O'Brien v. DOJ, No. 20-0092, 2022 WL 2651850 (E.D. Pa. July 8, 2022) (Beetlestone, J.)

O'Brien v. DOJ, No. 20-0092, 2022 WL 2651850 (E.D. Pa. July 8, 2022) (Beetlestone, J.)

Re:  Request for records concerning defendant's criminal case that reference his co-defendant

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 3:  The court holds that "[t]he Government has carried its burden as to Exemption (b)(3)."  The court relates that "[defendant] explained that the FBI invoked this exemption pursuant to Federal Rule of Criminal Procedure 6(e), as modified by Congress (pertaining to the secrecy of grand jury matters), and the Juvenile Justice and Delinquency Prevention Act, 18 U.S.C. § 5038 (protecting certain information related to juvenile adjudications)."  "Both statutes qualify for protection under this exemption."  "[Plaintiff] argues that none of the withheld or redacted pages expressly invoked this exemption and that the Government's explanations are 'untrue.'"  "[Plaintiff's] first argument is not supported by the record – [defendant] provided the Bates numbers of the documents to which this exemption was applied, and the relevant documents are identified in the Government's First Vaughn Index . . . ."  "Nor can [plaintiff] overcome the presumption of good faith with speculative claims of untruth."
   
• Exemption 7(D):  The court holds that "[t]he FBI's refusal to confirm or deny the identity of its confidential sources is appropriate because this information is explicitly shielded from disclosure by [Exemption 7(D)], and [defendant's] declarations adequately explained both how the agency determined whether an individual qualified as a confidential source and the harm that would result if the FBI did not use a Glomar response."  The court relates that "[defendant] explained that the FBI applied Exemption (b)(7)(D) to two different kinds of confidential sources:  those who provided information under express assurances of confidentiality and those who provided information under implied assurances of confidentiality."  "The FBI identified which informants fell into the first category by 'locat[ing] positive indicators they were official, established FBI informants.'"  "As to implied confidentiality, [defendant] explained that some individuals provided information to the FBI about investigative targets involved in the distribution of controlled substances only because they believed their cooperation and the information they shared would remain confidential."  "As to the consequences of divulging identifying information about such sources, [defendant] explained that these individuals are at risk of harm because 'they were within the orbit of suspected violent criminals,' who, in the FBI's experience, 'typically seek to deter informants' cooperation with law enforcement through reprisal,' whether reputational, economic, or violent."  The court finds that "[plaintiff's] arguments rest on an assumption that [plaintiff's co-defendant] is the confidential informant whose information the FBI has not disclosed."  "But in invoking Exemption (b)(7)(D), the Government neither confirmed nor denied the identity of any particular confidential source."
   
• Exemptions 6 & 7(C):  The court relates that "[defendant] explained that the FBI invoked Exemption (b)(6) and (b)(7)(C) to protect the privacy interests of nine different subcategories:  (1) FBI agents and staff; (2) third parties who provided information to the FBI; (3) third parties mentioned tangentially; (4) personnel from other federal agencies; (5) local law enforcement; (6) third-party victims; (7) rap sheets; (8) third parties of investigative interest to the FBI; and, (9) commercial institution personnel."  "The First Vaughn Index and the Supplemental Vaughn Index identify which subcategory the FBI considers to be protected by the application of these exemptions to a given document."  "[Defendant's] declarations explain the balancing performed by the FBI in deciding when to assert these privacy exemptions as to each subcategory, including measures taken by the agency to determine whether an individual was still living, whether the FBI employees at issue were 'high-level decision makers' (whose information would be released) or 'lower echelon employees' (whose privacy is protected), and the harm likely to result from disclosure of each subcategory of information."  "[Defendant] further explained that, despite the FBI's general policy of issuing Glomar responses to requests for information about third parties (absent a privacy waiver, proof of death, or a significant public interest), the agency determined that a Glomar response as to [plaintiff's co-defendant] would not be appropriate under Exemptions (b)(6) and (b)(7)(C) because 'Plaintiff's request implicated a criminal case file in which [plaintiff's co-defendant] was publicly and officially acknowledged as a co-defendant.'"  "Therefore, the FBI acknowledged the existence of responsive records for [plaintiff's co-defendant]."  "Nevertheless, the FBI took the view that '[plaintiff's co-defendant] diminished privacy did not completely negate [plaintiff's co-defendant's] privacy interest in specific non-public details about herself contained within FBI records.'"  "It therefore applied Exemptions (b)(6) and (b)(7)(C) to withhold non-public details within records concerning [plaintiff's co-defendant]." 
  
  "[Plaintiff] only challenges the FBI's assertion of privacy interests with respect to [plaintiff's co-defendant], arguing that, because she testified at his criminal trial, she has no legitimate privacy interest in her FBI records."  The court holds that "[plaintiff's] argument goes too far."  "An individual may hold a cognizable privacy interest even in information previously disclosed to the public."  The court finds that "[plaintiff's co-defendant] has a privacy interest in the non-disclosure of records containing non-public details about her."
  
  Regarding the public interest at issue, the court finds that "[plaintiff] argues an invasion of [plaintiff's co-defendant's] privacy is warranted because the public has a cognizable interest in exposing alleged Brady violations that occurred in the course of his criminal prosecution, and in proving his innocence."  The court finds that "[plaintiff] has not 'produce[d] evidence that would warrant a belief by a reasonable person,' . . . that the prosecution committed a violation under Brady because he has not made a showing of materiality."  "Nor has [plaintiff] 'produce[d] evidence that would warrant a belief by a reasonable person' that the prosecution violated the Jencks Act."  Additionally, the court finds that "[plaintiff] has not provided any evidence of his innocence."  "Therefore, there is no 'counterweight on the FOIA scale' and the privacy interests that the FBI seeks to protect under Exemptions (b)(6) and (b)(7)(C) win out."
   
• Exemption 7(A):  The court relates that "[defendant] explained in his First Declaration that the FBI invoked Exemption (b)(7)(A) 'in a limited fashion to protect a single pending case file number,' because '[t]he FBI determined release of any of this material would provide criminals with information about the government's investigation in ongoing matters and allow them to discover or tamper with witnesses and/or destroy evidence.'"  "[Plaintiff] speculated that the case file number at issue is his own criminal case, but the Government responded that this assertion 'does not reflect the nature of the information actually withheld by the FBI.'"  The court finds that "[a]s [plaintiff] has neither challenged the Government's invocation of this exemption on other grounds, nor advanced evidence of bad faith, the Government has made a sufficient showing as to this exemption."
   
• Exemption 7(E):  The court relates that "[defendant] explained that the FBI invoked this exemption to protect (1) FBI internal phone numbers and email addresses; (2) investigative techniques and procedures of its informant program; (3) surveillance techniques and information on surveillance targets and locations; and, (4) undercover operations techniques."  "[Plaintiff] contends that the Government cannot invoke Exemption (b)(7)(E) to shield information that should have been produced to him in discovery in his criminal case."  "As explained above, there is no public interest in re-enacting [plaintiff's] discovery battles."  "He also argues, without citation to any legal authorities, that '[t]he Federal statutes have a "six year statute of limitations."'"  The court holds that "[i]t is not clear what [plaintiff] means by this, but when an argument is 'raised in passing . . . but not squarely argued,' it is considered waived."