Jurdi v. United States

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAY JURDI, :
:
Plaintiff, : Civil Action No.: 18-1892 (RC)
:
v. : Re Document Nos.: 13, 18, 22
:
UNITED STATES OF AMERICA, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFF’S CROSS-
MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFF’S MOTION TO TREAT
ALLEGATIONS AS ADMITTED
I. INTRODUCTION
In this case, brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
pro se Plaintiff Jay Jurdi seeks to obtain records from the Federal Bureau of Investigation
(“FBI”) and the Drug Enforcement Agency (“DEA”) relating to Anthony Grasso, a man who
testified at Jurdi’s criminal trial. Defendant, the United States, has now moved for summary
judgment on behalf of both agencies, arguing that the FBI properly refused to disclose the
existence or non-existence of responsive records (a so-called “Glomar response”) due to certain
privacy and law enforcement-related FOIA exemptions, and that the DEA properly asserted a
categorical denial of the request based on similar exemptions. Jurdi also cross-moves for
summary judgment. Ultimately, because the Court finds that the FBI’s Glomar response and the
DEA’s categorical denial were justified, the Court will grant the government’s motion for
summary judgment and deny Jurdi’s cross-motion for summary judgment.
Also pending before the Court is a related motion by Jurdi, which requests that the Court
either (1) treat certain allegations advanced in his complaint as admitted or (2) strike some of the
government’s responses to the statement of undisputed material facts accompanying his cross-
motion for summary judgment. For the reasons explained below, the Court will deny the motion.
II. BACKGROUND
According to the complaint, in 2012, Jay Jurdi, along with various other co-conspirators,
was charged with “conspiracy to possess with intent to manufacture and distribute
methamphetamine.” Compl. at 1, ECF No. 1. One of the other defendants charged was Anthony
Grasso. Id. at 1–2. Pursuant to a plea agreement, Grasso testified against Jurdi at a trial on
October 14, 2014. Id. at 2. At trial, Grasso testified that he had been cooperating with the
government and had arranged a drug deal to facilitate the arrest of some individuals. Id.; see
also Compl. Ex. 1 at 69, ECF No. 1-1 (trial transcript). 1 Public records indicate that Jurdi was
subsequently convicted. See Jury Verdict, United States v. Grasso et al., No. 4:12-cr-180 (E.D.
Tex.), ECF No. 432. 2
On March 22, 2018, Jurdi sent the DEA a FOIA request for (1) “[a]ny DEA Form 6’s 3
created by any DEA Agents in relation to Anthony Grasso,” (2) “[a]ny Other File Number of a
DEA File containing the name of Anthony Grasso,” and (3) “[a]ny other investigative reports
filed by any other agent referencing the name Anthony Grasso.” Compl. Ex. 1 at 93 (DEA
request). On March 25, 2018, Jurdi sent a nearly identical request to the DEA and FBI, this time
1
Because the documents included in Exhibit 1 are not consistently identified or
paginated, the Court will refer to the automatically-generated ECF page numbers.
2
“The court may take judicial notice of another court’s proceedings.” Donelson v. U.S.
Bureau of Prisons, 82 F. Supp. 3d 367, 371 (D.D.C. 2015) (citations omitted).
3
“DEA Form 6 & 6a are ‘report of investigation forms’ used by the DEA to memorialize
investigation and intelligence activities, and information.” Cobar v. U.S. Dep’t of Justice, 81 F.
Supp. 3d 64, 74 (D.D.C. 2015) (some internal quotations omitted). For example, “[i]f a DEA
Special Agent or task force officer acting under the DEA’s authority conducted a debriefing, this
event would be memorialized in a DEA Form–6.” Jones v. DEA, 83 F. Supp. 3d 380, 382
(D.D.C. 2015) (internal quotations omitted).
2
seeking “[a]ny FBI Form 302’s 4 created by any FBI agents in relation to Anthony Grasso,” as
well as any file numbers and investigative reports referencing Mr. Grasso. Id. at 94 (FBI
request). On April 10 and 11, 2018, the agencies each responded separately to Jurdi’s requests,
both stating that they could “neither confirm nor deny the existence of such records pursuant to
Exceptions 6 & 7(C) of FOIA.” Id. at 95 (DEA denial); id. at 97 (FBI denial). On April 17,
2018, Jurdi appealed both decisions to the Department of Justice’s Office of Information Policy.
Id. at 99 (FBI appeal); id. at 102 (DEA appeal). On May 31, 2018, both appeals were denied,
with OIP upholding use of both agencies’ Glomar responses under Exceptions 6 & 7(C). See id.
at 105 (“Confirming or denying the existence of such records, including law enforcement
records, concerning a third-party individual would constitute a clearly unwarranted invasion of
personal privacy, and could reasonably be expected to constitute an unwarranted invasion of
personal privacy.”); see also id. at 107 (same as to DEA). 5
On July 8, Jurdi filed this action, seeking to compel release of the records. Compl. at 9.
That filing provoked a response from one of the agencies: after reviewing the complaint and
Grasso’s trial testimony, the DEA “abandoned its former application of Glomar in a letter to
Plaintiff.” Def.’s Mot. for Summ. J. Ex. B (“Hertel Decl.”) ¶ 12, ECF No. 13-4. In the letter, the
DEA “confirm[ed] that records exist,” but determined that “without consent, proof of death or an
overriding public interest, disclosure of law enforcement records concerning an individual could
reasonably be expected to constitute an unwarranted invasion of personal privacy. Id. (quoting
4
The FBI uses Form 302 “to summarize facts and statements made by potential witnesses
during interviews.” Judicial Watch, Inc. v. U.S. Dep’t of Justice, 391 F. Supp. 3d 43, 48 (D.D.C.
2019) (citation omitted).
5
The FBI’s denial also included an advisement that, “per standard FBI practice and
pursuant to FOIA exemption b(7)(E) . . . this response neither confirms nor denies the existence
of an individual’s name on any watch lists.” Compl. Ex. 1 at 97.
3
Hertel Decl. Ex. 1 (“DEA Letter”), ECF No. 13-5). Therefore, the DEA concluded, it was “not
required to conduct a search for the required records.” Id. (quoting DEA Letter).
Relatively soon thereafter, the government filed a motion for summary judgment, 6
arguing that the FBI had properly asserted a Glomar response and the DEA properly relied on a
categorical denial. See Mem. in Supp. Def.’s Mot. for Summ. J. (“MSJ”) at 1, ECF No. 13-1.
Jurdi responded with a combined memorandum in opposition and cross-motion for summary
judgment, largely arguing that, because at least some of the information regarding Mr. Grasso
was already in the public realm, neither agency could rely on broad denials. See Pl.’s Opp’n to
Def.’s MSJ & Pl.’s Cross-Mot. for Summ. J. (“XMSJ”) at 1–2, ECF No. 17. 7 The summary
judgment motions are now fully briefed and ripe for the Court’s consideration. See Def.’s Reply
in Supp. of MSJ & Opp’n to XMSJ, ECF No. 21; Pl.’s Reply in Supp. of XMSJ, ECF No. 23. 8
Separately, in the midst of this briefing, Jurdi filed a related procedural motion. See Pl.’s
Mot. to Treat his Allegations as Admitted and/or to Strike Def.’s Responses to Pl.’s Statement of
Undisputed Material Facts (“Allegations Mot.”), ECF No. 22. In this motion, Jurdi argues (1)
6
“[I]t is standard practice in FOIA cases for the defendant to file a motion for summary
judgment instead of filing a responsive pleading. Such a practice is substantively no different
than filing a motion under Rule 12(b)(6) accompanied by matters outside the pleadings, which is
then converted by operation of Rule 12(b) to one under Rule 56.” Jones, 601 F. Supp. 2d at 302
(D.D.C. 2009) (citation omitted). A defendant “is not required to respond in the form of an
answer before making a motion for summary judgment.” Id. (citing Fed. R. Civ. P. 56(b);
Hubicki v. ACF Indus., Inc., 484 F.2d 519, 522 (3d Cir. 1973); Gifford v. Travelers Protective
Ass’n of Am., 153 F.2d 209, 210–211 (9th Cir. 1946); 10A Wright, Miller, & Kane, Fed. Prac. &
Proc. § 2718 (3d ed.)); see also 11 J. Moore et al., Moore’s Federal Practice § 56.60[1]-[2][a]
(2011) (“Rule 56 does not limit how early a party may move for summary judgment. . . . No
party has to wait for a responsive pleading before filing a summary judgment motion.”).
7
Because this filing appears to contain two separately-paginated documents, the Court
will cite to specific pages using the automatically-generated ECF page numbers.
8
This filing is styled as a “Sur-Reply,” but in substance constitutes a reply in support of
Jurdi’s cross-motion. The Court therefore considers it appropriately filed.
4
that certain allegations made in his complaint and repeated in his cross-motion’s statement of
material facts should be treated as admitted by the government because they were not properly
contested or (2) alternatively, that certain responses be stricken from the government’s statement
of facts because the government did not admit or deny the corresponding allegations as required.
Allegations Mot. at 1–3. The government opposes, see Def.’s Opp’n to Allegations Mot. at 1,
ECF No. 24, and Jurdi has not filed a reply.
III. LEGAL STANDARD
The Freedom of Information Act “sets forth a policy of broad disclosure of Government
documents in order ‘to ensure an informed citizenry, vital to the functioning of a democratic
society.’” FBI v. Abramson, 456 U.S. 615, 621 (1982) (quoting NLRB v. Robbins Tire & Rubber
Co., 437 U.S. 214, 242 (1978)). “[D]isclosure, not secrecy, is the dominant objective of the
Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976). FOIA accordingly “‘mandates
release of properly requested federal agency records, unless the materials fall squarely within one
of nine statutory exemptions.’” Hunton & Williams LLP v. EPA, 346 F. Supp. 3d 61, 72 (D.D.C.
2018) (citing Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011)). And “even if some materials
from the requested record are exempt from disclosure, any reasonably segregable information
from those documents must be disclosed after redaction of the exempt information,” unless the
non-exempt portions are “inextricably intertwined with exempt portions.” Id. (internal quotation
marks omitted) (quoting Johnson v. EOUSA, 310 F.3d 771, 776 (D.C. Cir. 2002)).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Bigwood v.
U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). An agency is entitled to
summary judgment if no material facts are genuinely in dispute and the agency demonstrates
5
“that its search for responsive records was adequate, that any exemptions claimed actually apply,
and that any reasonably segregable non-exempt parts of records have been disclosed after
redaction of exempt information.” Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 181
(D.D.C. 2017). “This burden does not shift even when the requester files a cross-motion for
summary judgment because ‘the Government ultimately has the onus of proving that the
documents are exempt from disclosure,’ while the ‘burden upon the requester is merely to
establish the absence of material factual issues before a summary disposition of the case could
permissibly occur.’” Hardy v. ATF, 243 F. Supp. 3d 155, 162 (D.D.C. 2017) (brackets omitted)
(quoting Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999)).
To carry its burden, the agency must provide “a relatively detailed justification, specifically
identifying the reasons why a particular exemption is relevant and correlating those claims with
the particular part of the withheld document to which they apply.” Elec. Privacy Info. Ctr. v.
DEA, 192 F. Supp. 3d 92, 103 (D.D.C. 2016) (quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air
Force, 566 F.2d 242, 251 (D.C. Cir. 1977)).
In this case, the DEA is asserting a so-called categorical denial. The Supreme Court and
D.C. Circuit have “made it clear that rules exempting whole groups of records from disclosure
are not only permitted, but should be encouraged as a means of enabling agencies to meet their
formidable FOIA obligations in a timely fashion.” Graff v. FBI, 822 F. Supp. 2d 23, 31 (D.D.C.
2011) (citing Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 893 (D.C. Cir.
1995)); see also Schultz v. FBI, 63 F. Supp. 3d 1183, 1189 (E.D. Cal. 2014) (noting that
categorical exemptions “serve the interest of preservation of judicial economy by relieving the
court of the obligation of carrying out a case-by-case examination of documents where the FOIA
request seeks production of a narrow category of documents whose production would predictably
6
or inevitably result in an unwarranted invasion of the privacy interests of the third-party objects
of the request”). Categorical exemptions must “‘characteristically support an inference’ that the
statutory requirements for exemption are satisfied.” Nation Magazine, 71 F.3d at 893 (quoting
United States v. Landano, 508 U.S. 165, 177 (1993)).
Additionally, the FBI is asserting a so-called Glomar response—that is, it is refusing to
either confirm or deny the existence of responsive records. Such a response is justified when
merely confirming that responsive records exist “would itself ‘cause harm cognizable under an
FOIA exception.’” Am. Civil Liberties Union v. CIA, 710 F.3d 422, 426 (D.C. Cir. 2013)
(quoting Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011)). Thus, for
example, if an individual is the target of a FOIA request, an agency may issue a Glomar response
“on the ground that even acknowledging the existence of responsive records constitutes an
unwarranted invasion of the targeted individual’s personal privacy.” Meserve v. U.S. Dep’t of
Justice, No. 04-cv-1944, 2006 WL 2366427, at *6 (D.D.C. 2006). To justify a Glomar response,
“[t]he agency must demonstrate that acknowledging the mere existence of responsive records
would disclose exempt information.” Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931 (D.C.
Cir. 2012) (citing Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)). A plaintiff “can overcome a
Glomar response by showing that the agency has already disclosed the fact of the existence (or
nonexistence) of responsive records, since that is the purportedly exempt information that a
Glomar response is designed to protect.” Am. Civil Liberties Union, 710 F.3d at 427.
IV. ANALYSIS
A. Motions for Summary Judgment
The Court will analyze each agency’s arguments in turn.
7
1. The DEA’s Categorical Denial
The DEA’s categorical denial of Jurdi’s request relies on FOIA Exemptions 7(C) 9 and
7(D). To invoke any subsection of Exemption 7, an agency must first establish that the records
were gathered for law enforcement purposes. U.S. Dep't of Justice v. Reporters Comm. For
Freedom of Press, 489 U.S. 749, 756 (1989). In assessing whether records are compiled for law
enforcement purposes, the “focus is on how and under what circumstances the requested files
were compiled, and whether the files sought relate to anything that can fairly be characterized as
an enforcement proceeding.” Jefferson v. U.S. Dep’t of Justice, 284 F.3d 172, 176–77 (D.C. Cir.
2002) (citations and internal quotations omitted). Here, the Court agrees with the DEA that
Exemption 7’s threshold requirement is met: any documents responsive to Mr. Jurdi’s request—
that is, any interview forms, files, or other investigative records relating to Mr. Grasso—would
have been generated in the course of an investigation and therefore related to the DEA’s law
enforcement duties. See Hertel Decl. ¶ 5 (indicating that the DEA is authorized to conduct
criminal investigations into trafficking of controlled substances and that its corresponding
investigative records are compiled for law enforcement purposes).
9
The DEA also invokes Exemption 6. Exemption 6 protects “personnel and medical
files and similar files the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy,” while Exemption 7(C) covers “records or information compiled for law
enforcement purposes, but only to the extent that the production of such law enforcement records
or information . . . could reasonably be expected to constitute an unwarranted invasion of
personal privacy.” 5 U.S.C. § 552(b)(6)–(7). In cases like this one, “[w]hen information is
claimed to be exempt from disclosure under both provisions, courts ‘focus on . . . Exemption
7(C) because it provides broader privacy protection than Exemption 6 and thus establishes a
lower bar for withholding material.’” Citizens for Responsibility & Ethics in Washington v. Dep’t
of Justice (CREW II), 854 F.3d 675, 681 (D.C. Cir. 2017) (quoting Citizens for Responsibility &
Ethics in Washington v. U.S. Dep’t of Justice (CREW I), 746 F.3d 1082, 1091 n.2 (D.C. Cir.
2014)). Accordingly, the Court will focus on the applicability of Exemption 7(C).
8
Exemption 7(C) authorizes the government to withhold law enforcement records that
“could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(7)(C). “The courts have construed this provision as permitting exemption if the
privacy interest at stake outweighs the public’s interest in disclosure.” Nation Magazine, 71 F.3d
at 893 (citing Reporters Comm., 489 U.S. at 776; Davis v. U.S. Dep’t of Justice, 968 F.2d 1276,
1281 (D.C. Cir. 1992)). In evaluating an agency’s use of Exemption 7(C), the court must first
consider if there is a privacy interest implicated by the disclosure. 5 U.S.C. § 552(b)(7)(C); see
also Boyd v. Exec. Office for United States Attorneys, 87 F. Supp. 3d 58, 72 (D.D.C. 2015)
(citing Reporters Comm., 489 U.S. at 756). Then the court must balance this privacy interest
against the magnitude of the public interest served by disclosure asserted by the requestor. Boyd,
87 F. Supp. 3d at 72; see also 5 U.S.C. § 552(b)(7)(C).
To overcome the privacy interest of a third party, the information must “shed[] light on
an agency’s performance of its statutory duties.” Reporters Comm., 489 U.S. at 773.
Information “that reveals little or nothing about an agency’s own conduct,” id., will not
overcome a third party’s private interest, because “[t]he only relevant public interest that weighs
into the calculus for purposes of Exemption 7(C) is ‘the citizens’ right to be informed about what
their government is up to,’” Boyd, 87 F. Supp. 3d at 73 (quoting Reporters Comm., 489 U.S. at
773). When asserting a public interest related to revealing government wrongdoing, the plaintiff
must “establish more than a bare suspicion in order to obtain disclosure” and “produce evidence
that would warrant a belief by a reasonable person that the alleged Government impropriety
might have occurred.” Ocasio v. U.S. Dep’t of Justice, 219 F. Supp. 3d 191, 195–96 (D.D.C.
2016), aff’d, 2017 WL 4217471 (D.C. Cir. Aug. 23, 2017) (quoting Nat’l Archives & Records
Admin. v. Favish, 541 U.S. 157, 174 (2004)). If a plaintiff cannot make this showing and does
9
not identify any other public interest, withholdings under Exemption 7(C) are appropriate. See
Boyd, 87 F. Supp. 3d at 73–74.
To recall, Mr. Jurdi sought (1) “[a]ny DEA Form 6’s created by any DEA Agents in
relation to Anthony Grasso,” (2) “[a]ny Other File Number of a DEA File containing the name of
Anthony Grasso,” and (3) “[a]ny other investigative reports filed by any other agent referencing
the name Anthony Grasso.” Compl. Ex. 1 at 93. DEA broadly denied the request and did not
conduct a search for responsive documents. The government justifies this on the grounds that
any responsive document would be immune from disclosure. According to the government,
“[t]he simple presence of a person’s name in records compiled for law enforcement purposes
may trigger questions about his or her involvement in criminal activity or his or her role in an
investigation or prosecution.” MSJ 11 (citing Hertel Decl. 4). Additionally, the government
suggests, “release of records from a criminal investigative file could link Anthony Grasso to
specific events mentioned in the file and other individuals referenced, to a greater degree than
exists on the public record” and “could subject Anthony Grasso to harassment or embarrassment,
as well as to undue public attention.” Id. (citing Hertel Decl. 4).
At first glance, the government’s assertion of a categorical denial appears somewhat
ambitious, because Grasso publicly testified at Jurdi’s trial and acknowledged his role as a
cooperator. Hertel Decl. ¶ 12. Additionally, the DEA withdrew its original Glomar response
and acknowledged that at least some relevant records exist. Id. At the very least, then, it seems
like the government should be required to conduct a full search for responsive documents and
offer document-specific objections or redactions based on particular privacy concerns. On closer
analysis, however, it becomes clear that, because Jurdi’s request is tailored to files and reports
referencing or related to Grasso, any responsive documents would necessarily introduce new
10
information about the circumstances of Grasso’s involvement with law enforcement and work at
least some marginal invasion into his still-extant privacy interests. See Nation Magazine, 71
F.3d at 893 (explaining that categorical exemptions must “‘characteristically support an
inference’ that the statutory requirements for exemption are satisfied.”) (citation omitted). After
all, “[t]he fact that information about [Grasso] is a matter of public record simply makes [his]
privacy interests ‘fade,’ not disappear altogether.” Am. Civil Liberties Union v. U.S. Dep’t of
Justice, 750 F.3d 927, 932 (D.C. Cir. 2014) (quoting Am. Civil Liberties Union v. U.S. Dep’t of
Justice, 655 F.3d 1, 9 (D.C. Cir. 2011)); see also Clay v. U.S. Dep’t of Justice, 680 F. Supp. 2d
239, 248 (D.D.C. 2010) (concluding that “an individual does not waive privacy rights merely by
testifying at a trial”); Lewis-Bey v. U.S. Dep’t of Justice, 595 F. Supp. 2d 120, 135 (D.D.C. 2009)
(reasoning that individuals involved in law enforcement investigations have a substantial interest
in seeing that their participation remains secret, and “[s]uch privacy interests are no less
significant where the individual has testified at trial”) (citations omitted). 10
Against these privacy interests, Jurdi has not identified any sufficient countervailing
public interests favoring disclosure. He primarily argues that there is a public interest in
“understanding the criminal justice system” through these documents and that they are needed to
“operate as a curb on prosecutorial or judicial conduct[.]” Compl. at 5; see also MSJ at 6–7. But
when a requestor advances revealing government misconduct as the relevant public interest, he
or she must “produce evidence that would warrant a belief by a reasonable person that the
alleged Government impropriety might have occurred.” Favish, 541 U.S. at 174. Specifically,
10
Jurdi also suggests that Grasso effectively waived his privacy interests by failing to file
a request to redact the trial transcript. See XMSJ at 7 (suggesting that “Grasso was put on notice
of his right to privacy” but nonetheless “failed to file a ‘Notice for Redaction of Transcript.’”).
However, Jurdi does not cite, and the Court is not aware of, any authority indicating that a third-
party’s privacy interests under Exemption 7(C) are waived or forfeited by such a failure.
11
the requestor must provide “compelling evidence that the agency is engaged in illegal activity.”
SafeCard Services, Inc., 926 F.2d at 1205–06. This Jurdi has failed to do. He takes issue with
the kind of law enforcement tactics used to secure Grasso’s testimony against him, but never
suggests that they were illegal. XMSJ at 8–10. At most, he suggests that there is a “legitimate
need for the records,” given that “[t]he documents and records on file with the [agencies] will
prove that Mr. Grasso lied to the District Court and to Mr. Jurdi’s Jury.” Compl. at 5; see also
Pl.’s Reply in Supp. of XMSJ at 4 (suggesting that “the prosecution in Mr. Jurdi’s federal
criminal case . . . solicited a lie from its own witness [Grasso]”). But “[u]nsubstantiated
assertions of government wrongdoing . . . do not establish a ‘meaningful evidentiary showing,’”
even when they concern “lies by the prosecutor.” Boyd v. U.S. Dep’t of Justice, 475 F.3d 381,
388 (D.C. Cir. 2007) (quoting Favish, 541 U.S. at 175). More generally, “the courts have
consistently refused to recognize any public interest in disclosure of information [under FOIA] to
assist a convict in challenging his conviction.” Burke v. U.S. Dep’t of Justice, 1999 WL
1032814, *4 (D.D.C. Sept. 30, 1999); see also Taylor v. U.S. Dep’t of Justice, 257 F. Supp. 2d
101, 110 (D.D.C. 2003) (suggesting that disclosure of potentially exculpatory Brady information
is in a plaintiff’s private interest, not the general public interest). While this is not a categorical
rule, see Roth, 642 F.3d at 1184 (recognizing a countervailing public interest under Exemption
7(C) “in the circumstances of this case, where the FOIA requester has surmounted the fairly
substantial hurdle of showing that a reasonable person could believe that the FBI might be
withholding information that could corroborate a death-row inmate’s claim of innocence”),
without any clearly articulated public interest in disclosure or meaningful evidence of
government wrongdoing, there is no basis to invade a third-party’s privacy interests here. See
Martin v. U.S. Dep’t of Justice, 488 F.3d 446, 457 (D.C. Cir. 2007) (“[P]rivacy interests are
12
particularly difficult to overcome when law enforcement information regarding third parties is
implicated.”) (citing Reporters Comm., 489 U.S. at 780).
In certain aspects, this case resembles Black v. U.S. Dep’t of Justice, where the FOIA
plaintiff sought, among other things, all “criminal files” referencing a particular individual whose
identity was public and whose testimony was used to help convict the plaintiff of narcotics
distribution. 69 F. Supp. 3d 26, 31, 37 (D.D.C. 2014), aff’d, 2015 WL 6128830 (D.C. Cir. Oct.
6, 2015). The agency declined to conduct a search and issued a categorical denial, reasoning that
any responsive information would be exempt from disclosure pursuant to Exemption 7(C). Id. at
31. Defendants argued that any disclosure would result “in the unwarranted invasion of [the
individual’s] privacy” and that “because [the individual’s] testimony was used in convicting
Plaintiff of narcotics distribution, and because narcotics distribution is a serious crime often
involving violence, disclosure of the requested records could result in significant harm to [the
individual].” Id. at 37. Based on these arguments, the court concluded that “Defendants have
established a compelling privacy interest.” Id. 11 It then rejected as insubstantial the plaintiff’s
argument that “the requested records are relevant to the public’s interest in understanding
government operations and discovering prosecutorial misconduct.” Id. at 38. Accordingly, the
government’s categorical denial (and refusal to conduct a search) was upheld. See id. at 40 (“All
11
In conducting the analysis, the court in Black sought and received additional
confirmation that the individual at issue was, in fact, still alive. 69 F. Supp. 3d at 37 (“Since
death can diminish one’s privacy interest, the Court requested that Defendants provide proof of
[the individual’s] life status.”). Here, while it is not explicit, the DEA’s declaration implies that
Grasso is still alive. Hertel Decl. ¶ 15 (suggesting disclosure could subject Anthony Grasso to
harassment or embarrassment). Additionally, some modest amount of privacy interest would
persist even after death, and Jurdi has not pointed to any cognizable public interests that would
overcome even that diminished interest. See Davis, 968 F.2d at 1282 (“[E]ven if a particular
privacy interest is minor, nondisclosure remains justified where, as here, the public interest in
disclosure is virtually nonexistent.”).
13
of the records Plaintiff requested only contained information implicating third parties in law
enforcement investigations and were thus exempt from disclosure under Exemption 7(C). . . .
Since Defendants provided a declaration explaining in detail why the records Plaintiff requested
are categorically exempt from disclosure pursuant to Exemption 7(C), the Court is satisfied that
Defendants met their burden under FOIA.”).
In his opposition and cross-motion for summary judgment, Mr. Jurdi invokes the
“official-acknowledgement doctrine,” which “provides that ‘when an agency has officially
acknowledged otherwise exempt information through prior disclosure, the agency has waived its
right to claim an exemption with respect to that information.’” Shapiro v. U.S. Dep’t of Justice,
153 F. Supp. 3d 253, 285 (D.D.C. 2016) (quoting Am. Civil Liberties Union, 710 F.3d at 426).
Jurdi argues that the DEA has waived its ability to exempt DEA investigative reports and files
that mention Mr. Grasso because the DEA officially acknowledged Mr. Grasso as an informant
through DEA Agent Hertel’s declaration submitted as a part of the government’s motion for
summary judgment, see Hertel Decl., and during Mr. Grasso’s testimony in open court, Pl.’s
XMSJ 2–3. In some ways, this is another argument that Grasso’s privacy interest in the
requested records is severely diminished. See XMSJ at 5 (arguing that the DEA “official[ly]
acknowledged [that] Mr. Grasso was involved with several individuals who trafficked in drugs
and engaged in other violent and illegal activities” and that although the “DEA asserts . . . a 7(c)
exception because release of those files would reveal the identities of individuals who are
subjects, witnesses, or informants. . . . The Government has already publicly disclosed that
information.”).
However, even assuming the DEA officially acknowledged Grasso’s role as an
informant, Jurdi must show more: under the “officially acknowledged” exception, the requestor
14
“has the burden of showing that there is a permanent public record of the exact portions he
wishes.” Davis, 968 F.2d at 1280. Thus, for example, a requestor is entitled under FOIA only to
the specific portions of wiretap recordings that were publicly played at a trial. See Cottone v.
Reno, 193 F.3d 550, 555 (D.C. Cir. 1999) (concluding requestor “has discharged his burden of
production by pointing to specific tapes which, having been played in open court and received
into evidence, reside in the public domain and mirror precisely the information that he has
requested”). Jurdi fails to make the analogous showing here. Again, Jurdi specifically requested
(1) any DEA Form 6 relating to Anthony Grasso; (2) any other file number of a DEA file
containing the same name; and (3) any investigative reports filed by any agent referencing the
name. Compl. Ex. 1 at 96. And because the government has not “officially acknowledged” or
disclosed any of these exact records that Jurdi has requested, his argument must be rejected. See
Black, 69 F. Supp. 3d at 35 (rejecting argument based on previous prior disclosure when
“[p]laintiff ultimately fail[ed] to point to specific information identical to that being withheld that
has been placed in the permanent public record”). 12
2. FBI’s Glomar Response
In contrast to the DEA, the FBI has maintained its original Glomar response and justifies
it under Exemptions 7(C), 13 7(D), and 7(E). Under Exemption 7(C), the FBI argues that a
Glomar response is appropriate “because members of the public are likely to draw adverse
12
Because the Court concludes that the DEA’s response was justified under Exemption
7(C), it does not also consider whether it was further justified by Exemption 7(D).
13
Like the DEA, the FBI invokes Exception 6 along with Exemption 7(C). But as
explained above, in cases like this one, “[w]hen information is claimed to be exempt from
disclosure under both provisions, courts ‘focus on . . . Exemption 7(C) because it provides
broader privacy protection than Exemption 6 and thus establishes a lower bar for withholding
material.’” CREW II, 854 F.3d at 681 (quoting CREW I, 746 F.3d at 1091 n.2).
15
inferences from the mere fact that an individual is mentioned in the files of a criminal law
enforcement agency such as the FBI, and cast them in an unfavorable or negative light.” MSJ at
9. The government further argues that even if an individual testified on the record, any FOIA
response other than a Glomar response would constitute “an official acknowledgment of
association with an investigation” and would “likely [] lift the association out of practical
obscurity.” Id. (citing Def.’s Mot. for Summ. J. Ex. A (“Hardy Decl.”) ¶ 17, ECF No. 13-3).
The FBI’s supporting declaration indicates that there is no countervailing public interest, because
Plaintiff failed to substantiate how the records he seeks would inform the public about the
operations of the FBI or trigger a significant public interest concern about misconduct. Hardy
Decl. ¶ 19. The FBI concedes that “if certain information about the third party has already been
acknowledged, the FBI would typically remove the Glomar (b)(6) and (b)(7)(C) protection and
acknowledge existence of files.” Id. ¶ 21. But here, the FBI maintains, there was no such
acknowledgment: “The FBI closely scrutinized the court testimony Plaintiff provided, but there
is no indication that the FBI was involved in the referenced criminal case. Thus, despite
Plaintiff’s purported claims, Plaintiff did not provide any evidence that the FBI and Mr. Grasso
have had any kind of interaction or relationship.” Id.
The Court agrees that the FBI has justified its invocation of Glomar. The FBI’s
declaration plausibly indicates that responsive records, if they were to exist, would have been
compiled for law enforcement purposes, thus meeting Exemption 7’s threshold requirement. See
Hardy Decl. ¶ 13 (affirming that any responsive records “would fall squarely within the law
enforcement duties of the FBI”). Jurdi does not contest this point. Additionally, at least in the
absence of a countervailing public interest, the FBI’s refusal to confirm or deny the existence of
records is justified. See Roth, 642 F.3d at 1178 (“Since merely acknowledging that the FBI has
16
information regarding [various third parties] would tend to associate them with criminal activity,
thus impinging on their privacy, the FBI’s Glomar response, absent a countervailing public
interest in disclosure, was appropriate under Exemption 7(C).”); Judicial Watch, Inc. v. U.S.
Dep’t of Justice, 415 F. Supp. 3d 71, 76 (D.D.C. 2019) (noting that “[l]aw-enforcement agencies
like the FBI . . . routinely issue such [Glomar] responses ‘when responding to targeted requests
for documents regarding alleged government informants, trial witnesses, subjects of
investigations, or individuals who may merely be mentioned in a law enforcement record’”)
(quoting U.S. Department of Justice, Guide to the Freedom of Information Act 32–33 (2009
ed.)). And finally, for the reasons explained above, Jurdi has not identified a cognizable public
interest or provided any evidence of government impropriety under Favish. Of course, Grasso’s
publicly-acknowledged role as a government cooperator does admittedly reduce his privacy
interest in not being associated with criminal activity. But any official acknowledgement that
Grasso also had a relationship with the FBI would reveal additional information about the extent
of his cooperation with the government and inflict at least some further invasion on his privacy.
Situations where the agency has officially confirmed the third-party’s status as an informant are
distinguishable, because here, there is no evidence of any official confirmation by the FBI
specifically. See Boyd, 475 F.3d at 388–89 (suggesting that a Glomar response is “unavailable”
to an agency only “[w]here an informant’s status has been officially confirmed”) (citing
Benavides v. DEA, 968 F.2d 1243, 1246 (D.C. Cir. 1992)). Accordingly, in the absence of any
cognizable public interest, the FBI’s Glomar response is justified under Exemption 7(C). 14
14
Again, because the Court concludes that the FBI’s Glomar response was justified under
Exemption 7(C), the Court does not also consider whether it is further justified under
Exemptions 7(D) and 7(E). See MSJ at 12–13, 14–17.
17
B. Plaintiff’s Motion to Treat Allegations as Admitted and/or to Strike
After the government filed its reply in support of its motion for summary judgment and
its opposition to Jurdi’s cross-motion, Jurdi filed a “Motion to Treat his Allegations as Admitted
and/or To Strike Defendant’s Responses to Plaintiff’s Statement of Undisputed Facts.”
Allegations Mot. at 1. The motion argues that (1) the government failed to deny certain
allegations in the complaint, thereby rendering them admitted under Federal Rule of Civil
Procedure 8(b), and (2) the government failed to adequately contest certain facts set forth in
Jurdi’s statement of undisputed material facts that accompanied his cross-motion for summary
judgment and, as a result, the government’s responses to those facts must be stricken. Id. at 1–2.
Courts in this District have rejected Jurdi’s first argument, reasoning that a defendant
may file a pre-answer motion for summary judgment without automatically admitting as true all
the allegations in the complaint. See Jones v. U.S. Dep’t of Justice, 601 F. Supp. 2d 297, 302
(D.D.C. 2009); Parker v. U.S. Dep’t of Justice, 214 F. Supp. 3d 79, 85 (D.D.C. 2016); see also
10A Wright, Miller, & Kane, Fed. Prac. & Proc. § 2718 (4th ed.) (“A defending party is not
required by the rule to file an answer before moving for summary judgment.”). As Jones
explained, “it is standard practice in FOIA cases for the defendant to file a motion for summary
judgment instead of filing a responsive pleading.” 601 F. Supp. 2d at 302. “Such a practice is
substantively no different than filing a motion under Rule 12(b)(6) accompanied by matters
outside the pleadings, which is then converted by operation of Rule 12(b) to one under Rule 56.”
Id. In other words, the government’s motion here is the functional equivalent of a pre-answer
motion to dismiss, which temporarily relieves it of the obligation to file an answer that “admit[s]
or den[ies] the allegations asserted against it.” Fed. R. Civ. P. 8(b)(1)(B); see also Parker, 214
F. Supp. 3d at 85 (rejecting plaintiff’s argument that, because defendant filed a motion for
18
summary judgment instead of an answer, defendant was therefore “deemed to have admitted all
matters alleged” in the complaint); 10A Wright, Miller, & Kane, Fed. Prac. & Proc. § 2718 (4th
ed.) (reasoning that “a summary-judgment motion made prior to an answer should have the
benefit of the Rule 12(a) language tolling the period of time in which an answer must be filed”).
Jurdi’s second argument is a closer question. He specifically challenges the
government’s responses to Statements 6, 7, 12, 14, and 22 of his Statement of Undisputed
Material Facts, see Pl.’s SUMF, ECF 17-1, in which the government claimed a lack of
knowledge or information, see Resp. to Pl.’s SUMF, ECF No. 20-1. According to Jurdi, the
truth or falsity of these five facts was either known by the government or could have easily been
ascertained by it. See Allegations Mot. at 3 (suggesting that the government “could have easily
availed itself of the knowledge or the information it needed in order to admit or deny [the
paragraphs] by accessing the information in its files at the Dep’t of Justice Executive Office, the
U.S. District Courts, the FBI, the DEA, and the U.S. Attorney’s Office”). The Court agrees that,
taken on their own terms, some of the government’s denials appear somewhat pro forma. For
example, Jurdi’s Statement 12 asserts that the government entered into plea agreements with
various individuals in exchange for their testimony at Jurdi’s trial, Pl.’s SUMF at 12; the
government’s response acknowledges that there was a plea agreement with Grasso, but indicates
it “lacks knowledge or information about the rest of this statement,” which seems implausible, as
the government would likely have knowledge of other plea agreements. Resp. to Pl.’s SUMF at
2. However, any arguable deficiencies in the government’s response are excusable, because
Jurdi’s statement of facts did not contain any citations to the record, as required by Local Civil
Rule 7(h). As such, Jurdi’s statement of facts placed an unreasonable burden on the government,
requiring it to contest facts of unknown provenance. See Hawkins v. District of Columbia, No.
19
17-cv-1982, 2020 WL 601886, at *3 (D.D.C. Feb. 7, 2020) (“The obligations of summary
judgment ‘cannot be met by mere allegation or denial, but instead, require a showing by
affirmative evidence.’”) (quoting Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir.
1988)). 15 More fundamentally, as the government argues, none of the facts asserted in the
statements at issue appear to be material, insofar as their admission by the government would not
change the Court’s analysis of the cross-motions for summary judgment. See Def.’s Opp’n to
Allegations Mot. at 2. That is, even if admitted as true, they do not indicate that there is a
countervailing public interest in the documents requested or that either the FBI or the DEA
officially acknowledged the documents at issue. 16 For these reasons, the Court will deny Jurdi’s
motion. See Wilkins v. D.C., No. 17-cv-884, 2019 WL 3767164, at *2 (D.D.C. Aug. 9, 2019)
(noting that a statement of undisputed material facts fails to comply with the local rules when
“the facts are not material” or “references to the record are lacking”).
V. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED,
Plaintiff’s Cross-Motion for Summary Judgment is DENIED, and Plaintiff’s Motion to Treat
15
It is possible that Jurdi assumed that he was not required to include citations to the
record, given his belief that the government had admitted as true all of the allegations in the
complaint. In other words, both parts of his argument are linked. See Allegations Mot. at 3
(“Each of the Statements in the Undisputed Material Facts averred by Mr. Jurdi are allegations
alleged in the civil complaint. The allegations in the civil complaint are supported by
documentary evidence.”). But even if the Court overlooks the requirement that a statement of
facts include specific citations to the record and assumes the facts were admitted, they are still
not material, as discussed below.
16
The statements at issue—Statements 6, 7, 12, 14, and 22—concern whether Grasso
filed a transcript redaction request, whether certain private information about Grasso was already
in the public domain as the result of the failure to request a transcript redaction, whether the
government entered into plea agreements with other of Jurdi’s alleged co-conspirators, whether
the transcript of Jurdi’s trial included in the complaint is authentic, and whether Grasso took any
“action, whatsoever, to protect his [privacy] rights.” Pl.’s SUMF at 3–4. As discussed, none of
these facts bear on the analysis under Exemption 7(C).
20
Allegations as Admitted is DENIED. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: September 2, 2020 RUDOLPH CONTRERAS
United States District Judge
21