PUBLISHED:November 11, 2021

DOJ withholding public records in violation of FOIA, says Garrett's collaborator in Duke-UVA Corporate Prosecution Registry

Professor Brandon Garrett Professor Brandon Garrett

By Justin Wise

This article was published in Law360 Nov. 9, 2021 

University of Virginia law librarian is suing the U.S. Department of Justice in D.C. federal court in an effort to compel the agency to cough up records associated with the non-prosecution agreements it has reached with some corporations.

In an eight-page complaint filed Friday, Jonathan Ashley asserted the DOJ was withholding public records in violation of the Freedom of Information Act and asked the court to order their release.

Ashley, who helps maintain an online resource that includes a collection of corporate prosecution agreements, is seeking a list of deferred and non-prosecution agreements the DOJ has reached with companies since 2009. He also is seeking copies of the non-prosecution agreements involving 12 companies, including Unitrans International Inc. and Zurich Life Insurance Company Ltd.

Deferred and non-prosecution agreements are pretrial diversion vehicles the DOJ sometimes uses under its enforcement authority. In non-prosecution agreements, the DOJ refrains from filing charges to allow the company to implement certain reforms and demonstrate good behavior.

The online database Ashley created, in tandem with Duke University law professor Brandon L. Garrett, formerly of UVA law, "provides the public a meaningful opportunity to scrutinize the terms of these agreements," the lawsuit argued. "Further, disclosure is in the government's interest since public availability dispels any myths or false allegations regarding the content of the prosecution agreement."

The Justice Department did not immediately respond to a request for comment from Law360 Tuesday. 

Ashley, a business research librarian, said more than 18 months have gone by since he submitted separate FOIA requests for documents to the DOJ and Executive Office of U.S. Attorneys. He noted that he filed administrative appeals in September 2020 but has received no communication outside a confirmation the request was received.

Ashley told Law360 in a phone interview Tuesday that the latest records request is tied to his and Garrett's efforts to continually update their Corporate Prosecution Registry. 

The two created the online database hosted by the UVA School of Law library "given the importance of federal prosecutions of organizations," according to the suit, and the site as of August included more than 350 deferred prosecution and non-prosecution agreements. The suit noted that Ashley knew about the existence of the non-prosecution agreements he asks for records on based on DOJ press releases. 

Prosecutors have mostly averaged between 20 and 40 corporate deferred and non-prosecution agreements each year since 2005, according to data from Gibson Dunn & Crutcher LLP in a July client alert. The outlier is 2015, when 102 deferred and non-prosecution agreements were reached. Eighteen agreements had been made through July 22, in line with recent mid-year marks, according to the firm. 

Ashley is represented by Gabriel Rottman of the Reporters Committee for Freedom of the Press.

Counsel information for the DOJ was not immediately available.

The case is Ashley v. U.S. Department of Justice, case number 1:21-cv-02923, in the U.S. District Court for the District of Columbia.

--Editing by Janice Carter Brown.