Dorsey v. DEA, No. 11-1350, 2015 WL 1431707 (D.D.C. Mar. 28, 2015) (Sullivan, J.)
Re: Request for records concerning alleged confidential informants
Disposition: Granting defendant's renewed motion for summary judgment; denying plaintiff's motion for fees and costs
- Procedural Requirements, Consultations and Referrals: "The Court concludes that the referrals to the FBI, OIG and Criminal Division, the components where the records originated, were appropriate."
- Exemption 3: The court holds that Authorization Memoranda "from the Assistant Attorney General for the Criminal Division . . . to the Criminal Division's Office of Enforcement Operations . . . concerning a narcotics trafficking investigation" were "properly . . . withheld under Exemption 3." The court explains that "the contents of the Authorization Memoranda are withheld under Exemption 3 'based upon 18 U.S.C. § 2518(8)(b), which is the pertinent non-disclosure provision of Title III [of the Omnibus Crime Control and Safe Streets Act].'" The court finds that "even though section 2518(8)(b) does not mention authorization memoranda, the memoranda 'are a required part of the application submitted to the court.'" "'[B]ecause these documents contain the very information § 2518(8)(b) seeks to protect, the production of that information in this suit would result in the disclosure of exempted information and would thereby negate the intent of the statute.'"
- Exemption 5, Attorney Work-Product Privilege: "The Court concludes from the declarant's description of the Authorization Memoranda that the contents were attorney work product which squarely fit within the parameters of Exemption 5." "The Criminal Division's decision to withhold this information is proper." The court notes that "the declarant explains that the memoranda were prepared by an attorney at the behest of his or her client, which in this case refers to a federal prosecutor acting on behalf of the government." "And, the declarant notes, the memoranda are 'communication[s] between two DOJ representatives' occurring 'as part of the wiretap application process, and therefore were created in anticipation of litigation, i.e., a criminal prosecution of the individuals allegedly involved in the criminal activity that was evidenced by the court-ordered interceptions.'"
- Exemptions 6 and 7(C): "Absent any showing by plaintiff that a public interest outweighs the substantial privacy interest of the third parties mentioned in these records, the Court concludes that information properly is withheld under Exemption 7(C)." The court notes that "[t]he declarant states that '[i]ndividuals—whether targets, suspects or witnesses—have a strong interest in not being unfairly associated publicly with alleged criminal activity.'"
- Exemption 7(D): "[B]ased on the DEA's showing, the Court concludes that an assurance of confidentiality can be implied under the circumstances set forth in its declaration." The court relates that "[i]n this case, [Exemption 7(D)] protects 'information provided by an individual[ or individuals] regarding the criminal activities related to plaintiff's, and several third parties', illicit trafficking in cocaine.'" The court agrees with defendant and finds that "'DEA concluded that the individual(s) would not have provided the information' to the DEA unless he, she or they 'believed that the information and [identity or identities] would be held in confidence and not released to plaintiff or the public,' and, '[t]hus, confidentiality was implied[.]'"
- Litigation Considerations, "Reasonably Segregable" Requirements: "[T]he Court concludes that all reasonably segregable material has been released to plaintiff." The court finds that "[t]he supporting declaration . . . shows that 'each page of the Authorization [ ] Memorand[a were reviewed] to determine whether there was any additional non-exempt information that could be reasonably segregated and released,' and that the declarant found none."
- Attorney Fees, Eligibility: The court holds that "[i]t is apparent that plaintiff has not substantially prevailed in this action." "He neither identifies a public benefit derived from this case nor explains the nature of his interest in the requested information." "Furthermore, the Criminal Division and the DEA adequately justify their decisions to withhold information under the claimed exemptions, and no other factor warrants an award of fees and costs to plaintiff."