May 19, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 14 C 9416 -
Samuel Der-Yeghiayan, Judge.
WOOD, Chief Judge, and POSNER and Kanne, Circuit Judges.
POSNER, Circuit Judge.
appeal challenges a district-court decision that dismissed
with prejudice the plaintiff's suit against the FBI under
the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(B).
Initially the plaintiff, Baker, sued to obtain all records
connected to an investigation in which he was interested, but
the FBI gave him only redacted records, and so now he seeks
disclosure of the redacted (i.e., hidden from him) names.
records he sought and seeks involve an FBI investigation of a
protection racket run by two Chicago police officers, Ronald
Watts (a police sergeant) and Kallatt Mohammed, with the help
of other officers. Watts and Mohammed were each charged in a
single count of stealing money from an FBI informant in a
sting operation. Watts, the ringleader, pleaded guilty to
stealing thousands of dollars from a drug courier who was
actually an FBI informant participating in the undercover
sting operation, and was given a prison sentence of 22 months
to be followed by a year of supervised release; he resigned
from the Chicago police force.
has as noted produced redacted records of the investigation,
but Baker seeks the release of three additional information
categories: the names of FBI agents involved in the
investigation, the names of any Chicago police officers who
assisted them, and the names of the Chicago police officers
who were investigated in connection with the racket but not
charged. He contends that Watts's very light sentence
relative to the magnitude of his criminal activity (Mohammed,
also convicted, was sentenced to only 18 months) reflects
inadequate investigation by the FBI and other law-enforcement
personnel. He wants the names of all the
law-enforcement officers involved in the investigation of the
two officers revealed, as well as the names of the Chicago
police officers who were investigated but not charged. He is
indignant that Watts was charged with only one count of
stealing money, despite the length of time he'd been
running his criminal operation, and as a result of the single
charge received so short a sentence, though since the
guidelines sentence for Watts's crime was only 10 to 16
months he actually received an above-guidelines sentence.
resisted Baker's demand to open up the entire
investigatory and prosecutorial campaign against the
protection racket, by invoking two exemptions found in the
Freedom of Information Act. One exempts from mandatory
disclosure "personnel and medical files and similar
files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy." 5 U.S.C.
§ 552(b)(6). The other similarly exempts records and
other information compiled for law enforcement purposes if
their disclosure "could reasonably be expected to
constitute an unwarranted invasion of personal privacy."
exemptions differ only slightly, and Baker concedes that the
differences are not relevant to his appeal. Deciding whether
either exemption applies requires balancing the privacy
interests of the affected persons against the public interest
in the disclosure of the information. See U.S. Department
of Defense v. Federal Labor Relations Authority, 510
U.S. 487, 495 (1994). The FBI's particular concern in
seeking to conceal the information sought by Baker is that
public identification of the identities and law-enforcement
activities of the officers involved in the investigation of
the Watts-Mohammed protection racket could endanger them by
identifying them to gangsters still involved in the racket,
while publication of the names of the Chicago police officers
who were investigated but never charged with a crime would
unfairly stigmatize those officers. And the FBI did after all
give Baker records of investigatory activity relating to the
prosecution of Watts and Mohammed, albeit without naming any
of the personnel involved in that activity.
FBI's personal-privacy arguments, although they are
weighty, could be overcome by proof that the requested
disclosure would be in the public interest to a degree
outweighing privacy concerns. Baker's principal
contention is that the single count brought against
Watts-resulting in a correspondingly modest sentence-was
manifestly inadequate, given that the protection racket
headed by him had been on a large scale and had lasted for
years. And that inadequacy, Baker points out, could
conceivably be the result of indifference, lack of attention
to the seriousness of the problem, or worse.
wonders whether the FBI, which was deeply involved in the
investigation, assigned its most experienced and capable
agents to the Watts case. But the FBI is purely an
investigatory agency; it does not make charging decisions
(e.g., what crimes to charge Watts with) or sentencing
suggestions (e.g., what Watts's punishment should be).
And many plausible explanations for the charging decisions
are consistent with a thorough FBI investigation. The
prosecutor may have considered other charges under
consideration as unlikely to succeed, given the passage of
time and the lack of credible witnesses. Or perhaps some
officers who were under investigation are cooperating in
ongoing FBI investigations. And Baker's theory that
release of the names of the FBI agents who worked on the
investigation would enable the public to determine whether
the Bureau had adequately staffed the investigation with able
and experienced agents is farfetched.
the names of the Chicago officers who either assisted the FBI
or were investigated but not charged, Baker argues that,
under Illinois law, Illinois public officials have no
expectation of privacy in "information that bears on
[their] public duties." 5 ILCS 140/7(c). But this
provision, which Baker relies on, is merely an exception to
one of the categories of information exempt from disclosure
under Illinois's Freedom of Information Act; it provides
that "Personal information contained within public
records, the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy" is exempt from
disclosure, but "disclosure of information that bears on
the public duties of public employees and officials shall not
be considered an invasion of personal privacy." Baker
gives us no reason to believe that the Illinois Act
determines the scope of FOIA exemptions, which are federal.
The district court was correct, moreover, to express concern
that disclosing the names of the Chicago officers could
expose them to harassment without conferring an offsetting
public benefit and would thus be an unwarranted invasion of
their personal privacy.
Baker asks us to remand the case to the district court for
consideration of whether to award him attorneys' fees on
the ground that his suit had prompted the FBI to release
extensive records that it had refused to produce until he
sued. See Button v. IRS, 718 F.3d 522, 525 (5th Cir.
2013). As he never asked the district court to award
attorneys' fees, there is no ruling on them for us to
review-though as the district court's judgment did not
forbid him to seek an award of attorneys' fees, he still
can do so. See Anderson v. U.S. Dep't of Health &
Human Services, 3 F.3d 1383, 1385 (10th Cir. 1993).
the reasons explained earlier the district court's grant
of summary ...