Tran v. DOJ, No. 18-739, 2025 WL 416153 (D.D.C. Feb. 6, 2025) (Moss, J.)

Tran v. DOJ, No. 18-739, 2025 WL 416153 (D.D.C. Feb. 6, 2025) (Moss, J.)

Re: Request for records regarding plaintiff and two other individuals

Disposition:  Granting in part and denying in part defendants’ motion for summary judgment

• Exemption 6; Exemption 7(C):  “The Court will . . . grant Defendant’s motion for summary judgment with respect to the Glomar response issued in response to [plaintiff’s] request for records concerning [one third party] and will deny without prejudice Defendants’ motion for summary judgment with respect to the Glomar response issued in response to [plaintiff’s] request for records concerning [a second third party].” The court relates that “[i]n response to [plaintiff’s] requests for information about [two third parties], the FBI issued a Glomar response in which it declined to confirm or deny the existence of any responsive records.”  “As relevant here, because members of the public have a ‘“substantial” privacy interest . . . “in ensuring that their relationship to [law enforcement] investigations remains secret,”’ . . . the FBI may decline to confirm or deny the existence of records relating to a third party on the ground that the existence or nonexistence of any such records is itself protected by a relevant FOIA exemption.”  “Here, however, [plaintiff] – at least on the FBI’s telling – has failed to identify any public interest in disclosure, much less one that would outweigh the privacy interests of the two individuals at issue, and the undisputed record establishes that [plaintiff] did not submit a privacy waiver or proof of death for either of those individuals.”
  
  “For the most part, [plaintiff] does not take issue with this line of reasoning.”  “With respect to [one third party], he offers no response whatsoever, and, the Court, accordingly, concludes that the FBI properly issued a Glomar response to [plaintiff’s] request for those records.”  “With respect to [the second third party], moreover, [plaintiff] does not dispute that third parties, in general, have a significant privacy interest in avoiding release of records that might tie them to a law enforcement investigation, nor does he dispute that he failed to provide the FBI with privacy waiver or proof of death.”  “Instead, he argues that [the third party] himself revealed, and the FBI officially acknowledged, that [the third party] alleged[ly] served as ‘undercover informant’ for the FBI in its investigation of [plaintiff].”  “He further argues that [the third party] ‘ceased to be a CI for the Defendants over thirteen . . . years ago’ and that, given this passage of time, the FBI cannot plausibly maintain that release of the requested information would pose any ‘risk whatsoever to’ [the third party’s] safety.” “[Plaintiff’s] arguments, accordingly, fall into two general categories.”  “First, he contends that the FBI is precluded from asserting a Glomar response with respect to information that it has officially acknowledged.”  “Second, he contends that the agency’s Glomar response fails because indicating whether any responsive records exist would not result in the disclosure of any information protected by FOIA Exemptions 6 or 7(C).”  “According to [plaintiff], the FBI has previously confirmed ‘the identity of [the third party] as a CI.’”  “He contends that the FBI confirmed [the third party’s] identity in two ways: first, by responding to a complaint filed by [the third party] in the Court of Federal Claims, in which [the third party] alleged that he was a confidential informant and that the FBI had reneged on promises made in connection with that work . . . and, second, by disclosing to the public that [the third party] was a confidential informant ‘during the course of legal proceedings prosecuted by the Defendants against [plaintiff] in 2010.’”  Responding to plaintiff’s first argument, the court finds that “[e]ven accepting the authenticity of [the third party’s] complaint for present purposes, it does not constitute an official acknowledgement that [the third party] served as a confidential informant for the FBI.”  “To start, ‘[c]ourt[s] will not accept the allegations in a complaint in another case as true per se.’”  “But, even more importantly, those allegations were made by a lawyer representing [the third party] and not by any government official.”  “In short, the complaint does not constitute ‘an official and documented disclosure,’ . . . of anything at all.”  “[Plaintiff] recognizes as much and seeks to bolster his claim of official acknowledgement by pointing to two documents filed by the Department of Justice in the Court of Federal Claims case.”  “First, he points to Defendant’s Reply in Support of Its Third Motion for an Enlargement of Time, in which counsel for the United States explained that she needed additional time to contact the Bureau of Alcohol, Tobacco and Firearms (“ATF”) and the United States Attorney’s Office referenced in the complaint to prepare a motion to dismiss and/or for summary judgment.”  “On [plaintiff’s] reading, this motion ‘stated that one of the primary contacts for [the third party] as a CI was Assistant United States Attorney Robert Keenan’ and acknowledged ‘that the FBI does indeed possess documentary evidence regarding [the third party].’”  “[Plaintiff’s] contention that the government acknowledged that he was a CI working with Assistant United States Attorney Robert Keenan misreads the filing.”  “Rather, the government merely noted that it had determined that Keenan was [the third party’s] contact at the United States Attorney’s Office.”  “It did not say that [the third party] was a confidential informant and, indeed, it characterized [the third party’s] allegations as ‘vague and confusing’ and as unfounded.”  “[The third party’s] second argument, however, has greater – albeit limited – purchase.”  “The government’s motion for an extension of time in the Court of Federal Claims litigation did assert that ‘the FBI and ATF both have documentary evidence that establishes that the agents specifically advised [the third party] that they were not making the promises [he] alleges in his complaint.’”  “By making this assertion, the government officially acknowledged that the FBI (at least at that time) possessed records relating to [the third party] and his contention that he served as a CI.”  “Although the FBI might well have grounds to withhold these records under a relevant FOIA exemption (or to conclude that they are not responsive to [the third party’s] requests), it cannot maintain that by merely acknowledging that the records exist, it will have done the harm that a FOIA exemption is designed to prevent.”  “The government represented to a court in no uncertain terms that the FBI has (or at least had) potentially responsive ‘documentary evidence,’ and the FBI must now either release those records or explain why it is not required to do so.”  “It cannot plausibly maintain that merely confirming that those previously acknowledged records, in fact, exist ‘would trigger’ any new or additional ‘harm under FOIA Exemptions . . . (b)(6) and (b)(7)(C) with respect to [the third party].” “Second, [plaintiff] points to the government’s motion to dismiss [the third party’s] complaint in the Court of Federal Claims litigation.”  “In particular, he notes that, in setting forth the relevant facts, the government observed that ‘[the third party] assisted the Government in the investigation and eventual trial of a former FBI special agent, [plaintiff]’ . . . and he argues that ‘[b]y virtue of’ this ‘filing,’ the government ‘admitted that [the third party] was indeed a CI working with them since at least 2003,’ . . . .”  “But that contention ignores the two sentences that preceded that purported admission:  ‘For the purposes of this motion only, the facts are not in dispute.’”  “‘In the event that this motion is denied, we reserve the right to contest each of the allegations contained in the complaint.’” “That, of course, is how motions to dismiss work.”  “The defendant assumes, without conceding, that the factual allegations contained in the complaint are true and then argues that the complaint, nonetheless, fails to state a claim as a matter of law.”  “The Court, accordingly, concludes that [plaintiff] has not provided evidence that [the third party’s] purported status as a confidential informant was officially confirmed.”  “The Court . . . concludes that the government officially acknowledged that the FBI possessed ‘documentary evidence’ relating to advice ‘the agents’ gave to [the third party] ‘that they were not making the promises [he] allege[d] in his complaint,’ . . . .”  “But that is the only thing that the government acknowledged in the Court of Federal Claims litigation.”  “As to that narrow acknowledgement, the FBI must now either produce those documents to [plaintiff] or justify withholding them based on a particular FOIA exemption.”
  
  “[Plaintiff] also maintains that the government officially acknowledged [the third party’s] purported status as a confidential informant ‘during the course of legal proceedings prosecuted by the Defendants against [plaintiff] in 2010.’”  “Before the Court can grant summary judgment in favor of Defendants, it requires greater clarity regarding whether [the third party] in fact testified as a witness for the government at [plaintiff’s] trial and whether his name was revealed in connection with that proceeding.”  “If so, the government needs to explain how disclosure of whether the FBI has records that mention [the third party] by name would itself reveal information protected by an applicable FOIA exemption.”
   
• Litigation Considerations:  “In [plaintiff’s] opposition to Defendants’ motion for summary judgment, he contends that there is a discrepancy between Defendants’ initial estimate of responsive pages (29,909) and the number of pages produced to him (6,108).”  The court finds that defendants “offer[] no explanation . . . for the discrepancy between the number of pages that EOUSA now says that it withheld and the many pages that were initially identified but were neither released nor included in the count of withheld records.”  “Because Defendants bear the burden of demonstrating that an adequate search was conducted and, at summary judgment, must show that no material dispute exists regarding the relevant facts, the Court will deny Defendants’ motion for summary judgment without prejudice, pending some further explanation for the discrepancy.”
   
• Litigation Considerations, Evidentiary Showing, Adequacy of Search:  “[T]he Court is satisfied that Defendants conducted an adequate search for potentially responsive records.”  “In support of their motion for summary judgment, Defendants submit several declarations describing their extensive searches.”  “Except as discussed above, [plaintiff] does not contest the adequacy of these searches, and based on the evidence presented in the seventeen declarations that Defendants have submitted, the Court is satisfied that the Defendants’ searches were thorough and ‘reasonably calculated to uncover all relevant documents.’”
   
• Litigation Considerations, Evidentiary Showing, Vaughn Index:  “The Court will . . . grant summary judgment in favor of Defendants with respect to the withholdings identified in their Vaughn indices.”  “The Court can observe . . . that Defendants have taken [plaintiff’s] requests seriously, have engaged in an extensive search for responsive records, have offered multiple declarations explaining their efforts, and have submitted a detailed and extensive Vaughn index.”
   
• Litigation Considerations, In Camera Inspection:  The court finds that “[plaintiff] provides no justification for his extraordinary request that the Court engage in an in camera review of 23,000 pages of withheld records . . . .”  “Indeed, it is unclear whether these 23,000 pages of records even exist; if so, whether they are subject to the requirements of FOIA, . . . and whether they are, in any event, responsive to [plaintiff’s] FOIA request.”  “As explained above, the Court will require Defendants to offer a more complete explanation for the [page count] discrepancy . . . .”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing: The court relates that “the FBI attests that it performed a segregability review . . . and it has produced a Vaughn index identifying its withholdings . . . .”  “[Plaintiff] does not challenge the FBI’s or EOUSA’s segregability analyses, and the Court has no reason to doubt the agencies’ good-faith representations.” “Accordingly, the Court is satisfied that Defendants have produced all segregable, non-exempt records with respect to the pages processed in response to [plaintiff’s] request for information about himself.”
   
• Litigation Considerations:  Responding to plaintiff’s arguments of bad faith based on defendant’s delays, the court holds that “this is not a case in which a diligent requester has been stymied by a recalcitrant agency.”  “[Plaintiff’s] failures to respond to the FBI’s requests for information and documentation caused yearslong delays before this case was even filed, and [plaintiff’s] unresponsiveness continued throughout the pendency of this case.” “Given that history, Defendants’ delays, which were due at least in part to illness on the part of government counsel and to the large number of responsive documents, do not overcome the ‘presumption of good faith’ enjoyed by agencies carrying out the FOIA process.”