B. Government's Withholdings Under FOIA Exemptions
In his declaration, Janet stated that thirty-two out of the
thirty-three pages of responsive material were withheld in their
entirety under Exemptions 7(C) and 7(F).*fn5 Specifically, Janet
stated that Chambers' criminal records were being withheld
pursuant to Exemption 7(C), because disclosure would constitute
an unwarranted invasion of his personal privacy, given the
humiliation, stigmatization, and embarrassment that could result
from such disclosure. Janet Decl. at 6. Janet stated that
Chambers' payment records were being withheld pursuant to
Exemption 7(C), because disclosure would reveal the purpose,
duration, and scope of Chambers' participation in criminal
investigations, and such disclosure would bring with it an
invasion of personal privacy because of the stigmatization
attached to being a government informant. Id. at 7. Janet
stated that DEA criminal case file numbers appearing on the
payment records were being withheld pursuant to Exemption 7(C)
because of the possible unwarranted invasion of the privacy of
any individuals identified from those file numbers. Id.
Finally, Janet stated that the names of DEA Special Agents were
being withheld, pursuant to Exemptions 7(C) and 7(F), not only
because of the unwarranted invasion of the personal privacy of
the agents, but also because of the possible threat to the lives
of any agents in their ongoing criminal investigations. Id. at
This case is unlike the typical FOIA case, which generally is
brought by a prisoner wishing to obtain information protected by
personal privacy exemptions in order to challenge his conviction.
In this case, Plaintiff wishes to uncover alleged DEA misconduct
in relation to Chambers. If true, and the Government does not in
any of their papers deny they are not, Plaintiff's allegations
suggest that Chambers is the highest paid confidential informant
in DEA history (having received perhaps as much as $4 million for
his services), despite a criminal record, frequent perjury,
administrative sanctions, and specific targeting of African
American communities. Consequently, this case is very different
from Tanks v. Huff, 1996 WL 293531 (D.D.C. May 28, 1996), which
the Government argues is directly on point merely because it
involved the same confidential informant. In Tanks, the
plaintiff sought information about Chambers that directly related
to the plaintiff's criminal case. Plaintiff in this case merely
wishes to expose the allegedly illegal activities of the DEA and
its informant Chambers.
Plaintiff argues that the withholding of Chambers' criminal
record was improper, because although there is a privacy interest
against disclosing such criminal "rap sheets", the privacy
interest is outweighed by the great public interest in shedding
light on the activities of DEA, which employed Chambers and paid
him substantially despite his criminal history.
The Supreme Court has held that there is a very high privacy
interest in compilations of criminal records. United States
Dep't of Justice v. Reporters Comm. For Freedom of Press,
489 U.S. 749, 780, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). However,
the Supreme Court also affirmed that "the FOIA's central purpose
is to ensure that the Government's activities be opened to the
sharp eye of public scrutiny . . . [and o]fficial information
that sheds light on an agency's performance of its statutory
duties falls squarely within that statutory purpose". Id. at
773-744, 109 S.Ct. 1468. More importantly, the "basic purpose of
FOIA is to ensure an informed citizenry, vital to the functioning
of a democratic society, needed to check against corruption and
to hold the governors accountable to the governed." NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57
L.Ed.2d 159 (1978).
Our Circuit Court of Appeals has reached a middle ground with
respect to conflicts between the public and private interests.
The Court of Appeals held that when government misconduct is
alleged to justify disclosure, the public interest is
insubstantial without compelling evidence that the agency is
involved in illegal activity, and that the information sought is
necessary to confirm or refute that evidence. Quinon v. FBI,
86 F.3d 1222, 1231 (D.C.Cir. 1996).
Plaintiff and his counsel have already conducted significant
research on the many instances in which Chambers has perjured
himself about his criminal record, and the government's apparent
complacency about this conduct. The information uncovered by
Plaintiff is very compelling, suggesting extensive government
misconduct, and the information sought is necessary to confirm
whether Plaintiff's findings are backed by the record.
Furthermore, it is clear from the far-reaching and serious
consequences of the activities and collaboration of Chambers and
DEA that there is a substantial public interest in exposing any
wrongdoing in which these two parties may have engaged. This
public interest can only be served by the full disclosure of
Chambers' rap-sheet, about which he has frequently testified,
although not always truthfully,*fn6 in open court around the
country. Consequently, Defendant's withholding of Chambers'
criminal record under Exemption 7(C) was improper.
Plaintiff also argues that the withholding of Chambers' payment
records was improper. Plaintiff acknowledges that privacy
interests would require the withholding of some of the
information on these records, but maintains that he would be
satisfied if all information was redacted from the records except
for the dates and payment amounts. Plaintiff argues that Chambers
waived his privacy concerns by testifying in open court about
some of the payments he received from DEA.
Under normal circumstances, the fact that Chambers has
testified in court as to some of the amounts he has been paid
would not diminish his privacy interests in the payment records
retained by DEA, Reporters Comm., 489 U.S. at 762-63, 109 S.Ct.
1468. Chambers, however, is not the usual government informant.
He appears to have made a career out of serving as a government
informant and, if Plaintiff's allegations are true, he has earned
substantially more than the vast majority of other, more
traditional, federal employees. By choosing to "work" as a
regular government informant, and by testifying about his
activities and "earnings" in open court, Chambers has chosen to
give up his personal privacy interests to this information.
Plaintiff's research further suggests that Chambers has earned
as much as $4 million for serving as a government informant.
Given the compelling evidence Plaintiff has uncovered,*fn7
government misconduct, the public interest in disclosure of this
information far outweighs any privacy interest Chambers may have.
Consequently, DEA improperly withheld the dates and payment
amounts from disclosure pursuant to Exemption 7(C).
Finally, with respect to the names of DEA Special Agents,
withheld pursuant to Exemptions 7(C) and 7(F), Plaintiff does not
challenge DEA's withholdings. Not only is that information
irrelevant to Plaintiff's search request, but the disclosure of
the names of DEA Agents would result in an unwarranted invasion
of their personal privacy. Even more importantly, the disclosure
of those names carries a great risk of disruption to those DEA
Agents' ongoing criminal investigations, and possibly a threat to
the lives of those DEA Agents from past or present targets of
their criminal investigations. Consequently, DEA's withholding of
the names of DEA Special Agents under Exemptions 7(C) and 7(F)
Because Defendant has not met its burden of proving that its
search was reasonable with respect to locating records of case
names, numbers, and judicial districts where Chambers has
testified, as well as records of administrative sanctions imposed
on Chambers, this case is remanded to the agency for further
search for such records. Defendant has also failed to adequately
justify its withholdings, under Exemptions 7(C), of Chambers'
criminal record and the dates and amounts he was paid for serving
as a DEA informant, and on remand Defendant must release this
information. Defendant has, however, adequately justified its
redaction of the names of DEA Special Agents, under Exemptions
7(C) and 7(F). Defendant's Motion for Summary Judgment is thus
granted in part and denied in part.