Id. at 327. (citation omitted).
The non-moving party, is "required to provide evidence that would permit a reasonable jury to find" in its favor. Laningham v. U.S. Navy, 259 U.S. App. D.C. 115, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (per curiam) (citing Celotex, supra). The moving party is entitled to summary judgment where "the non-moving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex 477 U.S. at 323. Any factual assertions contained in affidavits and other evidence in support of the moving party's motion for summary judgment shall be accepted as true unless the facts are controverted by the non-moving party through affidavits or other documentary evidence. See Local Rule 108(h).
In resolving the summary judgment motion, all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505. The inferences, however, must be reasonable, and the non-moving party can only defeat a motion for summary judgment by responding with some factual showing to create a genuine issue of material fact. Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993).
Although it is not entirely clear from plaintiff's opposition, it appears that he is arguing that summary judgment is inappropriate because there is a genuine issue of material fact in dispute. Plaintiff takes exception to P 12 of defendant's statement of material facts not in issue. ("Plaintiff has been characterized in criminal investigatory records as the head of a criminal organization which distributed over 50 kilograms of cocaine in the Los Angeles, California area on a monthly basis.") He argues that the presentence report prepared for his sentencing describes him as a middleman rather than the head of a drug organization. Plaintiff's submission does create a dispute on an issue of fact; it is not a material issue, however.
As far as the Court can tell, plaintiff is claiming that since he is a mere middleman, not the head of a large drug organization, there is no need to maintain the informant's confidentiality. Plaintiff is incorrect. Any dispute over the extent of plaintiff's role has no bearing as to whether the informant was confidential and whether exemption 7(D) applies. This information might bear on whether the Court should presume that an informant had an implied promise of confidentiality. But in this case, the defendant has submitted an affidavit asserting that the government expressly promised confidentiality to its informant. See infra.
The goal of the FOIA is to promote the disclosure of information by the federal government and its agencies. See Charles River Park "A," Inc. v. Dept. of Housing and Urban Dev., 171 U.S. App. D.C. 286, 519 F.2d 935, 941 (D.C. Cir. 1975). Because of this goal the statutory exemptions under FOIA must be narrowly construed. See Dept. of Air Force v. Rose, 425 U.S. 352, 361, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976) (citing Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 823 (D.C. Cir. 1973)). Exemption 7(D) applies to certain documents and records compiled for law enforcement purposes
but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to disclose the identity of a confidential source . . . and in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation . . . information furnished by a confidential source.
5 U.S.C. § 552(b)(D)(7).
Plaintiff relies on language in the Supreme Court case United States Dept. of Justice v. Landano, 124 L. Ed. 2d 84, 113 S. Ct. 2014 (1993), for the proposition that an informant who intended to testify could never be considered confidential because he did not speak "with an understanding that the communication would remain confidential." See Plaintiff's Opposition to Defendant's Motion for Summary Judgment, at 6 (quoting Landano, 113 S. Ct. at 2019). Plaintiff's reliance on Landano is misplaced. Landano deals only with the question of when an assurance of confidentiality can be inferred for purposes of (b)(7)(D). See id. at 2020 ("The precise question before us, then, is how the Government can meet its burden of showing that a source provided information on an implied assurance of confidentiality.") In this case, defendant has submitted an affidavit from Leila I. Wassom, DEA Paralegal Specialist assigned to the Freedom of Information Section, asserting that plaintiff was given an express promise of confidentiality. See Supplemental Declaration of Leila I. Wassom P 7. Given this information in the affidavit, there is no doubt that the informant must be considered confidential at the time of the express promise of confidentiality for purposes of (b)(7)(D).
Plaintiff further argues that (b)(D)(7) is inapplicable now, because even if the informant was confidential during the course of the investigation, he ceased to be confidential when he testified at plaintiff's trial. The Landano Court explicitly declined to address this question. See id. at 2020. The Court Of Appeals in this Circuit, however, has held that exemption (b)(D)(7) applies to information given by an informant who was confidential at the time, even if the informant later testifies at trial. See Parker v. Dept. of Justice, 290 U.S. App. D.C. 87, 934 F.2d 375 (D.C. Cir. 1991). The holding in Parker governs this case; the government properly relied on exemption (b)(7)(D).
Accordingly, the government's motion for summary judgment is granted. An appropriate order follows.
United States District Court
Having considered the submissions of the parties, the Court hereby ORDERS, for the reasons set forth in the foregoing opinion that defendant's motion for summary judgment be GRANTED.
United States District Court