UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 08-1439 (CKK)

MEMORANDUM OPINION (September 26, 2012) Plaintiff Jeffrey North, proceeding pro se , filed suit against the Drug Enforcement Administration (“DEA”) and several other agencies pursuant to the Freedom of Information Act, 5 U.S.C. § 552. The only remaining claim at issu e is Count 1 of the Amended Complaint, which challenges the DEA’s Glomar response to several FOIA requests seeking information regarding a purported DEA informant---Gianpaolo Starita---w ho testified against the Plaintiff during his criminal trial. The Court previously granted summary judgment in fa vor of the DEA on this count, but vacated that judgment upon the Plaintiff’s motion to reconsider. Presently before the Court are a number of motions fr om both parties. Upon consider ation of the parties’ pleadings 1 and the record before the Court, for the reason s stated below, the Court finds as follows: the DEA’s [126] Renewed Motion fo r Summary Judgment (“DEA’s MSJ”) is DENIED; the DEA’s [127] Motion for Reconsideration of the Cour t’s 2011 Order Requiring Pr oduction of Documents is DENIED; the DEA’s [128] Motion for In Camera Review of DEA Declaration (“DEA’s Mot.

1 In addition to the motions cited and doc uments filed in support thereof, the Court’s analysis considered the following documents, in chronological order of filing: Pl.’s Opp’n to DEA’s Mot. for Summ. J., ECF No. [134]; Pl.’s Opp’n to DEA’s Mot. for Recons., ECF No. [136]; DEA’s Opp’n to Pl.’s Mot. for Summ. J., EC F No. [144]; and Pl.’s Reply to Def.’s Opp’n, ECF No. [145].

JEFFREY NORTH,

v. UNITED STATES DEPARTMENT OF JUSTICE, et al. , Defendants.2 for Rvw”) is DENIED; Plaintiff’s [123] Motion to Allow a Late Submission of Trial Transcripts and Grand Jury Transcripts to the Drug Enfor cement Administration for Consideration in its Search for Information (“Pl.’s First Mot. to Allow Late Subm.”) is GRANTED as conceded; Plaintiff’s [130] Motion to Allow a Late Submi ssion of Additional Transc ripts of Grand Jury Testimony of Gianpaolo Starita to the Drug Enfo rcement Administration (“Pl.’s Second Mot. to Allow Late Subm.”) is GRANTED as conceded; Plaintiff’s [ 139] Renewed Motion for Summary Judgment (“Pl.’s MSJ”) is GRANTED; and Plaint iff’s [141] Motion to Allow Submission of Corrected Pleadings is DENIED AS MOOT. I. LEGAL STANDARD 2 A. Federal Rule of Civil Procedure 54(b) Under Rule 54(b) of the Federal Rules of Civ il Procedure, a district court may revise its own interlocutory orders “at any time before th e entry of judgment adj udicating all the claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). Rule 54(b) recognizes the inherent power of the courts to reconsider interlocutory or ders “as justice requires.” Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc. , 630 F.3d 217, 227 (D.C. Cir. 2011). The “as justice requires” standard may be met where th e court has patently misunderstood the parties, strayed far afield of the issues presented, or failed to consider a controlling or significant change in the law or facts since the submission of the issue. See Cobell v. Norton , 224 F.R.D. 266, 272 (D.D.C. 2004). The Court has broa d discretion to consider whethe r relief is “necessary under the relevant circumstances.” Lewis v. District of Columbia , 736 F. Supp. 2d 98, 102 (D.D.C. 2010) (internal quotation marks omitted).

2 The Court detailed the factual and procedural history in its prior orders and presumes familiarity with those Orders. E.g. , 9/14/11 Mem. Opin. at 1-3; 9/ 30/09 Mem. Opin. at 1-3.3 B. Federal Rule of Civil Procedure 56 “The court shall grant summar y judgment if the movant s hows that there is no genuine dispute as to any material fact and the movant is entitled to judg ment as a matter of law.” Fed. R. Civ. P. 56(a). A party asserti ng that a fact cannot be or is genuinely disputed must support the assertion by “citing to particular parts of materials in the record,” or “showing that the materials cited do not establish the absence or presence of a genuine dispute.” Fed. R. Civ. P. 56(c)(1). “If a party fails to properly s upport an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c) , the court may . . . consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). When considering a motion for summary judgment, the court may not make credibility dete rminations or weigh the evidence; the evidence must be analyzed in the light most favorab le to the nonmoving party, with all justifiable inferences drawn in his favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). “If material facts are at issue, or, though undisput ed, are susceptible to divergent inferences, summary judgment is not available.” Moore v. Hartman , 571 F.3d 62, 66 (D.C. Cir. 2009) (citation omitted). Conclusory assertions offered without any f actual basis in th e record cannot create a genuine dispute. See Ass’n of Flight Attendants- CWA v. U.S. Dep’t of Transp. , 564 F.3d 462, 465-66 (D.C. Cir. 2009). II. DISCUSSION In response to a FOIA request,4 [A]n agency may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause ha rm cognizable under a FOIA exception. Such a response—commonly known as a Glomar response—is proper if the existence vel non of an agency record is itself exempt from disclosure. If, however, the agency has offi cially acknowledged the exis tence of the record, the agency can no longer use a Glomar response, and instead must either: (1) disclose the record to the requester or (2) estab lish that its contents are exempt from disclosure and that such exem ption has not been waived. Moore v. CIA , 666 F.3d 1330, 1333 (D.C. Cir. 2011) (int ernal citations and quotation marks omitted). “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.” Boyd v. Criminal Div. of U.S. Dep’t of Justice , 475 F.3d 381, 380 (D.C. Cir. 2007). In this case, the DEA issued a Glomar response to Plaintiff’s FO IA requests, refusing to confirm or deny the existence of any requested re cords, alleging that confirming the existence of such records concerning Starita would amount to an “unwarranted invasion of personal privacy,” and the records would be exempt from disclosure pursuant to various FOIA exemptions. 9/30/09 Mem. Opin. at 3. The Plaintiff contends that the DEA publicly acknowledged Starita as a DEA informant during the Plaintiff’s trial, triggeri ng the “public domain” exception and barring the DEA from employing a Glomar response. For its part, the DEA argues the Plaintiff has not met his burden to show public acknowledgement of Starita as an informant. For the reasons discussed infra , the Plaintiff has the better argument. The DEA relies almost entirely on Moore v. CIA , 666 F.3d 1330 (D.C. Cir. 2011), in support of its motions for summary judgment and reconsideration. The Moore case concerned FOIA requests to various agencies regarding an individual named Sveinn Valfells, Sr. Id. at 1331. The CIA issued a Glomar response to the request, while the FBI produced a redacted report indicating “T-1, an agency of the U. S. Government which conducts intelligence5 investigations,” provided certa in relevant information to the FBI regarding Valfells. Id. at 1332. The report further indicated that the report was designated “Secret” in part because it contained classified information from the CIA. Id. During the course of subsequent litigation, the CIA submitted a declaration indicating the CIA had asked the FBI to redact certain “CIA-originated information” from the report later produced. Id. at 1333. The district court granted summary judgment in favor of the CIA on the basis that the declaration did not amount to a public acknowledgment that the CIA maintained any docu ments regarding Valfells. The D.C. Circuit affirmed the district court, noting that the de claration “does not identify specific records or dispatches matching Moore’s FOIA request. I ndeed, because the CIA-originated information was redacted before the FBI released its Report to him, Moore cannot show that the redacted information even relates to Valfells Sr.” Id. at 1334. The DEA’s reliance on Moore is misplaced. At no point in its pleadings does the DEA argue that the transcripts submitted by North, if authentic, do not disclose sufficient information to show the DEA has publicly acknowledged Starita as a DEA informant and that the DEA maintains documents responsive to Plaintiff’s re quests. Rather, the entirety of the DEA’s substantive argument is that Plaintiff’s submissi on of transcripts is insufficient because (1) the transcripts were not attached to Plaintiff’s in itial FOIA request; (2) the transcripts are not authenticated; and (3) the Plaintiff did not provide complete transcripts. The Moore case did not address any issues remotely relevant to th e DEA’s arguments, and therefore cannot be considered new legal aut hority requiring rec onsideration of the Court’s pr ior Order. The Court is perplexed as to why the DEA requested multiple extensions of time and ultimately took over three months to file a renewed summary judg ment motion when the DEA did not perform any6 additional searches and cites abso lutely no legal authority in s upport of its contention regarding the timing of production and authentication of the tr anscripts provided by th e Plaintiff. To the contrary, several in this Circ uit clearly demonstrate the DEA’s arguments are incorrect. In Marino v. Drug Enforcement Administration , 685 F.3d 1076 (D.C. Cir. 2012), the plaintiff filed a FOIA request with the DEA seek ing records associated with a specific number from the DEA’s Narcotics and Dangerous Drug Information System (“NADDIS”), purportedly associated with a co-conspirator that testifie d against Marino during his criminal trial. Id. at 1078. The DEA issued a Glomar response, declining to confir m or deny the existence of any requested records. Id. at 1079. After the district court gran ted summary judgment in favor of the DEA, Marino moved for relief from judgment pur suant to Federal Rule of Civil Procedure 60(b), attaching over 500 pages of unauthe nticated trial exhibits and othe r materials purporting to show the DEA had publicly acknowledged the link between the specified NADDIS number and Marino’s co-conspirator. Id. The D.C. Circuit reversed the tr ial court’s denial of Marino’s Rule 60(b) motion, finding Marino’s una uthenticated documents and assertions regarding the existence of other documents with similar conten t were sufficient to create a genuine issue of material fact as to th e propriety of the DEA’s Glomar response. Id. at 1081. In a similar case involving FO IA requests concerning purport ed informants, the court in Benavides v. Drug Enforcement Agency , 968 F.2d 1243 (D.C. Cir. 1 992), reversed the trial court’s grant of summary judgment in favor of the DEA regarding its Glomar response. Benavides submitted a declaration opposing the DE A’s motion for summary judgment, asserting that various witnesses had testif ied in open court that the indivi duals in question were working for the DEA as paid informants. Id. at 1249. The D.C. Circuit concluded that Benavides’7 declaration alone was sufficient to create a genuine issue of material fact as to whether the DEA had publicly confirmed the informan t status of the individuals at issue in the FOIA request, and therefore summary judgment was inappropriate. As the Marino and Benavides decisions indicate, the DEA’s objections to the Plaintiff’s submission of transcripts are unpers uasive. First, in footnote in its renewed motion for summary judgment, the DEA cites Jarvik v. CIA , 495 F. Supp. 2d 67 (D.D.C. 2007), and Forest Guardians v. Department of the Interior , 416 F.3d 1173 (10th Cir. 2005), for the proposition that the Court’s review is limited to the materials th e Plaintiff submitted in support of his underlying requests. DEA’s MSJ at 6 n.2. Even a cursory reading of these cases reveals that the quoted language specifically refers to th e record upon judicial review of the denial of a fee waiver under FOIA. Neither the Jarvik nor the Forest Guardians court analyzed the official acknowledgment issue. Forest Guardians , 416 F.3d at 1177; Jarvik , 495 F. Supp. 2d at 71. The relevant record from which the Court must determine whether the DEA officially acknow ledged Starita as an informant is the summary judgment record, not the administrative record relating to the Plaintiff’s underlying FOIA requests. See Marino , 685 F.3d at 1081. Second, the Plaintiff need not produce authenticated documents in order to survive summary j udgment. Just as Benavides’ affidavit was sufficient to demonstrate a genuine i ssue of material fact, Pl aintiff’s declaration and transcripts are more than sufficient, and th e DEA’s motion for summary judgment must be denied. 968 F.2d at 1249. The Court’s analysis does not end with de nying the DEA’s motion because the Plaintiff has cross-moved for summary judgment on the sa me grounds. Pl.’s MSJ ¶¶ 26-35. Plaintiff’s own motion for summary judgment focuses on the public disclosure issu e, yet save for one8 footnote, the DEA’s opposition fails to even men tion this issue. Footnote 1 of the DEA’s opposition in fact is copied and pasted from the DEA’s renewed motion, which, as explained

supra , relies on a misleading citation to make a demonstrably incorrect argument. DEA’s Opp’n, ECF No. [144], at 9 n.1. The body of the DEA’s opposition addresses (1) the reasonableness of the DEA’s search; and (2) the applicability of certain exemptions, questions that are not before the Court. See Marino , 685 F.3d at 1082. In its renewed motion for summary judgment, the DEA notes that the case name was a ttached to the transcript using tape, the pages are not numbered, and the questions and answers fr om the bottom of one pa ge to the top of the next do not necessarily correspond. DEA’s MSJ at 6 n.3 (citing S econd Suppl. Little Decl. ¶ 14). The latter issue is explained by Plaintiff’s own admission that he submitted excerpts from Starita’s trial testimony, ra ther than the entirety of his testim ony. The remaining cosmetic issues identified by the DEA do not raise a genuine issue of material fact as to the authenticity of the transcripts. The only evidence before the Court is the un-rebutted evidence submitted by the Plaintiff indicating the DEA publicly ackno wledged Starita as an informan t during Plaintiff’s criminal trial. The Plaintiff submitted a declaration u nder penalty of perjury indicating that (1) the transcript excerpts attached to his declaration ar e “exact copies of the original transcripts as I received them from the Court Re ports who prepared them.” No rth Decl., ECF No. [139-2], ¶ 5. Plaintiff satisfied his burden of production on this issue, with no substantive argument or evidence to the contrary from the DEA. Therefor e, Plaintiff is entitled to summary judgment to the effect that the DEA has offi cially acknowledged Starita as a DEA informant and therefore the DEA’s Glomar response was improper. Accordingly, the DEA must confirm whether or not9 responsive documents exist, and then either release the documents or establish the c ontents of the documents are exempt from disclosure. Marino , 685 F.3d at 1082. The DE A is further advised that the DEA is obligated to disclose any info rmation previously disclosed by Starita and other witnesses, as indicated in the transcripts submitte d by the Plaintiff, despite the fact certain FOIA exemptions might otherwise protect di sclosure of certain documents. Davis v. U.S. Dep’t of Justice , 968 F.2d 1276, 1281 (D.C. Cir. 1992). III. MISCELLANEOUS MOTIONS Apart from the parties’ cross-motions, seve ral miscellaneous moti ons are pending before the Court. The DEA filed a motion for in camera review of the declarati on filed in support of its renewed motion for summary judgment. DEA Mot. for Rvw at 1. The motion indicates the declaration contains “sensitive information,” but in the DEA’s “haste to make the necessary preparations,” the DEA failed to file a motion to seal the declaration. Id. Instead, the DEA filed a redacted declaration on the public docket and now seeks to remedy its error by having the Court review the declaration in camera . Absent a proper motion to seal, the Court has no indication as to what or why redacted informa tion in the declaration should be protected from disclosure as the DEA claims. In any event, the DEA’s renewed motion for summary judgment is legally infirm; therefore the Court does not reach the issues raised by the declaration at issue. Accordingly, the DEA’s motion for in camera review is denied. The Plaintiff filed two motions seeking leave to submit additional transcripts to the DEA to consider in determining what additional in formation should be disclosed, a process the DEA failed to undertake. See generally Pl.’s First & Second Mots. to Allow Late Subm. The DEA did not oppose Plaintiff’s motions, therefore both motions are grante d. Finally, the Plaintiff filed10 a motion for leave to file corrected pleadings. Because the Court is granting the Plaintiff’s motion for summary judgment and denying the DEA its requested reli ef, this motion is denied as

moot. IV. CONCLUSION For the reasons stated above, the DEA’s [126] Renewed Motion for Summary Judgment and [127] Motion for Reconsideration of th e Court’s 2011 Order Requiring Production of Documents are DENIED. The DEA cites no appli cable intervening legal authority that would warrant reconsideration of the Court’s Septem ber 14, 2011 Order, the Defendant satisfied his burden of production as to the issue of the DEA’ s official acknowledgment of Gianpaolo Starita as a DEA informant. The DEA’s [128] Motion for In Camera Review of DEA Declaration is DENIED. The DEA failed to follow proper proce dure for submitting documents under seal or in redacted format, and ultimately th e Court does not reach the issues addressed by the declaration. Plaintiff’s [139] Renewed Mo tion for Summary Judgment is GRANTED. The DEA must publicly acknowledge the existence of documents responsive to the Plaintiff’s requests, and must either release the contents of those documents or establish one or more FOIA exemptions protects the contents of the docum ents from disclosure. Plainti ff’s [123] Motion to Allow a Late Submission of Trial Transcripts and Grand Ju ry Transcripts to the Drug Enforcement Administration for Consideration in its Search fo r Information and [130] Motion to Allow a Late Submission of Additional Transcripts of Grand Ju ry Testimony of Gianpaolo Starita to the Drug Enforcement Administration are GRANTED as conceded. The DEA must consider the information publicly disclosed in the attached tr anscripts in determining what information may and may not be withheld pursuan t to any potentially relevant FOIA exemptions. Finally,11 Plaintiff’s [141] Motion to Allow Submission of Corrected Pleadings is DENIED AS MOOT An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE