Withey v. FBI, No. 18-1635, 2020 WL 4539432 (W.D. Wash. Aug. 6, 2020) (Coughenour, J.)

Withey v. FBI, No. 18-1635, 2020 WL 4539432 (W.D. Wash. Aug. 6, 2020) (Coughenour, J.)

Re:  Request for records concerning murders and alleged FBI informant

Disposition:  Denying plaintiffs' motion to strike Glomar defense, for discovery, and for in camera inspection; granting defendant's cross-motion for partial summary judgment

• Exemption 7(D), Glomar:  The court holds that "Plaintiffs' FOIA request all but demands a Glomar response."  The court relates that "[t]he request seeks '[d]ocuments which refer to or describe [the FBI's] use of [a named individual] as a confidential informant.'"  The court holds that "[s]uch documents, should they exist, 'would pertain to the FBI's integrated law enforcement mission and function.'"  "And if such documents are acknowledged by the FBI, then the FBI would necessarily reveal that it used [the named individual] as a confidential informant and that [the named individual] furnished certain information to the FBI."  "Accordingly, Plaintiff's FOIA request is, as the FBI argues, 'paradigmatic of requests that invoke a Glomar response.'"  Responding to plaintiffs' objections, the court also holds that "the Government's Glomar response is appropriate even though [the named individual] is dead, even if [the named individual] said in a deposition that he was an informant, and even if the public has an interest in knowing whether and how the FBI used [the named individual] as an informant."  "Exemption 7(D) . . . 'does not involve a balancing of public and private interests; if the source was confidential, the exemption may be claimed regardless of the public interest in disclosure.'"
   
• Litigation Considerations, Discovery:  The court holds that "[t]o prevail at summary judgment, the FBI need only show that the broad language of Exemption 7(D) applies to Plaintiffs' FOIA request."  The court finds that "[defendant's] declaration makes that showing" and, therefore, "further discovery is unnecessary."
   
• Litigation Considerations, In Camera Inspection:  The court holds that, "as previously explained, [defendant's] declaration provides a sufficient factual basis for the Court to conclude that the FBI cannot respond to Plaintiffs' FOIA request without disclosing information that is exempt under Exemption 7(D)."  "Accordingly, the Court denies Plaintiffs' request for in camera review."