PATRICK J. DUGGAN, District Judge.
The present dispute involves Plaintiff Detroit Free Press's ("Free Press") January 25, 2013 request for booking photographs (colloquially referred to as "mug shots") of four individuals then under indictment and awaiting trial on federal drug and public corruption charges in the United States District Court for the Eastern District of Michigan. The request was made pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. At the time of the request, the four individuals — all police officers with the City of Highland Park, Michigan — had been indicted, their names had been made public,
After exhausting administrative remedies, Free Press filed a three-count complaint containing the following causes of action against DOJ: Count I — Violation of the FOIA; Count II — Contempt; and Count III — Declaratory Judgment. (Am. Compl.) The parties subsequently filed cross motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 and the motions have been fully briefed. Having determined that that oral argument would not significantly aid the decisional process, the Court dispensed with oral argument pursuant to Local Rule 7.1(f)(2). For the reasons stated herein, the Court grants summary judgment in favor of Free Press on Counts I and III but grants summary judgment in DOJ's favor on Count II.
"The statute known as the FOIA is actually a part of the Administrative Procedure Act (APA). Section 3 of the APA as enacted in 1946 gave agencies broad discretion concerning the publication of governmental records." U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754, 109 S.Ct. 1468, 1472, 103 L.Ed.2d 774 (1989). Congress subsequently amended section 3 in furtherance of a stated intention to promote "`a general philosophy of full agency disclosure[.]'" Id. (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 360, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976) (quoting S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965))); John Doe Agency v. John Doe Corp., 493 U.S. 146, 151, 110 S.Ct. 471, 475, 107 L.Ed.2d 462 (1989) (describing public access to government documents as "the fundamental principle... that animates the FOIA[]"); CIA v. Sims, 471 U.S. 159, 166-67, 105 S.Ct. 1881, 1886, 85 L.Ed.2d 173 (1985) ("The mandate of the FOIA calls for broad disclosure of Government records."); Rose, 425 U.S. at 361, 96 S.Ct. at 1599 (explaining that Congress enacted the FOIA to "open agency action to the light of public scrutiny[]") (quotation omitted).
Despite the principle of transparency animating the FOIA, there are certain instances in which Congress has deemed disclosure inappropriate. Sims, 471 U.S. at 166-67, 105 S.Ct. at 1886 ("Congress recognized, however, that public disclosure is not always in the public interest[.]"). Accordingly, in amending the FOIA, "Congress exempted nine categories of documents from the FOIA's broad disclosure requirements." Reporters Comm., 489 U.S. at 755, 109 S.Ct. at 1472. These exemptions are delineated in 5 U.S.C. § 552(b).
Exemption 7(C) exempts from disclosure "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy."
The Privacy Act of 1974, codified at 5 U.S.C. § 552a, "delineates duties and responsibilities for federal agencies that collect, store, and disseminate personal information about individuals." Butler v. U.S. Dep't of Justice, 368 F.Supp.2d 776, 782 (E.D.Mich.2005). It prohibits federal agencies from disclosing personal information about individuals that is maintained in systems of records except pursuant to written authorization from the individual or if the disclosure fits within one of the statutory exceptions. Importantly, it is not a violation of the Privacy Act to disclose documents that must be released under the FOIA. 5 U.S.C. § 552a(b)(2). As will become clear in reading this Opinion and Order, the Privacy Act is relevant because DOJ argues that if, for example, USMS were to disclose the booking photographs in one of the two federal circuits that have held that such photographs are exempted from disclosure pursuant to Exemption 7(C), USMS's disclosure would be in violation of the Privacy Act. (Def.'s Br. 6 ("The effect of the Privacy Act is to bar discretionary release of [] information under the FOIA, limiting the disclosure of
Plaintiff Detroit Free Press ("Free Press") is a Michigan corporation that publishes the Detroit Free Press, a newspaper of general circulation in the State of Michigan. Defendant United States Department of Justice ("DOJ") is a cabinetlevel department within the Executive Branch of the United States Government. The United States Marshal Service ("USMS") is a law enforcement bureau within the DOJ. 28 U.S.C. § 561(a) ("There is hereby established a United States Marshals Service as a bureau within the Department of Justice under the authority and direction of the Attorney General.").
In 1993, Free Press submitted a FOIA request for the booking photographs of eight individuals who were then under indictment and awaiting trial on federal charges. USMS, citing Exemption 7(C), denied the request. Subsequently, Free Press filed a lawsuit challenging the nondisclosure. Upon concluding that the information divulged by dissemination of the photographs did not implicate privacy interests, Judge Anna Diggs Taylor of the Eastern District of Michigan granted the newspaper summary judgment and awarded attorney's fees to Free Press. Detroit Free Press v. Dep't of Justice, No. 93-74692 (E.D.Mich. Apr. 29, 1994) (Taylor, J.) (Order attach. Def.'s Mot. Ex. C). DOJ appealed and, in a decision accompanied by a vigorous dissent, a panel of the Sixth Circuit affirmed. Detroit Free Press v. Dep't of Justice, 73 F.3d 93 (6th Cir. 1996) (hereinafter, "Free Press I"). The Sixth Circuit denied DOJ's request for rehearing and rehearing en banc and DOJ declined to seek certiorari in the Supreme Court.
The court began its analysis by setting forth the prerequisites to application of Exemption 7(C):
Id. at 96 (emphasis in original). Citing a per se rule within the circuit, the Free Press I panel quickly dismissed any notion that the booking photographs sought by the newspaper were not "compiled for law enforcement purposes." Id. (citing Jones v. FBI, 41 F.3d 238, 245-46 (6th Cir.1994) (adopting rule enunciated in three sister circuits "under which records compiled by a law enforcement agency qualify as `records compiled for law enforcement purposes' under FOIA[]") (emphasis in original)). Because USMS created the booking photographs after arresting the subjects as a routine part of the process of taking them into federal custody, the eight photographs sought easily satisfied the first requirement. See 28 C.F.R. § 0.111(j) (including the "[r]eceipt, processing and transportation of prisoners held in the custody of a marshal" in a list of USMS activities).
With respect to the second element, the Sixth Circuit concluded that the release of booking photographs "could not reasonably
Having determined that the release of the booking photographs at issue did not result in an invasion of any personal privacy interest, the majority opinion did not conduct a balancing analysis as part of its holding. It did, however, address in dicta the possibility that a "significant public interest in the disclosure of the mug shots of the individuals awaiting trial could, nevertheless, justify the release of that information to the public." Id. at 97-98 (emphasis in original); id. at 98 (noting that the release of booking photographs might, "in limited circumstances[,]" "serve to subject the government to public oversight[]").
Prior to the Sixth Circuit's decision in Free Press I, USMS had a policy of not disclosing booking photographs of federal arrestees unless the subject of the photograph was a fugitive and its release would aid in the fugitive's capture. (3/21/1994 USMS Policy Notice, No. 94-006 ¶ I, attach. Def.'s Mot. Ex. A-4 ("As a general rule, post-arrest photographs of prisoners or fugitives are not made available to the news media unless ... release of the photograph is for the purpose of locating that individual[.]").) After Free Press I and in effort to accommodate the court's ruling therein, USMS adopted a bifurcated approach to the disclosure of booking photographs, adjusting its policy for claims arising out of the jurisdiction of the Sixth Circuit. (See 9/20/1997 USMS Policy Notice, No. 94-006B, attach. Def.'s Mot. Ex. A-7.) With the exception of a one-year period between August 2004 and August 2005, USMS released booking photographs in accordance with Free Press I. The circumstances of this period are described immediately below.
In 2004, the Supreme Court decided National Archives & Records Administration v. Favish, 541 U.S. 157, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004), a case involving death scene photographs of then-President William Clinton's deputy counsel Vincent Foster, Jr. Investigators concluded that Foster had committed suicide but the plaintiff in the case was skeptical and requested the photographs pursuant to the FOIA. The Government invoked the FOIA's Exemption 7(C) in denying the request, a decision the Supreme Court ultimately upheld upon finding that the requested photographs implicated privacy interests.
After Favish, USMS suspended the Sixth Circuit exception upon guidance from DOJ's Office of Information Policy
One request was made by Free Press and the enforcement action was once again heard by Judge Taylor in the Eastern District of Michigan. Detroit Free Press v. Dep't of Justice, No. 05-71601 (E.D.Mich. 2005) (hereinafter "Free Press II"). The other request was made in the Northern District of Ohio by the Akron Beacon Journal. The other case involved the Akron Beacon Journal and was filed in the Northern District of Ohio. Beacon Journal Publ'g Co. v. Gonzalez, No. 05-1396 (N.D.Ohio 2005). By the time the cases were heard, USMS had restored the Sixth Circuit exception because OIP rescinded its previous guidance. (Def.'s Mot. 13 n. 3 (citing Bordley Decl. ¶ 15, n. 2, Def.'s Mot. Ex. A and id. Ex. A-11).) Thus, in both cases the requested booking photographs were released prior to the issuance of any opinions by the respective courts. Judge Taylor granted summary judgment in favor of DOJ on the grounds that the request was moot but awarded Free Press attorney's fees. (Pl.'s Mot. Ex. B.) Judge Dowd disagreed that the case was moot, ruled that the denial violated the FOIA, and awarded the newspaper attorney's fees. (Pl.'s Mot. Ex. C.)
Between USMS's reinstatement the Sixth Circuit exception and the events giving rise to this lawsuit, two federal courts of appeals addressed whether Exemption 7(C) prevents disclosure of federal booking photographs — the precise issue raised in Free Press I — and answered that question in the affirmative thereby creating a circuit split on the issue. See World Publ'g Co. v. U.S. Dep't of Justice, 672 F.3d 825 (10th Cir.2012); Karantsalis v. U.S. Dep't of Justice, 635 F.3d 497 (11th Cir.2011) (per curiam), cert. denied, ___ U.S. ___, 132 S.Ct. 1141, 181 L.Ed.2d 1017 (2012). After these decisions, USMS issued a memorandum "supersed[ing] all prior memoranda regarding USMS policy with respect to the release of USMS booking photographs (mug shots) to the public or media." (12/6/2012 Mem. Def.'s Mot. Ex. A-1.) This memorandum provides:
(Id. at 2-3.)
On January 25, 2013, Free Press submitted a FOIA request to the Deputy
(Id. (internal citations omitted).)
Free Press filed its Amended Complaint on August 10, 2013.
Federal Rule of Civil Procedure 56 instructs courts to "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A court assessing the appropriateness of summary judgment asks "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Amway Distribs. Benefits Ass'n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)).
Courts evaluate cross motions for summary judgment under the same standard. La Quinta Corp. v. Heartland Props., L.L.C., 603 F.3d 327, 335 (6th Cir.2010) (citing Beck v. City of Cleveland, 390 F.3d 912, 917 (6th Cir.2004)). When faced with cross motions for summary judgment, each motion is examined on its own merits. Id.
The issue in the typical FOIA enforcement action is whether the nondisclosing agency has proven that the documents sought are exempt from disclosure under any of the nine exemptions set forth in 5 U.S.C. § 552(b). As noted elsewhere in this Opinion and Order, unlike the substantial evidence and arbitrary and capricious standards of review typically triggered under the APA, the FOIA (which is part of the APA) places the burden on the withholding agency, here DOJ, "to sustain its action[.]" Reporters Comm., 489 U.S. at 755, 109 S.Ct. at 1472 (quoting 5 U.S.C. § 552(a)(4)(B)). It is beyond doubt that Free Press I, a published panel decision, remains controlling precedent "unless an inconsistent decision of the United States Supreme Court requires modification of the decision or [the Sixth Circuit] sitting en banc overrules the prior decision." Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985) (citations omitted). As DOJ acknowledges, this Court, which is squarely situated within the Sixth Circuit, is bound by Free Press I as the law of this circuit. (See, e.g., Def.'s Br. 2.) It necessarily follows that DOJ is unable to discharge its burden of justifying its nondisclosure of the four booking photographs at issue. Accordingly, the Court grants summary judgment in favor of Free Press on Count I.
Because the Court has rendered its decision with respect to Count I on the basis of stare decisis, the Court declines to address the merits of the parties' arguments regarding whether Free Press I was correctly decided. The Court does, however, believe that it is necessary to address the issue of issue preclusion, or collateral estoppel, as it has been extensively briefed. To the extent that Free Press contends that principles of res judicata preclude DOJ from seeking en banc review of Free Press I in the Sixth Circuit, this Court does not agree. (Pl.'s Br. 15.)
First, two federal appellate courts interpreting the privacy interest protected by Exemption 7(C) have reached a conclusion contrary to that reached by the Sixth Circuit. Karantsalis, 635 F.3d at 499 ("We take note of the opinion in Detroit Free Press [] and respectfully reject its holding."); World Publ'g Co., 672 F.3d at 829 ("[T]his court is not bound by the Sixth Circuit's decision in Detroit Free Press, though it should be carefully considered. [] The two federal courts to address this
Further, collateral estoppel does not prevent DOJ, the "dissatisfied party[,]" from "seek[ing to redress what it believes was a] wrongly decided question." Rutherford v. Columbia Gas, 575 F.3d 616, 625 (6th Cir.2009) (Clay, J., concurring in part and dissenting in part). As DOJ succinctly states:
(Def.'s Br. 34.) Free Press's implicit suggestion that Free Press I is somehow indelible runs counter to the development of law in this country. Although courts within the Sixth Circuit have consistently applied Free Press I to FOIA requests, as explained, two other circuits have weighed in on the precise question resolved in Free Press I and have respectfully rejected the Sixth Circuit's holding. Karantsalis, 635 F.3d at 499; World Publ'g Co., 672 F.3d at 829. These two cases, decided fairly recently and years after Free Press II and Beacon Publishing, may serve as the impetus to reconsideration en banc by the Sixth Circuit. While axiomatic that the Sixth Circuit is not bound by the legal interpretations expressed by co-equal appellate courts elsewhere in this country, this alteration to the legal landscape, in addition to other events unnecessary to this Court's determination,
Second, DOJ contends that collateral estoppel is inappropriate because Free Press I "remains in anomaly in Sixth Circuit jurisprudence." (Def.'s Br. 37.) While the Court need not address the merits of this argument, if true, this provides further justification for en banc review. Fed. R.App. P. 35(a)(1) (providing that en banc review is appropriate if "necessary to secure or maintain uniformity of the court's decisions[]").
Lastly, DOJ argues that the Supreme Court's decision in Favish renders Free Press I's public interest analysis questionable. (Def.'s Br. 37.) This is DOJ's least persuasive argument in support of its position that alterations to the legal landscape militate against strict application of collateral estoppel as the public interest portion of Free Press I was dicta and is therefore not binding. The argument is not, however, wholly without merit.
For all of these reasons, the Court finds that DOJ is not collaterally estopped from seeking review of the Sixth Circuit's decision in Free Press I.
In Count II, Free Press asks this Court to hold DOJ in contempt for promulgating USMS's 2012 booking photograph policy in violation of both Free Press I and II.
DOJ, on the other hand, contends that contempt is inappropriate for two general reasons. First, DOJ explains that "the legal predicate for contempt is absent[]" because the orders in Free Press I and II applied specifically to the photographs requested in those cases. (Def.'s Br. 3.) Second, DOJ argues that its considered litigation strategy of seeking rehearing en banc in the Sixth Circuit does not amount to contemptuous conduct.
"The movant in a civil contempt proceeding bears the burden of proving by clear and convincing evidence that the respondent violated a definite and specific order of the court requiring him to perform or refrain from performing a particular act or acts with knowledge of the court's order."
Free Press does not identify a clear and unambiguous order requiring the release of the booking photographs sought in this case. Rather, Free Press indicates that DOJ's "refusal to obey the law of the Circuit should be treated as contempt of Judge Taylor's [1994] order, as it was affirmed and made categorical by the Sixth Circuit in [] Free Press I." (Pl.'s Reply 7.) The 1994 order, however, was limited to the photographs requested in that case. (See 1994 Order, Def.'s Mot. Ex. C ("Defendant is ... ordered to forthwith make available to plaintiff the eight booking photographs... requested in July 1993.").) Further, while the Sixth Circuit affirmed Judge Taylor's order to the extent that the requested photographs comported with the criteria set forth in the Sixth Circuit's opinion, the order was, of course, limited to the facts and circumstances of that case. The order issued in Free Press II is equally unhelpful to Free Press's position. In that case, DOJ provided Free Press with the requested photographs after DOJ's OIP rescinded its guidance stating that Free Press I was no longer controlling in the Sixth Circuit. Because Judge Taylor dismissed Free Press II as moot, there was accordingly no order to produce the photographs. (Pl.'s Mot. Ex. B.) Without a "definite and specific order of the court" requiring the production of the photographs at issue in this case, there is simply no cause to hold any entity or individual — DOJ, USMS, or Mr. Auerbach — in contempt of court. Liberte Capital, 462 F.3d at 550.
Despite seeking to convince this Court that contempt is proper under the circumstances
Accordingly, the Court grants summary judgment in favor of DOJ and against Free Press on Count II.
In Count III, Free Press seeks a declaratory ruling that the 2012 USMS Booking Photograph Policy is invalid insofar as it directs that Free Press I shall not be followed for booking photograph requests originating in the districts of the Sixth Circuit.
DOJ acknowledges that this Court "is bound by Sixth Circuit precedent with regard to Count I and paragraph B of [Free Press]'s prayer for relief[,]" (Def.'s Br. 45), which seeks "[a]n order directing the DOJ and the Marshals Service to produce to the Free Press the mug shots listed in the Request[,]" (Am. Compl. 10). In its Reply Brief, DOJ asks "that any order requiring the release of the booking
Federal Rule of Appellate Procedure 8(a) provides that a party seeking to stay a judgment or order of a district court pending appeal must ordinarily move first in the district court. Fed. R.App. P. 8(a)(1)(A). The Sixth Circuit reviews four factors when evaluating a stay pending appeal under this rule:
SEIU Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir.2012) (quoting Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991)). The moving party has the burden of demonstrating entitlement to a stay. Id. (citing Overstreet v. Lexington-Fayette Urban Cnty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002)).
With respect to the first factor, DOJ has presented persuasive arguments in support of its contention that Free Press I should be reconsidered en banc. Despite this, en banc hearings and rehearing are "not favored[.]" Fed. R.App. P. 35(a). Accordingly, the Court finds that the first factor is neutral.
The second factor does not fit the circumstances of this case very well. Because the photographs were taken in the Sixth Circuit and the prosecutions took place in a district embraced by the Sixth Circuit, DOJ does not face the Catch-22 described elsewhere in this Opinion and Order. In other words, DOJ does not face the potential of violating its Privacy Act obligations by releasing the photographs because Exemption 7(C) does not authorize nondisclosure in the Sixth Circuit. However, the subjects of the four booking photographs may be irreparably harmed absent the granting of a stay. This is particularly true because as of the date of this Opinion and Order, all four defendants have entered guilty pleas and all but one has commenced serving his sentence. Case No. 13-20212 (last guilty plea entered on March 11, 2014, officially closing the case). If the Sixth Circuit ultimately agrees with the Tenth and Eleventh Circuits, the disclosure of the booking photographs may harm the four subjects thereof.
Turning now to the third factor, the Court does not believe that granting the stay would harm others. This belief is rooted in part in the Court's recognition that Free Press I specifically declined to address "whether the release of a mug shot by a government agency would constitute an invasion of privacy in situations involving dismissed charges, acquittals, or completed criminal proceedings." 73 F.3d at 97. As mentioned, since the institution of this action, all four Highland Park police officers have pleaded guilty and judgment has been entered. Although Free Press had a right to the photographs pursuant to Sixth Circuit precedent, the public interests it asserts in support of its position that Free Press I was correctly decided would not be furthered by the release of the photographs at this time. (Pl.'s Br. 23-24.)
The last factor involves the public's interest in granting a stay, which the Court touched upon above. While the public has an interest in DOJ adhering to law as articulated by the Sixth Circuit and this undercuts the propriety of granting the stay, the Court does not believe that the
In sum, while the Court does not endorse DOJ's conduct, which, as this Court has stated numerous times herein, was in violation of Sixth Circuit precedent, the Court does not believe that further delay in obtaining the photographs will harm cause any harm to either Free Press or the public. Accordingly, although DOJ must release the requested photographs, the Court grants DOJ's request to stay this order pending appeal.
Free Press asks this Court to award attorney's fees and costs for DOJ's FOIA violation. Instead of arguing why such an award is proper in this case, Free Press relies on Judge Taylor's award of fees in both Free Press I (which the Sixth Circuit affirmed) and Free Press II, as well as Judge Dowd's decision awarding fees and costs in Beacon Publishing. In the two latter decisions, DOJ explicitly acknowledged that the refusal to disclose the requested booking photographs was a violation of the FOIA.
Similar to Free Press's briefs, DOJ's briefs are strikingly silent as to why it believes that the imposition of fees is not merited in this case. DOJ appears to acknowledge that its course of conduct in invoking Exemption 7(C) is incompatible with the court's holding in Free Press I. It follows that DOJ implicitly acknowledges that it violated the FOIA as interpreted in the Sixth Circuit.
The FOIA, as amended by the OPEN Government Act of 2007, Pub.L. No. 110-175, 121 Stat. 2524 (2007), provides a "court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i). "[A] complainant has substantially prevailed if the complainant has obtained relief through ... a judicial order, or an enforceable written agreement or consent decree[.]" Id. at § 552(a)(4)(E)(ii)(I).
Although the OPEN Government Act permits courts to assess fees and costs in a case such as this where the complainant, here Free Press, has obtained a judicial order, the language is not obligatory. Id. Accordingly, the Court turns to the factors district courts are to consider in determining whether a prevailing FOIA complainant should be awarded attorney's fees. Free Press I, 73 F.3d at 98. These factors include: "`the benefit to the public deriving from the case; the commercial benefit to the complainant and the nature of its interest in the records; and whether the agency's withholding had a reasonable basis in law.'" Id. (quoting Am. Commercial Barge Lines Co. v. NLRB, 758 F.2d 1109, 1111 (6th Cir.1985)).
The Court does not believe that the newspaper's request of the booking photographs at issue was of benefit to the public.
The second factor district courts are to consider is "`the commercial benefit to the complainant and the nature of its interest in the records[.]'"
Lastly, the Court examines "`whether the agency's withholding had a reasonable basis in law.'" Id. (quoting Am. Commercial Barge Lines, 758 F.2d at 1111). On this point, the balance could fairly tilt in either direction. On the one hand, Sixth Circuit precedent provides Free Press with a right to the four requested photographs. On the other hand, DOJ's withholding does have a reasonable basis in law, just not the law of the Sixth Circuit.
This Court is cognizant of the fact that in order to change the law, DOJ must appeal to a higher authority, whether that authority is the Supreme Court or the Sixth Circuit sitting en banc. Obviously, review in the Supreme Court is discretionary. Thus, review in the Sixth Circuit may be DOJ's best option. Standing alone, however, that is not enough for this Court to find that this factor weighs in DOJ's favor.
Accordingly, the Court will award attorney's fees and costs to Free Press should it prevail on appeal or in the event that an
For the reasons stated herein, the Court concludes that DOJ, acting through USMS, violated the FOIA as interpreted by the Sixth Circuit.
Accordingly,
Both exemptions referenced in this footnote protect personal privacy interests, although, "Exemption 7(C) is more protective of privacy than Exemption 6[.]" U.S. Dep't of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 496 n. 6, 114 S.Ct. 1006, 1013 n. 6, 127 L.Ed.2d 325 (1994) (explaining that these exemptions "differ in the magnitude of the public interest that is required to override the respective privacy interests protected by the exemptions[]").
In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee[.]
5 U.S.C. § 552(a)(4)(G). The language of this provision is discretionary and does not appear to expand the Court's inherent power to punish by way of contempt. Cf. Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 18 n. 18, 94 S.Ct. 1028, 1037 n. 18, 39 L.Ed.2d 123 (1974) (noting that a Senate Report discussing the FOIA's contempt provision states, "This is another addition which has been made to avoid any possible misunderstanding as to the courts' powers[]") (citing S.Rep. No. 1219, 88th Cong., 2d Sess., 7 (1964)); id. at 20, 94 S.Ct. at 1038 ("With the express vesting of equitable jurisdiction in the district court by § 552(a), there is little to suggest ... that Congress sought to limit the inherent powers of an equity court.").
