ROBERT L. WILKINS, District Judge.
Plaintiff brings this action under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, against the Federal Bureau of Investigation ("FBI").
Plaintiff was convicted of conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846, and currently is serving a term of life imprisonment. See United States v. Pugh, No. 96-3954, 1998 WL 165143, at *1 (6th Cir.1998). Federal agents arrested him after "execut[ing] several search warrants, including a warrant executed at [plaintiff's] residence" in Akron, Ohio. Id. Special Agent James Hummel of the Drug Enforcement Administration ("DEA") apparently obtained the search warrant for plaintiff's residence based on information provided by two confidential informants. See Memorandum of Opinion and Order Denying Petitioner's Rule 60(b) Motion, Pugh v. United States, No. 1:99cv1546 (N.D.Ohio Aug. 20, 2004) at 3.
Between June 2006 and June 2009, plaintiff submitted four FOIA requests to
Id., Hardy Decl., Ex. A (Freedom of Information/Privacy Act Request dated June 5, 2006) (emphasis in original). On each occasion, the FBI declined to process the request without proof of the third parties' death or a privacy waiver. Id., Hardy Decl. ¶¶ 6, 9, 15-16; see id., Ex. B, E and K (Letters to plaintiff from D.M. Hardy, Section Chief, Records Information and Dissemination Section, Records Management Division, FBI, dated, respectively, April 17, 2007, June 7, 2007, and August 13, 2009). Rather, the FBI neither confirmed nor denied the existence of records responsive to the requests. See, e.g., id., Hardy Decl., Ex. B ("This response should not be considered an indication of whether or not records responsive to [plaintiff's] request exist in FBI files."). Even if such records existed, the FBI asserted that the information would be exempt from disclosure under FOIA Exemptions 6 and 7(C). See id., Hardy Decl. ¶¶ 6, 9, 15-16. Plaintiff pursued administrative appeals, id. ¶¶ 7, 10 and 17, without success, id. ¶¶ 12, 22; see id., Ex. H and Q (Letters to plaintiff from J.G. McLeod, Associate Director, Office of Information and Privacy, dated, respectively, October 17, 2007 and February 22, 2010).
Plaintiff alleges that the refusal to disclose the requested information deprives him of rights guaranteed by the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Compl. at 1-2, and has "result[ed] in the imprisonment of an actually innocent human being."
A. Summary Judgment in a FOIA Case
"If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact ..., the court may ... grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it." FED.R.CIV.P. 56(e). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[A] material fact is `genuine' ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on an element of the claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir. 1992).
In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations if they are relatively detailed and when they describe "the documents and the justifications for nondisclosure with reasonably specific detail ... and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). Agency affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by `purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C.Cir.1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C.Cir.1981)).
B. The FBI Properly Responded to Plaintiff's FOIA Requests
Exemption 7(C) protects "records or information compiled for law enforcement purposes, but only to the extent that the [their] production ... could reasonably be expected to constitute an unwarranted invasion of personal privacy[.]" 5 U.S.C. § 552(b)(7)(C).
The FBI asserts, and plaintiff does not dispute, that the FBI is a law enforcement agency and that the records at issue, if any, were compiled for law enforcement purposes. The FBI's declarant states that plaintiff "was investigated by the FBI, and subsequently [was] convicted" of drug-related offenses. Def.'s Mem., Hardy Decl. ¶ 26. He represents that CS 4 and CS 5 "served as confidential informants for the DEA and that information provided to the DEA was, in turn, provided to the FBI." Id. Accordingly, "[a]ny records the FBI would have related to these individuals in that capacity, if such records even exist, would have been specifically compiled for law enforcement purposes and would relate directly to, and would be a product of, the FBI's investigation of violations of the United States Code for which the FBI has investigative responsibility." Id.
The FBI construed plaintiff's requests as "requests which seek access to investigatory records concerning a third party."
Id. If a requester does not submit a privacy waiver or proof of death, in deciding whether to release third party information, "the FBI next conducts a balancing test to determine if the alleged public interest outweighs the privacy interests of the third party whose records are being requested." Id. ¶ 33.
In this case, because plaintiff submitted neither privacy waivers nor proof of death for CS 4 and CS 5, the FBI "had to determine whether the plaintiff's asserted public interest in disclosure of these records outweighed the privacy interests" of these individuals. Def.'s Mem., Hardy Decl. ¶ 34. "Inherent in [the FBI's] `Glomar' response [was] its conclusion that the privacy interests of these two individuals outweighed any public interest in disclosure, which plaintiff failed to articulate in any event." Id.
Plaintiff responds by asserting a public interest in "the government's integrity" arising from the alleged "practice of hiding evidence and convicting innocent people." Pl.'s Opp'n [Dkt. # 15] at 3; see id. at 12. Plaintiff opines that CS 4 is Demetrius Parker, see id. at 8-9, and that the information Parker provided to Special Agent Hummel "was lacking in truthfulness." Id. at 9. Specifically, plaintiff alleges that Parker "falsely attributed" ownership of 5 kilograms of cocaine to plaintiff and that Special Agent Hummel failed to advise the magistrate judge of this error, resulting in the issuance of a search warrant based on a false affidavit. Id. at 10. In addition, plaintiff asserts that CS 4 and CS 5 "both testified during trial," and thus "they could not reasonably expect confidentiality." Id. at 11. Neither argument has any basis in governing law.
"[W]hether disclosure of a ... document under Exemption 7(C) is warranted must turn on the nature of the requested document and its relationship to the basic purpose of the [FOIA] to open agency action to the light of public scrutiny rather than on the particular purpose for which the document is being requested." U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)) (internal quotation marks omitted). A requester might overcome an individual's privacy interests if, for example, he offers "compelling evidence that the agency denying the FOIA request is engaged in illegal activity." Computer Professionals for Social Responsibility v. U.S. Secret Serv., 72 F.3d 897, 905 (D.C.Cir.1996) (quoting Davis v. Dep't of Justice, 968 F.2d 1276, 1282 (D.C.Cir.1992)). Plaintiff's unsupported assertion of government wrongdoing is far less than is needed to demonstrate "that the public interest sought to be advanced is a significant one," and that release of the requested information "is likely to advance that interest." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004).
Moreover, it appears that the disclosure of the informants' identities promotes plaintiff's private interest, not the general public's interest in the FBI's performance of its law enforcement functions. According to plaintiff, the FBI's "refusal to release requested documents" makes it "responsible for violating the plaintiff's right to due process, actual innocence, due process of exculpatory evidence, 8th amendment right from cruel and unusual punishment, 6th amendment right of confrontation and compulsory due process and equal protection rights to meaningful ac[c]ess to the courts." Pl.'s
Plaintiff cannot overcome the informants' privacy interests by claiming that he already knows their identities. See Wiggins v. Nat'l Credit Union Admin., No. 05-2332, 2007 WL 259941, at *8 (D.D.C. Jan. 30, 2007) (rejecting requester's challenge to Glomar response notwithstanding fact that "some of the third party information was disclosed at [his] criminal trial"); Fischer v. U.S. Dep't of Justice, 596 F.Supp.2d 34, 48 (D.D.C.2009) (affirming FBI's Glomar response to request for records pertaining to third parties involved in requester's criminal trial, including cooperating witnesses); Butler v. Drug Enforcement Admin., No. 05-1798, 2006 WL 398653, at *4 (D.D.C. Feb. 16, 2006) (upholding a Glomar response even though third parties were known to requester and testified at his criminal trial). Nor does the passage of time diminish their privacy interests. See Halpern v. Fed. Bureau of Investigation, 181 F.3d 279, 297 (2d Cir.1999).
For the reasons discussed herein, the Court concludes that the FBI properly construed plaintiff's FOIA request as one for third-party information maintained in law enforcement records and that its Glomar response was proper under the circumstances. Accordingly, defendant's motion to dismiss and for summary judgment will be granted. An Order is issued separately.
28 C.F.R. § 16.3(a).