Re: Request for records concerning plaintiff and his hurricane relief organization including records concerning third party’s alleged work as FBI informant in investigations concerning plaintiff or his organization
Disposition: Granting defendant’s motion for summary judgment and dismissing plaintiff’s claims with prejudice
- Exhaustion: The court holds that plaintiff has not exhausted his administrative remedies with respect to the portion of his request for records concerning himself and his organization. In so holding, the court notes that “[a] FOIA requester must administratively appeal every discrete issue for which judicial review is sought, otherwise he has failed to exhaust his administrative remedies as to any un-appealed claims.” The court explains that “[t]he FBI responded to Plaintiff’s FOIA request by two letters, each dated March 17, 2009. One letter informed Plaintiff that the FBI could not process his request for records pertaining to a third party . . . because such records, if they in fact existed, would be covered by exemptions 6 and 7(c).” The second letter “informed Plaintiff that the FBI had assigned a file number . . . to the remainder of his request regarding himself and his relief organization] and stated that the agency had begun to search its records system for responsive documents.” When plaintiff appealed, nothing in his appeal letter “indicated he sought review of any aspect of the FBI’s decision other than ‘as it pertain[ed] to [the third party].’” Accordingly, the court concludes that plaintiff failed to exhaust his administrative remedies with respect to his request for records concerning himself and his hurricane relief organization.
- Glomar/7C: As an initial matter, the court notes that “[g]iven the nature of the records sought in Plaintiff’s FOIA request and the government agency to which it was addressed, responsive records, if they exist, would be located in law enforcement files within the meaning of exemption 7(C). Consequently, the Court [limits] its analysis to whether Defendants have satisfied their burden to show records pertaining to [the third party], if they exist and were released, could ‘reasonably be expected to constitute an unwarranted invasion of personal privacy’ within the meaning of exemption 7(C).’”
The court rejects plaintiff’s argument that the third party has no privacy interest in the material because he testified at trial that he was an FBI informant on another matter. The court examines the materials submitted by plaintiff and finds that while the third party “testified in open court and made public statements to the press regarding his work as an FBI informant in connection with the 2008 Republican National Convention and the McKay case, [the third party] has never made statements indicating he served as an FBI informant for any investigation involving Plaintiff or [his relief organization.]“ Since the third party “has not been officially confirmed as an FBI informant with respect to any investigation involving Plaintiff or the organization,” his statements in the McKay case “do not diminish his privacy interests in records, if any exist, that are responsive to Plaintiff’s FOIA request as to Plaintiff and the organization.”
Turning next to whether there is a public interest in disclosure that outweighs the third party’s privacy interest in the records, if any exist, the court finds that “Plaintiff has not provided the Court with any evidence to support his allegations that the FBI engaged in any sort of impropriety.” The court concludes that “[w]ithout evidence that would lead a reasonable person to believe some sort of government impropriety might have occurred, Plaintiff cannot show that the public interest sought to be advanced is a significant one or that the information sought is likely to advance that interest.” Accordingly, the court concludes that “[d]isclosing any responsive records, if they exist, would constitute an unwarranted invasion of [the third party's] privacy within the meaning of exemption 7(C)” and thus the Glomar response was proper.
- Exclusion: The court also rejects the argument that “Defendants may not avail themselves of the exclusion set forth in 5 U.S.C. § 552(c)(2),” because the third party has been officially confirmed as a confidential informant. The court again reiterates that “Plaintiff has not come forward with any evidence indicating that [the third party's] status has been officially confirmed as an FBI informant for an investigation of Plaintiff and [his relief organization].” Accordingly, “[a]ny purported confirmation of [the third party's] status as an informant to the McKay case is of no moment as to this case.” Nevertheless, the court conducts an in camera review of plaintiff’s claim that defendant invoked an exclusion and finds that “if an exclusion was in fact employed, it was, and continues to remain amply justified.”