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Lopez v. Executive Office for the United States Attorneys

February 25, 2009

CARLOS LOPEZ, PLAINTIFF,
v.
EXECUTIVE OFFICE FOR THE UNITED STATES ATTORNEYS, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 11

MEMORANDUM OPINION

GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

The plaintiff, Carlos Lopez, filed this suit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The defendant, the Executive Office of the U.S. Attorneys ("EOUSA"), filed a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, which the plaintiff has opposed. Because there is no genuine issue of material fact and the defendant is entitled to judgment as a matter of law, the court grants the defendant summary judgment.

II. BACKGROUND

Lopez was arrested in 2001 on federal narcotics and firearms charges, having been identified by a confidential informant, Jennifer Webber, who later testified against him at his trial in 2003. Lopez, who is currently incarcerated after having been convicted of the charges stemming from that arrest, submitted a FOIA request to EOUSA asking for "all and any records . . . relating to my arrest and prosecution on federal narcotic and firearm violations in the State of New Hampshire[,]" and in particular seeking "copies of Special Agent (SA) Steven Story, SA Norman Houle, and SA Edward Bals' investigation reports made on this matter." See Def.'s Mot. for Summ. J. ("Def.'s Mot."), Ex. B. The purpose of his FOIA request was to obtain information that would provide answers to the following questions about Webber:

(1) Was the government aware that their main witness, Jennifer Webber, had a felony drug case pending while she served as their confidential informant?

(2) Did the government, or any of its employees, have contact with any State of New Hampshire employee regarding Ms. Webber or her then-pending felony cases in Strafford County Superior Court? and (3) Whether Ms. Webber was the recipient of favorable treatment on behest of the government for cooperating as their witness and/or serving as a confidential informant.

Pl.'s Opp'n at 7. Lopez asserts that Webber gave false testimony about the status of state criminal charges pending against her at the time she testified against Lopez. Affidavit of Carlos Lopez ("Lopez Aff.") ¶ 13. He further asserts that the government failed to disclose to the defense an alleged "'deal' made with Ms. Webber to secure her assistance and testimony." Id.

¶ 14.

Lopez made his FOIA request by letter in August 2006. In November 2007, having received no documents in response to his request, Lopez initiated this action. By letter dated December 21, 2007, the defendant reported to the plaintiff that it had identified 980 pages of responsive material, released 311 pages in full, released another 72 pages with redactions and withheld 276 pages under stated statutory exemptions enumerated in the FOIA and the Privacy Act. See Declaration of Karen Finnegan ("Finnegan Decl.") ¶¶ 13, 16.*fn1 In addition, 327 pages were referred to other agencies for review and potential release to the plaintiff. Id. ¶ 15.

The defendant filed this motion for summary judgment along with exhibits, the Finnegan Declaration, and a Vaughn index indicating the statutory basis for any information not released to the plaintiff. See generally Def.'s Mot. The plaintiff filed an opposition in which he challenges the defendant's decision to apply personal privacy exemptions to information about Webber. See Pl.'s Opp'n at 6-7. In support, the plaintiff alleges that Webber gave perjured testimony at the plaintiff's criminal trial and that the government's conduct constituted a Brady violation insofar as his defense was deprived of impeachment material to use against Webber. See id. at 5; see also Lopez Aff. & Exhibits. Throughout his submissions, the plaintiff emphasizes that because the alleged Brady violation involves rights of constitutional dimension, the personal privacy rights of third parties must give way. See Pl.'s Opp'n at 7; Pl.'s Request for Production of Documents to EOUSA ΒΆ 7 (stating that "[t]he Defendants ...


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