Dean v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

_________________________________________
)
Jesse Jerome Dean, Jr. )
)
Plaintiff, )
)
v. ) Civil No. 1:14-cv-00715 (APM)
)
United States Department of Justice, et al., )
)
Defendants. )
_________________________________________ )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff Jesse Jerome Dean, Jr., a federal prisoner proceeding pro se, brought suit under

the Freedom of Information Act to obtain “access to his . . . ‘Cooperating Individual Agreement’”

that allegedly was “produced at trial and extensively used as [an exhibit].” Plaintiff requested the

document from the Drug Enforcement Administration, which responded by neither confirming nor

denying the document’s existence. Both parties have moved for summary judgment under

Federal Rule of Civil Procedure 56. Upon consideration of the parties’ submissions and the record,

the Court grants in part and denies in part Plaintiff’s motion and denies Defendants’ motion for

the reasons explained below.

II. BACKGROUND

In July 2013, Plaintiff submitted a Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,

request to the Drug Enforcement Administration (“DEA”) for, among other things, “a copy of the

DEA Form 473, cooperating individual agreement from [his] confidential informant file . . . used

in [his] criminal trial [and] designated ‘Government Exhibit 7.’” Decl. of Katherine L. Myrick,
Ex. A, ECF No. 16-2 [hereinafter Myrick Decl.]. On October 22, 2013, the DEA informed Plaintiff

that it “will neither confirm nor deny the existence of any records related to any confidential

sources and/or any individuals(s) that may have provided information that assisted this agency in

any investigative matter.” Id., Ex. C. The DEA further stated that if any such information exists,

it would be exempt from disclosure under the Privacy Act, 5 U.S.C. § 552a, and under FOIA

exemptions 7(C), 7(D), 7(E) and 7(F), see 5 U.S.C. § 552(b). Id.

On October 28, 2013, Plaintiff appealed the DEA’s determination with regard to DEA

Form 473 to the Office of Information Policy (“OIP”). Myrick Decl., Ex. D. He filed this action

in April 2014. Thereafter, OIP affirmed the DEA’s determination on June 11, 2014. Id., Ex. F.

III. LEGAL STANDARD

FOIA requires a federal agency to release all records responsive to a properly submitted

request except those protected from disclosure by one or more of nine enumerated exemptions.

See 5 U.S.C. § 552(b). The Court’s jurisdiction extends “to enjoin[ing] [a federal] agency from

withholding agency records or [ ] order[ing] the production of any agency records improperly

withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). The district court reviews the agency’s

action de novo and “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B).

“FOIA cases are typically and appropriately decided on motions for summary judgment.”

Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). Summary judgment in a FOIA case may be

based solely on information provided in an agency’s supporting affidavits or declarations if they

are “relatively detailed and nonconclusory.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200

(D.C. Cir. 1991) (citations omitted) (internal quotation marks omitted). The agency’s affidavits

or declarations must “describe the documents and the justifications for nondisclosure with

reasonably specific detail, demonstrate that the information withheld logically falls within the

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claimed exemption, and are not controverted by either contrary evidence in the record [or] by

evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.

1981); see Beltranena v. Clinton, 770 F. Supp. 2d 175, 181-82 (D.D.C. 2011). To “successfully

challenge an agency’s showing that it complied with the FOIA, the plaintiff must come forward

with ‘specific facts’ demonstrating that there is a genuine issue with respect to whether the agency

has improperly withheld extant agency records.” Span v. DOJ, 696 F. Supp. 2d 113, 119 (D.D.C.

2010) (quoting DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989)).

IV. ANALYSIS

In what is commonly referred to as a “Glomar response,”1 an agency may refuse to confirm

or deny the existence of records responsive to a FOIA request if doing so “would itself ‘cause harm

cognizable under an FOIA exception.’” Am. Civil Liberties Union v. CIA, 710 F.3d 422, 426

(D.C. Cir. 2013) (quoting Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011))

(other citation omitted). An agency may not, however, invoke a Glomar response when the

information requested has been officially acknowledged, see id. at 426-27, or is in the public

domain, Marino v. DEA, 685 F.3d 1076, 1081 (D.C. Cir. 2012). Plaintiff asserts that the DEA

Form 473 he seeks “was produced and fully exposed in open court . . . was testified to in open

court by at least two witnesses and . . . . has been repeatedly referred to in [his] habeas court

filings—all in the public domain.” Pl.’s Response to Defs.’ Reply and Opp’n, ECF No. 27, ¶ 4.

In other words, he contends that, because the Department of Justice during his prosecution publicly

1
The term “Glomar” is derived from the name of a ship, the Hughes Glomar Explorer, which was the subject of a
FOIA request at issue in Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976), a case in which the CIA refused to confirm
or deny the existence of responsive records. See Marino v. DEA, 685 F.3d 1076, 1079 n.1 (D.C. Cir. 2012).

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acknowledged the existence of the DEA Form 473, the DEA’s Glomar response was improper.2

The court agrees.

“In the Glomar context,” it is not “the contents of a particular record” that is at issue “but

rather the existence vel non of any records responsive to the FOIA request.” ACLU, 710 F.3d at

427 (internal quotation marks omitted). Therefore, “the public domain exception is triggered when

‘the prior disclosure establishes the existence (or not) of records responsive to the FOIA request,’

regardless whether the contents of the records have been disclosed.” Marino, 685 F.3d at 1081

(quoting Wolf v. CIA, 473 F.3d 370, 379 (D.C. Cir. 2007)). To prevail on summary judgment then,

the plaintiff must show only “that the agency has already disclosed the fact of the existence (or

nonexistence) of responsive records, since that is the purported exempt information that a Glomar

response is designed to protect.” ACLU, 710 F.3d at 427. If the plaintiff is successful, the agency

is not automatically required to disclose the record. Rather, the agency “would be required to

confirm that responsive records exist, then either release them or establish that they are exempt

from disclosure.” Marino, 685 F.3d at 1082. See ACLU, 710 F.3d at 432-34 (explaining why

“[t]he collapse of the CIA’s Glomar response does not mark the end of this case” and remanding

to the district court to determine whether the contents of any responsive documents are protected

from disclosure); see also Defs.’ Reply at 6 n.3 (requesting permission “to search for and determine

if records exist; and if they exist, to properly review and withhold any exempt information[,]” if

the Glomar response fails).

2
Plaintiff appears to concede that the DEA Form 473 was not actually introduced in evidence at his trial. See Pl.’s
Combined Reply and Motion for Summ. Judg. ¶ 15, ECF No. 19 (“The authenticity of ‘GX7’ had never been
established so it had never been formally admitted into evidence.”). But whether or not the DEA Form 473 actually
became part of the public record is not dispositive. As discussed below, because Plaintiff here has presented
undisputed proof of the government’s public acknowledgement of the existence of the DEA Form 473, that is enough
to defeat the agency’s motion for summary judgment in the Glomar context.

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 Plaintiff has proffered portions of transcripts from his criminal trial that identify

“Government Ex. 7” as “a form 473, cooperating individual agreement.” Pl.’s Combined Reply

and Mot. for Summ. J., Ex. 3 (Trial Tr. 46, Jan. 30, 1997), ECF No. 19. The government presented

“Ex. 7” both to a testifying DEA agent, see id., and to Plaintiff himself on cross-examination, id.,

Ex. 4. The testimony presented supports Plaintiff’s assertion that the requested document exists,

and Defendants have not questioned the transcripts’ authenticity, see generally Def.’s Reply.

Hence, Plaintiff has carried his burden to show the existence of the Form 473, and Defendants

have failed to demonstrate entitlement to summary judgment on their Glomar response.3

V. CONCLUSION AND ORDER

Accordingly, it is hereby ordered that:

1. Defendants’ Motion for Summary Judgment, ECF No. 16, is denied.

2. Plaintiff’s Motion for Summary Judgment, ECF No. 20, is granted insofar as Plaintiff

sought to overcome Defendants’ Glomar response but denied insofar as he sought

release of DEA Form 473.

3. Plaintiff’s Motion for the Court to Take Judicial Notice of the attached newspaper

articles, ECF No. 30, is denied as moot.

4. Defendants shall search for the requested DEA Form 473 and, by May 8, 2015, either

disclose the DEA Form 473 to Plaintiff or assert that the record is exempt from

disclosure by filing a dispositive motion.

3
The Court is mindful that the United States Attorney, not the DEA, prosecuted Plaintiff’s case in federal court. The
Court of Appeals has stated, however, that while a Glomar response may be proper when the prior disclosure was by
“another, unrelated agency,” the “rule does not apply . . . where the disclosures are made by an authorized
representative of the agency’s parent.” ACLU, 710 F.3d at 429 n.7. Consequently, “a federal prosecutor’s decision
to release information at trial is enough to trigger the public domain exception where the FOIA request is directed to
another component within the Department of Justice.” Marino, 685 F.3d at 1082.

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 _____
Dated: April 10, 2015 Amit P. Mehta
United States District Judge

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