NEW YORK CITY – U.S. District Judge Vernon Broderick ordered the Department of Justice to identify a former U.S. attorney who resigned while under investigation for sexual misconduct.
“Such misconduct can hardly be considered personal conduct unrelated to an official’s public duties such that it would prevent disclosure,” Broderick wrote in a March 11 order.
He ruled that the department must also identify the U.S. attorney’s sexual partner in the office, a supervisory assistant U.S. attorney.
Broderick set an April 12 deadline for the department to give names to a reporter for Buzzfeed, which sought disclosure in a Freedom of Information lawsuit.
Details sought by reporter Zoe Tillman would shed light on the misconduct of managers, its effect on their ability to fulfill their responsibilities, and its effect on office operations, Broderick wrote.
Tillman had tried to obtain names since May 2017, when the inspector general posted a summary of a misconduct report.
The Record also had requested a copy of the report, which was provided, though heavily redacted.
The summary stated that the inspector general substantiated allegations of an inappropriate relationship and the U.S. attorney admitted them.
It also stated that the U.S. attorney gave an appearance of impartiality and created a difficult work environment; violated executive branch standards and federal ethics regulations; possibly violated sexual harassment regulations and policy and retired from federal service following initiation of an investigation.
According to court documents, Tillman argued for unredacted misconduct report records stating they “are of immense public interest because they relate to actual findings of misconduct by senior level Justice Department officials.”
Tillman asserted public interest in knowing if or how the individuals misused funds, abused power, or gave each other preferential treatment.
She asserted public interest in the investigation, “especially in light of the sheer number of witnesses alleging a hostile environment.”
Sean O’Neill, of the administrative appeals staff of the Inspector General’s office, found Tillman’s request an unwarranted invasion of privacy.
Buzzfeed then sued for an injunction at district court in New York on Oct. 16, 2017.
Its lawyers Nabiha Syed and Matthew Schafer wrote that the inspector general detailed a relationship that created an unbearable atmosphere and resulted in disparate treatment regarding bonuses and discipline.
Acting U.S. attorney Joon Kim answered that the redacted portions were exempt from disclosure.
He asked the court to dismiss the complaint with prejudice.
Last March, U.S. attorney Geoffrey Berman moved for summary judgment.
Assistant U.S. attorney Arastu Chaudhury wrote, “The substantiated misconduct here is of a personal nature, unrelated to a core job function.”
Chaudhury wrote that the goal of the Freedom of Information Act was satisfied by release of the report about the affair.
He wrote that further disclosure would only embarrass the individuals involved.
“If either name is released, it will greatly increase the likelihood that both the public and those close to the situation will be able to identify others referenced in the report,” he wrote.
“The privacy of third parties is therefore intertwined with the identity of the former U.S. attorney and supervisory assistant U.S. attorney.”
While the relationship might have had collateral effect at work, “it is primarily a personal matter,” he wrote.
He wrote that the supervisor was not found culpable and her rank was not high enough to outweigh her privacy.
Responding for Buzzfeed, Syed and Schafer wrote that the inspector general found systemic issues in handling allegations of sexual misconduct.
From 2012 to 2016, one fifth of the inspector general’s reports related to mishandling of allegations, they wrote. And, according to interviews with 17 personnel and review of documents, the affair was obvious.
Employees said it created a hostile environment because they couldn’t report issues with the supervisor, and it was so open and ongoing that eventually special agents and members of federal court discussed it, they wrote.
How institutions respond to allegations is a central debate, they wrote.
“That is exactly what this case is about,” they wrote.
Even the subject of the investigation knew the executive office of U.S. attorneys would have asked for his resignation if they had known about the affair, they wrote.
They asserted public interest in a comprehensive investigation, an accurate report, adequate discipline, and dealing with those accountable in an appropriate manner.
In response, Chaudhury wrote that the conduct at issue didn’t implicate core statutory responsibilities of a U.S. attorney.
“Simply because coworkers learn of the affair and become uncomfortable or unable to express their concerns, does not transform that conduct into something other than personal conduct,” Chaudhury wrote.
Chaudhury cited differences between this case and one Buzzfeed cited, writing that this one didn’t involve a high level, widely publicized political corruption scandal.
He wrote the target of the investigation is not publicly known and has made no public statements regarding the investigation.
He wrote that the inspector general released a substantial amount of information.
In reply, Syed and Schafer wrote that knowing the identities of government wrongdoers ensures public accountability for actions as public servants.
“This is fundamental to the purpose animating the Freedom of Information Act, not morbid curiosity,” they wrote.
They further wrote that Buzzfeed has no idea whether the office was handling high profile cases while juggling internal upheaval, who filled the office and how that person addressed the toxic culture, if the bar took any disciplinary action or if the U.S. attorney has served in another government position.
“Resignation does not evaporate the public interest,” they wrote.
And, by all appearances, the supervising employee remains employed, something the public has an ongoing interest in knowing her identity and whether she maintains a supervisory role, they wrote.
Broderick resolved it on March 11, starting with a precedent that strong evidence of a serious offense weighs in favor of disclosure.
“Contrary to the government’s contention, the wrongdoing at issue here clearly implicated the core responsibilities of the U.S. attorney as the chief federal law enforcement officer and head of his judicial district,” he wrote.
Actions of the U.S. attorney and the supervisor led to complaints and could have led to lawsuits, he wrote, adding that the relationship was so open and obvious that it caused employees to feel powerless, embarrassed, and distracted.