The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff has filed a pro se*fn1 suit against the Federal Bureau of Investigation ("FBI") and the Drug Enforcement Administration ("DEA") seeking information related to his criminal case pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq. Defendants are withholding an audio tape under FOIA Exemptions 6, 7(A), 7(C) and 7(D), and DEA reports under Exemptions 2, 7(C), 7(D) and 7(F). Plaintiff argues that defendants cannot rely on these FOIA exemptions because the information has already entered the public domain, and the identity of the confidential source mentioned in the materials is no longer a secret. The Court finds that the DEA-6 reports have been properly withheld, but it reserves judgment on the audio tape until defendants provide additional information regarding the tape which is being withheld.
Starting in July 2005, plaintiff requested information relating to his criminal case from the FBI, DEA, U.S. Marshals Service ("USMS") and the Executive Office of U.S. Attorneys ("EOUSA"). (Compl. at ¶¶ 5, 16.) Plaintiff subsequently narrowed his request to exclude the USMS and EOUSA as parties, as well as several categories of files. (Pl.'s Cross Mot. at 1.) Plaintiff now seeks information in a single file, 245-LS-64574, and the only items at issue are five pages of DEA Reports of Investigation ("DEA-6") and an audio tape. (Pl.'s Cross Mot. at 1-3.)
The audio tape that plaintiff seeks is connected to his criminal trial. In July 2001, plaintiff and nine others were charged in a twenty-four count superseding indictment involving methamphetamine manufacturing and trafficking. See United States v. Bullock, No. 02-5854, 2005 WL 820909, at *1 (6th Cir. Apr. 11, 2005). During discovery, the government produced two audio tapes of drug transactions that occurred on December 7, 2000, and January 16, 2001. (Pl.'s Cross Mot., Exh. A.) Defense counsel moved to exclude these tapes, and on January 7, 2002, the tapes were played in court as the judge considered the motion. (Pl.'s Cross Mot., Exh. I.) The court allowed the December 7th tape to be admitted, but it excluded the January 16th tape because it was inaudible. Bullock, 2005 WL 820909 at *1.
Two voices appear on the December 7th tape. Id. A witness at the trial identified one of the voices as belonging to plaintiff. Id. The other voice belongs to Stacy Crain, who was deceased at the time of the trial. Id. Plaintiff alleges that Ms. Crain was a confidential informant, although defendants have refused to confirm or deny this. (Pl.'s Cross Mot. at 2; Defs.' Opp'n at 13.)
Plaintiff also claims that an additional tape was made on January 16, 2001, reasoning that because there were three drug buys involving a confidential informant (Pl.'s Cross Mot., Exh. F), there should be three corresponding tapes. (Pl.'s Cross Mot. at 3, 5.) Defendants acknowledge that they are withholding one audio tape only, but they have refused to provide any details about the identity or contents of this tape. (Hardy Decl. at ¶ 32.) Therefore, it is unclear which tape the government is withholding.
Plaintiff also seeks five pages from two separate DEA-6 reports describing drug transactions between a confidential informant, the plaintiff and third parties.*fn2 (Wassom Decl. at ¶¶ 11, 73-74.) Plaintiff alleges that the government produced both reports during his criminal trial.*fn3 (Pl.'s Cross Mot. at 2, 5, 8.) Plaintiff seeks the DEA-6 reports because he believes that one of the reports allegedly produced to him by the government (see Pl.'s Cross Mot., Exh. H) was fabricated. (Id. at 8-9.)
Before the Court are the parties' cross motions for summary judgment. There is no dispute regarding the exhaustion of administrative remedies.
Defendants are withholding an audio tape under Exemptions 6, 7(A), 7(C) and 7(D). Plaintiff argues that defendants effectively waived these exemptions by placing the tape in the public domain during his criminal trial. In the alternative, plaintiff contends that there is no legitimate privacy interest in the tape because the confidential informant is deceased and her identity is public knowledge. (Pl.'s Cross Mot. at 2-3.) The Court's analysis is complicated by the fact that defendants have failed to specify which tape they are withholding. (Hardy Decl. ¶ 32.) There are several possibilities: 1) the December 7th tape that was admitted into evidence as Exhibit 73 at the criminal trial; 2) the January 16th tape that was excluded because it was found to be inaudible; or 3) some other tape.
The December 7th tape is clearly in the public domain. In Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999), the D.C. Circuit held that audio tapes played in open court and admitted into evidence become part of the public domain and cannot be withheld under any FOIA exemption. The December 7th tape was played in open court and admitted into evidence, see Bullock, 2005 WL 820909 at *1, so it is part of the public domain.*fn4 If defendants are withholding this tape, they must produce it.
If the recording withheld by defendants is something other than the December 7th tape, the Court needs more information before it can determine the applicability of Exemptions 6, 7(A), 7(C) and 7(D). Rather than speculating about the contents of the tape, the Court will order defendants to file an affidavit that identifies*fn5 the date and nature of the ...