OPINION AND ORDER
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE
Federal
inmate and pro se plaintiff Manuel Pena-Martinez
(“Pena”[1]) submitted a FOIA request to the FBI
seeking information about one Arturo Ortiz Colon
(“Colon”), whom he identifies as an FBI
confidential informant. Gov't Statement of Material Facts
(“SMF”), ECF No. 19, ¶ 2. Pena sought
records reflecting who within the FBI authorized Colon to be
an informant and pose as a corrupt FBI agent as part of a
sting operation that led to Pena's arrest and conviction.
Id. He also sought a copy of the “Attorney
Generals Guidelines for the Use of Confidential
Informants.” Id.
The FBI
issued a “Glomar response”-that is, it
could neither confirm nor deny the existence of any records
relating to Colon[2]-to the first request and provided the
18-page guidelines in response to the second. Id.
¶ 5; Smith Decl., ECF No. 19-3, ¶ 8. Pena then
filed this lawsuit, challenging the agency's failure to
produce documents in response to his first request. Compl.,
ECF No. 1, ¶ 6. The government moved for summary
judgment in October 2018 and, when Pena did not respond, the
Court issued a standard Fox/Neal Order.
See Dec. 7, 2018 Order, ECF No. 20. Pena has not
responded to that order either. Even without an opposition,
the Court may not treat the motion as conceded and must
instead consider whether the government is entitled to
summary judgment. See Winston & Strawn, LLP v.
McLean, 843 F.3d 503, 508 (D.C. Cir. 2016). For the
reasons that follow, the Court concludes that the government
has not met its burden. The Court will therefore deny without
prejudice the government's motion for summary judgment.
As it
did here, the FBI often relies on FOIA Exemptions 6, 7(C),
and 7(D) when issuing a Glomar response to a request
regarding an alleged confidential informant. The agency may
do so “unless the informant's status as an
informant has been officially confirmed.” 5 U.S.C.
§ 552(c)(2). “[W]hen an informant's status
has been officially confirmed, the requirements of
FOIA govern, and the agency must acknowledge the existence of
any records it holds.” Benavides v. DEA, 968
F.2d 1243, 1246 (D.C. Cir. 1992) (emphasis in original). The
two questions for the Court here, then, are (1) what
constitutes “official confirmation” of an
informant's status and (2) has the FBI “officially
confirmed” Colon's status.
The
parties do not attempt to answer the first question, and the
Court has been unable to identify binding precedent offering
a specific test for what constitutes official confirmation.
With respect to the second question, Pena alleges that
“Colon's status as a confidential informant was
know[n] at all times relevant to this case.” Compl.
¶ 6. In support, he attaches to his complaint an excerpt
from the opening brief in his direct appeal to the First
Circuit which describes “[c]ooperating witness”
Colon's testimony in his trial. Compl. Ex. A at 2-3. The
government's only response is that “[i]n reviewing
Plaintiff's contentions . . ., the FBI found no
indication it has ever officially disclosed Plaintiff's
subject's involvement with FBI matters.” SMF ¶
17; Hardy Decl., ECF No. 19-1, ¶ 20 (same); see
also SMF ¶ 21 (“Plaintiff argues that Mr.
Colon's status as an informant is publicly known but has
not provided any documentation to support his claim;
moreover, he has not provided any documentation to suggest
that the FBI has officially acknowledged that Mr. Colon was
an informant.”). But that response fails to address
Pena's implicit argument that the government officially
confirmed Colon's status as a confidential informant by
putting him on the stand during Pena's criminal trial and
having him testify about the sting operation that led to
Pena's conviction.
Other
courts in this district have considered an alleged
informant's trial testimony when determining whether the
government has officially confirmed an informant's
status. For example, in Cobar v. U.S. Department of
Justice, 953 F.Supp.2d 1 (D.D.C. 2013), the court had no
trouble concluding “that the identity of the
confidential informant has been officially confirmed in light
of [the] sworn affidavit [by the informant's FBI
handler], the content of [the informant's] public
testimony at Cobar's criminal trial, and the district
judge's opinion in July 2011 denying Cobar's motion
for a new trial.” Id. at 5; see also North
v. U.S. Dep't of Justice, 810 F.Supp.2d 205, 208-09
(D.D.C 2011) (rejecting agency's argument that
[witness's] “testimony at [FOIA requester's]
trial does not constitute official confirmation of his status
as an informant” where “trial transcripts
demonstrate[ed] that the government referred to [witness] as
an informant and that [witness] testified that he entered
into a cooperation agreement to assist the prosecution . . .
in exchange for lenient sentencing in his own case”).
The
excerpted appellate brief asserts that Colon testified on
behalf of the government at Pena's trial, but the Court
does not have the benefit of that testimony or the
government's characterization of it. Moreover, the First
Circuit decision affirming Pena's conviction describes
the sting operation that led to his arrest and conviction,
and that description suggests the government referred to
Colon as an informant:
[FBI agent] Pelaez recruited ex-police officer Arturo
Ortiz-Colon (hereinafter “Ortiz”) as an informant
and undercover operative. Ortiz had lost his position in the
Puerto Rican police because of prior criminal activity. He
has also witnessed criminal activity of officers within the
[Puerto Rico Police Department]. Pelaez launched Ortiz as his
operative in a drug ‘sting' operation aimed at
corrupt police officers.
United States v. Villafane-Jimenez, 410 F.3d 74, 78
(1st Cir. 2005).
“Under
[] FOIA, the burden is on the agency to sustain its
action.” Cobar, 953 F.Supp.2d at 4 (quoting
Am. Civil Liberties Union v. CIA, 710 F.3d 422, 427
(D.C. Cir. 2013)). By failing to address facts in the record
suggesting Colon testified as a government witness during
Pena's trial and was referred to as an informant, the
government has failed to meet its burden. It is therefore
ORDERED that the [19] Motion for Summary
Judgment is DENIED WITHOUT PREJUDICE. The government shall
file any renewed motion, with supplemental declarations,
within thirty (30) days of this order.
SO
ORDERED.
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Notes:
[1] Mr. Pena-Martinez refers to himself as
Pena in his complaint so the Court will ...