District Court Decisions

Memphis Pub. Co. v. FBI, No. 10-1878, 2012 WL 269900 (D.D.C. Jan. 31, 2012) (Jackson, J.).  Holding:  Denying the parties' motions for summary judgment as moot, without prejudice to the filing of additional motions in the future; concluding that because the subject of the request's informant file has been official confirmed, the FBI must review the file, if it exists, and produce a Vaughn index; and denying plaintiff's motion for in camera review of any responsive documents as premature.  The court notes that "the (c)(2) exclusion allows the government to inform the requester that it has no records responsive to the FOIA request without having to reveal whether or not there is a file or the named individual is actually an informant."  The court finds unpersuasive plaintiff's argument that the exclusion should be limited to living individuals, or to certain types of investigations, opining that the statutory language is clear and contains no such limitations.  Ultimately, though, the court finds that it need not reach the issue as to the scope and reviewability of the exclusion, because it finds the exclusion inapplicable.  The court finds that, here, "Ernest Withers' status as a confidential informant has been officially confirmed" because "[t]he documents that supply that information were not leaked or disclosed by some other agency or a rogue employee [but rather] were transmitted to the plaintiffs [by the FBI] . . . as part of the FBI's own responses to the FOIA request."  The court rejects the FBI's position that it has not officially confirmed the status of the alleged informant.  With respect to the FBI's arguments that "official confirmation must be intentional and not inadvertent," the court observes that, in accordance with the dictionary definitions, the word "confirmation" "simply means that a fact has been established, not that it was formally or purposefully announced."  As to the FBI's assertion that confirmation of Wither's informant status "would have a chilling effect on the activities and cooperation of other sources," the court notes that "[t]his opinion is not meant to and does not establish a general principle that inadvertent disclosure will always constitute official confirmation."  Lastly, the court concludes that it "does not hold that the informant file must be produced – only that if the FBI has relied on the (c)(2) exclusion to treat the records as outside the scope of FOIA, that exclusion is no longer available in this case."  As such, "the FBI must review the file if it exists and then either produce the responsive documents or produce a Vaughn index indentifying the specific exemptions under which any responsive documents have been withheld."