J EFF REY NORTH,

Plaintiff,

v. UNI TED STATES DEPARTMENT OF J USTI CE, et al. , Def endants. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 08–1439 (CKK)

MEMORAN DUM OP INION (September

14, 2011) This is a Fre edom of Information Ac t (“F OIA”) case broug ht by Plaintiff J eff

rey North (“N orth”) a g ainst sever al ag encie s within the United States Depar tment of J ustice that denie d his reque sts for re cords r elatingto cer tain g rand jury

proce eding s and a w itness who testified ag ainst him at his criminal trial. On September 30, 2009, the Court gr anted summary judgme nt to Def endants with re spect to all of Nor th’s claims except for the claim asser ted in Count I I Iof the Amended Complaint. See North v. U.S. D ep’t of Justice , 658 F. Supp. 2d 163 (D.D .C. 2009). On Marc h 31, 2011, the Court g rante d summary judgme nt to Defe ndant Executive Off ice f or United States Attorney s (“EO USA”) on Count I I Iof the Ame nded Complaint. See North v. U.S. Dep’ t of Justice , 774 F. Supp. 2d 217 (D.D .C. 2011). Presently pendingbefor e the Court is North’s [106] Motion to R econside r Summary J udg ment on Count Iof the Ame nded Complaint. Def endants have filed a

n opposition t o North’s motion, and the motion is now ripe for the Court’s revie w. For

the re asons explained below, the Court shall grant Nor th’s motion to

rec onsider and va cate its gra nt of summary

judgme nt to Defe ndants with respe ct to Count Iof theAmended Complaint. I. BACKG ROUND

North wa s tried and c onvicted in 2000 for se vera l drug - and gun-re lated off enses. See United States v. North , No. 1:98-cr -10176-GA O (D. Ma ss. Mar. 15, 2000). D uringNorth’s trial, the g overnme nt called a

witness named Gia

npaolo Starita to testify

ag ainst North and identifie d Starita as a r eg istered c onfidential informa nt. Starita’s testimony

implicated North in a sc heme to buy marijuana . Starita had a g ree d to cooper ate with the g overnme nt and testify ag ainst North in exchang e for

leniency in his own criminal case . One Dr ug Enforc ement Administration (“D EA”) ag ent who testified at North’s trial indicate d in his testim ony that there may

be wr itten repor ts describingStarita’s coope ration with the g overnme nt. Following his conviction, on J uly 13, 2007, North filed a

FOIA re quest with DEA re questing“any and all . . . docume nts which contain any

debrie fing/proffe r statements or othe rwise made /give n by Gianpaolo Starita in re g ard to me . . . .” In its response letter , DEA ne ither conf irmed nor de nied the existence of a ny of the reque sted rec ords and infor med North that it could not rele ase a ny such re cords without either proof of Starita’s death or an a

uthorized privacy

waiver from Starita. DEA a sserted that confirmingthe exist ence of law e nforc ement re cords r elatingto Starita would constitute an “unwa rra nted invasion of per sonal privac y ” and that such rec ords would be e x empt from disclosure unde r F OI A Exempti ons 6 and/or (7) (C), 5 U.S.C. §§ 522(b)(6) , 522(b)( 7)(C). North filed this ac tion seeking , inter alia , to compel DEA to re lease the re cords he had reque sted. The Court g rante d summary judgme nt for DEA , holding that the a g ency proper ly withheld the re cords pur suant to FOIA Exempti ons 6, 7(C), and 7( D). See658 F. Supp. 2d at 171-73. The Court a lso rejec ted North’s c laim that the documents he w as re questing wer e in the

2public domain and ther efor e could not be w ithheld under a ny FOIA exemption. Id. at 173. II. LEGAL STANDARD Under Rule 54(b) of the Fe dera l Rules of Civil Procedur e, a district c ourt may revise its own interlocutory

order s “at a

ny time before the entry

of judg ment adjudicatingall the claims and all the pa

rties’ rig hts and liabiliti es.” Fe d. R. Civ. P . 54(b). Rule 54(b) rec og nizes the 1 inhere nt power of

the cour ts to reconsider

interlocutory

order s “as justice r equire s.” Capitol Sprinkler Inspec tion, Inc. v. G uest Servs., I nc. , 630 F.3d 217, 227 ( D.C. Cir. 2011). The “ as justice requir es” standa

rd may be met whe re the court ha s patently misunderstood the parties, stray ed fa r af ield of the issues pre sented, or f ailed to consider

a contr olling or sig nificant c hang e in the law or f

acts since the submission of the issue. See Cobe ll v. Norton , 224 F.R.D. 266, 272 (D.D.C. 2004). I

n the final a

naly sis, the district court must ask whether relief upon

rec onsideration is “ne cessa ry under the rele vant circ umstances.” Lewis v. District of Columbia , 736 F. Supp. 2d 98, 102 (D.D .C. 2010) (interna l quotation marks omitted). I n this reg ard, the court’s discr etion is broad. Id. III. DISCUSS ION North asks the Court to re consider its prior r uling that he had fa iled to meet his burden of establishing that the documents he w as re questing from DEAwer e in the public domain and thus could not be withheld under any valid FOIA exemption. North argues that he w as unfa irly prejudice d beca

use DEA did not ra ise the public domain issue in its moti on for summary judgme nt. Howeve r, North r aised the public doma in issue in his own mot ion for summary Although the Court has enter ed judg ment for De fenda nts on all of North’s c laims, the 1 Court expl icitly

withheld entry

of final judg ment until it could rule on N orth’s motion to rec onsider. 3judgme nt, and it is North who bear s the burden of showing that there is a perma nent public

rec ord of the doc uments he see ks to obtain. See D avis v. U.S. D ep’t of Justice , 968 F.2d 1276, 1280 (D.C. Cir. 1992). Ther efor e, the Court is not persua ded that Nor th suffer ed any

prejudice

. Neve rtheless, be cause North cla ims that the Court mi sapplied the a pplicable standa

rd, the Court shall review

North’s re newe d claim that the docume nts he reque sted wer e in the public domain. As the Court explained in its i nitial summ ary judgme nt ruling, “ materia ls normally immuniz ed fr om disclosure under FOIA lose their pr otective c loak once disclosed and pr eser ved in a per manent public re cord.” Cottone v. Reno , 193 F.3d 550, 554 ( D.C. Cir. 1999). The pa rty seekingdisclosure be ars the initial burde n of produc tion and must “point[ ] t o specific information in the public domain that appe ars to duplicate that beingwithheld.” Id. (quoting Afshar v. Dep’ t of State , 702 F.2d 1125, 1130 ( D.C. Cir. 1983)). In Cottone , the cour t held that the plaintiff had me t his ini tial burden of pr oduction by specific ally

identifying ta

pe re corde d

conver sations that were play ed in open c ourt. Id. at 554-55. Similarly , in Callaw ay v. U nited States Department of Treasury , 2009 U.S. App. L EXI S 11941 (D.C. Cir. J une 2, 2009) ( per curiam), the cour

t held that the plaintiff had me t his ini tial burden of pr oduction by attaching public transcr ipts of his criminal trial and sentenc ing he aringto his FOIA re quest; the court he ld that the trial transc ripts should be compare d to the g rand jury transcr ipts the plaintiff was see king to determine whether

any portion of the tra

nscripts wer e identica l. Id. at *4-5. I n this case, Nor

th contends that he me t his ini tial burden of pr oduction by providing DEA with excerpts of Star ita’s testimony from his criminal trial. The Court previously held that these e x cer

pts were not sufficient be cause they did not show that the documents that North wa s reque sting we re introduc ed into evidenc e or othe rwise e nshrined in a pe rmane nt public rec ord.

4Howeve r, upon re considera tion, the Court concludes that its prior rulingwas too broa d. Whil e the excerpts of tria l testimony produce d by

North do not establish that the docume nts themselves beca me par t of the public re cord, the y are sufficie nt to demonstrate that some infor mation within the re quested doc uments may have be en publicly

disclosed. Ther efor e, Nor th has met his initi al burden of production with respe ct to the information that is containe d in the excerpts of trial testimony that he provide d to DEA and which he attached to his motion for summary judgme nt. 2 Acc ording ly , DEA ha s an oblig ation to searc h for a nd produce any

responsive r ecor ds that contain information identical that which has be en publicly disclosed. See Niagara Mohawk Power Corp. v. U.S. De

p’t of Energy , 169 F.3d 16, 19 ( D.C. Cir. 1999) (“[I ]f identical information is truly

public, then enf

orce ment of an e x emption cannot fulfill its purposes.”)

. The Court pre viously

declined to de cide whe ther DEAproper ly issued a Glomar

response based on the fac t that North was r equestinginformation per taining to a

n informant. See 5 U.S.C. § 552(c) (2) ( “Wheneve r informa nt rec ords maintained by

a cr iminal law enfor ceme nt ag ency under a n informant’s na

me or pe rsonal identifier

are reque sted by

a third par

ty acc ording to the informant’s name or pe rsonal identifier , the ag ency may trea t the rec ords as not subject to the require ments of this section unless the informant’ s status as an informa nt has bee n officia lly

Def endants, c iting a supple mental dec laration from Wil liam C. L ittle, claim that North 2 did not provide the trial tra nscript to DEA a long w ith his i nitial FOIA re quest. SeeDef s.’ Opp’n at 3 n.2 (c iting Suppl. L ittle Decl. ¶ 5) . Howeve r, while Nor th did not attach the tra

nscript excerpts to his J uly

13, 2007 reque st for docume nts, he did attach tra nscript excerpts to a late r reque st that was proc essed by DEA. See Suppl. L ittle Decl. ¶ 6. F urthermor e, the Court is not persua ded by

Def endants’ a

rgument that the Court should disreg ard a ny trial transc ripts that were not presente d to the ag ency ; Defe ndants did not raise this arg ument in their orig inal opposition t o North’s motion for summary judgme nt, and they

raise it now only

in a brief footnote. In light of the fa ct that DEA issued a “Glomar ” re sponse to North’s F OI A re quest, the Court finds that North satisfied his initial burden of pr oduction by prese nting the e x cer

pts of his trial transcr ipt in his moti on for summary

judgme nt. 5confirme d.”). D EA conte nds that Starita’s testimony at North’s tria l does not constitute official confirmation of his status as an informant. How ever , North has pr oduced tr ial transcr ipts demonstratingthat the g overnme nt refe rre d to Starita as an infor mant and that Starita testified that he ente red into a c ooperation ag ree ment to assist the prosecution in North’s c ase in e x chang e for lenie nt sentencingin his own case. See Pl.’s Mot. for Summ . J ., Add. at 8-9, 16- 18. I n Benav ides v. Drug Enforce ment Administration , 968 F.2d 1243 ( D.C. Cir. 1992), the D.C. Circuit held that it was improper to a war d summary

judgme nt to DEA based on § 552( c)( 2) wher e ther e wa s evidenc e in the re cord that the alleg ed informa nt had testified in open c ourt that he had r ece ived g overnme nt money for his coope ration with the prose cution and the a lleg ed informant in fa ct g ave te stimony to aid the prosec ution. See id. at 1249. B ased on the evidenc e in the rec ord re g ardingStarita’s status as an inf ormant, the Court ca

nnot affir m DEA’s issuanc e of a G lomar re sponse. Be cause DEA ha s not demonstrated to the Court that it conducte d a sea rch f or re cords responsive to Nor

th’s reque st and revie wed those r ecor ds to determine whe ther the infor mation contained the rein is identical to information that has been publicly disclosed, the Court ca

nnot

awa rd summary

judgme nt to DEA on Count Iof the Ame nded Complaint. The Court shall there fore vaca

te its prior judg ment on this count and allow DEA time to conduc t a prope r sea rch. IV. CONCLUSION For the fore g oing r easons, the Court sha ll GRANT North’s [106] Motion to R econside r Summary J udg ment on Count Iof the Complaint. The Court shall VACATE its awa rd of summary judgme nt to DEA on Count Iof the Ame nded Complaint. The Court shall also set a schedule to allow DEA to conduc t a sea rch f or any responsive r ecor ds containing information

6that may

be in the public domain and f ile a re vised motion for summary judgme nt. An appropr iate Or der a ccompa nies this Memorandum Opinion.

/s/ COL L EEN KOL L AR-KOTEL L Y United States District J udg e

7