1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

BRIAN M. CASEY, )

)

Plaintiff, )

)

v. ) Civil Action No. 17-cv-00009 (TSC)

)

FEDERAL BUREAU OF 

INVESTIGATION,

)

)

)

Defendant. )

)

MEMORANDUM OPINION

Plaintiff, appearing pro se, challenges the Federal Bureau of Investigation’s 

refusal to confirm or deny records responsive to his request under the Freedom of 

Information Act (“FOIA”). The FBI has moved for summary judgment under Federal 

Rule of Civil Procedure 56 (ECF No. 23). For the reasons explained below, the motion 

will be GRANTED. 

I. BACKGROUND

On June 29, 2016, Plaintiff requested “Form 302 of interviews” of six named 

individuals “concerning the investigation of the murder of Ryan Vanderson and Larrick 

Sikes,” and an “index of available documents.” (Decl. of David M. Hardy, ECF No. 23-

1, Ex. A). On July 15, 2016, Defendant informed Plaintiff that in order to process his 

request for third-party records, it would need “an authorization and consent” from each 

person, proof of the person’s death, or “a justification that the public interest in 

disclosure outweighs personal privacy[.]” (Id., Ex. B). Otherwise, Defendant

informed, it could neither confirm nor deny the existence of the requested records, 
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which is commonly referred to as a Glomar response.

1 Defendant further informed 

Plaintiff that if such records exist, they would be exempt from disclosure under FOIA 

exemptions 6 and 7(C), codified in 5 U.S.C. § 552(b). (Id.). 

In a letter dated July 25, 2016, Plaintiff replied that he was seeking disclosure in 

the public interest. He explained that he was convicted of a homicide in “an unfair trial 

in which state actors representing my rights refused to seek dismissal of the case.” 

(Hardy Decl., Ex. C). Plaintiff proceeded to explain “the real facts,” exonerating him 

of the murder. He concluded: “Not only is it a public interest that criminals be 

apprehended in this case, the undersigned has a right to the information because his due 

process rights have been violated.” (Id. at 3). Plaintiff faulted the investigation of the 

Lee County and Collier County Sheriff’s Offices, and wrote that the “FBI’s 

investigation . . . has been thwarted by the false statements given to investigators by the 

names listed.” (Id.).

Defendant rejected Plaintiff’s public interest assertion in a letter dated August 9, 

2016, explaining that he had not provided “sufficient documentation demonstrating 

[that] the public interest in the operations and activities of the government outweighs 

the substantial privacy interest of the subject.” (Hardy Decl., Ex. D). Defendant 

repeated its Glomar response and invocation of exemptions 6 and 7(C), closed the FOIA 

request, and informed Plaintiff that he could reopen the request only by providing a 

third-party privacy waiver or proof of the third-party’s death. (Id., Ex. D). Plaintiff 

 1

 A Glomar response has its origins in “a case concerning a FOIA request for records 

relating to an underwater sea craft called the ‘Glomar Explorer.’ ” Nation Magazine, 

Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 896 n.2 (D.C. Cir. 1995) (citing 

Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976)).
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appealed Defendant’s decision to the Office of Information Policy, which affirmed the 

decision on October 16, 2016. (Hardy Decl., Exs. E, G). Plaintiff filed this action, 

construed as brought under the FOIA, in January 2017. (See Jan. 4, 2017 Order, ECF 

No. 3).

II. LEGAL STANDARD

Summary judgment is appropriate where the record shows there is no genuine 

issue of material fact and the movant is entitled to judgment as a matter of law. See 

Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse 

v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). “FOIA cases typically and 

appropriately are decided on motions for summary judgment.” Georgacarakos v. FBI, 

908 F. Supp. 2d 176, 180 (D.D.C. 2012) (citation omitted). The district court conducts 

a de novo review of the government’s decision to withhold requested documents under 

any of FOIA’s specific statutory exemptions. See 5 U.S.C. § 552(a)(4)(B). The burden 

is on the government agency to show that nondisclosed, requested material falls within 

a stated exemption. See Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 

1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)). 

In FOIA cases, summary judgment may be based solely on information provided 

in the agency’s supporting declarations. See ACLU v. U.S. Dep't of Def., 628 F.3d 612, 

619 (D.C. Cir. 2011); Students Against Genocide v. Dep’t of State, 257 F.3d 828, 838 

(D.C. Cir. 2001). The D.C. Circuit instructs:

If an agency’s affidavit describes the justifications for withholding the 

information with specific detail, demonstrates that the information 

withheld logically falls within the claimed exemption, and is not 

contradicted by contrary evidence in the record or by evidence of the 
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agency’s bad faith, then summary judgment is warranted on the basis of 

the affidavit alone.

ACLU, 628 F.3d at 619. “Ultimately, an agency’s justification for invoking a FOIA 

exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Id. (quoting Larson v. 

Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal quotation marks omitted)). 

“To successfully challenge 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. U.S. Dep’t of Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) 

(quoting Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).

III. ANALYSIS

A Glomar response permits an agency to “refuse to confirm the existence of 

records where to answer the FOIA inquiry would cause harm cognizable under a[ ] 

FOIA exemption.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (quoting Gardels v. 

CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)). Nevertheless, a “plaintiff can overcome a 

Glomar response by showing that the agency has already publicly disclosed the fact of 

the existence (or nonexistence) of responsive records.” ACLU v. CIA, 710 F.3d 422, 

427 (D.C. Cir. 2013). If an agency has “officially acknowledged the existence of the 

record, the agency can no longer use a Glomar response.” Moore v. CIA, 666 F.3d 

1330, 1333 (D.C. Cir. 2011). This Circuit has clarified that in the Glomar context, it is 

the “existence vel non of any records responsive to a FOIA request,” rather than the 

content of the records, that is the focus of the inquiry. ACLU, 710 F.3d at 427.

To rebut a Glomar response, a plaintiff need only point to an official prior 

disclosure that “establishes the existence (or not) of records responsive to the FOIA 
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request,” Wolf, 473 F.3d at 379, since that fact “is the purportedly exempt information 

that a Glomar response is designed to protect,” ACLU, 710 F.3d at 427. It is the FBI’s 

“long-standing policy” to provide a Glomar response—consistent with FOIA’s privacy 

exemptions 6 and 7(C)—when third-party records are requested without either a privacy 

waiver or proof of death, or the demonstration of an overriding public interest in 

disclosure. (Hardy Decl. ¶ 13). See Smith v. FBI, 663 F. Supp. 2d 1, 4 (D.D.C. 2009)

(noting that a Glomar response “is typically invoked to protect the privacy interests of 

third-party individuals under FOIA exemptions 6 and 7(C)” (citing Barbosa v. Drug 

Enforcement Admin., 541 F. Supp. 2d 108, 110-11 (D.D.C. 2008)). 

Defendant’s declarant explains that a Glomar response “is necessary because 

members of the public are likely to draw adverse inferences from the mere fact that an 

individual is mentioned in the files of a law enforcement agency such as the FBI, as this 

may cast the individual in an unfavorable or negative light.” (Id. ¶ 14). Moreover, the 

confirmation of such records could expose the subjects to the types of harm Exemption 

7(C) is intended to shield, including “unsolicited and unnecessary attention.” (Id.). 

Despite the fact that the court previously advised Plaintiff that Defendant’s 

factual assertions may be deemed admitted if not countered with contrary evidence, 

(Mar. 31, 2017 Order, ECF No. 25), Plaintiff has not rebutted Defendant’s properly 

justified Glomar response, but has instead renewed his previously rejected motions that 

have nothing do with FOIA. (See Mot. to Strike and Orders to Show Cause, ECF No. 

26; Mot. to Set Hearing on Mot. to Construe Pleading as 42 U.S.C. § 1988, Mot. to 

Default, and Order to Show Cause, ECF No. 27; Mot. to Enter Judgment on the 

Pleadings 42 U.S.C. 1988, ECF No. 28); cf. Mar. 31, 2017 Order, ECF No. 24 (denying, 
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inter alia, Plaintiff’s motions to construe and strike and for default judgment). 

Consequently, Defendant is entitled to judgment as a matter of law on its uncontested 

Glomar response. 2

IV. CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment will be 

GRANTED. A corresponding order will issue separately. 

Date: March 23, 2018

Tanya S. Chutkan 

TANYA S. CHUTKAN

United States District Judge 

 2 Apart from the Glomar response, Plaintiff’s public interest claim at the administrative 

level (see Ex. C of Hardy Decl.) simply fails to override the privacy interests at stake. 

“Where the privacy concerns addressed by Exemption 7(C) are present, . . . [the requester] 

must 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 that] . . . the information 

is likely to advance that interest.” National Archives and Records Admin. v. Favish, 541 

U.S. 157, 172 (2004). And “the only cognizable public interest under FOIA is ‘the 

citizens’ right to be informed about what [the federal] government is up to.’” People for 

the Ethical Treatment of Animals v. Nat’l Insts. of Health, 745 F.3d 535, 543 (D.C. Cir. 

2014) (quoting DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773

(1989)). Plaintiff’s assertions of wrongdoing by state or county entities add no weight 

on the FOIA scale “to balance against the cognizable privacy interests in the requested 

records.” Favish, 541 U.S. at 174-75. Furthermore, “[a]s a result of Exemption 7(C), 

FOIA ordinarily does not require disclosure of law enforcement documents (or portions 

thereof) that contain private information,” Blackwell v. FBI, 646 F.3d 37, 41 (D.C. Cir. 

2011), and “the Supreme Court has made clear that requests for . . . third party information 

[contained in law enforcement documents] are strongly disfavored[,] . . . particularly . . . 

when the requester asserts a public interest—however it might be styled—in obtaining 

information that relates to a criminal prosecution,” id. (citation and internal quotation 

marks omitted).