The Letter

A decision of the United States Court of Appeals for the District of Columbia Circuit

Over two decades ago, the Department of Justice sent a proposed termination letter to one of its Assistant United States Attorneys (“the Assistant”) working in the Eastern District of New York (EDNY). The letter alleged a series of professional inadequacies. Appellant Bloomgarden, serving a sentence of life imprisonment without parole, sought a copy of that letter under FOIA.

The Assistant served as lead prosecutor in an investigation of a series of crimes committed by Appellant, leading to several convictions in New York and California.  After Appellant’s FOIA suit, most of the approximately 3,600 pages of exhibits supporting the proposed termination letter were turned over to Appellant – but not the letter itself. The Appellant hopes that the content of the letter will somehow help him in contesting his sentence. The government declined to release the letter pursuant to Exemption 6 of FOIA, which can protect personal privacy. The district court, balancing the public interest against the Assistant’s privacy interest, determined that the latter clearly outweighed the former and therefore granted summary judgment for the government. We affirm. We also reject Appellant’s request that the judgment be modified.

 The assistant apparently had performance issues, according to the district court judge who had reviewed the letter in camera

the letter only described “instances of garden-variety incompetence and insubordination” on the part of a single staff-level attorney, and that “there is little public interest in a single, largely unremarkable disciplinary matter regarding a former AUSA [Assistant] who left government service two decades ago.” This did not outweigh the Assistant’s “strong interest in avoiding the professional embarrassment that disclosure would likely cause.”

Balancing the interests

Even assuming arguendo Appellant is correct that Justice Department prosecutors are particularly powerful government lawyers, and that the public interest in how they are restrained is therefore significant, our examination of the letter in camera reveals only alleged unprofessionalism of a sort in which any junior attorney might engage, not allegations of prosecutorial misconduct or other abuse of a federal prosecutor’s powers.

…Because the Department of Justice has carried its burden of demonstrating that disclosure of the proposed termination letter is “clearly unwarranted” given the privacy interest at stake, and because no grounds exist for modification of the judgment below, we affirm in full.

Senior Circuit Judge Silberman authored the opinion, joined by Circuit Judges Wilkens and Pillard. (Mike Frisch)