Case Detail

FOIA Project Annotation: A federal court in Louisiana has ruled that the FBI properly withheld records concerning whether Brandon Darby was a confidential informant and that Malik Rahim failed to exhaust administrative remedies for his request concerning Common Ground Relief, formed to provide short-term relief after Hurricane Katrina and long-term support in rebuilding Gulf Coast communities. Darby worked with CGR from 2005 to 2008. In December 2008, Darby wrote a letter posted on the Internet indicating that he had served as an informant for the FBI. In January 2009, Darby testified as a government witness in the domestic terrorism trial of David McKay on charges of disrupting the 2008 Republican Convention in St. Paul, Minnesota, and confirmed that he had been an FBI informant since November 2007. This prompted Rahim to request FBI records about CGR, particularly any records confirming Darby's role as an informant. The FBI responded that it would neither confirm nor deny that it had records on Darby without a Privacy Act waiver. Rahim submitted an "amended" FOIA request for the same records about himself, CGR and Darby, and at the same time appealed the agency's Glomar response on Darby to OIP, arguing that Darby's status as an informant had been publicly confirmed when he testified at McKay's trial. OIP denied the appeal. Two months later, the FBI sent Rahim 25 redacted pages pertaining to himself and CGR. Rahim did not appeal that response and instead filed suit. The agency argued Rahim had failed to exhaust his administrative remedies because he had not appealed the agency's records response. Rahim claimed his appeal concerning Darby's records qualified as an appeal of the entire request. Siding with the agency, the court noted that "nothing in Plaintiff's July 30, 2009 letter to OIP indicated he sought review of any aspect of the FBI's decision other than 'as it pertained to Brandon Darby.' The Court finds Plaintiff has failed to exhaust his administrative remedies regarding records pertaining to himself and CGR." Turning to the status of Darby's records, Rahim contended that his confirmation as an FBI informant suggested that his privacy interests were outweighed by the public interest in disclosure. Accepting that Darby had been officially confirmed as an informant, the court indicated nevertheless that his status was not relevant in this case. The court explained that "Darby has never made statements indicating he served as an FBI informant for any investigation involving Plaintiff or CGR. . .As a result, Darby's statements regarding 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." Finding Rahim had not shown any public interest in disclosure of Darby's records, the court noted that "in essence, Plaintiff alleges that the FBI acted improperly by having Darby infiltrate the organization in order to 'disrupt' CGR's activities in New Orleans following Katrina. However, Plaintiff has not provided the Court with any evidence to support his allegations that the FBI engaged in any sort of impropriety. Without 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." Rahim also argued that the informant exclusion contained at 552(c)(2), allowing a law enforcement agency to exclude records about an informant unless that informant's status had been officially confirmed, did not apply because Darby's status had not been officially confirmed. The court indicated that "Plaintiff has not come forward with any evidence indicating that Darby's status has been officially confirmed as an FBI informant for an investigation of Plaintiff and CGR. . .Any purported confirmation of Darby's status as an informant as to the McKay case is of no moment as to this case."
Issues: Exemption 7(D) - Confidential sources, Litigation - Jurisdiction - Failure to Exhaust

Date Filed	Doc #	Docket Text
2011-11-16	1	COMPLAINT against Department of Justice, Federal Bureau of Investigation (Filing fee $ 350 receipt number 053L-3279080) filed by Malik Rahim. (Attachments: # 1 Appendix, # 2 Civil Cover Sheet)(Finger, Davida) (Entered: 11/16/2011)
2011-11-16	2	Initial Case Assignment to Judge Nannette Jolivette Brown and Magistrate Judge Alma L. Chasez. (jmd, ) (Entered: 11/16/2011)
2011-11-23	3	Summons Submitted for Issuance (Attachments: # 1 Summons)(Finger, Davida) (Entered: 11/23/2011)
2011-11-25	4	Summons Issued as to Federal Bureau of Investigation, United States Department of Justice. (Attachments: # 1 Summons-FBI, # 2 Summons- US Atty Gen, # 3 Summons-US Atty)(cms, ) (Entered: 11/25/2011)
2012-01-17	5	ANSWER to 1 Complaint by United States Department of Justice, Federal Bureau of Investigation.(Shapiro, Elizabeth) Modified on 1/20/2012 (cms, ). (Entered: 01/17/2012)
2012-04-03	6	ORDER TRANSFERRING CASE. Case transferred to Judge Susie Morgan for all further proceedings. Judge Nannette Jolivette Brown no longer assigned to case. Signed by Judge Nannette Jolivette Brown on 4/2/2012.(clm, ) (Entered: 04/03/2012)
2012-04-24	7	NOTICE Scheduling Conference set for 5/3/2012 02:00 PM before courtroom deputy by telephone.(cbn, ) (Entered: 04/24/2012)
2012-05-02	8	**DEFICIENT** NOTICE of Appearance by Bradley Philip Humphreys on behalf of Federal Bureau of Investigation, United States Department of Justice. (Humphreys, Bradley) Modified on 5/3/2012 (clm, ). (Entered: 05/02/2012)
2012-05-04	9	SCHEDULING ORDER: Final Pretrial Conference set for 1/31/2013 02:00 PM before Judge Susie Morgan. Status Conference set for 11/29/2012 02:00 PM before Judge Morgan. 2 day Bench Trial set for 2/25/2013 09:00 AM before Judge Morgan. Signed by clerk. (Attachments: # 1 Pretrial Notice Form)(cbn, ) (Entered: 05/04/2012)
2012-05-04	10	EXPARTE/CONSENT MOTION to Enroll as Counsel of Record Bradley P. Humphreys by Federal Bureau of Investigation, United States Department of Justice. (Attachments: # 1 Proposed Order)(Shapiro, Elizabeth) (Entered: 05/04/2012)
2012-05-08	11	ORDER granting 10 Motion to Enroll as Counsel of Record. Signed by Judge Susie Morgan on 5/8/2012. (clm, ) (Entered: 05/08/2012)
2012-06-25	12	EXPARTE/CONSENT MOTION to Appear Pro Hac Vice (Filing fee $ 100 receipt number 053L-3566857) by Malik Rahim. (Attachments: # 1 Affidavit, # 2 Proposed Order)(Finger, Davida) (Entered: 06/25/2012)
2012-06-26	13	Correction of Docket Entry by Clerk re 12 MOTION to Appear Pro Hac Vice (Filing fee $ 100 receipt number 053L-3566857). Document does not contain Section and Magistrate Judge. All future pleadings must reflect Section E and Magistrate Judge 5.(caa, ) (Entered: 06/26/2012)
2012-06-26	14	ORDER granting 12 Motion to Appear Pro Hac Vice as to Sunita Patel. Signed by Judge Susie Morgan on 6/26/2012. (caa, ) (Entered: 06/27/2012)
2012-08-03	15	EXPARTE/CONSENT MOTION to Continue Deadlines by All Parties. (Attachments: # 1 Proposed Order)(Finger, Davida) Modified on 8/6/2012 (clm, ). (Entered: 08/03/2012)
2012-08-06	16	Correction of Docket Entry by Clerk re 15 MOTION to Continue Deadlines . The title of the attached proposed order should not include the word Proposed but only reflect Order on the actual document. (clm, ) (Entered: 08/06/2012)
2012-08-08	17	ORDER denying 15 Motion to Continue. Signed by Judge Susie Morgan on 8/7/12. (cbn) (Entered: 08/08/2012)
2012-08-10	18	EXPARTE/CONSENT Second Joint MOTION to Continue Deadlines by All Parties. (Attachments: # 1 Proposed Order)(Humphreys, Bradley) Modified text on 8/13/2012 (clm, ). (Entered: 08/10/2012)
2012-08-14	19	ORDER granting 18 Second MOTION to Continue Deadlines filed by Malik Rahim, United States Department of Justice, Federal Bureau of Investigation. Scheduling Conference set for 9/6/2012 10:00 AM before courtroom deputy to select new trial date. Signed by Judge Susie Morgan on 8/13/12.(cbn) (Entered: 08/14/2012)
2012-09-11	21	NOTICE Scheduling Conference set for 9/28/2012 10:00 AM before courtroom deputy by telephone.(cbn) (Entered: 09/11/2012)
2012-10-05	22	SCHEDULING ORDER: Status Conference set for 3/7/2013 03:30 PM before Judge Susie Morgan. Final Pretrial Conference set for 5/9/2013 02:00 PM before Judge Morgan. 1 day Bench Trial set for 6/3/2013 09:00 AM before Judge Morgan. Signed by Judge Susie Morgan. (Attachments: # 1 Pretrial Notice Form)(cbn) (Entered: 10/05/2012)
2013-03-05	23	MOTION for Summary Judgment by Federal Bureau of Investigation, United States Department of Justice. Motion set for 4/10/2013 10:00 AM before Judge Susie Morgan. (Attachments: # 1 Memorandum in Support, # 2 Affidavit Declaration of David M. Hardy, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Notice of Submission, # 15 Statement of Contested/Uncontested Facts, # 16 Proposed Order)(Humphreys, Bradley) (Entered: 03/05/2013)
2013-03-07	24	Minute Entry for proceedings held before Judge Susie Morgan: Status Conference held on 3/7/2013. Counsel are to comply with the deadlines set forth in minute entry. (Attachments: # 1 Pretrial Notice Form) (cbn) (Entered: 03/07/2013)
2013-03-28	25	EXPARTE/CONSENT MOTION to Appear as Additional Counsel of Record Sara H. Godchaux by Malik Rahim. (Attachments: # 1 Proposed Order)(Finger, Davida) (Entered: 03/28/2013)
2013-03-28	26	RESPONSE/MEMORANDUM in Opposition filed by All Plaintiffs re 23 MOTION for Summary Judgment . (Attachments: # 1 Exhibit, # 2 Affidavit Declaration, # 3 Statement of Contested/Uncontested Facts)(Finger, Davida) (Entered: 03/28/2013)
2013-04-02	27	ORDER granting 25 Motion to Appear Sara H. Godchaux for Malik Rahim. Signed by Judge Susie Morgan. (jrc, ) (Entered: 04/02/2013)
2013-04-10	28	**DEFICIENT** REPLY to Response to Motion filed by Federal Bureau of Investigation, United States Department of Justice re 23 MOTION for Summary Judgment. (Humphreys, Bradley) Modified on 4/11/2013 (caa, ). (Entered: 04/10/2013)
2013-04-12	29	EXPARTE/CONSENT MOTION for Leave to File Reply Memorandum in Support of Defendants' Motion for Summary Judgment by Federal Bureau of Investigation, United States Department of Justice. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading)(Humphreys, Bradley) (Entered: 04/12/2013)
2013-04-18	30	Letter to Judge Morgan from Bradley P. Humphreys dated 4/12/13 (cbn) (Entered: 04/18/2013)
2013-04-18	31	ORDER granting 29 Motion for Leave to File. Signed by Judge Susie Morgan on 4/12/13. (cbn) (Entered: 04/18/2013)
2013-04-18	32	REPLY MEMORANDUM in Support filed by dfts re 23 MOTION for Summary Judgment . (cbn) (Entered: 04/18/2013)
2013-05-09	33	Minute Entry for proceedings held before Judge Susie Morgan: Status Conference held on 5/9/2013. The parties informed the Court that a trial is not necessary because they agree there are no disputed material facts that would prevent this matter from summary resolution on the briefs. The Court informed the parties that it intends to rule on Defendant's summary judgment motion prior to the trial date. (cbn) (Entered: 05/13/2013)
2013-05-31	34	ORDER AND REASONS granting 23 Motion for Summary Judgment. Signed by Judge Susie Morgan. (cbn) (Entered: 05/31/2013)
2013-05-31	35	JUDGMENT entered in favor of Federal Bureau of Investigation, United States Department of Justice against Malik Rahim, dismissing plaintiff's claims with prejudice. Signed by Judge Susie Morgan.(cbn) (Entered: 05/31/2013)
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