Ben Baker v. Federal Bureau of Investigation

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-4188
BEN BAKER ,
Plaintiff-Appellant,
v.
F EDERAL B UREAU OF I NVESTIGATION ,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 9416 — Samuel Der-Yeghiayan, Judge.
____________________
A RGUED M AY 19, 2017 — DECIDED J ULY 12, 2017
____________________
Before WOOD, Chief Judge, and P OSNER and K ANNE, Cir-
cuit Judges.
POSNER , Circuit Judge. This 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 ob-
tain all records connected to an investigation in which he
was interested, but the FBI gave him only redacted records,

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2 No. 16-4188
and so now he seeks disclosure of the redacted (i.e., hidden
from him) names.
The records he sought and seeks involve an FBI investi-
gation of a protection racket run by two Chicago police of-
ficers, Ronald Watts (a police sergeant) and Kallatt Moham-
med, 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 sen-
tence of 22 months to be followed by a year of supervised
release; he resigned from the Chicago police force.
The FBI 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 of-
ficers who were investigated in connection with the racket
but not charged. He contends that Watts’s very light sen-
tence relative to the magnitude of his criminal activity (Mo-
hammed, 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 indig-
nant 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 re-
ceived so short a sentence, though since the guidelines sen-

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No. 16-4188 3
tence for Watts’s crime was only 10 to 16 months he actually
received an above-guidelines sentence.
The FBI resisted Baker’s demand to open up the entire
investigatory and prosecutorial campaign against the protec-
tion racket, by invoking two exemptions found in the Free-
dom of Information Act. One exempts from mandatory dis-
closure “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 rea-
sonably be expected to constitute an unwarranted invasion
of personal privacy.” § 552(b)(7)(C).
The two exemptions differ only slightly, and Baker con-
cedes that the differences are not relevant to his appeal. De-
ciding whether either exemption applies requires balancing
the privacy interests of the affected persons against the pub-
lic interest in the disclosure of the information. See U.S. De-
partment 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 iden-
tifying 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 un-
fairly stigmatize those officers. And the FBI did after all give
Baker records of investigatory activity relating to the prose-
cution of Watts and Mohammed, albeit without naming any
of the personnel involved in that activity.

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4 No. 16-4188
The FBI’s personal-privacy arguments, although they are
weighty, could be overcome by proof that the requested dis-
closure would be in the public interest to a degree outweigh-
ing privacy concerns. Baker’s principal contention is that the
single count brought against Watts—resulting in a corre-
spondingly 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 indiffer-
ence, lack of attention to the seriousness of the problem, or
worse.
He wonders whether the FBI, which was deeply involved
in the investigation, assigned its most experienced and ca-
pable agents to the Watts case. But the FBI is purely an in-
vestigatory 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 plau-
sible 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 inves-
tigation 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 far-
fetched.
As for the names of the Chicago officers who either as-
sisted the FBI or were investigated but not charged, Baker
argues that, under Illinois law, Illinois public officials have

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No. 16-4188 5
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 Illi-
nois’s Freedom of Information Act; it provides that “Person-
al information contained within public records, the disclo-
sure of which would constitute a clearly unwarranted inva-
sion 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 in-
vasion of personal privacy.” Baker gives us no reason to be-
lieve that the Illinois Act determines the scope of FOIA ex-
emptions, 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 with-
out conferring an offsetting public benefit and would thus be
an unwarranted invasion of their personal privacy.
Last 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 ex-
tensive records that it had refused to produce until he sued.
See Batton 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 at-
torneys’ 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).
But for the reasons explained earlier the district court’s
grant of summary judgment in favor of the defendant is
A FFIRMED.

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