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Robinson v. Attorney General of the United States

February 14, 2008

RUSSELL E.D. ROBINSON, PLAINTIFF,
v.
ATTORNEY GENERAL OF THE UNITED STATES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This matter is before the Court on the parties' cross-motions for summary judgment. The Court will deny plaintiff's motion, and will grant defendants' motion in part and deny it in part without prejudice.*fn1

I. BACKGROUND

Plaintiff submitted requests under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, to the United States Marshals Service ("USMS"), the Federal Bureau of Investigation headquarters ("FBIHQ"), the Drug Enforcement Administration ("DEA"), the Federal Bureau of Prisons ("BOP"), and the Executive Office for United States Attorneys ("EOUSA").*fn2 See Compl. at 2; Defendants' Memorandum in Support of Defendants' Motion for Summary Judgment ("Defs.' Mot.") at 2. Generally, he sought information pertaining to two individuals: Ishmael "Chuku" Brathwaite and Alvin "Tatoo" Hodge, identified by plaintiff as confidential informants. See Compl. at 2-3; Special Visitation Brief Seeking Summary Judgment [Dkt. #17] at 2.

A. United States Marshals Service

On October 14, 2005, plaintiff submitted a FOIA request to the USMS for records pertaining to himself. Defs.' Mot., Declaration of William E. Bordley ("Bordley Decl.") ¶ 2. Specifically, he sought records pertaining to: (1) his transport by the USMS during and after his trial in the Virgin Islands, and (2) the removal of Mr. Hector Rivera, Sr. by the USMS from the courtroom. Id., Ex. A (October 14, 2005 FOIA Request). With additional forms to verify his identity, plaintiff indicated that he also sought "ANY AND ALL REPORTS/ DIRECTIVES, ORDERS AUTHORISATIONS, ETC. compiled by the [USMS] Special Operations Group that [] authorized them to transport [plaintiff] in substandard aircraft," the conditions under which he was transported by armored vehicle and by United States Coast Guard helicopter, and his detention in a holding cell at the federal courthouse. Id., Ex. C (November 1, 2005 letter to W.E. Bordley) (capitalization in original). A search of the USMS' records located 226 pages of records. Bordley Decl. ¶¶ 6, 11. Of these 226 pages, the USMS released to plaintiff 99 pages in full, released 119 pages in part, withheld four pages in full, and referred four pages to the BOP. Id. ¶ 17 & Ex. E (May 19, 2006 letter from W.E. Bordley, Associate General Counsel/FOIPA Officer, Office of General Counsel, USMS).

B. Federal Bureau of Investigation

Plaintiff submitted a FOIA request to the FBIHQ for information pertaining to a confidential informant, Ishmael "Chuku" Brathwaite, and documents prepared by Special Agent Robert Lasky about another individual, Alvin "Tatoo" Hodge. Defs.' Mot., Declaration of Peggy L. Bellando ("Bellando Decl.") ¶ 5 & Ex. A (October 14, 2005 FOIA Request). FBIHQ staff deemed the request as one "seek[ing] access to investigatory records concerning third parties," and in accordance with agency policy, neither confirmed nor denied the existence of such records. Bellando Decl. ¶ 11. Pursuant to 28 C.F.R. § 16.3, a person "making a request for records about another individual [must submit] either a written authorization signed by that individual permitting disclosure of those records [] or proof that that individual is deceased (for example, a copy of a death certificate or an obituary)." Absent such authorization from or proof of death of Mr. Brathwaite or Mr. Hodge, the FBIHQ concluded that disclosure of law enforcement records about them, if any, "could constitute an unwarranted invasion of [their] personal privacy" for purposes of FOIA Exemption 7(C), or "would constitute a clearly unwarranted invasion of their personal privacy" for purposes of FOIA Exemption 6. Bellando Decl. ¶ 11. The FBIHQ's decision was upheld on administrative appeal. Id. ¶¶ 7-8 & Ex. E (November 27, 2006 letter from D.J. Metcalf, Director, Office of Information and Privacy, Department of Justice).

C. Executive Office for United States Attorneys

Plaintiff sought EOUSA records pertaining to six individuals whom he believed to be confidential informants. See Defs.' Mot., Declaration of John W. Kornmeier ("Kornmeier Decl.") ¶ 4 & Ex. A (February 22, 2003 FOIA request).*fn3 Relying on FOIA Exemption 7(C), the EOUSA denied plaintiff's request because he had not provided written authorizations from these individuals for release of records about them. Id. ¶ 5 & B (June 13, 2006 letter from W.G. Stewart III, Acting Assistant Director, Freedom of Information & Privacy Act Staff, EOUSA) at 1. The EOUSA's decision was upheld on administrative appeal. Id. ¶ 6 & Ex. C (September 28, 2006 letter from D.J. Metcalf, Director, Office of Information and Privacy, Department of Justice).

D. Drug Enforcement Administration

Plaintiff submitted a FOIA request to the DEA for, generally, information pertaining to Ishmael "Chuku" Brathwaite, identified by plaintiff as a "Cooperating Source" or a "confidential Informant [] attached to the HIDTA task force in St. Thomas & Miami[,] Florida." Defs.' Mot., Declaration of William C. Little, Jr. ("Little Decl."), Ex. A (October 14, 2005 FOIA Request). In addition, plaintiff sought documents pertaining to Alvin "Tatoo" Hodge, who according to plaintiff, furnished information for or during plaintiff's criminal prosecution. Id., Ex. A. Relying on FOIA Exemptions 6 and 7(C), the DEA did not process plaintiff's request; it neither confirmed nor denied the existence of records pertaining to these two individuals. Id. ¶ 14 & Ex. B (November 2, 2005 letter from K.L. Myrick, Chief, Operations Unit, FOI/Records Management Section, DEA). The DEA's decision was upheld on administrative appeal. Id. ¶¶ 15-16 & Ex. E (November 15, 2006 letter from D.J. Metcalf, Director, Office of Information and Privacy, Department of Justice).

In this action, plaintiff challenges the agencies' responses to his requests. See Compl. at 4.

II. DISCUSSION

A. Summary Judgment ...


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