Pugh v. Fed. Bureau of Investigation, Civil Action No. 10–1016 (RLW).

• Decision Date: 23 June 2011
• Docket Number: Civil Action No. 10–1016 (RLW).
• Citation: 793 F.Supp.2d 226
• Parties: Madison PUGH, Plaintiff,v.FEDERAL BUREAU OF INVESTIGATION, Defendant.
• Court: U.S. District Court — District of Columbia

793 F.Supp.2d 226

Madison PUGH, Plaintiff,

v.FEDERAL BUREAU OF INVESTIGATION, Defendant.

Civil Action No. 10–1016 (RLW).

United States District Court, District of Columbia.

June 23, 2011.

Madison Pugh, Terre Haute, IN, pro se.Josh Hildreth, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

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”).¹ This matter is before the Court on defendant's motion to dismiss or, in the alternative, for summary judgment. For the reasons discussed below, the motion will be granted.

I. BACKGROUND

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 the FBI seeking the identities of these two confidential informants, designated CS 4 and CS 5, who allegedly supplied information to Special Agent Hummel. See Mem. of P. & A. in Supp. of Def.'s Mot. to Dismiss or, in the Alternative, for Summ. J. (Def.'s Mem.), Decl. of David M. Hardy (“Hardy Decl.”) ¶¶ 5, 8, 13–14. As an example, plaintiff's first request read:

SPECIFICLY [sic] THE IDENTIFICATION OF DEA (SA) JAMES HUMMEL'S CONFIDENAL [sic] SOURCES NO. 4 AND 5 AS MENTION [sic] AS TO HAD PROVIDED INFORMATION RELATING TO MADISON PUGH IN AGENT HUMMEL'S 1995 AFFIDAVIT [illegible] 5:95–0511 IN THE CLEVELAND DISTRICT COURT. C.S. 4 AND 5 STATEMENTS APPEAR ON PAGES 12, 13, AND 14 OF SAID AFFIDAVIT. THESE STATEMENTS ARE RELATED DIRECTLY TO THE REQUESTER. NO OTHER INFORMATION OTHER THAN THESE NAMES IS NEEDED!!

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.” ² Id. at 2. In this FOIA action, he “requests release of the requested documents.” ³ Id. at 3.

II. DISCUSSION

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).⁴ “[T]he 7(C) exemption recognizes the stigma potentially associated with law enforcement investigations and affords broader privacy rights to suspects, witnesses, and investigators.” Bast v. U.S. Dep't of Justice, 665 F.2d 1251, 1254 (D.C.Cir.1981); Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 91–92 (D.C.Cir.1984) (noting individuals' “strong interest in not being associated unwarrantedly with alleged criminal activity”); see also Holt v. U.S. Dep't of Justice, 734 F.Supp.2d 28, 44 (D.D.C.2010) (affirming agency decision to withhold names, telephone numbers, dates of birth, and nickname of persons who provided information to law enforcement officers and persons “only incidentally mentioned” in law enforcement records, citing “the stigma of being associated with any law enforcement investigation”).

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.” ⁵ Def.'s Mem., Hardy Decl. ¶ 32; see id. ¶¶ 6, 9, 15–16. In these circumstances, “the FBI's policy is to neither confirm nor deny that it has responsive records unless the requester provides a notarized authorization (privacy waiver) from the third party, provides proof of death, or demonstrates a public interest in the records that is sufficient to outweigh that third party's individual privacy rights.” Id. ¶ 32. This so-called Glomar response is designed to “protect the privacy rights of individuals, particularly those who appear in FBI files.” ⁶ Id. The FBI's declarant explains:

An individual's association with a criminal investigation, as a suspect, victim, witness or source, tends to stigmatize that individual. Even if the individual was a witness on the record, an official acknowledgment of that association with an investigation is likely to lift that association out of practical obscurity (particularly if the testimony occurred a significant number of years ago) and into the forefront of public awareness, further aggravating the stigma associated with such a disclosure. Accordingly, the FBI considers acknowledging the existence of investigatory records pertaining to an individual without [his] consent, proof of death or a showing of public interest as constituting a clearly unwarranted ... invasion of personal privacy.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...