Donato v. EOUSA, No. 16-632, 2021 WL 5161740 (D.D.C. Nov. 5, 2021) (Pan, J.)

Donato v. EOUSA, No. 16-632, 2021 WL 5161740 (D.D.C. Nov. 5, 2021) (Pan, J.)

Re:  Request for records concerning alleged conspiracy to commit murder

Disposition:  Denying plaintiff's motion for reconsideration of court's grant of defendant's motion for summary judgment

• Exemption 7(C), The "Glomar" Response:  The court finds that "[b]ecause [plaintiff] has not established the type of error that is cognizable under Rule 54(b), or that justice requires reconsideration of the Court's ruling, the Court will deny [plaintiff's] Motion for Reconsideration."  "In sum, [the court finds that plaintiff] seeks records about an investigation that the FBI has not publicly acknowledged, concerning private individuals whose privacy may be violated if the FBI confirms that it is in possession of records pertaining to such an investigation."  The court relates that "[plaintiff] offers the Court three bases to reconsider its prior decision to uphold the FBI's Glomar response based on FOIA Exemption 7(C):  (1) that the Court overlooked evidence in the record that the FBI had publicly acknowledged [the subject third party's] alleged scheme, thus rendering its Glomar response inappropriate; (2) that new unsealed evidence further demonstrates public acknowledgement; and (3) that the Court improperly weighed the public interest in the [subject third party's] plot when assessing the applicability of Exemption 7(C)."  Responding to plaintiff's first two arguments, the court first finds that "[p]rior disclosure of similar information by other entities does not suffice; instead, the specific information withheld via the Glomar response must already be public."  "In this case, that means that the unsealed documents from the BOP that describe the alleged [subject third party] plot and indicate an investigation into the scheme are not enough, for such documents do not establish that the FBI investigated the plot."  Additionally, "[i]n the cases cited by Plaintiff [in support of his argument], one component of DOJ made a specific reference to an investigation or inquiry by another component of the agency."  "Here, however, [plaintiff] relies on documents which state only that the government investigated the alleged plot, not that the FBI investigated it."  Responding to plaintiff's third argument, the court finds that "[plaintiff's] arguments . . . are the same ones that he has made before."  "[Plaintiff] has consistently argued that the public has an interest in understanding 'how the FBI . . . carried out [its] duties to investigate and prosecute criminal conduct-murder conspiracy to frame a federal officer and informant[.]'"  "But, as the Court previously noted, more is required to establish that the asserted public interest trumps third parties' privacy interests – 'the requester must produce evidence that would warrant a belief by a reasonable person that the alleged [g]overnment impropriety might have occurred.'"  "Because [plaintiff] offers no such evidence, and because he simply reiterates his previous arguments, the Court is constrained to deny his Motion for Reconsideration."