JOSEPH SEME, 

v. 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

Plaintiff, 

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) Civil Case No. 11-2066 (RJL) 

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FEDERAL BUREAU OF 

INVESTIGATION, et al., 

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Defendant. 

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MEMORANDUM OPINION 

(September'Zo, 2012) [Dkt. #16] 

This matter is before the Court on Defendant's Motion for Summary Judgment 

("Def.'s Mot.") [Dkt. #16]. For the reasons discussed below, the motion is GRANTED. 

BACKGROUND 

Plaintiff brings this action against the Federal Bureau oflnvestigation ("FBI"), a 

component of the United States Department of Justice ("DOJ"), under the Freedom of 

Information Act ("FOIA"), 5 U.S.C. § 552. He explains that, during the course of 

criminal proceedings against him in a state court in Florida, "a confidential informant was 

named as having been a 'source' for the F.B.I., and that confidential source had an impact 

detrimental to [plaintiff] at trial." Compl. ~ 2. 1 He seeks "verification and/or public 

records to substantiate whether the confidential source actually worked on behalf of the 

F.B.I." !d. ~ 3. 

The Court construes the Petition for Writ of Mandamus and/or Civil Complaint 

Against Agency's "FOIA" [Dkt. #1] as a civil complaint ("Compl."). 
On or about January 27, 2011, plaintiff submitted a FOIA request to the FBI's 

Miami Field Office: 

I was testified against by Osmin Desanges. I am seeking to 

know "if and when" Desanges was ever a FBI informant for 

the F.B.I. and/or other law [e]nforcement agencies during the 

three (3) years before my arrest and after. That would be 

1996 until 2002. During my trial officers Juan Mayato and 

Lawrence Taddeo testified that Desanges was an FBI 

informant and that FBI agent "Chuck Daley" was his contact 

handler. Please give me the public records your office has 

regarding this matter. 

Ex. A to Compl. (Letter from plaintiff to FBI dated January 27, 2011) (emphasis in 

original); see also Decl. of David M. Hardy ("Hardy Decl.") [Dkt. #16-1], Ex. to Mem. of 

P. & A. in Supp. ofDef.'s Mot. for Summ. J. [Dkt. #16] ("Def.'s Mem."), ~ 6; Ex. A to 

Hardy Dec I. (Letter from plaintiff to FBI dated February 1, 2011 ). FBI denied the 

request (FOIA Request No. 1161725-000) in its entirety, Hardy Decl. ~ 7, for the 

following reasons: 'l.i'.' 

You have requested records concerning a third party (or third 

parties). Records pertaining to a third party generally cannot 

be released absent express authorization and consent of the 

third party, proof that the subject of your request is deceased, 

or a clear demonstration that the public interest in disclosure 

outweighs the personal privacy interest and that significant 

public benefit would result from the disclosure of the 

requested records . . . . These records are also generally 

exempt from disclosure pursuant to sections (b)(6) and 

(b)(7)(C) of the [FOIA] . . . . This response should not be 

considered an indication of whether or not records responsive 

to your request exist in FBI Files .... 

Ex. B to Hardy Decl. (Letter from David M. Hardy, Section Chief, Record/Information 

Dissemination Section, Records Management Division, FBI, to plaintiff dated February 

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25, 2011) at 1. Plaintiff was afforded an opportunity to submit either a privacy waiver 

signed by the subject, proof of the subject's death, or a demonstration of a public interest 

in the requested information. Hardy Decl. ~ 7-8. FBI did not receive a response from 

plaintiff within the time allotted, and it administratively closed the request. !d. ~ 8. 

Plaintiff then submitted a second FOIA request for information pertaining to 

Osmin Desanges. Hardy Decl. ~ 9; see Ex. C to Hardy Decl. (Letter from plaintiff dated 

March 9, 2011). Along with the request, plaintiff submitted a privacy waiver bearing his 

signature, but not that of Osmin Desanges. Ex. C to Hardy Dec I. (Certificate of Identity 

dated March 9, 2011). FBI treated this submission as a request for information about 

plaintiff only, and proceeded to search its Central Records System ("CRS") for 

responsive records. Hardy Dec I.~ 10. FBI located "one file responsive to his request," 

and of the file's twenty-eight pages, FBI released "16 pages ... either in full or in part in 

accordance with [FOIA] exemptions [6, 7(C), and 7(E)]." Hardy Decl. ~ 11. 

Plaintiffs third FOIA request (FOIA Request No. 1166872-000) again sought 

information about Osmin Desanges. Hardy Decl. ~ 12; see Ex. F to Hardy Decl. (Letter 

from plaintiff to David Hardy dated May 15;2011). Again, FBI denied the request in its 

entirety because plaintiff submitted neither Desanges' signed privacy waiver, proof of 

Desanges' death, nor a public interest in disclosure of the requested information. Hardy 

Dec I. ~ 13-15; see Ex. G to Hardy Dec I. (Letter from David Hardy to plaintiff dated May 

24, 2011 ). Yet another request to FBI's Headquarters sought "information ... that will 

confirm or indicate rather [sic] or not Osmin Des[]anges were [sic] involved in any [FBI] 

investigations that are declassified and are part of public records." Hardy Dec I. ~ 14; see 

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Ex. H to Hardy Decl. (Letter from plaintiffdated June 6, 2011). FBI denied the request 

on the same basis, noting that "it is the FBI's policy to neither confirm nor deny the 

existence of any records which would indicate or reveal whether or not an 

individual ... is of investigatory interest to the FBI." Ex. B to Compl. (Letter from 

David M. Hardy to plaintiff dated June 20, 2011 ); Ex. I to Hardy Dec I. (same). Plaintiff 

was informed of his right to appeal the determination to DOJ' s Office of Information 

Policy ("OIP"). Ex. I to Hardy Dec I. (Letter from David Hardy to plaintiff dated June 20, 

2011 regarding FOIA Request No. 1166872-000). Plaintiff pursued an administrative 

appeal, and OIP confirmed FBI's determination. Hardy Decl. ~ 18; Ex. L to Hardy Decl. 

(Letter from Janice Galli McLeod, Associate Director, OIP, to plaintiff dated September 

16, 2011 regarding Appeal No. AP-2011-02448). 

DISCUSSION 

FBI argues that it properly denied plaintiffs FOIA request, Def.'s Mot. at 1, that it 

"properly invoked FOIA exemption 7(C) ... to refuse to confirm or deny the existence of 

third-party information to Plaintiff," Def. 's Mem. at 5, and that it is therefore entitled to 

judgment as a matter of law, id. 

I. Summary Judgment in a FOIA Case ' 

"FOIA cases typically and appropriately are decided on motions for summary 

judgment." Defenders of Wildlife v.' US Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 

2009). The Court will grant summary judgment if the movant shows that there is no 

genuine dispute as to any material fact and, therefore, is entitled to judgment as a matter 

of law. Fed. R. Civ. P. 56( a). In a FOIA action to compel production of agency records, 

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the agency "is entitled to summary judgment if no material facts are in dispute and if it 

demonstrates 'that each document that falls within the class requested either has been 

produced ... or is wholly exempt from the [FOIA's] inspection requirements."' Students 

' 

Against Genocide v. Dep 't of State, 257 F. 3d 828, 833 (D.C. Cir. 2001) (quoting Goland 

v. CIA, 607 F.2d 339,352 (D.C. Cir. 1978)). Summary judgment may be based solely on 

information provided in an agency's supporting affidavits or declarations if they are 

relatively detailed and 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." Military Audit Project v. Casey, 656 F .2d 

724,738 (D.C. Cir. 1981). "To successfully ch'allenge an agency's showing that it 

complied with the FOIA, the plaintiff must come forward with 'specific facts' 

demonstrating that there is a genuine issue with respect to whether the agency has 

improperly withheld extant agency records." Span v. US. Dep 't of Justice, 696 F. Supp. 

2d 113, 119 (D.D.C. 201 0) (quoting US. Dep 't of Justice v. Tax Analysts, 492 U.S. 136, 

142 (1989)). 

II. Law Enforcement Records and Exemption 7(C) 

Exemption 7 protects from disclosure "records or information compiled for law 

enforcement purposes," but only to the extent that disclosure of such records would cause 

an enumerated harm. See 5 U.S.C. § 552(b)(7); FB!v. Abramson, 456 U.S. 615,622 

( 19 82). "To show that the disputed documents were compiled for law enforcement 

purposes, the [agency] need only establish a rational nexus between the investigation and 

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one of the agency's law enforcement duties and a connection between an individual or 

incident and a possible security risk or violation of federal law." Blackwell v. FBI, 646 

F.3d 37, 40 (D.C. Cir. 2011) (internal quotation marks and citations omitted). 

FBI's declarant explains: 

The FBI's responsibilities include the investigation of crimes 

in violation of the laws of the United States as well as the 

collection of evidence in cases. in which the United States is 

or may be a party in interest (See 28 C.F .R. § 0.85). Plaintiff 

alleges that the subject of his third-party request, Osmin 

Des[]anges, served as a paid informant for the FBI. Any 

records the FBI would have related to this individual, in that 

capacity, would have been specifically 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. Any records created by the FBI, in the course 

of its investigations, were they to exist - to include any 

informant records - would have been compiled to document 

the investigative actions and findings in the criminal case 

against plaintiff and support a potential prosecution. 

Hardy Dec I. ~ 22. FBI thus establishes, and plaintiff does not dispute, that records 

responsive to plaintiffs FOIA request, if any such records exist, would have been 

compiled for law enforcement purposes. 

Under Exemption 7(C), an agency may withhold information in law enforcement 

records that "could reasonably be expected to constitute an unwarranted invasion of 

personal privacy." 5 U.S.C. § 552 (b)(7)(C). In determining whether this exemption 

applies to particular material, the Court must balance the interest in privacy of individuals 

mentioned in the records against the public interest in disclosure. See Am. Civil Liberties 

Union v. US. Dep 't of Justice, 655 F .3d I, 6 (D.C. Cir. 2011 ); Sussman v. US. Marshals 

6, 

; ,• 
Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007). "[I]ndividuals have a strong interest in not 

being associated unwarrantedly with alleged criminal activity," Stern v. FBI, 737 F.2d 84, 

91-92 (D.C. Cir. 1984), and for purposes of Exemption 7(C), the only relevant public 

interest "is one that focuses on 'the citizens' right to be informed about what their 

government is up to.'" Davis v. U.S. Dep 't of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 

1992) (quoting U.S. Dep't of Justice v. Reporters Comm.for Freedom of the Press, 489 

U.S. 749, 773 (1989)). It is the requester's obligation to articulate a public interest 

sufficient to outweigh the individual's privacy interest, and the public interest must be 

significant. See Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004). 

III. FBI's Glomar Response 

If an individual is the target of a FOIA request, the agency to which the FOIA 

request is submitted may provide a "Glomar" response-refusing to confirm or deny the 

existence of records or information responsive to the FOIA request-on the ground that 

even acknowledging the existence of responsive records constitutes an unwarranted 

invasion of the targeted individual's personal privacy. See Phillippi v. CIA, 546 F.2d 

1009, 1014-15 (D.C. Cir. 1976) (describing background ofFOIA case arising from 

request for information about "the Hughes Glomar Explorer, a large vessel publicly listed 

as a research ship owned and operated by the Summa Corporation," which allegedly was 

owned and operated by the United States government); Enzinna v. U.S. Dep 't of Justice, 

No. 97-5078, 1997 WL 404327, at *2 (D.C. Cir. June 30, 1997) (affirming the agency's 

refusal to confirm or deny the existence of responsive records because acknowledging the 

existence of such records would associate a witness with a criminal investigation). 

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FBI's declarant explains that, upon. receipt of a request seeking "access to 

investigatory records concerning a third party, the FBI's policy is to neither confirm nor 

deny that it has responsive records unless the requester provides a notarized authorization 

(privacy waiver) from the third party, provides proof of [the third party's] death, or 

demonstrates a public interest in the records that is sufficient to outweigh that third party 

individual's privacy rights." Hardy Decl. ~ 24. He further explains that "[a]n 

individual's association with a criminal investigation, as a suspect, victim, witness or 

source, tends to stigmatize the individual," and even if that individual had been "a 

witness on the record, an official acknowledgement of that association ... is likely to lift 

that association out of practical obscurity (particularly if the testimony occurred a 

significant number of years ago) and into the forefront of public awareness, further 

aggravating the stigma associated with such a disclosure." Hardy Decl. ~ 24. 

Where, as here, the requester did not submit the subject's privacy waiver, the FBI 

"conducts a balancing test to determine if the alleged public interest outweighs the 

privacy interests of the third party whose records are being requested." Hardy Decl. ~ 25. 

FBI's Glomar response necessarily reflects the agency's determination that Desanges' 

privacy interest outweighs any public interest in disclosure. See Hardy Decl. ~ 26. The 

FBI's declarant further states: 

The mere presence of [Osmin Desanges'] name in FBI 

investigatory files, if present, could cast him in an 

unfavorable or negative light to members of the public. 

Plaintiff alleges that two officers testified at trial that Osmin 

Des[]anges was an FBI informant. Plaintiff also avers that 

Des[]anges testified against him resulting in plaintiffs 

conviction .... Even assuming that plaintiff was correct ... , 

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[he] failed to articulate a sufficiently strong public interest. 

Particularly with the passage of time, testimony on the public 

record fades into practical obscurity, and the privacy interests 

of those individuals who either testify or are discussed during 

court testimony grow concomitantly stronger. 

Hardy Decl. ~ 27. 

Plaintiff responds by arguing that disclosure of information about Osmin Desanges 

"is not an invasion on the third party's privacy due to [p]laintiffknowing the third party's 

name, address, etc." Pl.'s Resp. to Def.'s Mot. for Summ. J. [Dkt. #18] ("Pl.'s Opp'n") 

at l. But the individual's privacy interest also "encompass[es] the individual's control of 

information concerning his or her person," and is not an interest the government may 

waive without a significant interest in doing so. See Reporters Comm., 489 U.S. at 763-

65, 780 ("[T]he privacy interest protected by Exemption 7(C) is ... at its apex while the 

FOIA-based public interest in its disclosure is at its nadir."). Further, a third party may 

testify in open court and still maintain an interest in his personal privacy. See, e.g., Jones 

v. FBI, 41 F.3d 238,247 (6th Cir. 1994); Valdez v. US. Dep't of Justice, 474 F. Supp. 2d 

128, 133 (D.D.C. 2007). The individual maintains this interest even ifthe requester 

already knows, or is able to guess, his identity. See Weisberg v. US. Dep 't of Justice, 

745 F.2d 1476, 1491 (D.C. Cir. 1984) (noting that further harassment and annoyance 

could occur if the agency were to confirm the individual's role); Pugh v. US. Dep 't of 

Justice, 793 F. Supp. 2d 226, 233 (D.D.C. 2011). This is so even here, where Desanges' 

status as an FBI informant may have been disclosed in deposition testimony, see Exs. A 

& C to Pl.'s Opp'n (respectively, excerpts of deposition testimony of Detective Lawrence 

Taddeo and Osmin Desanges), and trial testimony, see Exs. B & D to Pl.'s Opp'n 

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(respectively, excerpts oftrial testimony of Detective Juan Mayato and Osmin Desanges), 

in the course of the criminal proceedings against plaintiff. 

Next, plaintiff invokes the Confrontation Clause, see U.S. Const. amend. VI ("In 

all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the 

witnesses against him .... "), and his rights as a criminal defendant "to test [Desanges'] 

credibility and his knowledge of the material facts" in the criminal case against plaintiff. 

Pl.'s Opp'n at 3. According to plaintiff, if the FBI were to release the information he 

requests, it "would have caused [plaintiff] to subject Osmin Desanges to rigorous crossexamination of an impeaching nature." Decl. of Joseph Seme, Ex. to Pl.'s Opp'n, ,-r 4. 

Plaintiff thus puts his personal interest in challenging his criminal conviction above the 

recognized privacy interest of the subject of his FOIA request. A plaintiffs "personal 

stake in using the requested records to attack his conviction[] does not count in the 

calculation of the public interest." Oguaju v. United States, 288 F.3d 448, 450 (D.C. Cir. 

2002) (affirming the district court's grant of summary judgment to the defendants in a 

FOIA action because the plaintiffs invocation of the public interest exception was based 

on the exculpatory potential of the information he sought), vacated and remanded on 

other grounds sub nom., Oguaju v. US. Marshals Serv., 541 U.S. 970 (2004), reinstated 

sub nom., Oguaju v. United States, 378 F.3d 1115 (D.C. Cir. 2004), op. amended, 386 

F.2d 273 (D.C. Cir. 2004). Contrary to plaintiffs assertion, see Pl.'s Opp'n at 4-5, a 

FOIA suit is not the equivalent of discovery in a criminal case. See Martin v. US. Dep 't 

of Justice, 488 F.3d 446, 453 (D.C. Cir. 2007) (affirming the district court's holding that 

plaintiff did not satisfy public interest exception because his interest in the "allegedly 

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exculpatory evidence" he sought was "private' in nature"); Boyd v. Criminal Div. of the 

US. Dep 't of Justice, 475 F.3d 381, 390 (D.C. Cir. 2007) (noting that disclosure 

requirements under the FOIA are not coextensive with the government's obligation to 

disclose exculpatory material for a defendant's criminal trial); see also BMW ofN Am., 

Inc. v. Gore, 517 U.S. 559, 575 n.22 (1996) (noting that "strict constitutional safeguards 

afforded to criminal defendants are not applicable to civil cases."). 

Ifthe FBI were to confirm the existence of investigative records pertaining to 

Osmin Desanges, the agency would necessarily reveal the information its Glomar 

response is intended to shield. Accordingly, the Court concludes that the FBI's Glomar 

response was appropriate. See, e.g., Smith v: FBL 663 F. Supp. 2d I, 5 (D.D.C. 2009) 

(affirming Glomar response with respect to a request for disciplinary reports regarding an 

FBI agent); Valdez, 474 F. Supp. 2d at 131-34 (concluding that Glomar response was 

"adequately justified"). 

CONCLUSION 

There remains no genuine issue of material fact in dispute, and FBI has 

demonstrated its entitlement to judgment as a matter of law. Its Glomar response to 

plaintiff's FOIA request for information about Osmin Desanges was appropriate, and, 

accordingly, its Motion for Summary Judgment [Dkt. #16] will be GRANTED. An 

Order accompanies this Memorandum Opinion~ 

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United States District Judge 

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