Case 2:11-cv-02850-SM-ALC Document 1 Filed 11/16/11 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

MALIK RAHIM

Plaintiff

V.

FEDERAL BUREAU OF INVESTIGATION; and U.S. DEPARTMENT OF JUSTICE
Defendants

Civil Action

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq., for declaratory, injunctive and other appropriate relief to compel an adequate search, the immediate processing and release of agency records improperly withheld from Plaintiff Malik Rahim by Defendant Federal Bureau of Investigation (“FBI”) and Defendant U.S. Department of Justice (“DOJ”) (collectively “Defendants”). 2. After Hurricane Katrina, on or around September 5, 2005, Malik Rahim, Plaintiff in this matter, organized a relief organization named Common Ground Relief, which included Common Ground Relief, Common Ground Collective, Woodlands Project and Common Ground Health Clinic (collectively “Common Ground”) in New Orleans, Louisiana. 3. Common Ground provided substantial relief supplies and tens of thousands of hours of volunteer assistance to devastated communities along the Gulf Coast.
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4. Common Ground and Malik Rahim criticized government and corporate entities for failing to meet the needs of Gulf Coast communities after Hurricane Katrina.
5. Within weeks of Hurricane Katrina and the creation of Common Ground by Plaintiff, Brandon Darby appeared, spent considerable time at Common Ground, and became one of the active leaders of the organization.
6. Brandon Darby later admitted under oath that he was a confidential informant for the FBI and has admitted his relationship with the FBI to the New York Times, the Austin Chronicle, National Public Radio and in many other public forums; Brandon Darby has identified himself as an FBI confidential informant in open court.
7. Plaintiff submitted FOIA requests to Defendants on February 24, 2009 and subsequently connected to that request including request for fee waiver for production of responsive documents seeking information on the role of the FBI in Common Ground and with Brandon Darby after Hurricane Katrina.
8. Defendants FBI and DOJ have not produced documents in their possession which are lawfully available to Plaintiff under the Freedom of Information Act.
9. Administrative remedies have been exhausted. JURISDICTION AND VENUE
10. This Court has both subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B) and 5 U.S.C. § 552(a)(6)(E)(iii). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1346(a)(2).
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11. Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391(e) and § 1402(a), because the Plaintiff resides in the Eastern District of Louisiana.
PLAINTIFF 12. Plaintiff Malik Rahim is a citizen of the U.S. and resides in Louisiana.
DEFENDANTS 13. Defendant Federal Bureau of Investigation (FBI) is a component of the Department of Justice (DOJ), a Department of the Executive Branch of the United States, and each is an “agency” within the meaning of 5 U.S.C. § 552(f)(1).
FACTUAL ALLEGATIONS 14. Plaintiff submitted, by letter dated February 24, 2009, and later amended on July 30, 2009, a FOIA request to Defendant FBI for all documents relating to Malik Rahim or his organization Common Ground Relief. These requests were made by the law firm of Goodman & Hurwitz, P.C., through attorney Julie H. Hurwitz and assigned File # 1127584-000. These written requests are attached. 15. These requests asked for, among other things, “documents and things pertaining to Malik Rahim or his organization Common Ground Relief, from 2005 to the present. . . . ” 16. Specifically, the FOIA request further sought “all records, documents and things . . . ” related to surveillance, investigation, use of informants and agents, planting or gathering “evidence,” and any other activities pertaining to Malik Rahim including anything related to Common Ground Relief and Brandon Darby.
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17. On March 17, 2009, the FOIA request of Malik Rahim was denied on the grounds that the FBI would not respond to a FOIA request concerning another individual in addition to Malik Rahim without a “privacy waiver” being filled out by Brandon Darby.
18. On July 30, 2009, an appeal was filed to the denial. This appeal set out several reasons why the records should be made public, including: “the public right to be informed about what their government is up to,” citing U.S. Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 773 (1989); the fact that if Brandon Darby was an undercover informant for the FBI during his time at Common Ground, then that would be an act of such public concern that it would overcome personal privacy exemptions, citing National Archives & Records Administration v. Favish, 541 U.S. 157, 172 (2004). This appeal is attached.
19. On September 14, 2009, the FBI responded that it was still reviewing the original FOIA request.
20. On September 25, 2009, the U.S. Department of Justice Office of Information Policy stated it was affirming the original refusal of the FBI to release any information pertaining to Brandon Darby and further affirmed the refusal of the FBI to neither confirm nor deny the existence of any records responsive to the request. They said: “Without consent, proof of death, official acknowledgement of an investigation, or an overriding public interest, confirming or denying the existence of the records your client requested would constitute an unwarranted invasion of personal privacy.”
21. Defendant FBI has refused to produce any of the requested records. 22. Plaintiff has exhausted all applicable administrative remedies.
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23. Defendants have wrongfully withheld the requested records from Plaintiff. CAUSE OF ACTION
24. Defendants' failure to timely respond to Plaintiff's requests violates the FOIA, including: (a) 5 U.S.C. Section 552(a) (1) to (3) for failure to promptly make records available to the Plaintiff; (b) 5 U.S.C. Section 552(a)(3)(A) for failure to promptly make records available to Plaintiff; (c) 5 U.S.C. Section 552(a)(6)(A)(i) and (ii) for failure to timely make records available to Plaintiff; (d) 5 U.S.C. Section 552(a)(4)(A) for failure to grant fee waiver
PRAYER FOR RELIEF Wherefore, Plaintiff respectfully requests that this Court:
1) Order Defendants to make a full, adequate, and expedited search for the requested records;
2) Order Defendants to immediately and expeditiously process Plaintiff’s FOIA request;
3) Enjoin Defendants from assessing fees or costs for the processing of the FOIA request;
4) Order Defendants, upon completion of the expedited processing, to produce the requested records to Plaintiff no later than ten days after the Court’s order;
5) Award Plaintiff costs and reasonable attorney fees pursuant to 5 U.S.C. § 552(a)(4)(E); and
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6) Grant such other relief as this Court decides is just and proper.

Respectfully submitted,

Dated: November 16, 2011

/s/ Davida Finger

Davida Finger, La. Bar No. 30889 (T.A.) Bill Quigley, La. Bar No. 7769 Loyola University New Orleans College of Law, Law Clinic 7214 St. Charles Ave. Campus Box 902 New Orleans, LA 70118 (504) 861-5596 dfinger@loyno.edu duprestars@yahoo.com

Sunita Patel, NY Bar No. 4441382 Center for Constitutional Rights 666 Broadway, 7th floor New York, NY 10012 (212) 614-6427 SPatel@ccrjustice.org

Julie Hurwitz, MI Bar No. P34720 Bill Goodman, MI Bar No. P14173 Goodman & Hurwitz 1394 Jefferson Avenue Detroit, MI 48207 (313) 567-6170 jhurwitz@goodmanhurwitz.com bgoodman@goodmanhurwitz.com

Miles Swanson, La. Bar No. 32053 Miles W. Swanson, Esq. 4000 Bienville St., Ste. A New Orleans, LA 70119 (504) 383-4335 mws@mwswanson.com

6

 
 Rahim v. F.B.I., 947 F.Supp.2d 631 (2013)

947 F.Supp.2d 631 United States District Court,
E.D. Louisiana.
Malik RAHIM, Plaintiff v.
FEDERAL BUREAU of INVESTIGATION, et al., Defendants.
Civil Action No. 11–2850. | May 31, 2013.
Synopsis Background: Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI) moved for summary judgment in Freedom of Information Act (FOIA) case filed by founder of Hurricane Katrina relief organization.
Holdings: The District Court, Susie Morgan, J., held that:
[1] requester’s appeal did not satisfy the exhaustion requirements, and
[2] FBI’s Glomar response properly invoked FOIA exemption protecting records whose disclosure would constitute an unwarranted invasion of individual’s privacy.
Defendants’ motion granted.
Attorneys and Law Firms
*633 Davida Finger, William Patrick Quigley, Loyola Law School Clinic, Miles W. Swanson, Sara H. Godchaux, Attorney at Law, New Orleans, LA, Sunita Patel, Center For Constitutional Rights, New York, NY, for Plaintiff.
Elizabeth Shapiro, Bradley Philip Humphreys, U.S. Department of Justice, Washington, DC, Brock Darren DuPre, U.S. Attorney’s Office, New Orleans, LA, for Defendants.
Opinion

ORDER AND REASONS

SUSIE MORGAN, District Judge.
Before the Court is a motion for summary judgment filed by Defendants, the U.S. Department of Justice (“DOJ”) and the Federal Bureau of Investigation (“FBI”) (together, “Defendants”).1 Plaintiff, Malik Rahim (“Plaintiff”), opposes the motion.2 For the following reasons, the motion is GRANTED in all respects.3

1

R. Doc. 23. Defendants have also filed a reply

memorandum. See R. Docs. 30 and 32.

2

R. Doc. 26.

3

The parties have represented to the Court that there are

no disputed material facts that would prevent this

matter from being summarily resolved on the briefs.

See R. Doc. 33.

Background
Hurricane Katrina made landfall in Louisiana on August 29, 2005. In the days following the storm, Plaintiff, with others, founded Common Ground Relief (“CGR” or “the organization”) in order to provide short-term relief to Gulf Coast storm victims, as well as long-term support for rebuilding communities in the greater New Orleans, Louisiana area. According to Plaintiff, Brandon Darby (“Darby”) began working with CGR shortly after its formation in the fall of 2005 and remained an active member in the organization until some time in 2008.
Thereafter, Darby wrote an open letter in December 2008, which was posted on an Internet website, revealing that he had served as an informant for the FBI. A few weeks later, the criminal prosecution of David McKay (“McKay”)—who faced domestic terrorism charges relating to the *634 2008 Republican National Convention in St. Paul, Minnesota—proceeded to trial in
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Rahim v. F.B.I., 947 F.Supp.2d 631 (2013)

the U.S. District Court for the District of Minnesota on January 26, 2009.4 At trial, Darby testified against McKay as a government witness and confirmed that he became an FBI informant in November 2007.5

4

United States v. David G. McKay and Bradley N.

Crowder, Criminal Action No. 08–291 (D.Minn.)

(“McKay ”). McKay and Bradley Crowder (“Crowder”)

were charged in three counts of a three-count

indictment charging that they, aiding and abetting

others, had (1) possessed an unregistered destructive

device in violation of 26 U.S.C. §§ 5845, 5861(d) and

5871, and 18 U.S.C § 2; (2) illegally manufactured

destructive devices in violation of 26 U.S.C. §§ 5822,

5845, 5861(f) and 5871, and 18 U.S.C § 2; and (3)

possessed a destructive device not identified by a serial

number in violation of 26 U.S.C. §§ 5845, 5861(i) and

5871, and 18 U.S.C § 2. See McKay, R. Doc. 20.

Crowder pled guilty to count one of the indictment on

January 8, 2009, prior to McKay’s trial. See McKay, R.

Doc. 82.

5

FBI Agent Timothy Sellers corroborated Darby’s

statements at trial, testifying that Darby became an

informant on November 26, 2007. After the trial ended

in a hung jury, McKay later pled guilty to all counts of

a three-count amended indictment and was sentenced

on May 22, 2009, to a 48–month term of imprisonment

in the custody of the U.S. Bureau of Prisons. See

McKay, R. Docs. 107, 125, 144, and 170.

Approximately one month later on February 24, 2009, Plaintiff submitted a Freedom of Information Act (“FOIA” or “the Act,” 5 U.S.C. § 552 et seq.) request to the FBI seeking “documents and things pertaining to Malik Rahim or his organization Common Ground Relief, from 2005 through the present.”6 Plaintiff indicated he sought records regarding “[s]urveillance, investigation, use of informants and agents, planting or gathering ‘evidence’ and any other activities pertaining to Malik Rahim, including but not limited to all such documents and things pertaining to Mr. Rahim and the following: The organization Common Ground Relief, based in New Orleans, Louisiana: and/or Any and all others associated with Common Ground Relief; and/or Mr. Brandon Darby.”7 According to Plaintiff, he sought this information “to confirm details related to Darby’s work as a government informant during the time he spent in New Orleans with Common Ground and discover the nature of the information provided to the government.”8 On March 3, 2009, the FBI requested Plaintiff provide his middle

name and date of birth to facilitate the records search. Counsel for Plaintiff provided such information to the FBI via e-mail on March 9, 2009.

6

R. Doc. 26–1 at p. 2.

7

R. Doc. 26–1 at p. 2 (emphasis in original).

8

R. Doc. 26. at p. 2.

By letter dated March 17, 2009, the FBI acknowledged receipt of Plaintiff’s FOIA request regarding records about himself and CGR, assigned it Request No. 1127584–000, and informed him that the FBI was “searching the indices to [its] central records system at FBI Headquarters for the information [he] requested.”9 By separate letter also dated March 17, 2009, the FBI further informed Plaintiff that it was unable to respond to his FOIA request “for records maintained by the FBI concerning” Darby at that time, as the nature of Plaintiff’s request—given that he sought documents regarding a third party—first required him to submit “either proof of death or a privacy waiver from the subject of [his] request” before the FBI could respond.10 The letter explained that

9

R. Doc. 23–5 at p. 2.

10

R. Doc. 23–7 at p. 12.

*635 [w]ithout proof of death or a privacy waiver, the disclosure of third-party information contained in law enforcement records, should they exist, is considered both a clearly unwarranted invasion of privacy pursuant to Exemption (b)(6), 5 U.S.C. § 552(b)(6), and an unwarranted invasion of personal privacy, pursuant to Exemption (b)(7)(C), 5 U.S.C. § 522(b)(7)(C).11

11

R. Doc. 23–7 at p. 12. For the remainder of this order,

the Court will refer to 5 U.S.C. § 552(b)(6) as

“exemption 6” and 5 U.S.C. § 552(b)(7)(C) as

“exemption 7(C).”

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Rahim v. F.B.I., 947 F.Supp.2d 631 (2013)

This type of response is known as a “Glomar response.” See Phillippi v. Central Intelligence Agency, 546 F.2d 1009 (D.C.Cir.1976).12 A privacy waiver was enclosed with the letter.13

12

See also infra n. 33.

13

According to Plaintiff,

On March 13, 2013, Plaintiff’s attorney, Davida

Finger, emailed Brandon Darby requesting that he

sign the government’s waiver form and sent the

waiver form attached to those emails. On March

19, 2013, Darby’s attorney, Rodney Kleinman sent

an email response informing that he is counsel for

Darby. On March 19, 2013, Plaintiff’s attorney,

Davida Finger, requested of Mr. Kleinman, via

email, Brandon Darby’s signature on the waiver

and sent the waiver form attached.

R. Doc. 26 at p. 4. Plaintiff has not informed the

Court that Darby ever signed and returned the waiver

form.

By letter dated June 15, 2009, the FBI informed Plaintiff that an analyst was reviewing Plaintiff’s request for documents regarding himself and CGR and that he could “inquire as to the status of [Request No. 1127584–000] by calling the FBI’s FOIPA Public Information Center at 540–868–4593.”14

14

R. Doc. 23–6 at p. 2. The FBI provided a second status

update by letter dated September 14, 2009, informing

Plaintiff that an analyst was still reviewing his request

for records regarding himself and the organization as of

that date. R. Doc. 23–8 at p. 2.

By letter dated July 30, 2009, Plaintiff submitted an “amended” FOIA request asking for the same records regarding Plaintiff, CGR and Darby as identified in his original February 24, 2009 request, and specified that he was seeking “Main names and/or files; Cross-referenced names and/or files; Field office records and/or files; [and] Any and all paper records.”15 By separate letter also dated July 30, 2009, Plaintiff appealed the FBI’s decision regarding records pertaining to Darby16 to the DOJ’s Office of Information and Privacy (“OIP”), arguing that “Darby took part in a government impropriety [when] working as an FBI spy and provocateur within Common

Ground Relief, and act of such public concern as to overcome personal privacy exemptions.”17 In support of his appeal, Plaintiff cited Darby’s open letter and several news articles regarding Darby’s work as an FBI informant in the McKay case. According to Plaintiff, the FBI could not justify withholding the requested documents under exemptions 6 and 7(C) due to Darby’s alleged privacy interests because Darby had “thrust himself into the public eye, thus diminishing his expectation of privacy.”18 Plaintiff further argued that the “courts have long held that the core purpose of FOIA is to *636 protect citizens’ right ‘to be informed about what their government is up to’ ” and that the “public has a significant interest in knowing to what extent [Darby] took active measures to disrupt [Plaintiff’s] and Common Ground Relief[’s] work.”19

15

R. Doc. 23–7 at p. 3.

16

In the first sentence of Plaintiff’s appeal letter,

Plaintiff’s counsel stated “I write this letter, on behalf

of [Plaintiff], to the 5 U.S.C. §§ 522(b)(6) and (b)(7)(C)

denial of [Plaintiff’s] Freedom of Information/Privacy

Acts (FOIPA) request ... as it pertains to Brandon

Darby.” R. Doc. 23–7 at p. 6.

17

R. Doc. 23–7 at p. 6.

18

R. Doc. 23–7 at p. 7.

19

R. Doc. 23–7 pp. 6–8

By letter dated August 18, 2009, OIP acknowledged Plaintiff’s appeal and assigned it appeal No. 09–2424. By letter dated September 25, 2009, OIP affirmed the FBI’s denial because “[w]ithout [Darby’s] consent, proof of death, official acknowledgment of an investigation, or an overriding public interest, confirming or denying the existence of records [Plaintiff] requested would constitute a clearly unwarranted invasion of personal privacy, and could reasonably be expected to constitute an unwarranted invasion of privacy under” FOIA exemptions 6 and 7(C).20 OIP informed Plaintiff that if he was
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Rahim v. F.B.I., 947 F.Supp.2d 631 (2013)

unhappy with the outcome of his appeal, he could file a lawsuit pursuant to 5 U.S.C. § 552(a)(4)(B).

20

R. Doc. 23–13 at p. 2.

The FBI responded to Plaintiff’s request for records about himself and CGR by letter dated November 16, 2009, stating that it had reviewed twenty-five pages of records responsive to Plaintiff’s request as to himself and the organization. The FBI released all twenty-five pages to Plaintiff, with certain personally identifying information redacted pursuant to FOIA exemptions 2, 6, and 7(C). The FBI’s letter also informed Plaintiff that a search of its electronic surveillance indices failed to locate any responsive records as to Plaintiff or the organization. Finally, the letter stated that Plaintiff had “the right to appeal any denials in [the] release” to OIP and notified Plaintiff that any such appeal had to be received within sixty days from the letter’s date in order to be considered timely.21 Plaintiff did not contact OIP after receiving the FBI’s November 16, 2009 letter.

21

R. Doc. 23–9 at p. 2.

On November 16, 2011, Plaintiff initiated the above-captioned matter pursuant to 5 U.S.C. § 552 et seq.22 Plaintiff alleges that Defendants violated the FOIA because they failed to promptly make records available to Plaintiff. Plaintiff seeks a declaratory judgment that Defendants violated the FOIA and requests the Court to order Defendants to “make a full, adequate, and expedited search for the requested records” and to produce such records to Plaintiff no later than ten days after the Court’s order. Plaintiff also seeks to enjoin Defendants from assessing fees or costs related to processing Plaintiff’s FOIA request. Finally, Plaintiff alleges he is entitled to costs and reasonable attorney’s fees pursuant to 5 U.S.C. § 552(a)(4)(E).

22

R. Doc. 1.

Defendants have moved for summary judgment and advance two arguments why the Court should dismiss this matter. First, Defendants argue that Plaintiff failed to exhaust his administrative remedies as to his request for records pertaining to himself and CGR. Defendants

contend that Plaintiff’s failure to exhaust administrative remedies means that he cannot seek relief from this Court as to those claims. Second, Defendants argue that their Glomar response citing exemptions 6 and 7(C) was proper because confirming or denying the existence or non-existence of records pertaining to Darby would cause cognizable harm within the meaning of 5 U.S.C. § 552(b)(6) and (b)(7)(C). Thus, Defendants assert that they correctly invoked *637 exemptions 6 and 7(C) as to Plaintiff’s FOIA request concerning Darby. In response to Defendants’ motion for summary judgment, Plaintiff addresses why Defendants’ Glomar response was improper. In addition, Plaintiff raises the issue of whether Darby’s status as an alleged FBI informed had been “officially confirmed,” thereby prohibiting Defendants from employing an exclusion under 5 U.S.C. § 552(c)(2).23

23

Defendants’ Glomar response does not state that

Defendants employed an exclusion pursuant to 5 U.S.C.

§ 552(c)(2).

For the reasons set forth below, the Court finds that (1) Plaintiff failed to exhaust his administrative remedies as to his request for records pertaining to himself and CGR, (2) Defendants’ Glomar response citing exemptions 6 and 7(C) was proper, and (3) if an exclusion was in fact employed, it was, and continues to remain, amply justified.

Summary Judgment and the FOIA
“[M]ost FOIA cases are resolved at the summary judgment stage.” Flightsafety Servs. Corp. v. Dep’t of Labor, 326 F.3d 607, 610 (5th Cir.2003). As with non-FOIA cases, summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted
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Rahim v. F.B.I., 947 F.Supp.2d 631 (2013)
at trial.’ ” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir.1991). If the moving party fails to carry this burden, the motion must be denied. If the moving party successfully carries this burden, the burden then shifts to the non-moving party to show that a genuine issue of material fact exists. Id. at 322–23, 106 S.Ct. 2548. Once the burden has shifted, the non-moving party must direct the Court’s attention to something in the pleadings or other evidence in the record that sets forth specific facts sufficient to establish that a genuine issue of material fact does indeed exist. Id. at 324, 939 F.2d 1257. The non-moving party cannot simply rely on allegations or blanket denials of the moving party’s pleadings as a means of establishing a genuine issue of material fact, but instead must identify specific facts that establish a genuine issue for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.2001).
If the dispositive issue is one on which the non-moving party will bear the burden of proof at trial, however, the moving party may satisfy its burden by simply pointing out that the evidence in the record is insufficient with respect to an essential element of the non-moving party’s claim. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The nonmoving party must then respond, either by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the moving party” or by coming forward with additional evidence. Celotex, 477 U.S. at 332–33 & 333 n. 3, 106 S.Ct. 2548.
“An issue is material if its resolution could affect the outcome of the action.” DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005). When assessing whether a material factual dispute exists, *638 the Court considers “all of the evidence in the record but refrains from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.2008); see also Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150–51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). All reasonable inferences are drawn in favor of the non-moving party. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). There is no genuine issue of material fact if, even viewing the evidence in the light most favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party, thus entitling the moving party to judgment as a matter of law. Smith v. Amedisys, 298 F.3d 434, 440 (5th Cir.2002).
[1] [2] [3] A court reviews an agency’s response to a FOIA request de novo. 5 U.S.C. § 552(a)(4)(B). To obtain summary judgment, “the burden is on the agency to

sustain its action.” 5 U.S.C. § 552(a)(4)(B). Thus, because Defendants withheld documents from Plaintiff, if any in fact exist, pursuant to FOIA exemptions 6 and 7(C), the burden is on Defendants to justify their decision to invoke those exemptions. “[T]he Court may grant summary judgment based solely on information provided in an agency’s affidavits or declarations if they are relatively detailed and when they describe ‘the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.’ ” Strunk v. U.S. Dep’t of Interior, 752 F.Supp.2d 39, 42–43 (D.D.C.2010) (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981)). Agency affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’ ” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981)). Ultimately, “an agency’s justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.” Wolf v. CIA, 473 F.3d 370, 374–75 (D.C.Cir.2007) (internal quotation marks and citations omitted).
Law and Analysis
Access to government records is the “fundamental principle” that animates the FOIA. John Doe Agency v. John Doe Corp., 493 U.S. 146, 151, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989). “Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands.” EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). In essence, the “basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). As a result, the Act’s “philosophy” is one “ ‘of full agency disclosure unless information is exempted under clearly delineated statutory language.’ ” Dep’t of Air Force v. Rose, 425 U.S. 352, 360–361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (quoting S.Rep. No. 813, 89th
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Rahim v. F.B.I., 947 F.Supp.2d 631 (2013)

Cong., 1st Sess. 3 (1965)).
At the same time, Congress has also recognized “that public disclosure is not always in the public interest.” CIA v. *639 Sims, 471 U.S. 159, 166–67, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985). Consequently, the FOIA sets forth nine “specific exemptions from disclosure.” John Doe Agency, 493 U.S. at 152, 110 S.Ct. 471. While such exemptions must be narrowly construed, they “are intended to have meaningful reach and application.” John Doe Agency, 493 U.S. at 152, 110 S.Ct. 471. Thus, the “FOIA represents a balance struck by Congress between the public’s right to know and the government’s legitimate interest in keeping certain information confidential.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C.Cir.2003) (citing John Doe Agency, 493 U.S. at 152, 110 S.Ct. 471).
[4] The FOIA requires disclosure of government records unless the requested information falls within one of the nine enumerated exemptions. See 5 U.S.C. § 552(b). A U.S. District Court does not have jurisdiction to compel disclosure of a properly withheld agency record—that is, a record falling within an exemption. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) (“Under 5 U.S.C. § 552(a)(4)(B)[,] federal jurisdiction is dependent upon a showing that an agency has (1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records.’ ”).
[5] Within twenty days (excepting weekends and legal holidays) after receipt of a FOIA request, the receiving agency must determine whether it will produce or withhold the requested documents. 5 U.S.C. § 552(a)(6)(A)(i). If the agency makes an adverse decision, the requester may file an administrative appeal.24 5 U.S.C. § 552(a)(6)(A)(ii). The agency must then issue a decision within twenty days (excluding weekends and legal holidays) after receiving the appeal. 5 U.S.C. § 552(a)(6)(A)(ii). If the agency denies the appeal, the requestor may thereafter file suit against the agency in federal district court. 5 U.S.C. § 552(a)(4)(B). A requestor must fully and timely exhaust such administrative remedies prior to seeking judicial review. Voinche v. U.S. Dep’t of Air Force, 983 F.2d 667, 669 (5th Cir.1993). Exhaustion of administrative remedies includes exhaustion of the administrative appeal process set forth in 5 U.S.C. § 552(a)(6)(A)(ii).25 Wilbur v. CIA, 355 F.3d 675, 676 (D.C.Cir.2004).

24

The FBI is a component of the DOJ. DOJ regulations

permit an individual, such as Plaintiff in this case, to appeal an adverse FOIA decision by the FBI to DOJ’s Office of Information Policy within sixty days of the initial decision. See 28 C.F.R. § 16.9.

25

Nevertheless, “if the agency has not issued its

‘determination’ [on the appeal] within the required time

period, the requester may bring suit directly in federal

district court without exhausting administrative appeal

remedies.” See Citizens for Responsibility & Ethics in

Wash. v. FEC, 711 F.3d 180, 182 (D.C.Cir.2013).

I. FOIA Request Regarding Plaintiff and CGR [6] First, Defendants argue that Plaintiff failed to exhaust his administrative remedies regarding his request for records pertaining to himself and the organization. Defendants note that the FBI produced twenty-five redacted pages of records on November 16, 2009, and informed Plaintiff that he could appeal the FBI’s response to OIP within sixty days. Plaintiff did not thereafter file an appeal.26 In addition, Defendants further assert that Plaintiff’s July 30, 2009 letter to OIP was limited to appealing the FBI’s decision regarding Darby, and therefore it could *640 not have exhausted his administrative remedies as to Plaintiff and the organization. Consequently, because Plaintiff has failed to exhaust his administrative remedies, Defendants argue that Plaintiff cannot seek judicial relief from this Court as to the FBI’s November 16, 2009 production. Plaintiff responds that he properly appealed the FBI’s response regarding himself and CGR via his July 30, 2009 letter to OIP. Thus, Plaintiff submits that he exhausted his administrative remedies via his July 30, 2009 letter.

26

Plaintiff does not dispute that he did not file any appeal

after receiving the FBI’s November 16, 2009 letter and

records enclosed therein.

Plaintiff’s argument that he properly appealed the FBI’s response regarding himself and CGR via his July 30, 2009 letter is not persuasive. The FBI responded to Plaintiff’s FOIA request by two letters, each dated March 17, 2009. One letter informed Plaintiff that the FBI could not process his request for records pertaining to a third party—Darby—because such records, if they in fact existed, would be covered by exemptions 6 and 7(c). This
6

Rahim v. F.B.I., 947 F.Supp.2d 631 (2013)

letter specifically informed Plaintiff that unless he took affirmative steps to demonstrate Darby was deceased or obtained a privacy waiver from Darby, the FBI would not respond to that aspect of Plaintiff’s request. The other letter informed Plaintiff that the FBI had assigned a file number (No. 1127584–000) to the remainder of his request regarding himself and CGR and stated that the agency had begun to search its records system for responsive documents. On July 30, 2009, Plaintiff’s counsel wrote a letter to the OIP, which opens: “I write this letter, on behalf of [Plaintiff], to the 5 U.S.C. §§ 552(b)(6) and (b)(7)(C) denial of [Plaintiff’s] Freedom of Information/Privacy Acts (FOIPA) request (attached hereto, Attachment # 1) as it pertains to Brandon Darby.”27 This introductory sentence clearly states that Plaintiff was appealing the FBI’s denial of Plaintiff’s FOIA request “as it pertains to Brandon Darby” under exemptions 6 and 7(C).28 The remainder of the July 30, 2009 letter further explains that Plaintiff’s appeal was in fact limited to records “pertain[ing] to Brandon Darby,” as the letter first outlines the information known about Darby working as an FBI informant in the McKay case, then cites media articles documenting Darby’s negative behavior as a member of CGR, and closes with the argument that “[t]he public has a significant interest in knowing to what extent [Darby] took active measures to disrupt [Plaintiff’s] and Common Ground Relief[’s] work.”29 Consequently, the Court finds the only reasonable reading of Plaintiff’s July 30, 2009 letter was that Plaintiff’s appeal was limited to the FBI’s Glomar response regarding Darby.

27

R. Doc. 23–7 at p. 6.

28

R. Doc. 23–7 at p. 6 (bold removed).

29

R. Doc. 23–7 at pp. 6–8.

[7] Furthermore, Plaintiff’s appeal of the FBI’s decision “as it pertains to Brandon Darby”30 does not satisfy the exhaustion requirement for records regarding Plaintiff and the organization. A FOIA requester must administratively appeal every discrete issue for which judicial review is sought, otherwise he has failed to exhaust his administrative remedies as to any un-appealed claims. See Hamilton Secs. Grp., Inc. v. Dep’t of Housing & Urban

Dev., 106 F.Supp.2d 23, 27 (D.D.C.2000) (limiting judicial review to only the issues properly appealed), aff’d, 2001 WL 238162 (D.C.Cir.2001); Cleary, Gottlieb, Steen & Hamilton v. Dep’t of Health & Human Servs., 844 F.Supp. 770, 779–80 (D.D.C.1993).

30

R. Doc. 23–7 at p. 6.

*641 Plaintiff argues that a decision from another section of this Court as establishes a rule in the Eastern District of Louisiana that “a requester who appeals a denial of only part of his request may be considered to have appealed the other parts.”31 The case Plaintiff cites as establishing this rule involved an individual, Jerry Robinett (“Robinett”), who applied for employment with the U.S. Postal Service (“USPS”). See Robinett v. U.S. Postal Service, 2002 WL 1728582, at *1 (E.D.La. July 24, 2002) (Vance, J.). After his application was denied, Robinett requested a copy of his application and any other related evaluation documents from the USPS pursuant to the FOIA. Robinett, 2002 WL 1728582 at *1. When his entire request was denied, Robinett appealed the decision and the USPS subsequently released his employment application, but not any scoring evaluation material. Robinett thereafter filed a lawsuit in the U.S. District Court for the Eastern District of Louisiana arguing that he was also entitled to the scoring evaluation material under the FOIA. In response, the USPS argued that Robinett had not exhausted his administrative remedies with respect to the scoring evaluation material. The Robinett Court, after examining plaintiff’s appeal letter, determined that his appeal was “particularly concerned” with obtaining the scoring evaluation material, and thus that it was broad enough to encompass such material. As a result, the Robinett Court found that Robinett had exhausted his administrative remedies and rejected the USPS’ exhaustion argument. Robinett, 2002 WL 1728582 at *3.

31

R. Doc. 26 at p. 23.

Unlike in Robinett, nothing in Plaintiff’s July 30, 2009 letter to OIP indicated he sought review of any aspect of the FBI’s decision other than “as it pertain[ed] to Brandon Darby.”32 Consequently, Robinett is inapposite. The Court finds Plaintiff has failed to exhaust his administrative remedies regarding records pertaining to himself and CGR. Because Plaintiff must exhaust his administrative remedies before seeking judicial relief from this Court,
7

Rahim v. F.B.I., 947 F.Supp.2d 631 (2013)

Defendants’ motion for summary judgment as to Plaintiff’s request for records pertaining to himself and CGR is GRANTED.

32

R. Doc. 23–7 at p. 6. The Court also observes that the

FBI informed Plaintiff it was processing his request as

to himself and the organization on June 15, 2009, and

provided a second status update on September 14,

2009. The FBI released twenty-five redacted pages

regarding this aspect of his request on November 16,

2009. Thus, as the FBI had not made any decision

whether to release or withhold such documents as to

Plaintiff and CGR before July 30, 2009, it does not

logically follow that Plaintiff could have appealed the

FBI’s decision as to himself and CGR on July 30, 2009.

II. FOIA Request Regarding Brandon Darby Second, Defendants argue that they correctly issued a Glomar response33 to Plaintiff’s request for records pertaining to *642 Darby. In this case, Defendants refused to confirm or deny the existence of these records—absent a privacy waiver or proof of death—in order to protect Darby’s privacy interests, unless Plaintiff was able to demonstrate a public interest in disclosure that outweighed Darby’s privacy interests.34

33

Defendants’ Glomar response states that “[w]ithout

proof of death or a privacy waiver, the disclosure of

third-party information contained in law enforcement

records, should they exist, is considered both a clearly

unwarranted invasion of privacy pursuant to Exemption

(b)(6), 5 U.S.C. § 552(b)(6), and an unwarranted

invasion of personal privacy, pursuant to Exemption

(b)(7)(C), 5 U.S.C. § 522(b)(7)(C).” R. Doc. 23–7 at p.

12.

The term “Glomar response” comes from a case in

which the Central Intelligence Agency defended its

refusal to confirm or deny the existence of records

regarding a certain ship, the Hughes Glomar

Explorer. See Phillippi, 546 F.2d at 1010–11.

Though commercial records indicated the ship was a

large research vessel owned by a corporation, a

journalist suspected it was property of the United

States and filed a FOIA request regarding certain

records relating to the vessel. Phillippi, 546 F.2d at

1011.

34

R. Doc. 23–2 at p. 6. According to the 28 U.S.C. §

1746 declaration executed by David Hardy (“Hardy

Declaration”), section chief of the Record/Information Dissemination Section of the FBI’s Records Management Division, “[t]he FBI instituted this policy in order to protect the privacy rights of [third-party] individuals, particularly those who appear in FBI law enforcement files.” R. Doc. 23–2 at p. 6.

[8] An agency may issue a Glomar response to a FOIA request when “to confirm or deny the existence of records ... would cause harm cognizable under an [sic] FOIA exemption.” Gardels v. CIA, 689 F.2d 1100, 1103 (D.C.Cir.1982). The burden is on Defendants to show that the records covered by the FBI’s Glomar response, if they exist, fall within the relevant exemptions invoked—that is, exemptions 6 and 7(C). 5 U.S.C. § 552(a)(4)(B); Strunk, 752 F.Supp.2d at 42–43. Exemption 6 protects from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). “Similar files” is broadly interpreted, such that exemption 6 protects all information that “applies to a particular individual” from disclosure in the absence of a public interest in disclosure U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982) (“The exemption [was] intended to cover detailed Government records on an individual which can be identified as applying to that individual.”) (citation omitted); New York Times Co. v. NASA, 920 F.2d 1002, 1005 (D.C.Cir.1990) (en banc). Exemption 7(C) protects from disclosure “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Given the nature of the records sought in Plaintiff’s FOIA request and the government agency to which it was addressed, responsive records, if they exist, would be located in law enforcement files within the meaning of exemption 7(C).35 Consequently, the Court will limit its analysis to whether Defendants have satisfied their burden to show records pertaining to Darby, if they exist and were released, could “reasonably be expected to constitute an unwarranted invasion of personal privacy” within the meaning of exemption 7(C). 5 U.S.C. § 552(b)(6); Barbosa v. DEA, 541 F.Supp.2d 108, 111 & 111 n. 2 (D.D.C.2008).

35

According to the Hardy Declaration,

The FBI is responsible for detecting and

undertaking investigations into possible violations

8

Rahim v. F.B.I., 947 F.Supp.2d 631 (2013)
of Federal criminal laws. See 28 U.S.C. § 533. Plaintiff alleges that Brandon Darby was working as an informant for the FBI in relation to plaintiff and Common Ground Relief. Any records the FBI would have related to Mr. Darby in that capacity, if such records even exist, would necessarily have been compiled for law enforcement purposes and would relate directly to, and be the product of, the FBI’s investigation of violations of the United States Code for which the FBI has investigative responsibility. If they existed, any records created by the FBI in the course of an investigation—including any informant records—would have been compiled to document the investigative actions and findings in the criminal case under investigation and to support any potential prosecution. R. Doc. 23–2 at p. 6.

A. Darby’s Privacy Interests
The FBI has provided a sworn declaration averring that the agency issued a *643 Glomar response to Plaintiff’s FOIA request because disclosure of such records, if they exist, would be an unwarranted invasion of Darby’s privacy, as Plaintiff accuses Darby of being an FBI informant.36 Plaintiff responds that Darby has no privacy interests in the requested material because he has officially confirmed he is an FBI informant.37 Plaintiff has provided the Court with trial testimony from the McKay case and news articles which, according to Plaintiff, show that Darby “has admitted publically [sic] that he worked as an informant and that he was an informant prior to the 2008 [Republican National Convention].”38

36

R. Doc. 23–2 at pp. 6–8.

37

The Court discusses Plaintiff’s arguments regarding

“official confirmation” and the exclusion set forth in 5

U.S.C. § 552(c)(2) infra at pp. 23–27.

38

R. Doc. 26 at p. 5.

[9] First, the Court observes, Plaintiff’s arguments notwithstanding, that courts have repeatedly recognized

that third parties such as informants and other cooperating witnesses have significant privacy interests which outweigh the public interest in disclosure. See, e.g., Thomas v. U.S. Dep’t of Justice, 260 Fed.Appx. 677, 678 (5th Cir.2007) (“The Supreme Court has held as a categorical matter that a third party’s request for law-enforcement records about a private citizen can reasonably be expected to invade that citizen’s privacy.” (citing Reporters Comm., 489 U.S. at 780, 109 S.Ct. 1468)); Koch v. USPS, 1993 WL 394629, at *1 (8th Cir.1993) (“The informant’s interest in maintaining confidentiality is considerable; as an informant of potentially criminal activities, the informant risked embarrassment, harassment, and emotional and physical retaliation. If anything, public interest supports maintaining the confidentiality of the report.”); Burge v. Eastburn, 934 F.2d 577, 579 (5th Cir.1991) (finding that the FBI properly invoked exemption 7(C) regarding a request for witness statements given to the FBI in relation to a murder); Halloran v. Veterans Admin., 874 F.2d 315, 320–21 (5th Cir.1989) (“[P]ersons who are not the subjects of the investigation may nonetheless have their privacy invaded by having their identities and information about them revealed in connection with the investigation. Exemption 7(C) is intended to protect the privacy of any person mentioned in the requested files, not only the person who is the object of the investigation.” (internal quotation marks and citation omitted)); Lesar v. Dep’t of Justice, 636 F.2d 472, 488 (D.C.Cir.1980) (holding that “identification of the individuals involved in the FBI’s investigation of Dr. [Martin Luther] King[,] [Jr.] would constitute an unwarranted invasion of their privacy in light of the contemporary and controversial nature of the information”); Fischer v. U.S. Dep’t of Justice, 596 F.Supp.2d 34 (D.D.C.2009) (upholding the FBI’s Glomar response invoking exemption 7(C) to protect the identities of, and information provided by, cooperating witnesses); Barbosa, 541 F.Supp.2d 108 (upholding the DEA’s Glomar response invoking exemption 7(C) to protect privacy interests in records pertaining to an alleged informant); Meserve v. U.S. Dep’t of Justice, 2006 WL 2366427 (D.D.C. Aug. 14, 2006) (upholding the EOUSA’s partial Glomar response invoking exemption 7(c) to protect privacy interests in records pertaining to a witness); Butler v. DEA, 2006 WL 398653 (D.D.C. Feb. 16, 2006) (upholding the DEA’s Glomar response invoking exemption 7(c) to protect privacy interests in records pertaining to alleged informants).
*644 Second, the Court has carefully examined the materials Plaintiff has submitted. While the Court observes Darby has testified in open court and made
9

Rahim v. F.B.I., 947 F.Supp.2d 631 (2013)
public statements to the press regarding his work as an FBI informant in connection with the 2008 Republican National Convention and the McKay case, Darby has never made statements indicating he served as an FBI informant for any investigation involving Plaintiff or CGR. The Court finds that Darby has not been officially confirmed as an FBI informant with respect to any investigation involving Plaintiff or the organization. As a result, Darby’s statements regarding the McKay case do not diminish his privacy interests in records, if any exist, that are responsive to Plaintiff’s FOIA request as to Plaintiff and the organization. See, e.g., Burge, 934 F.2d at 578 (holding that third parties did not waive any privacy interest in statements given to the FBI by testifying at the requestor’s murder trial because “[t]he fact that both [the statements and the testimony] may refer to the same event ... is plainly not enough to diminish significantly the privacy interest at issue”); Seme v. FBI, 892 F.Supp.2d 77, 83–84 (D.D.C.2012) (finding that a third-party individual maintains his privacy interest “even if the requester already knows, or is able to guess, his identity” and even where the third party’s status as an FBI informant “may have been disclosed in deposition testimony and trial testimony”); Meserve, 2006 WL 2366427, at *6–7 (holding that testimony at trial did not diminish privacy interests); Tanks v. Huff, 1996 WL 293531, at *4 (D.D.C. May 28, 1996) (finding that persons who testified at the requester’s trial maintained significant privacy interests and that the government properly neither confirmed nor denied the existence of records unrelated to the requestor or his prosecution under exemption 7(C)). Thus, Darby has a privacy interest, within the meaning of exemption 7(C), in any responsive records if they in fact exist.
B. The Public Interest
[10] Because the Court finds that Darby has a privacy interest in any responsive records, if they exist, the Court must next determine whether the public interest in disclosing any such records outweighs Darby’s individual privacy interest. Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 174, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004). In order for the public interest to take precedence over Darby’s privacy interest, Plaintiff, as the FOIA requester, has the burden to “(1) ‘show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake,’ and (2) ‘show the information is likely to

advance that interest.’ ” Boyd v. Criminal Div. of U.S. Dept. of Justice, 475 F.3d 381, 387 (D.C.Cir.2007) (quoting Favish, 541 U.S. at 172, 124 S.Ct. 1570).
“[P]rivacy interests are particularly difficult to overcome when law enforcement information regarding third parties is implicated.” Martin v. Dep’t of Justice, 488 F.3d 446, 457 (D.C.Cir.2007). With respect to exemption 7(C), “the only relevant public interest in the FOIA balancing analysis [under Favish is] the extent to which disclosure of the information sought would ‘she[d] light on an agency’s performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to.’ ” U.S. Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 497, 114 S.Ct. 1006, 127 L.Ed.2d 325 (quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989)). To satisfy this “demanding” standard, a “requester must at a minimum ‘produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.’ ” *645 Blackwell v. FBI, 646 F.3d 37, 41 (D.C.Cir.2011) (quoting Favish, 541 U.S. at 174, 124 S.Ct. 1570).
Plaintiff argues he has satisfied this burden because he “pursued this case to help the public understand how government informants were used in New Orleans in the post-hurricane Katrina years.”39 In essence, Plaintiff alleges that the FBI acted improperly by having Darby infiltrate the organization in order to “disrupt” CGR’s activities in New Orleans following Katrina. However, Plaintiff has not provided the Court with any evidence to support his allegations that the FBI engaged in any sort of impropriety. Without evidence that would lead a reasonable person to believe some sort of government impropriety might have occurred, Plaintiff cannot show that the public interest sought to be advanced is a significant one or that the information sought is likely to advance that interest. Favish, 541 U.S. at 172, 124 S.Ct. 1570. Consequently, Plaintiff’s mere allegations fail to satisfy his burden to overcome Darby’s privacy interests. See, e.g., Pugh v. FBI, 793 F.Supp.2d 226, 232 (D.D.C.2011) (“A requester might overcome an individual’s privacy interest if ... he offers compelling evidence that the agency denying the FOIA request is engaged in illegal activity. Plaintiff’s unsupported assertion of government wrongdoing is far less than is needed to demonstrate that the public interest sought to be advanced is a significant one, and that release of the requested information is likely to advance that interest.”) (citations and quotations omitted); Fischer, 596 F.Supp.2d at 47 n. 18 (“Plaintiff’s speculative allegations
10

Rahim v. F.B.I., 947 F.Supp.2d 631 (2013)

regarding agency mistakes and bad faith do not constitute evidence of illegal activity nor do they raise an inference that the government is improperly withholding information.”).

39

R. Doc. 26 at p. 21.

The government’s conduct is presumed to be proper unless contradicted by evidence. U.S. Dep’t of State v. Ray, 502 U.S. 164, 179, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991); see also United States v. Chem. Found., Inc., 272 U.S. 1, 14–15, 47 S.Ct. 1, 71 L.Ed. 131 (1926) (“The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.”). As Plaintiff has not come forward with any evidence indicating the government engaged in any impropriety, Plaintiff cannot demonstrate that a significant public interest outweighs Darby’s privacy interests, if any records pertaining to Darby in fact exist. See Boyd, 475 F.3d at 388 (“Unsubstantiated assertions of government wrongdoing ... do not establish a meaningful evidentiary showing.” (citation and quotation omitted)). Disclosing any responsive records, if they exist, would constitute an unwarranted invasion of Darby’s privacy within the meaning of exemption 7(C). Consequently, the Court finds that Defendants’ Glomar response was proper.

C. 5 U.S.C. § 552(c)(2) “Exclusion”
In response to Defendants’ motion for summary judgment, Plaintiff also argues that Darby’s identity as an FBI informant has been “officially confirmed” and that, as a result, Defendants may not avail themselves of the exclusion set forth in 5 U.S.C. § 552(c)(2).40 See, e.g., Boyd, 475 F.3d at 389 (“Where an informant’s status has been officially confirmed, a Glomar response is unavailable, and the agency must acknowledge the existence of any responsive records it holds.”). Thus, Plaintiff *646 contends that Defendants’ Glomar response regarding Darby was improper.

40

R. Doc. 26 at p. 9.

[11] Title 5, United States Code, Section 552(c)(2) provides that
[w]henever informant records maintained by a criminal law enforcement agency under an informant’s name or personal identifier are requested by a third party according to the informant’s name or personal identifier, the agency may treat the records as not subject to the requirements of [the FOIA] unless the informant’s status as an informant has been officially confirmed.
Section 552(c) differs from the exemptions set forth in Section 552(b) because this section allows the government to “exclude” certain highly sensitive information from the FOIA, rather than treat it as information that is “exempt” from production. See Steinberg v. U.S. Dep’t of Justice, 1997 WL 349997, at *1 (D.D.C. June 18, 1997). “An ‘exclusion’ is different from an exemption in that the Government need not even acknowledge the existence of excluded information. Rather, the Government is permitted to file an in camera declaration, which explains either that no exclusion was invoked or that the exclusion was invoked appropriately.” Steinberg, 1997 WL 349997, at *1.
The caselaw on which Plaintiff relies to argue Darby’s status as an informant as been “officially confirmed” is not analogous given the facts of this case.41 First, in Pickard v. Dep’t of Justice, the FOIA requestor, Williams Pickard (“Pickard”), presented evidence that Gordon Todd Skinner (“Skinner”) had been an informant in the DEA’s investigation of Pickard. Skinner also testified against Pickard at Pickard’s trial. Pickard v. Department of Justice, 653 F.3d 782, 785 (9th Cir.2011). Although the government contested whether the evidence Pickard submitted in his FOIA case was admissible, the government did not dispute that the prosecution elicited testimony in open court from Skinner during Pickard’s trial. Pickard, 653 F.3d at 785. The government also did not dispute that the prosecution elicited testimony from DEA agents who identified Skinner as a confidential informant at Pickard’s trial. Pickard, 653 F.3d at 785. The Ninth Circuit found that this “undisputed evidence” demonstrated an “intentional, public disclosure” of Skinner’s status as a confidential informant, and thus concluded that the “cat is out of the bag” as to Skinner’s
11

Rahim v. F.B.I., 947 F.Supp.2d 631 (2013)

status as a confidential informant “in Pickard’s case.” Pickard, 653 F.3d at 784, 788 (emphasis added).

41

R. Doc. 26 at pp. 9–13.

As discussed above, Plaintiff has not come forward with any evidence indicating that Plaintiff’s status has been officially confirmed as an FBI informant for an investigation of Plaintiff and CGR. Thus, this Court has found that Plaintiff’s status as an alleged FBI informant has not been confirmed. Any purported confirmation of Darby’s status as an informant as to the McKay case is of no moment as to this case. Pickard provides no basis on which to deny Defendants’ motion for summary judgment.42

42

Likewise, Plaintiff’s reliance on Memphis Publishing

Company v. FBI, 879 F.Supp.2d 1 (D.D.C.2012) is also

unavailing because Darby’s alleged status as an FBI

informant has not been officially confirmed as to any

investigation involving Plaintiff or CGR.

Furthermore, in Boyd, the FOIA requester, Willie Boyd (“Boyd”), had been convicted on drugs and weapons charges and sought information on whether his girlfriend’s brother, Bryant Troupe (“Troupe”), had been a confidential informant for the government in other cases. Boyd, 475 F.3d at 384. Boyd had learned *647 that Troupe testified in connection with another criminal case (“Miller ”) and Boyd sought to use information about Troupe’s status as a confidential informant to support his theory that the government failed to investigate whether the drugs and weapons found in Boyd’s closet belonged to Troupe. Boyd, 475 F.3d at 384. Boyd submitted a broad FOIA request seeking “any and all information in your files on Bryant Troupe, as a confidential informant.” Boyd, 475 F.3d at 389. The government issued a Glomar response, refusing to confirm or deny the existence of any responsive information, and claiming that, if such information existed, it would be exempted from disclosure under 7(C). Boyd, 475 F.3d at 388–89. The district court granted summary judgment in favor of the government and the D.C. Circuit affirmed, concluding that any records regarding Troupe’s status as a confidential informant, if they existed, were properly withheld. The D.C. Circuit also suggested that the government’s Glomar response, given that it also refused to confirm or deny the existence of documents with respect to Troupe’s involvement in the Miller case, may

have been improper because that Troupe testified at the Miller trial that he was a confidential informant. Nevertheless, the D.C. Circuit reasoned that, even if the government’s response was not appropriate, this fact was immaterial because “[a]ny error” in giving a Glomar response “would not entitle Boyd to anything more under FOIA” because the records as to Troupe vis-à-vis Boyd’s case, if any existed, would have been withheld from Boyd under exemption 7(C). Boyd, 475 F.3d at 390.

Plaintiff’s FOIA request regarding Darby sought records relating to Darby’s role as an alleged informant in an investigation of Plaintiff and CGR. As discussed above, Darby’s status as an alleged informant as to Plaintiff and CGR has not been officially confirmed. Thus, Defendants properly issued a Glomar response to Plaintiff’s request for records pertaining to Darby. Boyd provides no basis on which to deny Defendants’ motion for summary judgment.

Finally, Defendants respond that Darby’s status as an alleged informant has not been confirmed and thus that the exclusion set forth in 5 U.S.C. § 552(c)(2) is not at issue in this case. Nevertheless, even assuming arguendo that Section 552(c)(2) is at issue, Defendants request the Court to follow the procedure the DOJ has established when a FOIA requester suggests an alleged informant’s identity has been officially confirmed. According to the DOJ, “it is essential to the viability of the exclusion mechanism that requesters not be able to deduce whether an exclusion was employed at all in a given case” and, consequently, it is “the government’s standard litigation policy ... that whenever a FOIA plaintiff raises a distinct claim regarding the suspected use of an exclusion, the government routinely will submit an in camera declaration addressing that claim.”43

43

R. Doc. 32 at p. 7 (quoting Attorney General’s

Memorandum on the 1986 Amendments to the

Freedom of Information Act, § G, available at

www.justice.gov/oip/86agmemo.htm# exclusions).

Defendants sought, and were granted, leave to file an ex parte declaration for in camera review regarding Plaintiff’s claim with respect to Section 552(c)(2). The Court, having undertaken a full review of the claim, finds that, if an exclusion was in fact employed, it was, and continues to remain, amply justified.44 Thus, Defendants’ *648 motion for summary judgment as to Plaintiff’s request for records pertaining Darby is GRANTED.
12

Rahim v. F.B.I., 947 F.Supp.2d 631 (2013)

44

See R. Doc. 32 at p. 7 (citing Attorney General’s

Memorandum, § G; Beauman v. FBI, Civ. No. 92–7603

(C.D.Cal. Apr. 28, 1993)).

asserts that it is not a proper defendant given it “is not an agency within this definition because it is a component of an executive department—the Department of Justice.” R. Doc. 23–1 at p. 9 n. 1.

III. Whether the DOJ is a Proper Defendant Finally, the FBI argues in a footnote that it is not a proper party to this case because it is not an “agency” for the purposes of the FOIA.45 See 5 U.S.C. § 552(f). The Court observes that other U.S. District Courts considering this issue have disagreed with the FBI’s position that it is not an “agency” within the meaning of 5 U.S.C. § 552(f). See, e.g., ACLU of Mich. v. FBI, 2012 WL 4513626 (E.D.Mich. Sept. 30, 2012) (finding that the FBI was a proper defendant). Nevertheless, given that the FBI acted properly in responding to Plaintiff’s FOIA request, and that the DOJ is also a party, the Court need not determine whether the FBI is a proper defendant in this case. See Vazquez v. United States Dep’t of Justice, 764 F.Supp.2d 117, 119 (D.D.C.2011) (finding that a court need not “dwell on the issue” of whether the FBI is a proper party to a FOIA action when the DOJ is also a named party to that action).

45

R. Doc. 23–1 at p. 9 n. 1. Under the FOIA, an “agency”

is defined as “any executive department, military

department, Government corporation, Government

controlled corporation, or other establishment in the

executive branch of the Government (including the

Executive Office of the President) or any independent

regulatory agency.” See 5 U.S.C. § 552(f). The FBI

Conclusion
The Court has found as a matter of law that Plaintiff failed to exhaust his administrative remedies regarding his request for records pertaining to himself and CGR. In addition, with respect to Plaintiff’s request for records pertaining to Darby, the Court has found that Plaintiff failed to produce evidence that any alleged government impropriety has occurred. Consequently, Plaintiff did not satisfy his burden necessary to overcome Darby’s privacy interest in such records, if any records exist. Thus, Defendants’ Glomar response invoking exemptions 6 and 7(C) as to Darby was proper. Finally, the Court concludes that if any exclusion was in fact employed, it was, and continues to remain, amply justified.
Accordingly, for the reasons set forth above,
IT IS ORDERED that Defendants’ motion for summary judgment is GRANTED and Plaintiff’s claims asserted against Defendants in the above-captioned matter are DISMISSED WITH PREJUDICE.
	  

13

 
 Case 2:11-cv-02850-SM-ALC Document 35 Filed 05/31/13 Page 1 of 1

MALIK RAHIM, Plaintiff
VERSUS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION
No. 11-2850

FEDERAL BUREAU OF INVESTIGATION, et al.,
Defendants

SECTION “E”

JUDGMENT Considering the record, the Court’s orderdismissing Plaintiff Malik Rahim’s claims against Defendants, the U.S. Department of Justice and the Federal Bureau of Investigation (“Defendants”), and the law, for the reasons assigned, IT IS ORDEREDthat there be and hereby isJUDGMENT in the above-captioned matter in favor of Defendants. IT IS FURTHER ORDERED that Plaintiff’s claims agai nst Defendants be and hereby are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this 31st day of May, 2013.

_____________________________ SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

 
 Case: 2:11-cv-02850-SM-ALC As of: 09/22/2013 04:23 PM CDT 1 of 4
U. S. District Court Eastern District of Louisiana (New Orleans) CIVIL DOCKET FOR CASE #: 2:11−cv−02850−SM−ALC

CLOSED

Rahim v. Federal Bureau of Investigation et al Assigned to: Judge Susie Morgan Referred to: Magistrate Judge Alma L. Chasez Cause: 05:552 Freedom of Information Act
Plaintiff Malik Rahim

Date Filed: 11/16/2011 Date Terminated: 05/31/2013 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant
represented by Davida Finger Loyola Law School Clinic 7214 St. Charles Ave. New Orleans, LA 70118 504−861−5596 Email: dfinger@loyno.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Miles W. Swanson Miles W. Swanson, Attorney at Law 4000 Bienville St. Suite A New Orleans, LA 70119 504−383−4335 Email: mws@mwswanson.com ATTORNEY TO BE NOTICED
Sara H. Godchaux Sara H. Godchaux, Attorney at Law 5108 Laurel Street New Orleans, LA 70115 504−352−4379 Email: sara.h.godchaux@gmail.com ATTORNEY TO BE NOTICED
Sunita Patel Center for Constitutional Rights 666 Broadway 7th Floor New York, NY 10012 212−614−6439 Email: spatel@ccrjustice.org ATTORNEY TO BE NOTICED
William Patrick Quigley Loyola Law School Clinic 7214 St. Charles Ave. New Orleans, LA 70118 (504) 861−5590 Email: quigley@loyno.edu ATTORNEY TO BE NOTICED

V. Defendant Federal Bureau of Investigation

represented by Elizabeth Shapiro U. S. Department of Justice (Federal Programs Branch)

Case: 2:11-cv-02850-SM-ALC As of: 09/22/2013 04:23 PM CDT 2 of 4

Civil Division 20 Massachusetts Avenue, NW Washington, DC 20530 202−504−5302 Fax: 202−616−8470 Email: elizabeth.shapiro@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bradley Philip Humphreys U. S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W., Room 7219 Washington, DC 20530 202−514−3367 Email: bradley.p.humphreys@usdoj.gov ATTORNEY TO BE NOTICED

Brock Darren Dupre U. S. Attorney's Office (New Orleans) 650 Poydras St. Suite 1600 New Orleans, LA 70130 504−680−3005 Email: brock.dupre@usdoj.gov ATTORNEY TO BE NOTICED

Defendant United States Department of Justice

represented by Elizabeth Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED

Brock Darren Dupre (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/16/2011
11/16/2011 11/23/2011 11/25/2011
01/17/2012

# Docket Text
1 COMPLAINT against Department of Justice, Federal Bureau of Investigation (Filing fee $ 350 receipt number 053L−3279080) filed by Malik Rahim. (Attachments: # 1 Appendix, # 2 Civil Cover Sheet)(Finger, Davida) (Entered: 11/16/2011)
2 Initial Case Assignment to Judge Nannette Jolivette Brown and Magistrate Judge Alma L. Chasez. (jmd, ) (Entered: 11/16/2011)
3 Summons Submitted for Issuance (Attachments: # 1 Summons)(Finger, Davida) (Entered: 11/23/2011)
4 Summons Issued as to Federal Bureau of Investigation, United States Department of Justice. (Attachments: # 1 Summons−FBI, # 2 Summons− US Atty Gen, # 3 Summons−US Atty)(cms, ) (Entered: 11/25/2011)
5 ANSWER to 1 Complaint by United States Department of Justice, Federal Bureau of Investigation.(Shapiro, Elizabeth) Modified on 1/20/2012 (cms, ). (Entered: 01/17/2012)

Case: 2:11-cv-02850-SM-ALC As of: 09/22/2013 04:23 PM CDT 3 of 4

04/03/2012
04/24/2012 05/02/2012 05/04/2012
05/04/2012
05/08/2012 06/25/2012 06/26/2012
06/26/2012 08/03/2012 08/06/2012 08/08/2012 08/10/2012 08/14/2012
09/11/2012 10/05/2012

6 ORDER TRANSFERRING CASE. Case transferred to Judge Susie Morgan for all further proceedings. Judge Nannette Jolivette Brown no longer assigned to case. Signed by Judge Nannette Jolivette Brown on 4/2/2012.(clm, ) (Entered: 04/03/2012)
7 NOTICE Scheduling Conference set for 5/3/2012 02:00 PM before courtroom deputy by telephone.(cbn, ) (Entered: 04/24/2012)
8 **DEFICIENT** NOTICE of Appearance by Bradley Philip Humphreys on behalf of Federal Bureau of Investigation, United States Department of Justice. (Humphreys, Bradley) Modified on 5/3/2012 (clm, ). (Entered: 05/02/2012)
9 SCHEDULING ORDER: Final Pretrial Conference set for 1/31/2013 02:00 PM before Judge Susie Morgan. Status Conference set for 11/29/2012 02:00 PM before Judge Morgan. 2 day Bench Trial set for 2/25/2013 09:00 AM before Judge Morgan. Signed by clerk. (Attachments: # 1 Pretrial Notice Form)(cbn, ) (Entered: 05/04/2012)
10 EXPARTE/CONSENT MOTION to Enroll as Counsel of Record Bradley P. Humphreys by Federal Bureau of Investigation, United States Department of Justice. (Attachments: # 1 Proposed Order)(Shapiro, Elizabeth) (Entered: 05/04/2012)
11 ORDER granting 10 Motion to Enroll as Counsel of Record. Signed by Judge Susie Morgan on 5/8/2012. (clm, ) (Entered: 05/08/2012)
12 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice (Filing fee $ 100 receipt number 053L−3566857) by Malik Rahim. (Attachments: # 1 Affidavit, # 2 Proposed Order)(Finger, Davida) (Entered: 06/25/2012)
13 Correction of Docket Entry by Clerk re 12 MOTION to Appear Pro Hac Vice (Filing fee $ 100 receipt number 053L−3566857). Document does not contain Section and Magistrate Judge. All future pleadings must reflect Section E and Magistrate Judge 5.(caa, ) (Entered: 06/26/2012)
14 ORDER granting 12 Motion to Appear Pro Hac Vice as to Sunita Patel. Signed by Judge Susie Morgan on 6/26/2012. (caa, ) (Entered: 06/27/2012)
15 EXPARTE/CONSENT MOTION to Continue Deadlines by All Parties. (Attachments: # 1 Proposed Order)(Finger, Davida) Modified on 8/6/2012 (clm, ). (Entered: 08/03/2012)
16 Correction of Docket Entry by Clerk re 15 MOTION to Continue Deadlines. The title of the attached proposed order should not include the word Proposed but only reflect Order on the actual document. (clm, ) (Entered: 08/06/2012)
17 ORDER denying 15 Motion to Continue. Signed by Judge Susie Morgan on 8/7/12. (cbn) (Entered: 08/08/2012)
18 EXPARTE/CONSENT Second Joint MOTION to Continue Deadlines by All Parties. (Attachments: # 1 Proposed Order)(Humphreys, Bradley) Modified text on 8/13/2012 (clm, ). (Entered: 08/10/2012)
19 ORDER granting 18 Second MOTION to Continue Deadlines filed by Malik Rahim, United States Department of Justice, Federal Bureau of Investigation. Scheduling Conference set for 9/6/2012 10:00 AM before courtroom deputy to select new trial date. Signed by Judge Susie Morgan on 8/13/12.(cbn) (Entered: 08/14/2012)
21 NOTICE Scheduling Conference set for 9/28/2012 10:00 AM before courtroom deputy by telephone.(cbn) (Entered: 09/11/2012)
22 SCHEDULING ORDER: Status Conference set for 3/7/2013 03:30 PM before Judge Susie Morgan. Final Pretrial Conference set for 5/9/2013 02:00 PM before Judge Morgan. 1 day Bench Trial set for 6/3/2013 09:00 AM before Judge Morgan. Signed by Judge Susie Morgan. (Attachments: # 1 Pretrial Notice Form)(cbn) (Entered: 10/05/2012)

Case: 2:11-cv-02850-SM-ALC As of: 09/22/2013 04:23 PM CDT 4 of 4

03/05/2013
03/07/2013 03/28/2013 03/28/2013 04/02/2013 04/10/2013 04/12/2013 04/18/2013 04/18/2013 04/18/2013 05/09/2013
05/31/2013 05/31/2013

23 MOTION for Summary Judgment by Federal Bureau of Investigation, United States Department of Justice. Motion set for 4/10/2013 10:00 AM before Judge Susie Morgan. (Attachments: # 1 Memorandum in Support, # 2 Affidavit Declaration of David M. Hardy, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Notice of Submission, # 15 Statement of Contested/Uncontested Facts, # 16 Proposed Order)(Humphreys, Bradley) (Entered: 03/05/2013)
24 Minute Entry for proceedings held before Judge Susie Morgan: Status Conference held on 3/7/2013. Counsel are to comply with the deadlines set forth in minute entry. (Attachments: # 1 Pretrial Notice Form) (cbn) (Entered: 03/07/2013)
25 EXPARTE/CONSENT MOTION to Appear as Additional Counsel of Record Sara H. Godchaux by Malik Rahim. (Attachments: # 1 Proposed Order)(Finger, Davida) (Entered: 03/28/2013)
26 RESPONSE/MEMORANDUM in Opposition filed by All Plaintiffs re 23 MOTION for Summary Judgment . (Attachments: # 1 Exhibit, # 2 Affidavit Declaration, # 3 Statement of Contested/Uncontested Facts)(Finger, Davida) (Entered: 03/28/2013)
27 ORDER granting 25 Motion to Appear Sara H. Godchaux for Malik Rahim. Signed by Judge Susie Morgan. (jrc, ) (Entered: 04/02/2013)
28 **DEFICIENT** REPLY to Response to Motion filed by Federal Bureau of Investigation, United States Department of Justice re 23 MOTION for Summary Judgment. (Humphreys, Bradley) Modified on 4/11/2013 (caa, ). (Entered: 04/10/2013)
29 EXPARTE/CONSENT MOTION for Leave to File Reply Memorandum in Support of Defendants' Motion for Summary Judgment by Federal Bureau of Investigation, United States Department of Justice. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading)(Humphreys, Bradley) (Entered: 04/12/2013)
30 Letter to Judge Morgan from Bradley P. Humphreys dated 4/12/13 (cbn) (Entered: 04/18/2013)
31 ORDER granting 29 Motion for Leave to File. Signed by Judge Susie Morgan on 4/12/13. (cbn) (Entered: 04/18/2013)
32 REPLY MEMORANDUM in Support filed by dfts re 23 MOTION for Summary Judgment . (cbn) (Entered: 04/18/2013)
33 Minute Entry for proceedings held before Judge Susie Morgan: Status Conference held on 5/9/2013. The parties informed the Court that a trial is not necessary because they agree there are no disputed material facts that would prevent this matter from summary resolution on the briefs. The Court informed the parties that it intends to rule on Defendant's summary judgment motion prior to the trial date. (cbn) (Entered: 05/13/2013)
34 ORDER AND REASONS granting 23 Motion for Summary Judgment. Signed by Judge Susie Morgan. (cbn) (Entered: 05/31/2013)
35 JUDGMENT entered in favor of Federal Bureau of Investigation, United States Department of Justice against Malik Rahim, dismissing plaintiff's claims with prejudice. Signed by Judge Susie Morgan.(cbn) (Entered: 05/31/2013)