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BENAVIDES v. DRUG ENFORCEMENT AGENCY

August 24, 1990

EDUARDO M. BENAVIDES, Plaintiff,
v.
DRUG ENFORCEMENT AGENCY, Defendant


Stanley Sporkin, United States District Judge.


The opinion of the court was delivered by: SPORKIN

STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE

 Plaintiff, proceeding pro se and in forma pauperis, is an inmate at a Federal Correctional Facility in Tennessee Colony, Texas. Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. ยง 552 (1977 & Supp. 1990), plaintiff made a request to defendant Drug Enforcement Agency (DEA) for records concerning purported "government informants." DEA denied his request. Plaintiff brought an action to compel defendant to release the information he requested, for reasonable attorney fees and costs.

 Presently before the Court is defendant's Motion to Dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) or, in the alternative, for Summary Judgment pursuant to Fed. R. Civ. P. 56. Defendant submitted an affidavit, exhibits and a statement of material facts as to which it contends there is no material dispute. Plaintiff has not filed a response to defendant's motions. *fn1"

 I. Factual Background

 Plaintiff was convicted of various drug offenses in September, 1975, before the United States District Court for the Western District of Texas. By letter dated July 10, 1989, plaintiff made a FOIA request relating to "any and all information, to include but not limited to all promises and records of payments for information or assistance, in the investigation and prosecution of drug charges against me in Cause SA-75-CR-183, to the following government informants . . . ." See Exhibit A attached to Plaintiff's Complaint. Plaintiff named Hector Perez Rodriguez and Silverio Garcia Meza as the "government informants." In a letter dated July 19, 1989, DEA informed plaintiff that it did not locate any records responsive to his request. See Exhibit B attached to Plaintiff's Complaint.

 However, DEA did not search its files prior to issuing its response. Upon consultation with William Bordley, a FOIA Attorney Advisor with DEA, DEA was advised that its response to plaintiff was inappropriate. See Affidavit of William Bordley in Support of Defendant's Motion para. 9. According to Mr. Bordley, DEA should have informed plaintiff that it could neither confirm nor deny the existence of records concerning either alleged informant. Id.

 Plaintiff submitted an administrative appeal to the Office of Information and Privacy (OIP) by letter dated July 24, 1989, to protest DEA's "denial of information pertaining to government informants." See Exhibit C attached to Plaintiff's Complaint. The letter also contested the denial because at plaintiff's criminal trial DEA agents purportedly admitted that a third party was paid to assist in the investigation and prosecution of the drug offenses.

 On December 26, 1989, before OIP decided plaintiff's appeal, plaintiff instituted this action. As a result of filing this action, OIP never formally advised plaintiff of the basis for the denial of his FOIA request. Defendant now asserts that the existence of the information sought by plaintiff can "neither be confirmed nor denied."

 Since this Court relies on matters outside of the pleadings, defendant's Motion to Dismiss will be treated as a Motion for Summary Judgment under Fed. R. Civ. P. 56.

 II. Standard for Summary Judgment

 Summary judgment may be granted only "if the pleadings, . . . together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In reviewing a motion for summary judgment the court must consider the pleadings, related documents and evidence in a light most favorable to the non-moving party. Adickes v. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). "If the motion for summary judgment is properly supported, the burden shifts to the non-movant to 'set forth specific facts showing that there is a genuine issue for trial.'" Laningham v. United States Navy, 259 U.S. App. D.C. 115, 813 F.2d 1236, 1241 (D.C. Cir. 1987) (quoting Fed.R.Civ.P. 56(c)). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, 477 U.S. 242, 249, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 III. Discussion

 The purpose of the Freedom of Information Act is to provide for open disclosure of public information. Baldrige v. Shapiro, 455 U.S. 345, 352, 71 L. Ed. 2d 199, 102 S. Ct. 1103 (1982). "The Act expressly recognizes, however, that public disclosure is not always in the public interest and consequently provides that agency records may be withheld from ...


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