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Hidalgo v. Federal Bureau of Information

March 31, 2008

PETER J. HIDALGO, PLAINTIFF,
v.
FEDERAL BUREAU OF INFORMATION, DEFENDANT.



The opinion of the court was delivered by: James Robertson United States District Judge

MEMORANDUM

The plaintiff in this Freedom of Information Act dispute is Peter J. Hidalgo, a federal inmate serving multiple life sentences for trafficking quantities of cocaine valued in excess of eight million dollars. He has pursued the documents at issue for a decade, at one point with the pro bono assistance of a former Solicitor General of the United States. See Hidalgo v. FBI, 344 F.3d 1256, 1257 (D.C. Cir. 2003). His quest has been repeatedly rebuffed by the FBI, which has argued failure to exhaust administrative remedies, see id. at 1257-58, attempted to "neither confirm nor deny the existence" of records whose existence could not plausibly be denied, see Hidalgo v. FBI, 04-0562 at [26] (D.D.C. Sept. 29, 2005), harried him from pillar to post, see Hidalgo v. FBI, 04-0562 at [37] (D.D.C. Sept. 22, 2006), and now invokes nearly every law enforcement-related FOIA privilege in the book to avoid disclosure.

Yet the character who is at the heart of this ten-year saga is one Manuel "Manny" Sanchez, the paid FBI informant who helped to put Hidalgo in prison years ago. Sanchez was the erstwhile owner and operator of Manny's Marina, an outfit whose principal business was outfitting ocean-going vessels for drug running off the Florida coast. He operated this business as a front for an undercover FBI investigation, reaping significant financial rewards from the Bureau as a result -- Hidalgo estimates his compensation at between $440,000 and $1 million. The goings-on at Manny's Marina were recorded, and that evidence, together with Sanchez's testimony, resulted in convictions for many defendants including Hidalgo and some of his co-conspirators. Although the investigation into these matters was closed over a decade ago, the FBI considers the matter "pending," because some of the conspirators remain unindicted and still others are indicted but at large.

Plaintiff's FOIA request covers all FBI records that relate to Sanchez by name, but, at its core, the request appears to be a demand for payments the FBI made to Sanchez and for documents related to certain interventions by the Bureau on Sanchez's behalf in criminal matters. The FBI has identified the contents of Sanchez's witness file as responsive, but it has withheld substantially all of the nearly 3000 pages under various FOIA exemptions.*fn1 The FBI has identified three broad categories of documents in the file: (1) "Informant Contact and Interview Documents"; (2) "Informant Funding Documents"; and (3) "Informant Management Documents". I have determined that much of the content of the file is indeed exempt from FOIA, but that certain matters -- including documents detailing the FBI's payments to Sanchez and some aspects of the FBI's relationship with Sanchez -- should be disclosed. The parties' cross-motions for summary judgment will thus each be granted in part.

I. Funding Information

The first kind of information the FBI seeks to withhold is "information related to the funding of a confidential informant." See [16] at 7. It seeks to withhold this information under two exemptions: Exemption 2, for matters "related solely to the internal personnel rules and practices of an agency," 5 U.S.C. § 552(b)(2), and Exemption 7(E), related to law enforcement practices or techniques whose disclosure "could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E). The FBI's position on these documents is expressed in two conclusory paragraphs in its affidavit:

[Exemption 2] has been applied to withhold internal documents that track the operational funds of the informant program, including the money that was dispensed to the informant. Disclosure of this information would give drug traffickers insights into the financial workings of the confidential informant program.

Revealing such information would be harmful because armed with knowledge of the inner workings of the financial operations of the confidential informant program, drug traffickers could scheme in an attempt to circumvent laws and investigations related to enforcement actions against international drug trafficking through manipulation of the confidential informant program. Disclosure could impede the FBI's effectiveness in administering its operations by enabling drug traffickers to exhaust the FBI's funding of a particular investigation. . . . .

[Exemption 7(E) has been invoked because] [i]f the FBI were to disclose the procedures used to pay confidential informants during undercover investigation and release details of the payments, it could jeopardize the informant program developed by the FBI by discouraging others from participating in the confidential informant program. Release of the payment details could also reasonably be expected to alert other individuals about the inner workings of the FBI's informant program and enable them to circumvent laws and investigations related to enforcement actions against international drug trafficking through manipulation of the confidential informant program by undermining the quality information provided by the confidential informant.

See Declaration of David M. Hardy [16, Attachment 5] at 13, 23-24. The FBI's position is essentially that the release of information regarding how much it paid to Sanchez would either dissuade future informants from working with the FBI, or allow future drug traffickers to somehow decipher and manipulate the financial aspects of the confidential informant program. Both prospects are remote -- especially the former, as Sanchez's apparently outsized compensation would likely encourage future informants to work with the FBI -- and in any event, the Bureau has not come close to making the showing required to justify withholding the documents under either exemption.

Because the internal agency information sought here is non-trivial, the standard under Exemptions 2 and 7(E) is substantially the same: whether "disclosure significantly risks circumvention of agency regulations or statutes." Crooker v. ATF, 670 F.2d 1051, 1074 (D.C. Cir. 1981) (en banc); see also PHE, Inc. v. Dep't of Justice, 983 F.2d 248 (D.C. Cir. 1993) (noting that subsections (b)(2) and (b)(7)(E) involve the same standard in the case of law enforcement materials). In its most authoritative statement of the test, the Court of Appeals included the term "significantly" in order to "stress the narrow scope of [its] construction of Exemption 2; in all cases in which the Government relies on Exemption 2, it remains the Government's burden to prove the 'significant risk.'" Crooker, 670 F.2d at 1074. There is some question as to whether the Court of Appeals continues to adhere to such a strict enunciation of the test, see, e.g., Tax Analysts v. IRS, 152 F. Supp. 2d 1, 17 n.26 (D.D.C. 2006), but no panel, and certainly no en banc decision, has expressly rejected it.

The FBI has not shown that there is a "significant risk" that its future investigations will be circumvented by disclosing the nature of the payments made to Sanchez in his capacity as a paid informant -- indeed, it has not articulated reasons why there is a risk of any sort. FBI's conclusory affidavit does not even hypothesize the mechanism by which sophisticated drug traffickers might use the Sanchez information to their advantage, other than saying that they "could scheme" to do so or perhaps try to "exhaust the FBI's funding of a particular investigation." Hardy Declaration [16, Attachment 5] at 13. But it is hard to imagine how the payments made to Sanchez in an investigation conducted over a decade ago could inform future traffickers seeking more effective strategies for exhausting FBI funding for some different investigation, and the FBI affidavit does even lend its imagination to the task.

Perhaps the FBI's theory is that public release of the amounts it has paid to this informant would move the market for informants by raising its price point. Even if that is indeed the theory (the circumlocution of the affidavit makes it hard to tell), and even if that theory were persuasive (it's not: Sanchez's estimated compensation is already a matter of public record), a risk of affecting the market price of informants is not a risk of "circumvention of agency regulations or statutes." Exemptions 2 and 7(E) allow information about law enforcement techniques to be withheld when publication would allow perpetrators to avoid them; it does not allow law enforcement to withhold information simply because it could operate more cheaply in secret.

The FBI does point to two decisions from this Court in which its use of these exemptions to withhold informant funding information has been upheld, but in both cases the FOIA requests were litigated by inmates appearing pro se, and neither decision gives the issue much attention. See Peay v. Dep't of Justice, No. 04-1859, 2007 WL 788871, at *2 (D.D.C. Mar. 14, 2007); Russell v. FBI, No. 03-0611, slip op. at 8 (D.D.C. Jan. 9, 2004). In Russell, the plaintiff never even filed an opposition to the Bureau's motion for summary judgment. In Peay, the FBI submitted a much more detailed affidavit, noting that the plaintiff was seeking information not only on the payments made to the informant, but on the "total dollar amounts of available funds, [] changing balances . . . and the total dollar amount that ...


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