Opinion
Civil Action No. 04-0950 (RMC).
April 19, 2005
MEMORANDUM OPINION
This matter is before the Court on defendant's motion to dismiss. Having reviewed the motion, however, the Court treats it as a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court will grant summary judgment for defendant.
Plaintiff was notified of the Court's treatment of defendant's motion, and was given an opportunity to respond accordingly. He submitted a duplicate of his opposition to defendant's motion to dismiss.
I. BACKGROUND
There is no dispute as to the facts in this case. In January 2004, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiff submitted a request for information to the United States Department of Justice, Drug Enforcement Administration ("DEA"). Compl., ¶ 7. He sought "disclosure of records concerning a DEA's [sic] informant, Carlos Astudillo." Id. The DEA neither confirmed nor denied the existence of responsive records. Id., Ex. A. By letter dated January 22, 2004, the DEA informed plaintiff that it declined to process the request further. Id. Because plaintiff submitted neither a notarized privacy waiver from Mr. Astudillo nor proof of his death, the DEA claimed that FOIA Exemptions 6 and 7(C) protected such information from disclosure, if indeed any such information existed in the agency's records. See id. The DEA's response was upheld on administrative appeal. Id., Ex. B.
II. DISCUSSION
The Court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the burden of demonstrating the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits may be accepted as true unless the opposing party submits his own affidavits or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)); LCvR 7(h). To obtain summary judgment in a FOIA action, an agency must show, viewing the facts in the light most favorable to the requester, that there is no genuine issue of material fact with regard to the agency's compliance with the FOIA. Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (citing Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)).
A response to a FOIA request which neither confirms nor denies the existence of the information sought is allowed so that members of the public do not draw negative inferences about a person merely because his name appears in records of a criminal law enforcement agency. See Massey v. Federal Bureau of Investigation, 3 F.3d 620, 624 (2d Cir. 1993) ("individuals have substantial privacy interests in information that either confirms or suggests that they have been subject to criminal investigations or proceedings"); see also Enzinna v. United States Dep't of Justice, No. 97-5078, 1997 WL 404327 at *2 (D.C. Cir. June 30, 1997) (agency refusal to confirm or deny existence of responsive records appropriate because acknowledging existence of records would associate witnesses with criminal investigation); see also Antonelli v. Federal Bureau of Investigation, 721 F.2d 615, 617 (7th Cir. 1983), cert. denied, 467 U.S. 1210 (1984). Even if such records exist, the records are exempt from disclosure under Exemption 7(C). See 5 U.S.C. § 552(b)(7)(C). The privacy interest of third parties whose names appear in criminal law enforcement records is well recognized. See Neely v. Federal Bureau of Investigation, 208 F.3d 461, 464-66 (4th Cir. 2000) (third-party suspects have a "substantial interest" in the nondisclosure of their identities and connection to a particular investigation); Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990) (individuals have strong interest "in not being associated unwarrantedly with alleged criminal activity"). Plaintiff's allegations of "massive government misconduct" in using Mr. Astudillo as an informant, see Compl. at 5, are vague and conclusory, and therefore fail to articulate a public interest sufficient to overcome Mr. Astudillo's privacy interest.
Furthermore, any records pertaining to Mr. Astudillo would fall under Exemption 6, which protects from disclosure all information that "applies to a particular individual" in the absence of an articulated public interest in disclosure. See United States Dep't of State v. Washington Post Co., 456 U.S. 595, 602 (1980).