JOSEPH SEME,



### v. UNITED STATES DISTRICT COURT FORTHE DISTRICT OFCOLUMBIA

Plaintiff, ) ) ) ) ) Civil Case No. 11-2066 (RJL) ) FEDERAL BUREAU OF INVESTIGATION, 

### etal., ) ) Defendant. ) ) )

### ~ 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 Plaintiffbrings this action against the Federal Bureau oflnvestigation ("FBI"), a component ofthe United States Department ofJustice ("DOJ"), under the Freedom of Information Act ("FOIA"), 5U.S.C. § 552. He explains that, during the course of criminal proceedings against him in a state court in Florida, "aconfidential 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 whetherthe confidential source actually worked on behalfofthe F.B.I." 

### !d.**~** 3. The Court construes the Petition for Writ ofMandamus and/or Civil Complaint Against Agency's "FOIA" [Dkt. #1] as a civil complaint ("Compl.").

### On or about January 27, 2011, plaintiffsubmitted aFOIA request to the FBI's Miami Field Office: I was testified against by Osmin Desanges. I am seeking to know "ifand 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 regardingthis matter. Ex. A to Compl. (Letter from plaintiffto FBI dated January 27, 2011) (emphasis in original); see also 

### Decl. ofDavid M. Hardy ("Hardy Decl.") [Dkt. #16-1], Ex. to Mem. of P. & 

### A. in Supp. ofDef.'sMot. for Summ. J. [Dkt. #16] ("Def.'s Mem."),**~** 

### 6; Ex. A to Hardy DecI. (Letter from plaintiffto 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, proofthat the subject ofyour 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) ofthe [FOIA]
. . . . This response should not be considered an indication ofwhether 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 plaintiffdated February

225, 2011) at 1. Plaintiffwas afforded an opportunity to submit either a privacy waiver signedby the subject, proofofthe subject's death, or a demonstration ofa public interest in the requested information. Hardy Decl.**~** 7-8. FBI did not receive a response from plaintiffwithin the time allotted, and it administratively closed the request. 

### !d.**~** 8. Plaintiffthen submitted a second FOIA request for information pertainingto Osmin Desanges. Hardy Decl.**~** 9; 

### see Ex. C to Hardy Decl. (Letter from plaintiffdated March 9, 2011). Along with the request, plaintiffsubmitted a privacy waiverbearing his signature, but notthat ofOsmin Desanges. Ex. C to Hardy DecI. (Certificate ofIdentity dated March 9, 2011). FBI treated this submission as a request for information about plaintiffonly, 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 ofthe 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 plaintiffto David Hardy dated May 15;2011). Again, FBI denied the request in its entirety becauseplaintiffsubmitted neither Desanges' signed privacy waiver, proofof Desanges' death, nor a public interest in disclosure ofthe requested information. Hardy DecI.**~** 13-15; 

### see Ex. G to Hardy DecI. (Letter from David Hardy to plaintiffdated May 24, 2011). Yet anotherrequest 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 ofpublic records." Hardy DecI.**~** 14; 

### see 3Ex. H to HardyDecl. (Letter from plaintiffdatedJune 6, 2011). FBI denied the request
on the same basis, noting that "it is the FBI'spolicy to neither confirm nor deny the existence ofany records which would indicate or reveal whether or not an individual
... is ofinvestigatory interestto the FBI." Ex. B to Compl. (Letter from David M. Hardy to plaintiffdated June 20, 2011); Ex. I to Hardy DecI. (same). Plaintiff
was informed ofhis right to appeal the determination to DOJ's Office ofInformation Policy ("OIP"). Ex. I to Hardy DecI. (Letter from David Hardy to plaintiffdated June 20, 2011 regarding FOIA Request No. 1166872-000). Plaintiffpursued an administrative appeal, and OIP confirmed FBI's determination. Hardy Decl.**~** 18; Ex. L to Hardy Decl. (Letter from Janice Galli McLeod, AssociateDirector, OIP, to plaintiffdated 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 oflaw, id. I. 

### SummaryJudgment in a FOIA Case ' "FOIAcases typically and appropriately are decided on motions for summary judgment." 

### Defenders ofWildlife v.' US BorderPatrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). The Court will grant summaryjudgment ifthe movant shows that there is no genuine dispute as to any material fact and, therefore, is entitled tojudgmentas a matter oflaw. Fed. R. Civ. P. 56(a). In a FOIA action to compel production ofagency records,
4the agency "is entitled to summaryjudgmentifno material facts are in dispute and ifit demonstrates 'thateach document that falls within the class requested eitherhas 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)). Summaryjudgmentmay be based solely on information provided in an agency's supporting affidavits or declarations ifthey are relatively detailed and describe "the documents and thejustifications 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 norby evidence ofagency bad faith." 

### MilitaryAuditProjectv. 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 plaintiffmust 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. 2010) (quoting 

### US. Dep 't of Justice v. TaxAnalysts, 492 U.S. 136, 142 (1989)). 

### II. LawEnforcementRecords andExemption 7(C) Exemption 7 protects from disclosure "records or information compiled for law enforcementpurposes," but only to the extent that disclosure ofsuch records would cause
an enumerated harm. 

### See 5U.S.C. § 552(b)(7); 

### FB!v. Abramson, 456 U.S. 615,622 (1982). "To showthat the disputed documents were compiled for law enforcement purposes, the [agency] need only establish arational nexus between the investigation and
5one ofthe agency's law enforcement duties and a connectionbetween an individual or incident and a possible security risk orviolation offederal law." 

### Blackwellv. 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 ofcrimes in violation of the laws of the United States as well as the collection ofevidence 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 ofviolations ofthe 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 plaintiffand support a potential prosecution. Hardy Dec

### I.**~** 22. FBI thus establishes, andplaintiffdoes not dispute, that records responsive toplaintiffsFOIA request, ifany such records exist, would have been compiled for law enforcementpurposes. UnderExemption 7(C), an agency may withhold information in law enforcement records that "couldreasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552 (b)(7)(C). In determining whetherthis exemption applies to particular material, the Court mustbalancethe interest in privacy ofindividuals mentioned in the records against the public interest in disclosure. 

### SeeAm. CivilLiberties 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 ofExemption 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'tof Justice v. Reporters Comm.forFreedom of the Press, 489 U.S. 749, 773 (1989)). Itis the requester's obligation to articulate apublic interest sufficient to outweigh the individual's privacy interest, and the public interest must be significant. See Nat'lArchives & RecordsAdmin. v. Favish, 541 U.S. 157, 172 (2004). 

### III. FBI's GlomarResponse Ifan individual is the target ofaFOIA request, the agency to which the FOIA request is submitted may provide a "Glomar"response-refusingto confirm or deny the existence ofrecords or information responsive to the FOIArequest-onthe ground that
even acknowledging the existence ofresponsive records constitutes an unwarranted invasion ofthe targeted individual's personal privacy. See Phillippi v. CIA, 546 F.2d 1009, 1014-15 (D.C. Cir. 1976) (describingbackground ofFOIA case arising from request for information about "the Hughes Glomar Explorer, a large vessel publicly listed
as aresearch ship owned and operatedby 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 ofresponsive records because acknowledging the existence ofsuch records would associate a witness with a criminal investigation).
7FBI's declarant explains that, upon.receipt ofarequest seeking "access to investigatory records concerning a third party, the FBI'spolicy is to neither confirm nor deny that it has responsive records unless the requesterprovides a notarized authorization (privacy waiver) from the third party, provides proofof[the third party's] death, or demonstrates apublic interest in the records that is sufficient to outweigh thatthird 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 stigmatizethe individual," and even ifthat individual had been "a witness on the record, an official acknowledgement ofthat association
... is likely to lift that association out ofpractical obscurity (particularly ifthe testimony occurred a significant number ofyears ago) and intothe forefront ofpublic awareness, further aggravating the stigma associated with such a disclosure." Hardy Decl.**~** 24. Where, as here, the requester did not submitthe subject's privacy waiver, the FBI "conducts a balancingtestto determine ifthe allegedpublic interest outweighs the privacy interests ofthe third party whose records are being requested." Hardy Decl.**~** 25. FBI's Glomarresponse 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. Plaintiffalleges 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 thatplaintiffwas correct ... , 8[he] failed to articulate a sufficiently strong public interest. Particularly with the passage oftime, testimony on the public record fades into practical obscurity, and the privacy interests ofthose individuals who either testify or are discussed during courttestimony grow concomitantly stronger. Hardy Decl.**~** 27. Plaintiffresponds by arguing that disclosure ofinformation about Osmin Desanges "is not an invasion on the third party's privacy due to [p]laintiffknowingthe third party's name, address, etc." Pl.'sResp. to Def.'sMot. for Summ. J. [Dkt. #18] ("Pl.'s Opp'n") at l. Butthe individual's privacy interest also "encompass[es] the individual's control of information concerning his orher 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 interestprotected by Exemption 7(C) is
... at its apex while the FOIA-basedpublic 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'tof 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 ifthe 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 ofdeposition testimony ofDetective Lawrence Taddeo and Osmin Desanges), and trial testimony, see Exs. B & D to Pl.'s Opp'n
9(respectively, excerpts oftrial testimony ofDetective Juan Mayato and Osmin Desanges), in the course ofthe criminal proceedings against plaintiff. Next, plaintiffinvokes 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 "totest [Desanges'] credibility and his knowledge ofthe material facts" in the criminal case against plaintiff. Pl.'s Opp'n at 3. According to plaintiff, ifthe FBI were to release the information he requests, it "would have caused [plaintiff] to subject Osmin Desanges to rigorous crossexamination ofan impeaching nature." Decl. ofJoseph Seme, Ex. to Pl.'s Opp'n, 

### ,-r 4. Plaintiffthus puts his personal interest in challenging his criminal conviction above the recognized privacy interest ofthe subject ofhis FOIA request. A plaintiffs "personal stake in using the requested records to attack his conviction[] does not count in the calculation ofthe public interest." 

### Oguaju v. UnitedStates, 288 F.3d 448, 450 (D.C. Cir. 2002) (affirming the district court's grant ofsummaryjudgmentto the defendants in a FOIA action because the plaintiffs invocation ofthe public interest exception was based
on the exculpatory potential ofthe information he sought), 

### vacatedandremandedon othergrounds sub nom., Oguaju v. US. Marshals Serv., 541 U.S. 970 (2004), 

### reinstated sub nom., Oguaju v. UnitedStates, 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 ofdiscovery 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 plaintiffdid not satisfy public interest exception because his interest in the "allegedly
10exculpatory evidence" he soughtwas "private' in nature"); 

### Boydv. 

### CriminalDiv. of the US. Dep 't of Justice, 475 F.3d 381, 390 (D.C. Cir. 2007) (notingthat disclosure requirements underthe FOIA are not coextensive with the government's obligation to disclose exculpatory material for a defendant's criminal trial); 

### see also BMWofNAm., Inc. v. 

### Gore, 517 U.S. 559, 575 n.22 (1996) (notingthat "strict constitutional safeguards afforded to criminal defendants are not applicable to civil cases."). IftheFBI were to confirm the existence ofinvestigative records pertainingto 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 Glomarresponse with respectto arequest for disciplinary reports regarding an FBI agent); 

### Valdez, 474 F. Supp. 2d at 131-34 (concluding that Glomarresponse was "adequatelyjustified"). CONCLUSION There remains no genuine issue ofmaterial fact in dispute, and FBI has demonstrated its entitlementtojudgment as a matter oflaw. Its Glomarresponse to plaintiff's FOIArequest for information about Osmin Desanges was appropriate, and, accordingly, its Motion for SummaryJudgment [Dkt. #16] will be GRANTED. An Order accompanies this Memorandum**Opinion~**

# ··~~ United States DistrictJudge
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