Lloyd, Pardon, Strange & Turner, LLP
February 27, 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. Use 12-point Century font for your brief.
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 April
17, 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.:
:
UNITED STATES DEPARTMENT OF JUSTICE:
AND ITS SUBDIVISION, UNITED STATES
:
MARSHALS SERVICE,
:
Defendants.
:
______________________________________________
COMPLAINT
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 document requests.
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.
1
BACKGROUND
5.
On July 9, 2012, prominent investment banker Steve Ozman 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.
6.
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.)
7.
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.
8.
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.)
9.
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.)
10.
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.)
11.
Mr. Kent appealed this denial. (See Attachment E.)
12.
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.)
13.
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.
14.
The U.S. Marshals Service sometimes releases photographs in the
course of its duties and for self-promotion. The Marshals Service publishes booking
2
photographs of fugitives to aid in their capture and to promote the Marshals’
success in apprehending wanted individuals.
15.
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.
16.
The booking photograph is a matter of public interest, and its release
would not constitute an unwarranted invasion of Mr. Ozman’s personal privacy.
17.
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
18.
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 Steve Ozman’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
3
Chicago Today
Billionaire Caught Bilking Investors
Charles Kent -- Staff Reporter
July 9, 2012
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.
in Ozman’s fund included the Illinois
Public 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.
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
Attachment A
4
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.
Attachment B
5
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
Attachment C
6
United States Marshals Service
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
Attachment D
7
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
Attachment E
8
United States Department of Justice
Office of the Attorney General
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
Attachment F
9
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
______________________________________________
:
CHARLES KENT,
:
Plaintiff,
:
:
-v.:
:
UNITED STATES DEPARTMENT OF JUSTICE:
AND ITS SUBDIVISION, UNITED STATES
:
MARSHALS SERVICE,
:
Defendants.
:
______________________________________________
ANSWER
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 paragraphs 8- 9 of
the complaint.
3.
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, IL 60064
Dated: August 8, 2012
10
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
______________________________________________
:
CHARLES KENT,
:
Plaintiff,
:
:
-v.:
:
UNITED STATES DEPARTMENT OF JUSTICE:
AND ITS SUBDIVISION, UNITED STATES
:
MARSHALS SERVICE,
:
Defendants.
:
______________________________________________
OPINION AND ORDER
GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT
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 crossfiled 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
11
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
photograph will 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.
12
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. Though
Ozman’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
therefore can 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 arrestees humanely. 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.
13
If Ozman’s booking photograph reflects whether a U.S. Marshal assaulted
him during or after his arrest, then there is a 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
Dated: September 15, 2012
14
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
_____________________________________________
:
:
Plaintiff,
:
:
-v.:
:
UNITED STATES DEPARTMENT OF JUSTICE:
AND ITS SUBDIVISION, UNITED STATES
:
MARSHALS SERVICE,
:
Defendants.
:
______________________________________________
CHARLES KENT,
NOTICE OF APPEAL
NOTICE IS HEREBY GIVEN that the UNITED STATES DEPARTMENT
OF JUSTICE and its subdivision, the UNITED STATES MARSHALS SERVICE
appeal to the United States Court of Appeals for the Seventh Circuit from the
judgment dated September 15, 2012, finding in favor of the Plaintiff. Dependents
appeal the following question:
Whether booking photographs of federal arrestees are exempt from
release to the public under the Freedom of Information Act.
/s/
James Noles, Esq.
Attorney for the Defendants
Noles, Akin & Gump LLP
1777 Wilson Avenue
Chicago , IL 60064
Dated: September 23, 2012
15