BarberDerwinski, Nowicki Rich, LLP
February 28, 2013
TO:New Associate
FROM:Supervising Attorney
RE:Kent v. United States Department of Justice
I attach the documents relevant to an appeal I’d like you to handle. There is only one issue on appeal, and I want you to prepare our brief to the Seventh Circuit. The issue is whether booking photographs of a federal arrestee are exempt from release to the public under the Freedom of Information Act. Initially, the case law on this question may seem to be a bit one-sided, but as you’ll soon see, the law as it applies to our facts is quite uncertain.
Follow the Federal Rules of Appellate Procedure for the format and content of the brief with possibly a few exceptions that we may discuss more specifically soon. (For example, another associate will pull together the appendix, so you won’t have to include that with your brief.) Also, limit your Argument section to ten pages, double-spaced, or 3600 words in 12-point Century font.
You can assume that there are no jurisdictional or technical problems with the appeal. If you need any other information from the record for your substantive arguments, notify me of what you need, and why you need it, by March 15, 2013, at the latest.
E-mail me your brief as a Word attachment before the start of class on April18, 2013. You will also need to turn in two paper copies of your brief by that deadline. (As you know, the cover color for the appellant’s brief is blue and for the respondent’s brief is red.) One copy will go to opposing counsel.
Let me know if you have questions.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
______
:
CHARLES KENT,:
Plaintiff,:
:
-v.-: COMPLAINT
:
UNITED STATES DEPARTMENT OF JUSTICE, :
and its subdivision,United States:
Marshals Service,:
Defendants.:
______
Plaintiff, CHARLES KENT, alleges the following:
PARTIES
1.Plaintiff, Charles Kent, is a reporter for Chicago Today, a newspaper based in Chicago, Illinois, that qualifies as a “news media” organization for the purposes of the Freedom of Information Act (“FOIA”).
2.Defendant, the United States Department of Justice, is the federal agency that oversees the United States Marshals Service. Defendant, the United States Marshals Service, is the law enforcement agency responsible for custody of persons who have been charged in federal court with crimes.
JURISDICTION AND VENUE
3.Jurisdiction is conferred upon this Court by the Freedom of Information Act, 5 U.S.C. § 552, which creates federal jurisdiction for appealing the denial of documentrequests.
4.Venue is proper in this Court pursuant to 28 U.S.C. §1391(b). All events giving rise to the claim occurred in the Northern District of Illinois.
BACKGROUND
- On July 9, 2012, prominent investment banker SteveOzman was arrested by U.S. Marshals and booked on felony charges that included securities fraud and theft from an employee benefit plan, based on evidence that he had defrauded investors including the Federal Employee Retirement Trust. His investors suffered severe losses.
- The press was alerted to Mr. Ozman’s arrest, and numerous press photographers took his picture as he walked from a police car into a federal holding facility.His arrest was reported in Chicago Today newspaper. (See Attachment A.)
- On July 10, 2012, Mr. Ozman was arraigned in federal court. Local, national and international news agency representatives were present outside, and photographs of Mr. Ozman, wearing sunglasses, entering and leaving the courthouse were published in print and online.
- Mr. Kent learned from a confidential source that Mr. Ozman had been assaulted by a U.S. Marshal during his arrest or booking procedure. Chicago Today.com reported the tip. (See Attachment B.)
- To confirm this information, on July 11, 2012, Mr. Kent requested that the U.S. Marshals Service release the identification photograph taken of Mr. Ozman during the booking process, as required by the Freedom of Information Act. (See Attachment C.)
- On July 18, 2012, the U.S. Marshals Service refused to release Mr. Ozman’s booking photograph, citing its general policy not to release these photographs. (See Attachment D.)
- Mr. Kent appealed this denial. (See Attachment E.)
- On July 29, 2012, the U.S. Department of Justice denied the appeal. In denying the appeal, the DOJ asserted that the U.S. Marshals Service properly withheld this information in its entirety because the information is protected from disclosure under federal law. (See Attachment F.)
- When an individual has been arrested and arraigned in open court, the name of the person, the crime charged, and the court records of that person have already been disclosed as public information, including the specific allegations in the indictment.
- The U.S. Marshals Service sometimes releases photographs in the course of its duties and for self-promotion. The Marshals Service publishes booking photographs of fugitives to aid in their capture and to promote the Marshals’ success in apprehending wanted individuals.
- There is significant public interest in the release of Mr. Ozman’s booking photograph. His appearance and expression in the booking photograph will reflect how he was treated by the U.S. Marshals who arrested and booked him.
- The booking photograph is a matter of public interest, and its release would not constitute an unwarranted invasion of Mr.Ozman’s personal privacy.
- Because the public’s interest in the release of Mr.Ozman’s booking photograph outweighs any possible privacy interest in the booking photograph, the U.S. Marshals Service must release the photograph.
CAUSE OF ACTION
- The Defendants’ refusal to release the booking photograph of Mr. Ozman pursuant to Plaintiff’s written request violates the Freedom of Information Act.
THEREFORE,Charles Kent prays that the Court determine that the disclosure of SteveOzman’s booking photograph does not constitute an unwarranted invasion of personal privacy and that the Marshals Service must release it.
Charles Kent further prays that he be granted his attorney’s fees and costs pursuant to the Freedom of Information Act for pursuing this claim, and any other and further relief as the Court may deem just and equitable.
/s/
Samantha Boren, Esq.
Attorney for Plaintiff
Boren, Duggan & Tees, LLP
463 Seattle Avenue
Chicago, IL 60064
Dated: August 1, 2012
Chicago Today
Billionaire Caught Bilking Investors
Charles Kent -- Staff Reporter
July 9, 2012
1
CHICAGO—Prominent Chicago billionaire investment banker Steve Ozman was arrested by U.S. Marshals and charged today for allegedly running a “Ponzi scheme” that may be among the largest SEC investigators have yet uncovered. According to the indictment, Ozman faces felony charges of securities fraud, wire fraud, mail fraud, money laundering, theft from an employee benefit plan, and making false filings with the SEC.
Ozman rose to fame and fortune as the founder of Ozman Investment Securities, LLC, a hedge fund based in Chicago . He positioned himself as a prominent philanthropist in the Chicago community, and his legendary galas made him the subject of much press in Chicago Today’s own society pages. However, according to the U.S. Attorney’s criminal complaint against Ozman, he was in fact running a classic Ponzi scheme, in which he paid returns to early investors by giving them the money deposited by later investors, rather than by actually investing their money and earning returns.
Experts estimate that Ozman’s scheme will result in up to $30 billion in losses among investors. These losses will have harsh ramifications for not only Chicago but people across the state and nationwide, as investors in Ozman’s fund included the IllinoisPublic Employees’Retirement Trust and the Federal Employees Retirement Trust
Spokespersons for either system were unwilling to comment on the ramifications Ozman’s actions would have for state and federal employees.
Reporters shouted questions for Ozman as he was escorted into the courthouse, but he did not respond. His attorney issued a statement saying that Ozman was an upstanding member of the community who looked forward to clearing his name in court.
1
Chicago Today.com - Your Source for Up-To-The-Minute News!
BREAKING NEWS:
Inside Source Alleges Billionaire Swindler Was Attacked
Charles Kent -- Staff Reporter
July 10, 2012
According to a confidential source deep within the U.S. Marshals Service, yesterday’s arrest of billionaire hedge-fund manager Steve Ozman may not have been so routine. The source, who spoke on the condition of anonymity in order to preserve his job, revealed that during the arrest, a U.S. Marshal took the opportunity to punch Ozman repeatedly in the face. “Our retirement fund was invested with that guy,” the source said, referring to the Federal Employee Retirement Trust, which covers all federal employees, including U.S. Marshals. “It’s all up in the air as to whether there will be any money left when we retire—everyone was furious. But this marshal just lost it and punched him right in the face.”
Ozman, his attorney, and the Marshals Service have all declined to comment.
Mr. Robert Wheeler
U.S. Marshals Service
422 E. Mazes St.
Chicago, Illinois 60064
July 11, 2012
Dear Mr. Wheeler:
This is a request under the Freedom of Information Act.
I request that a copy of the booking photograph (or “booking photograph”) of Steve Ozman, taken by the U.S. Marshals Service following his arrest on July 9, 2012, be provided to me.
In order to help to determine my status for purposes of determining any fees, you should know that I am a representative of the news media affiliated with Chicago Today newspaper, and this request is made as part of news-gathering and not for a commercial use.
I request a waiver of all fees for this request. Disclosure of the requested information to me is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in my commercial interest.
Thank you for your consideration of this request.
Sincerely,
/s/
Charles Kent
619 Birch Avenue
Chicago, Illinois 60064
(312) 555-7435
Charles Kent
619 Birch Avenue
Chicago, Illinois 60064
July 18, 2012
Dear Mr. Kent:
I am writing in response to your document request under the Freedom of Information Act (“FOIA”), dated July 11, 2012.
It is the U.S. Marshals Service’s policy to not release booking photographs of individuals in its custody. Booking photographs fall under an exemption of the FOIA that prohibits the disclosure of documents collected for law enforcement purposes if their release will result in an invasion of personal privacy.
Subject to narrow exceptions required by law, the Marshals Service maintains a uniform policy of preserving the integrity of the pictured individual’s privacy by not releasing booking photographs.
Sincerely,
/s/
Robert Wheeler
First General Counsel
U.S. Marshals Service
422 E. Mazes Street
Chicago, Illinois 60064
Mr. Mike Wilkinson
Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
July 19, 2012
Dear Mr. Wilkinson:
This is an appeal of an agency decision under the Freedom of Information Act.
On July 11, 2012, I requested a booking photograph under the Freedom of Information Act. My request was assigned the identification number N1267452. In response, I received a letter dated July 18, 2012, and signed by Robert Wheeler, that rejected my request. I appeal the denial of my request.
The U.S. Marshals Service must disclose the booking photograph under the Freedom of Information Act because the release of this document will shed light on the operations of the Marshals Service, and the document does not fall under any of the exceptions to the Freedom of Information Act.
Thank you for considering this appeal.
Sincerely,
/s/
Charles Kent
619 Birch Avenue
Chicago, Illinois 60064
(312) 555-7435
Mr. Charles Kent
619 Birch Avenue
Chicago, Illinois 60064
July 29, 2012
Dear Mr. Kent:
The Department of Justice has received and reviewed your appeal of the U.S. Marshals Service’s denial of your request under the Freedom of Information Act. Your request for the booking photograph of an individual arrested by the Marshals Service is denied.
The U.S. Marshal Service’s policy of not releasing booking photographs is consistent with the Department of Justice’s interpretation of the Freedom of Information Act. This policy balances public and private interests, as required by the Act.
Sincerely,
/s/
Mike Wilkinson
Assistant Attorney General for Administration
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
______
:
CHARLES KENT,:
Plaintiff,:
:
-v.-: ANSWER
:
UNITED STATES DEPARTMENT OF JUSTICE:
and its subdivision,United States:
Marshals Service,:
Defendants.:
______
Defendants, the United States Department of Justice and the United States Marshals Service, by and through their attorney, James Noles, answer the complaint and allege the following:
1. Defendants admit the allegations contained in paragraphs 1–7 and 10–14 of the complaint.
2.Defendants lack sufficient information to reply to paragraphs8- 9 of the complaint.
- Defendants deny the allegations in paragraphs 15-18. There is not a significant public interest in the release of an arrestee’s booking photograph, and arrestees have a privacy interest in that photograph.
THEREFORE, Defendants respectfully request that Plaintiff’s request for relief be denied.
/s/
James Noles, Esq.
Attorney for Defendants
Noles, Akin & Gump LLP
1777 Wilson Avenue
Chicago, IL60064
Dated: August 8, 2012
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
______
:
CHARLES KENT,:
Plaintiff,:
:
-v.-: OPINION AND ORDER
:GRANTING PLAINTIFF’S
UNITED STATES DEPARTMENT OF JUSTICE:MOTION FOR SUMMARY
and its subdivision,United States: JUDGMENT
Marshals Service,:
Defendants.:
______
Smith, J.
INTRODUCTION
Charles Kent, Plaintiff, sued under the Freedom of Information Act (FOIA), alleging that the U.S. Marshals Service and the Department of Justice erred in denying his request for the release of an agency document. Defendants responded that the refusal to disclose the document did not violate the Act. The parties cross-filed motions for summary judgment under rule 56 of the Federal Rules of Civil Procedure.
For the following reasons, this Court grants the Plaintiff’s motion for summary judgment and denies the Defendants’ motion for summary judgment.
BACKGROUND
On July 11, 2012, Plaintiff submitted a request to the U.S. Marshals Service under the FOIA for the booking photograph of Steve Ozman, a prominent investment banker whose Ponzi scheme may have cost the Federal Employee Retirement Trust (“FERS”) billions of dollars in losses. Plaintiff, a reporter for Chicago Today newspaper, alleges that he received reliable information indicating that a U.S. Marshal, whose pension is dependent on FERS, assaulted Ozman during his arrest or booking procedure. Plaintiff contends that Ozman’s booking photographwill reveal whether he was struck in the face during or shortly after his arrest.
The Defendant U.S. Marshals Service denied Plaintiff’s request for the release of the photograph, citing its policy of not disclosing the booking photographs of the individuals it arrests. The Marshals Service contends that booking photographs fall under an exception to the Act that bars the release of records or information if the documents invade an arrestee’s privacy. The agency therefore refuses to release booking photographs.
Plaintiff appealed this denial to the Department of Justice, which affirmed the U.S. Marshals Service’s decision. On August 1, 2012, Plaintiff filed suit against the U.S. Marshals Service and the Department of Justice, seeking to force the release of the photograph.
Plaintiff claims he is entitled to summary judgment because Ozman’s photo is not private and the photograph would inform the public about government activities. Defendants contend they are entitled to summary judgment because release of the booking photograph would violate Ozman’s privacy and would not serve a public purpose.
DISCUSSION
Summary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
In the Freedom of Information Act, Congress manifested its intent that government be transparent and accountable to the people. The general philosophy of the Act is openness. There is an exemption for documents compiled for law enforcement purposes if release would be an invasion of privacy.
Here, the arrestee Steve Ozman has a privacy interest in the picture. ThoughOzman’s success as an investment banker has brought him into the public eye, this notoriety or celebrity does not eliminate his privacy interest. However, in this case, Ozman was photographed entering and leaving the federal courthouse, and there was news coverage of his arrest and arraignment. The booking photograph can therefore provide little information about Ozman that is not already available to the public.
Nevertheless, the public has a strong interest in a transparent and fair justice system.This justice system depends on citizens who are able to trust that it will administer the law fairly. An integral component of this trust is the idea that arresting officers treat arresteeshumanely. The plaintiff received information from a confidential source within the U.S. Marshal’s Service who allegedly witnessed a federal marshal striking Mr. Ozman during the arrest or booking procedure. This led to the plaintiff’s belief that an impropriety may have occurred.
If Ozman’s booking photograph reflects whether a U.S. Marshal assaulted him during or after his arrest, then there is a strong public interest in its release.
CONCLUSION
Plaintiff’s motion for summary judgment is GRANTED, and Defendants’ motion for summary judgment is DENIED.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
/s/
Hon. Edith Smith
District Judge
United States District Court
Northern District of Illinois