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Deglace v. Drug Enforcement Administration

February 15, 2007


The opinion of the court was delivered by: Colleen Kollar Kotelly United States District Judge


This matter is before the Court on defendant's renewed motion for summary judgment. Having considered the motion, plaintiff's opposition, and the record of this case, the Court will grant summary judgment for defendant.


Plaintiff submitted a request to the Drug Enforcement Administration ("DEA") pursuant to the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, for information pertaining to a DEA informant, Steven Francis Ming. Complaint ("Compl.") at 1 & Ex. A (FOIA request) at 1-2. DEA staff construed plaintiff's FOIA request "as a request for criminal investigative records, and disciplinary and/or personnel records associated with an individual who cooperated with DEA in the context of criminal investigations."*fn1 Defendant's Memorandum in Support of Renewed Motion for Summary Judgment ("Def.'s Renewed Mot."), Supplemental Declaration of William C. Little, Jr. ("Supp. Little Decl.") ¶ 4. In order for DEA to process plaintiff's request, he was required to submit either proof of Mr. Ming's death or a notarized authorization from Mr. Ming for the release of records to plaintiff. Compl., Ex. B (August 20, 2004 letter from K.L. Myrick, Chief, Operations Unit, FOI/Records Management Section, DEA). Without confirming or denying the existence of records pertaining to Mr. Ming, the DEA declined to process plaintiff's request. Id. Plaintiff filed an administrative appeal to the Justice Department's Office of Information and Privacy ("OIP"). Little Decl. ¶ 14 & Ex. C (October 10, 2004 letter to Co-Director, OIP). After consultation between DEA and OIP staff, the DEA conducted a search for records responsive to plaintiff's FOIA request. Id., Ex. D (August 4, 2005 letter from R.L. Huff, Co-Director, OIP). Relying on FOIA Exemption 7(C), the DEA withheld all responsive records in full.*fn2 Id.

In its first motion for summary judgment, the DEA argued, and the Court concurred, that disclosure of records under the Privacy Act was not warranted for plaintiff's failure to provide proof of death or a privacy waiver. The alternative basis for disclosure, then, would be under FOIA.


A. Glomar Response

If an individual is the target of a FOIA request, the agency to which the FOIA request is submitted may provide a Glomar response, that is, a refusal to confirm or deny the existence of law enforcement records or information responsive to the FOIA request, on the ground that even acknowledging the existence of responsive records constitutes an unwarranted invasion of the targeted individual's personal privacy. Phillippi v. Central Intelligence Agency, 546 F.2d 1009, 1014-15 (D.C. Cir. 1976) (CIA refused to confirm or deny existence of secret vessel, the Hughes Glomar Explorer); see Nation Magazine v. United States Customs Serv., 71 F.3d 885, 893 (D.C. Cir. 1995) (deeming Glomar response appropriate "if confirming or denying the existence of the records would associate the individual named in the request with criminal activity"); Sonds v. Huff, 391 F.Supp.2d 152, 158 (D.D.C. 2005), aff'd, 2006 WL 3093808 (D.C. Cir. June 22, 2006), cert. denied, U.S. , 127 S.Ct. 1040 (2007). Properly asserted, a Glomar response relieves an agency of its usual obligation to "provide detailed affidavits proving that it performed an adequate search for documents." Greenberg v. United States Dep't of Treasury, 10 F.Supp.2d 3, 24 (D.D.C. 1998. "When the Agency's position is that it can neither confirm nor deny the existence of the requested records, there are no relevant documents for the court to examine other than the affidavits which explain the Agency's refusal." Phillippi, 546 F.2d at 1013.

In this case, the DEA provides a Glomar response, arguing that to confirm or deny the existence of responsive records pertaining to Mr. Ming would cause harms recognized under FOIA's Exemption 7(C).*fn3 See Def.'s Mot. at 6-13.

B. Exemption 7(C)

1. Law Enforcement Records

FOIA's Exemption 7 protects from disclosure "records or information compiled for law enforcement purposes," but only to the extent that disclosure of such records would cause an enumerated harm. 5 U.S.C. § 552(b)(7); see Fed. Bureau of Investigation v. Abramson, 456 U.S. 615, 622 (1982). In order to withhold materials properly under Exemption 7, an agency must establish that the records at issue were compiled for law enforcement purposes, and that the material satisfies the requirements of one of the subparts of Exemption 7. See Keys v. United States Dep't of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987); Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982). In assessing whether records are compiled for law enforcement purposes, the "focus is on how and under what circumstances the requested files were compiled, and whether the files sought relate to anything that can fairly be characterized as an enforcement proceeding." Jefferson v. Dep't of Justice, 284 F.3d 172, 176-77 (D.C. Cir. 2002) (citations and internal quotations omitted).

The DEA is a component of the United States Department of Justice and has as its principal function the "enforcement of criminal laws, specifically those activities related to the illicit trafficking in controlled substances and chemicals." Supp. Little Decl. ¶ 2. To that end, the agency's activities "include police efforts to prevent, control, or reduce crime or to apprehend criminals involved in the illicit trafficking in controlled substances and chemicals." Id. ¶ 3.

Records pertaining to criminal investigations would be maintained in the DEA Investigative Reporting and Filing System (JUSTICE/DEA-008), and information regarding "disciplinary and personnel type matters that relate to conduct or the misconduct of both DEA employees and other individuals while involved in any DEA activity, criminal and/or administrative," would be maintained in DEA Planning and Inspection Division Records (JUSTICE/DEA-010).*fn4 Id. ΒΆΒΆ 5-6. ...

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