Benavides v. Drug Enforcement Admin., 90-5344
| Decision Date | 20 October 1992 |
| Docket Number | No. 90-5344,90-5344 |
| Parties | Eduardo M. BENAVIDES, Appellant, v. DRUG ENFORCEMENT ADMINISTRATION, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Elizabeth M. Brown, with whom Frederick C. Schafrick (appointed by the Court) was on the brief, for appellant. Eduardo M. Benavides, pro se, also entered an appearance for appellant.
John C. Martin, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates, and R. Craig Lawrence, Asst. U.S. Attys., were on the brief, for appellee.
ON APPELLEE'S PETITION FOR REHEARING
Before: MIKVA, Chief Judge; and D.H. GINSBURG and SENTELLE, Circuit Judges.
Opinion for the Court filed PER CURIAM.
We determined this Freedom of Information Act ("FOIA") case in our prior opinion, Benavides v. Drug Enforcement Administration, 968 F.2d 1243 (1992), reversing summary judgment for the Drug Enforcement Administration (DEA) and remanding to the district court with instructions to determine anew the applicability of 5 U.S.C. § 552(c)(2) ("s (c)(2)"). The DEA now petitions for rehearing, asking not that we change the result, but that we modify the supporting opinion, as, in the Administration's view, it creates an incorrect precedent as to the meaning of § 552(c)(2), a statute without previous authoritative judicial construction. Because the government's petition advances, albeit belatedly, arguments which do place our construction in doubt, and because the tardy arguments do not change the result in this case, we allow the motion to the limited extent reflected in this opinion.
The factual background of this case is set forth in our prior opinion. We will, therefore, make only such minimal factual reference as is necessary to lend an understanding of this revision. In the original opinion, we reviewed a summary judgment based on a district court's holding that FOIA exemptions 7(C) and 7(D) (5 U.S.C. §§ 552(b)(7)(C) & (D)) protected records concerning the alleged confidential informant status of two witnesses against Benavides in his previous narcotics related criminal trial. The Administration had issued a response to Benavides' original FOIA request, stating that it had "located no records which are responsive" to the request. In the ensuing litigation, a DEA attorney advisor "said that DEA's initial response to the FOIA request was wrong, and that the agency should have advised Mr. Benavides that it could neither confirm nor deny the existence of any responsive records." 968 F.2d at 1245. As we noted in our original opinion, this "neither confirm nor deny" response is popularly referred to as a "Glomar response" after Phillippi v. Central Intelligence Agency, 546 F.2d 1009 (D.C.Cir.1976), which concerned a FOIA request for records of the "Glomar Explorer."
Benavides argued before us that the district court erred by failing to address 5 U.S.C. § 552(c)(2), which renders records concerning informants "not subject to the requirements of this section unless the informant's status as an informant has been officially confirmed." The Administration continued to argue that a Glomar response was appropriate. We construed the phrase "not subject to the requirements of this section" to permit a Glomarization where the informant's status has not been officially confirmed, but to permit analysis under other exemptions like that afforded any other document sought under FOIA, where the status has been so confirmed.
On August 14, after the June 30 issuance of our previous opinion, the Justice Department filed on behalf of the Administration the present petition for rehearing. In that petition, the government advances for the first time before this Court the position that, where there is no issue of official confirmation of informant status, the proper...
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