Case Detail

FOIA Project Annotation: Judge James Boasberg has ruled that the Justice Department cannot issue a Glomar response neither confirming nor denying the existence of records concerning a confidential source because the identity of the confidential source has been publicly disclosed. David Wilson, a Washington, D.C. gang member, was convicted of participating in a double homicide in 1998. Wilson allegedly drove the car while Antonio Roberson actually killed two passengers in a parked car. By the time Wilson was tried in 2007, Roberson had died and the government relied on a confidential informant named Bobby Capies, who testified that he had recorded Roberson confessing to the crime and implicating Wilson. Convinced of his innocence, Wilson made a FOIA request to EOUSA for records of the taped conversation between Roberson and Capies. The agency said it could neither confirm nor deny the existence of records without either consent or proof of death. Wilson appealed to OIP, which upheld EOUSA's decision. At trial, however, Wilson produced two documents referring to Capies and the wire recording, as well as Roberson's obituary. Boasberg observed that the question before him at this point was whether "DOJ's Glomar response [was] appropriate in this case, in light of the information that it had already disclosed at Wilson's trial. Put another way, does any privacy interest remain in concealing the recording's very existence, or is the metaphorical cat already out of the FOIA bag?" He then pointed out that "Capies [the informant] may indeed have a privacy interest in protecting the content of documents related to his cooperation here. As a confirmed government informant in Wilson's case, however, he does not have a privacy interest in concealing this status or the existence of Wilson-related documents." Boasberg noted that Roberson also had a possible privacy interest in the contents of the recorded conversation, but not its existence. Boasberg explained that "he has no privacy interest in concealing that this already-acknowledged conversation took place." He added that EOUSA's privacy policy apparently did not apply when an individual was deceased. DOJ argued that "the Government should be able to avoid disclosing whether Capies was the informant involved in this particular recording." However, Boasberg indicated that "what the revelation of an informant's status does prevent is the Government's issuance of a Glomar response refusing to confirm or deny the fact that records related to the informant existâ€"particularly when those records are connected to the very case in which the informant's assistance has been openly acknowledged." Saying that ordinarily he would need to balance the privacy interest against the public interest, but "here, however, DOJ has identified no privacy interest adequate to justify its Glomar response. Accordingly no balancing is necessary. . .DOJ mustâ€"at a minimumâ€"confirm or deny whether the record Wilson is seeking exists. If it does, DOJ must either turn it over or explain the reasoning behind its withholding."
Issues: Determination - Glomar response, Exclusions - Disclosure of informant records requested by third party

Date Filed	Doc #	Docket Text
2013-12-26	1	COMPLAINT against EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE with Jury Demand filed by DAVID WILSON. (Attachments: # 1 Civil Cover Sheet)(am, ) (Entered: 12/31/2013)
2013-12-26	2	MOTION for Leave to Proceed in forma pauperis by DAVID WILSON. (am, ) (Entered: 12/31/2013)
2013-12-26	3	PRISONER TRUST FUND ACCOUNT STATEMENT for period of six months by DAVID WILSON (am, ) (Entered: 12/31/2013)
2013-12-26	4	ORDER directing an initial partial filing fee in the amount of $50.36 from Prison Account of DAVID WILSON. Signed by Judge Emmet G. Sullivan on 12/16/2013. (am, ) (Entered: 12/31/2013)
2013-12-26		SUMMONS Issued (4) as to EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (am, ) (Entered: 12/31/2013)
2014-01-09	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 1/7/2014. Answer due for ALL FEDERAL DEFENDANTS by 2/6/2014. (td, ) (Entered: 01/10/2014)
2014-01-17	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS served on 1/16/2014, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 1/16/14., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 1/16/2014. ( Answer due for ALL FEDERAL DEFENDANTS by 2/15/2014.) (td, ) (Entered: 01/22/2014)
2014-01-24	7	NOTICE of Appearance by Kevin Michael Laden on behalf of All Defendants (Laden, Kevin) (Entered: 01/24/2014)
2014-02-06	8	MOTION for Summary Judgment by EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order, # 4 Declaration)(Laden, Kevin) (Entered: 02/06/2014)
2014-02-18	9	ORDER directing Plaintiff to respond to Defendants' 8 Motion for Summary Judgment no later than March 11, 2014. Signed by Judge James E. Boasberg on 2/18/2014. (lcjeb3) (Entered: 02/18/2014)
2014-02-18		Set/Reset Deadline: Plaintiff to respond to Defendants' 8 Motion for Summary Judgment no later than 3/11/2014. (ad) (Entered: 02/18/2014)
2014-03-13	10	RESPONSE re 8 MOTION for Summary Judgment filed by DAVID WILSON. (td, ) (Entered: 03/14/2014)
2014-03-14	11	NOTICE OF SUBSTITUTION OF COUNSEL by Timothy E. Broomhead on behalf of All Defendants Substituting for attorney Kevin Laden (Broomhead, Timothy) (Entered: 03/14/2014)
2014-03-24	12	REPLY to opposition to motion re 8 MOTION for Summary Judgment filed by EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit Bobby Capies Interview, # 2 Exhibit Confidential Source Operation)(Broomhead, Timothy) (Entered: 03/24/2014)
2014-03-24	13	CERTIFICATE OF SERVICE by EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE re 12 Reply to opposition to Motion, . (Broomhead, Timothy) (Entered: 03/24/2014)
2014-04-07	14	Memorandum in opposition to re 8 MOTION for Summary Judgment filed by DAVID WILSON. (td, ) (Entered: 04/08/2014)
2014-04-17	15	(RESPONSE) In Opposition to Plaintiff's Motion for Leave to File a Surreply and Opposition of Plaintiff's Motion for In Camera Review filed by EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE. (Broomhead, Timothy) Modified text and added linkage on 4/17/2014 (td, ). (Entered: 04/17/2014)
2014-05-21	16	ORDER DENYING 8 Motion for Summary Judgment and GRANTING Plaintiff's Motion (ECF No. 14 ), which the Court construes as a Motion for Leave to File a Surreply. The Government shall file a notice by June 19, 2014, informing the Court and Plaintiff of how it wishes to proceed -- for example, whether it has located the tape, whether it will turn over a redacted or unredacted version, or whether it is claiming exemptions that justify withholding. Signed by Judge James E. Boasberg on 5/21/2014. (lcjeb4) (Entered: 05/21/2014)
2014-05-21	17	Memorandum Opinion re 16 Order on Motion for Summary Judgment. Signed by Judge James E. Boasberg on 5/21/2014. (lcjeb4) (Entered: 05/21/2014)
2014-05-22		Set/Reset Deadlines: The Government shall file a notice by 6/19/2014, informing the Court and Plaintiff of how it wishes to proceed -- for example, whether it has located the tape, whether it will turn over a redacted or unredacted version, or whether it is claiming exemptions that justify withholding. (ad) (Entered: 05/22/2014)
2014-05-29		NOTICE that the new case filing fee has been PAID IN FULL. Receipt No. 4616063969 by DAVID WILSON (md, ) (Entered: 05/30/2014)
2014-06-19	18	NOTICE by EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Declaration)(Broomhead, Timothy) (Entered: 06/19/2014)
2014-06-19		MINUTE ORDER: Per the Government's Notice (ECF No. 18 ), the Court ORDERS that the Government may file a renewed Motion for Summary Judgment by July 10, 2014. Signed by Judge James E. Boasberg on 6/19/2014. (lcjeb4) (Entered: 06/19/2014)
2014-06-19		Set/Reset Deadlines: Government's Renewed Summary Judgment motion due by 7/10/2014. (tg, ) (Entered: 06/19/2014)
2014-07-10	19	Second MOTION for Summary Judgment by EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration Suppl. Luczynski Decl., # 4 Declaration Kelly Decl., # 5 Declaration First Luczynski Decl., # 6 Text of Proposed Order)(Broomhead, Timothy) (Entered: 07/10/2014)
2014-07-10	20	ORDER advising Plaintiff to file his opposition or other response to Defendants' 19 Motion for Summary Judgment no later than August 1, 2014, or the Court may deem the matter as conceded. Signed by Judge James E. Boasberg on 7/10/2014. (lcjeb3) (Entered: 07/10/2014)
2014-07-10		Set/Reset Deadline: Plaintiff to file his opposition or other response to Defendants' 19 Motion for Summary Judgment no later than 8/01/2014. (ad) (Entered: 07/10/2014)
2014-07-28	21	MOTION for Extension of Time to File Response/Reply as to 19 Second MOTION for Summary Judgment by DAVID WILSON (td, ) (Entered: 07/29/2014)
2014-07-30		MINUTE ORDER GRANTING Plaintiff's 21 Motion for Extension of Time to File Response/Reply. The Court ORDERS that Plaintiff shall have an additional thirty (30) days to file a response to Defendants' 19 Second Motion for Summary Judgment. Signed by Judge James E. Boasberg on 7/30/2014. (lcjeb3) (Entered: 07/30/2014)
2014-09-02	22	MOTION to join District of Columbia Metropolitan Police Department as a defendant by DAVID WILSON (Attachments: # 1 Exhibit Amended Complaint)(td, ) (Entered: 09/03/2014)
2014-09-04	23	Memorandum in opposition to re 19 Second MOTION for Summary Judgment filed by DAVID WILSON. (td, ) (Entered: 09/05/2014)
2014-09-08	24	NOTICE OF SUBSTITUTION OF COUNSEL by Laura Emily Jennings on behalf of EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE Substituting for attorney Timothy Broomhead (Jennings, Laura) (Entered: 09/08/2014)
2014-09-08	25	MOTION for Extension of Time to File Response/Reply as to 19 Second MOTION for Summary Judgment by EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE (Jennings, Laura) (Entered: 09/08/2014)
2014-09-08		MINUTE ORDER GRANTING 25 Motion for Extension of Time to File Response/Reply. The Court ORDERS that Defendant shall file its reply to Plaintiff's opposition on or before October 2, 2014. Signed by Judge James E. Boasberg on 9/8/14. (lcjeb2) (Entered: 09/08/2014)
2014-09-09		Set/Reset Deadlines: Defendant's Reply to Plaintiff's Opposition due by 10/2/2014. (tg, ) (Entered: 09/09/2014)
2014-09-12	26	Memorandum in opposition to re 22 MOTION for Order filed by EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE. (Jennings, Laura) (Entered: 09/12/2014)
2014-10-02	27	REPLY to opposition to motion re 19 Second MOTION for Summary Judgment filed by EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration)(Jennings, Laura) (Entered: 10/02/2014)
2014-10-17	28	ORDER: The Court ORDERS that: 1) Defendants' 19 Motion for Summary Judgment is GRANTED; 2) Plaintiff's 22 Motion to Join is DENIED; and 3) Judgment is ENTERED in favor of Defendants. Signed by Judge James E. Boasberg on 10/17/14. (lcjeb3) (Entered: 10/17/2014)
2014-10-17	29	Memorandum Opinion re 28 Order on Defendant's Motion for Summary Judgment and Plaintiff's Motion to Join. Signed by Judge James E. Boasberg on 10/17/14. (lcjeb3) (Entered: 10/17/2014)
2014-10-17	30	CLERK'S JUDGMENT in favor of Defendants UNITED STATES DEPARTMENT OF JUSTICE and EXECUTIVE OFFICE OF THE UNITED STATES ATTORNEYS against Plaintiff DAVID WILSON. (tg, ) (Entered: 10/17/2014)
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