htm I believe all of the of the files Office of (last 18, 2002). visited Mar. (OPR) Responsibility Professional in the relating of Justice in- By regulation, charged OPR is with the “compiled vestigation an individual are duty of investigating the conduct of Justice purposes” within the Department attorneys “that inbe vio- 7(C) meaning exemption of the Freedom orders, lation of regulations or Act, Information U.S.C. applicable standards of conduct or 552(b)(7)(C). § properly therefore mismanagement, gross constitute waste of or deny refused to confirm the existence of funds, of authority, abuse or a substantial investigations other of Assistant United specific danger public health or Attorney 0.39a(a) (2002). safety.” § 28 C.F.R. Recognizing potential overlap with the shields law enforcement investigative authority files from disclosure when of the Justice De- release General, partment’s Office of the Inspector records would constitute “an unwarranted audits, personal privacy.” supervises invasion of “conducts and in- 5 U.S.C. 552(b)(7)(C). spections § investigations So-called “Glomar” re sponses, programs Depart- ship operations named after involved (D.C.Cir. ment,” 0.29a(a) CIA, (2002), 28 C.F.R. the At- Phillippi F.2d 1009 1976), torney permissible General has OPR’s answers to FOIA circumscribed jurisdiction authority. requests agency’s acknowledgment “shall have investigate allegations investigatory it has of misconduct files about an Department attorneys would that relate to the individual constitute an unwarranted exercise of their authority investigate, invasion If privacy. individual’s Jef files, litigate provide legal sought ferson advice.” Jurisdic- our tion Investigation Allegations decision Beck v. by Department Misconduct Justice Em- justified OPR’s (Nov. 1994). response, point ployees, Glomar No. 1931-94 about which Order we The Inspector all General au- agree. has exclusive thority investigate any other allegations. “[ijnternal mayWe also agree agen- cy investigations ... agency, which an complaint, When OPR receives a it con- acting employer, simply supervises as ducts preliminary inquiry. 28 C.F.R. (2002). 0.39a(c) employees” its own enforce- When OPR determines (d)(2) report investiga- further Assistant United warrants the matter my Attorney Downing it leads tion, investigation: States refers OPR to the conclusion that OPR colleagues a (1) appears to involve If matter possess non-law files outside enforcement law, the head of the inves- violation of 7(C)’s protection. This strikes exemption jurisdiction in- having tigative agency doubly me as mistaken. violations; vestigate such (2) appears not involve If the matter (d)(2) in- wrongly any It assumes that law, to the head of a of violation department of vestigation by the head office, division, bureau or board to which violation, a an would be unrelated to to the head employee assigned, is misreading assumption that rests on unit; inspection internal of its it as- regulations. wrongly And also (2) (2002). 0.89a(d)(l) & 28 C.F.R. report for receives the sumes OPR quoted subsections points

Two about than law purposes. other First, regulations stressing. need might be? purposes What other these treat violations of “law” as violations simply super- Surely “employer not as an regulations, statutory law and violations of Maj. employees.” op. its at 177. To vising forth standards of conduct and so as some repeat, supervising not a agency OPR is But thing else. for FOIA it Department; within the Justice law enforce “compiled “law”—as general responsi- does oversight not have violations of purposes” ment bility. report Instead OPR receives the —includes regulations and standards of conduct and (d)(2) it investigation so that de- All these court orders and forth. so pursue cide whether its law enforcement they although are not sources also warranted, functions further. “When legislation.* why This “[investigations allega- full investigations conducts of such directly specific alleged focus tions, reports findings conclu- acts, particular illegal illegal acts identi Attorney sions to General other could, officials, if proved, fied acts which appropriate Departmental http: officials.” result civil or criminal sanctions” //www.usdoj That .gov/opr/index.html. pur investigations for law enforcement might stage, close the file at this poses exemption the meaning within earlier, does not mean that the Housing Rural Alliance United compiles are for other than law enforce- Agric., 81 & n. every complaint will purposes. Not every investigation be credible. Not will target conclude that the in mis- Second, engaged con- employee’s after the office conduct. And as with conduct- investigation alleged non- ducts ing investigations, ev- statutory pursuant violation 0.39a(d)(2), ery will piece file information OPR’s file investigative it must OPR, report descrip- illegal activity. constitute evidence of together with imposed. investigating tion of the It is the the course someone for sanction crime, possesses possibility committing that OPR such a the FBI for instance * (2001). government attorney is found to have The ethical When Responsibility sional misconduct, engaged noti- in intentional lawyers rules for contain enforceable stan- li- fies the state bar association which has carry dards and civil if not criminal violations Accounting attorney. See General censed Also, attorneys sanctions. violate court who Follow-up Operations Office, Information on the contempt rules can be sanctioned for of court. of Justice's Office of Profes- agents investiga- necessarily conduct OPR records are might have law enforce- Maj. op. into the individual’s friends and asso- ment tions records.” at 178. The most ciates, lifestyle, spending his habits and to be said propo- cases cited for this inquiries of these will nec- Justice, so forth. None v. Dep’t sition—Kimberlin essarily activity, criminal there reveal but and Beck v. can no the records thus be doubt Justice, compiled purposes (D.C.Cir.1993) are for law enforcement the court had no —is reasons, exemption within For these discuss, reach, occasion to or to the issue. govern- I would credit the affidavit so, This the first I case do and believe attorney “[a]ll the result it reaches is mistaken. investigations to OPR’s Because conducts law and, therefore, purposes investigations, has no other function are deemed to be law enforcement files.” within the its rec- Hall, My Declaration of Dale K. within exemption ords come and a colleagues label the sworn statement a remand I is unwarranted. therefore dis- assertion,” maj. op. “bare which has sent. nothing with what concern to do should I am namely, whether is true. con- us— majority that it is. The offers no

vinced

good it. disbelieving reason majori-

One should not be misled

ty’s our statement court has “de- to hold as a matter all

cline[d]

Case Details

Case Name: Jefferson v. Department of Justice

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 2, 2002

Citation: 284 F.3d 172

Docket Number: 00-5449

Court Abbreviation: D.C. Cir.