Prosecutor’s disciplinary file cannot be completely withheld

D.C. CIRCUIT–The full file of a disciplinary action against a Department of Justice attorney who commented on the outcome of an investigation of Dan Quayle to the Indianapolis Star cannot be withheld for privacy reasons unless every item in the file would intrude upon the attorney’s privacy, the U.S. Court of Appeals in Washington, D.C., ruled in early April.

The Justice Department must release segregable portions of the disciplinary file on attorney John Thar, who was sanctioned for commenting publicly that allegations that Vice President Dan Quayle had once purchased cocaine were baseless. Thar spoke to the Star during the Bush-Quayle re-election campaign of 1992.

Former convict Brett Kimberlin, who once charged that he had been silenced by federal prison officials for claiming that he had sold marijuana to Quayle, had appealed the Justice Department’s denial of his FOI Act request.

As a staff attorney for the U.S. Attorney’s Office for the Southern District of Indiana, Thar disclosed the results of a 1982 Drug Enforcement Administration investigation into allegations of former cocaine use by Quayle who in 1982 was a U.S. Senator. “I’m disclosing what I have,” Thar told the Star, “It’s all been so misconstrued. … I’m making an honest disclosure of what was found, hoping to put an end to it.”

The Justice Department’s Office of Professional Responsibility investigated Thar’s disclosure, which departed from the agency’s policy of withholding comment about any investigation. Legal Times of Washington D.C. reported that Thar had acknowledged he was disciplined for the disclosure.

Kimberlin first requested the disciplinary file on Thar in 1994. The Justice Department first said it would neither “confirm nor deny” the existence of the Thar file, but after Kimberlin pointed out that Thar had publicly acknowledged that he had been disciplined, the agency instead invoked the privacy arm of the law enforcement exemption to withhold most records in the file.

Kimberlin sued in federal District Court. When that court ruled in May 1996 that the records were protected by the exemption, Kimberlin appealed.

Judge Douglas Ginsburg wrote for the unanimous panel that the government’s attorneys must release segregable portions of the Thar file. In order to withhold an entire file under Exemption 7(C), the government must show that disclosure of any part of it could reasonably be expected to constitute an unwarranted invasion of personal privacy, Ginsburg wrote.

The court would not accept the government’s argument that release of “any part of the file” would associate Thar’s name with misconduct, causing him “great personal and professional embarrassment,” Ginsburg noted. (Kimberlin v. Department of Justice; Amicus counsel for Kimberlin: Julia Court, Washington, D.C.)