Rahim v. Fed. Bureau of Investigation, Civil Action No. 11–2850.
| Decision Date | 31 May 2013 |
| Docket Number | Civil Action No. 11–2850. |
| Citation | 947 F.Supp.2d 631 |
| Parties | Malik RAHIM, Plaintiff v. FEDERAL BUREAU of INVESTIGATION, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Louisiana |
OPINION TEXT STARTS HERE
Davida Finger, William Patrick Quigley, Loyola Law School Clinic, Miles W. Swanson, Sara H. Godchaux, Attorney at Law, New Orleans, LA, Sunita Patel, Center For Constitutional Rights, New York, NY, for Plaintiff.
Elizabeth Shapiro, Bradley Philip Humphreys, U.S. Department of Justice, Washington, DC, Brock Darren DuPre, U.S. Attorney's Office, New Orleans, LA, for Defendants.
ORDER AND REASONS
Before the Court is a motion for summary judgment filed by Defendants, the U.S. Department of Justice (“DOJ”) and the Federal Bureau of Investigation (“FBI”) (together, “Defendants”).1 Plaintiff, Malik Rahim (“Plaintiff”), opposes the motion.2 For the following reasons, the motion is GRANTED in all respects.3
Hurricane Katrina made landfall in Louisiana on August 29, 2005. In the days following the storm, Plaintiff, with others, founded Common Ground Relief (“CGR” or “the organization”) in order to provide short-term relief to Gulf Coast storm victims, as well as long-term support for rebuilding communities in the greater New Orleans, Louisiana area. According to Plaintiff, Brandon Darby (“Darby”) began working with CGR shortly after its formation in the fall of 2005 and remained an active member in the organization until some time in 2008.
Thereafter, Darby wrote an open letter in December 2008, which was posted on an Internet website, revealing that he had served as an informant for the FBI. A few weeks later, the criminal prosecution of David McKay (“McKay”)—who faced domestic terrorism charges relating to the 2008 Republican National Convention in St. Paul, Minnesota—proceeded to trial in the U.S. District Court for the District of Minnesota on January 26, 2009.4 At trial, Darby testified against McKay as a government witness and confirmed that he became an FBI informant in November 2007.5
Approximately one month later on February 24, 2009, Plaintiff submitted a Freedom of Information Act () request to the FBI seeking “documents and things pertaining to Malik Rahim or his organization Common Ground Relief, from 2005 through the present.” 6 Plaintiff indicated he sought records regarding “[s]urveillance, investigation, use of informants and agents, planting or gathering ‘evidence’ and any other activities pertaining to Malik Rahim, including but not limited to all such documents and things pertaining to Mr. Rahim and the following: The organization Common Ground Relief, based in New Orleans, Louisiana: and/or Any and all others associated with Common Ground Relief; and/or Mr. Brandon Darby.” 7 According to Plaintiff, he sought this information “to confirm details related to Darby's work as a government informant during the time he spent in New Orleans with Common Ground and discover the nature of the information provided to the government.” 8 On March 3, 2009, the FBI requested Plaintiff provide his middle name and date of birth to facilitate the records search. Counsel for Plaintiff provided such information to the FBI via e-mail on March 9, 2009.
By letter dated March 17, 2009, the FBI acknowledged receipt of Plaintiff's FOIA request regarding records about himself and CGR, assigned it Request No. 1127584–000, and informed him that the FBI was “searching the indices to [its] central records system at FBI Headquarters for the information [he] requested.” 9 By separate letter also dated March 17, 2009, the FBI further informed Plaintiff that it was unable to respond to his FOIA request “for records maintained by the FBI concerning” Darby at that time, as the nature of Plaintiff's request—given that he sought documents regarding a third party—first required him to submit “either proof of death or a privacy waiver from the subject of [his] request” before the FBI could respond.10 The letter explained that [w]ithout proof of death or a privacy waiver, the disclosure of third-party information contained in law enforcement records, should they exist, is considered both a clearly unwarranted invasion of privacy pursuant to Exemption (b)(6), 5 U.S.C. § 552(b)(6), and an unwarranted invasion of personal privacy, pursuant to Exemption (b)(7)(C), 5 U.S.C. § 522(b)(7)(C). 11
This type of response is known as a “ Glomar response.” See Phillippi v. Central Intelligence Agency, 546 F.2d 1009 (D.C.Cir.1976).12 A privacy waiver was enclosed with the letter.13
By letter dated June 15, 2009, the FBI informed Plaintiff that an analyst was reviewing Plaintiff's request for documents regarding himself and CGR and that he could “inquire as to the status of [Request No. 1127584–000] by calling the FBI's FOIPA Public Information Center at 540–868–4593.” 14
By letter dated July 30, 2009, Plaintiff submitted an “amended” FOIA request asking for the same records regarding Plaintiff, CGR and Darby as identified in his original February 24, 2009 request, and specified that he was seeking “Main names and/or files; Cross-referenced names and/or files; Field office records and/or files; [and] Any and all paper records.” 15 By separate letter also dated July 30, 2009, Plaintiff appealed the FBI's decision regarding records pertaining to Darby 16 to the DOJ's Office of Information and Privacy (“OIP”), arguing that “Darby took part in a government impropriety [when] working as an FBI spy and provocateur within Common Ground Relief, and act of such public concern as to overcome personal privacy exemptions.” 17 In support of his appeal, Plaintiff cited Darby's open letter and several news articles regarding Darby's work as an FBI informant in the McKay case. According to Plaintiff, the FBI could not justify withholding the requested documents under exemptions 6 and 7(C) due to Darby's alleged privacy interests because Darby had “thrust himself into the public eye, thus diminishing his expectation of privacy.” 18 Plaintiff further argued that the “courts have long held that the core purpose of FOIA is to protect citizens' right ‘to be informed about what their government is up to’ ” and that the “public has a significant interest in knowing to what extent [Darby] took active measures to disrupt [Plaintiff's] and Common Ground Relief['s] work.” 19
By letter dated August 18, 2009, OIP acknowledged Plaintiff's appeal and assigned it appeal No. 09–2424. By letter dated September 25, 2009, OIP affirmed the FBI's denial because “[w]ithout [Darby's] consent, proof of death, official acknowledgment of an investigation, or an overriding public interest, confirming or denying the existence of records [Plaintiff] requested would constitute a clearly unwarranted invasion of personal privacy, and could reasonably be expected to constitute an unwarranted invasion of privacy under” FOIA exemptions 6 and 7(C).20 OIP informed Plaintiff that if he was unhappy with the outcome of his appeal, he could file a lawsuit pursuant to 5 U.S.C. § 552(a)(4)(B).
The FBI responded to Plaintiff's request for records about himself and CGR by letter dated November 16, 2009, stating that it had reviewed twenty-five pages of records responsive to Plaintiff's request as to himself and the organization. The FBI released all twenty-five pages to Plaintiff, with certain personally identifying information redacted pursuant to FOIA exemptions 2, 6, and 7(C). The FBI's letter also informed Plaintiff that a search of its electronic surveillance indices failed to locate any responsive records as to Plaintiff or the organization. Finally, the letter stated that Plaintiff had “the right to appeal any denials in [the] release” to OIP and notified Plaintiff that any such appeal had to be received within sixty days from the letter's date in order to be considered timely.21 Plaintiff did not contact OIP after receiving the FBI's November 16, 2009 letter.
On November 16, 2011, Plaintiff initiated the above-captioned matter pursuant to 5 U.S.C. § 552 et seq.22 Plaintiff alleges that Defendants violated the FOIA because they failed to promptly make records available to Plaintiff. Plaintiff seeks a declaratory judgment that Defendants violated the FOIA and requests the Court to order Defendants to “make a full, adequate, and expedited search for the requested records” and to produce such records to Plaintiff no later than ten days after the Court's order. Plaintiff also seeks to enjoin Defendants from assessing fees or costs related to processing Plaintiff's FOIA request. Finally, Plaintiff alleges he is entitled to costs and reasonable attorney's fees pursuant to 5 U.S.C. § 552(a)(4)(E).
Defendants have moved for summary judgment and advance two arguments why the Court should dismiss this matter. First, Defendants argue that Plaintiff failed to exhaust his administrative remedies as to his request for records pertaining to himself and CGR. Defendants contend that Plaintiff's failure to exhaust administrative remedies means that he cannot seek relief from this Court as to those claims. Second, Defendants argue that their Glomar response citing exemptions 6 and 7(C) was proper because confirming or denying the existence or non-existence of records pertaining to Darby would cause cognizable harm within the meaning of 5 U.S.C. § 552(b)(6) and (b)(7)(C). Thus, Defendants assert that they correctly invoked exemptions 6 and 7(C) as to Plaintiff's FOIA request concerning Darby. In response to Defendants' motion for summary judgment, Plaintiff addresses why Defendants' Glomar response was improper. In addition, Plaintiff raises the issue of whether Darby's status as an alleged FBI informed had been “officially confirmed,” thereby prohibiting Defendants from employing an exclusion under 5 U.S.C. § 552(c)(2).23
For the reasons set forth below, the Court finds that (1) Plaintiff failed to exhaust his administrative remedies as to his...
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