Thursday, June 6, 2013
Re: Request to Drug Enforcement Administration for all records about third party who plaintiff characterizes as confidential informant Disposition: Denying defendant's motion for summary judgment
- Exemption 7(C), The "Glomar" Response: The Court finds that use of the Glomar response to protect the fact of whether responsive records exist is not available to the defendant. Defendant sought to use Exemption 7(C) or, in the alternative, Exemptions 7(D) or 7(F) to support its Glomar response. However, the Court states, "[h]ere, there can be no question that the identity of the confidential informant has been officially confirmed in light of [a DEA Special Agent]'s sworn affidavit, the content of [the third party]'s public testimony at [plaintiff]'s criminal trial, and the district judge's opinion in July 2011 denying [plaintiff]'s motion for a new trial." The Court explains that "[i]n a typical confidential informant case, defendant's justifications for a Glomar response relying on Exemption 7(C) may make perfect sense . . . [b]ut where the identity of a confidential informant has been officially confirmed, the reasons justifying a Glomar response no longer apply." Accordingly, the Court held that "a Glomar response is not available and defendant is not entitled to summary judgment." However, the Court notes that, "[t]he unavailability of a Glomar response as to the existence of responsive records does not mean that DEA is required to disclose the content of any particular record. . . . Rather, defendant must 'proceed to the filing of a Vaughn index or other description of the kind of documents the [agency] possesses, followed by litigation regarding whether the exemptions apply to those documents.'"
Updated August 6, 2014