United States District Court, District of Columbia
BRIAN M. CASEY
FEDERAL BUREAU OF INVESTIGATION, Defendant.
S. CHUTKAN United States District Judge.
appearing pro se, challenges the Federal Bureau of
Investigation's refusal to confirm or deny records
responsive to his request under the Freedom of Information
Act (“FOIA”). The FBI has moved for summary
judgment under Federal Rule of Civil Procedure 56 (ECF No.
23). For the reasons explained below, the motion will be
29, 2016, Plaintiff requested “Form 302 of
interviews” of six named individuals “concerning
the investigation of the murder of Ryan Vanderson and Larrick
Sikes, ” and an “index of available
documents.” (Decl. of David M. Hardy, ECF No. 23-1, Ex.
A). On July 15, 2016, Defendant informed Plaintiff that in
order to process his request for third-party records, it
would need “an authorization and consent” from
each person, proof of the person's death, or “a
justification that the public interest in disclosure
outweighs personal privacy[.]” (Id., Ex. B).
Otherwise, Defendant informed, it could neither confirm nor
deny the existence of the requested records, which is
commonly referred to as a Glomar
response. Defendant further informed Plaintiff that
if such records exist, they would be exempt from disclosure
under FOIA exemptions 6 and 7(C), codified in 5 U.S.C. §
letter dated July 25, 2016, Plaintiff replied that he was
seeking disclosure in the public interest. He explained that
he was convicted of a homicide in “an unfair trial in
which state actors representing my rights refused to seek
dismissal of the case.” (Hardy Decl., Ex. C). Plaintiff
proceeded to explain “the real facts, ”
exonerating him of the murder. He concluded: “Not only
is it a public interest that criminals be apprehended in this
case, the undersigned has a right to the information because
his due process rights have been violated.”
(Id. at 3). Plaintiff faulted the investigation of
the Lee County and Collier County Sheriff's Offices, and
wrote that the “FBI's investigation . . . has been
thwarted by the false statements given to investigators by
the names listed.” (Id.).
rejected Plaintiff's public interest assertion in a
letter dated August 9, 2016, explaining that he had not
provided “sufficient documentation demonstrating [that]
the public interest in the operations and activities of the
government outweighs the substantial privacy interest of the
subject.” (Hardy Decl., Ex. D). Defendant repeated its
Glomar response and invocation of exemptions 6 and
7(C), closed the FOIA request, and informed Plaintiff that he
could reopen the request only by providing a third-party
privacy waiver or proof of the third-party's death.
(Id., Ex. D). Plaintiff appealed Defendant's
decision to the Office of Information Policy, which affirmed
the decision on October 16, 2016. (Hardy Decl., Exs. E, G).
Plaintiff filed this action, construed as brought under the
FOIA, in January 2017. (See Jan. 4, 2017 Order, ECF
judgment is appropriate where the record shows there is no
genuine issue of material fact and the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Waterhouse v. District of Columbia, 298 F.3d
989, 991 (D.C. Cir. 2002). “FOIA cases typically and
appropriately are decided on motions for summary
judgment.” Georgacarakos v. FBI, 908 F.Supp.2d
176, 180 (D.D.C. 2012) (citation omitted). The district court
conducts a de novo review of the government's
decision to withhold requested documents under any of
FOIA's specific statutory exemptions. See 5
U.S.C. § 552(a)(4)(B). The burden is on the government
agency to show that nondisclosed, requested material falls
within a stated exemption. See Petroleum Info. Corp. v.
U.S. Dep't of Interior, 976 F.2d 1429, 1433 (D.C.
Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)).
cases, summary judgment may be based solely on information
provided in the agency's supporting declarations. See
ACLU v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C.
Cir. 2011); Students Against Genocide v. Dep't of
State, 257 F.3d 828, 838 (D.C. Cir. 2001). The D.C.
If an agency's affidavit describes the justifications for
withholding the information with specific detail,
demonstrates that the information withheld logically falls
within the claimed exemption, and is not contradicted by
contrary evidence in the record or by evidence of the
agency's bad faith, then summary judgment is warranted on
the basis of the affidavit alone.
ACLU, 628 F.3d at 619. “Ultimately, an
agency's justification for invoking a FOIA exemption is
sufficient if it appears ‘logical' or
‘plausible.'” Id. (quoting
Larson v. Dep't of State, 565 F.3d 857, 862
(D.C. Cir. 2009) (internal quotation marks omitted)).
“To successfully challenge an agency's showing that
it complied with the FOIA, the plaintiff must come forward
with ‘specific facts' demonstrating that there is a
genuine issue with respect to whether the agency has
improperly withheld extant agency records.” Span v.
U.S. Dep't of Justice, 696 F.Supp.2d 113, 119
(D.D.C. 2010) (quoting Dep't of Justice v. Tax
Analysts, 492 U.S. 136, 142 (1989)).
Glomar response permits an agency to “refuse
to confirm the existence of records where to answer the FOIA
inquiry would cause harm cognizable under a[ ] FOIA
exemption.” Wolf v. CIA, 473 F.3d 370, 374
(D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d
1100, 1103 (D.C. Cir. 1982)). Nevertheless, a
“plaintiff can overcome a Glomar response by
showing that the agency has already publicly disclosed the
fact of the existence (or nonexistence) of responsive
records.” ACLU v. CIA, 710 F.3d 422, 427 (D.C.
Cir. 2013). If an agency has “officially acknowledged
the existence of the record, the agency can no longer use a
Glomar response.” Moore v. CIA, 666
F.3d 1330, 1333 (D.C. Cir. 2011). This Circuit has clarified
that in the Glomar context, it is the
“existence vel non of any records responsive to a FOIA
request, ” rather than the content of the records, that
is the focus of the inquiry. ACLU, 710 F.3d at 427.
rebut a Glomar response, a plaintiff need only point
to an official prior disclosure that “establishes the
existence (or not) of records responsive to the FOIA request,
” Wolf, 473 F.3d at 379, since that fact
“is the purportedly exempt information that a
Glomar response is designed to protect, ”
ACLU, 710 F.3d at 427. It is the FBI's
“long-standing policy” to provide a
Glomar response-consistent with FOIA's privacy
exemptions 6 and 7(C)-when third-party records are requested
without either a privacy waiver or proof of death, or the
demonstration of an overriding public interest in disclosure.
(Hardy Decl. ¶ 13). See Smith v. FBI, 663
F.Supp.2d 1, 4 (D.D.C. 2009) (noting that a Glomar