                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                              )
COREY M. HOWARD,                              )
                                              )
              Plaintiff,                      )
                                              )
      v.                                      )       Civil Action No. 18-0608 (TSC)
                                              )
UNITED STATES OF AMERICA,                     )
                                              )
              Defendant.                      )
                                              )

                                 MEMORANDUM OPINION


       Plaintiff Corey M. Howard brings this action under the Freedom of Information Act

(“FOIA”), see 5 U.S.C. § 552, seeking the release of information maintained by the Bureau of

Alcohol, Tobacco, Firearms and Explosives (“ATF”). This matter is before the Court on ATF’s

Motion for Summary Judgment. (ECF No. 11.) For the reasons discussed below, the court will

GRANT the motion.


       Plaintiff claims that Eric D. Carr committed “misconduct, deceitful behavior, dishonest

Conduct and or ethical violations while working as a[n] ATF Agent/Task officer for the [ATF]

field office located in Roanoke, Virginia during . . . 2008[.]” (Def.’s Mem., Kil Decl., Ex. A at

1; see Compl. at 2.) In September 2017, Plaintiff submitted a FOIA request to ATF seeking

information pertaining to an investigation into Carr’s alleged misdeeds. (See Compl. at 2; Kil

Decl., Ex. A at 1.) Ordinarily, a request for information about a third party would require the

third party’s written consent or proof of the third party’s death. (See 28 C.F.R. § 16.3.) Plaintiff

provided neither. (Kil Decl. ¶¶ 4, 10.)




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       ATF “refused to confirm or deny the existence of responsive records.” (Id. ¶ 5.) Its

declarant Sophia Y. Kil explained:


               When ATF receives a FOIA request for records concerning a third
               party, it is the policy of ATF to neither confirm nor deny that records
               exist unless the requester provides consent to release records (or
               privacy waiver) from the third party, proof of death of the third
               party, or demonstrates a public interest that is sufficient to outweigh
               the third party’s personal privacy interests. This is known as a
               “Glomar” response. Without consent, proof of death, or an
               overriding public interest, even to acknowledge the existence of
               such records pertaining to a third party would be a violation of the
               [Privacy Act] and could reasonably be expected to constitute an
               unwarranted invasion of the third party’s personal privacy pursuant
               to FOIA Exemptions [6 and 7(C)].

(Id. ¶ 9; see also id., Ex. B at 1.) ATF’s decision was affirmed on administrative appeal. (See id.

¶¶ 6-8; Compl. at 2-3.)


       Plaintiff filed this civil action on March 13, 2018, challenging ATF’s response. ATF

moved for summary judgment on September 7, 2018, arguing that the information Plaintiff

requests cannot be released under either the Privacy Act or FOIA. (See generally Def.’s Mem. at

4-9.) The court issued an order on September 13, 2018, advising Plaintiff of his obligations

under the Federal Rules of Civil Procedure and the local rules of this Court to respond to the

motion. Specifically, the court warned Plaintiff that, if he failed to file an opposition to the

motion by October 12, 2018, the court would treat the motion as conceded and, if circumstances

warrant, enter judgment for Defendant. (ECF No. 12.) The court subsequently extended

Plaintiff’s deadline to February 1, 2019. (ECF No. 15.) To date, Plaintiff has not filed an

opposition to the motion or requested an extension of time.

       For purposes of this Memorandum Opinion, the above facts are deemed admitted. See

LCvR 7(h)(1). However, the court cannot grant summary judgment unless the moving party


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demonstrates both that there is no genuine dispute as to any material fact and that it is entitled to

judgment as a matter of law. See Fed. R. Civ. P. 56(a). The court can base its ruling in a FOIA

case based solely on information provided in an agency’s supporting affidavit or declaration, as

long as it is relatively detailed and describes “the documents and the justifications for

nondisclosure with reasonably specific detail . . . and are not controverted by either contrary

evidence in the record [or] by evidence of agency bad faith.” Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981).

       Plaintiff requests records relating to a specific individual who allegedly was the subject

of an investigation conducted by ATF. ATF contends that release of responsive records, if any

exist, “would be contained in ATF personnel or similar files,” (Kil Decl. ¶ 15,) the release of

which “would constitute a clearly unwarranted invasion of [the third party’s] personal privacy,”

5 U.S.C. § 552(b)(6). In addition, ATF argues that responsive records, if they exist, would have

been compiled for a law enforcement purpose, (see Kil Decl. ¶¶ 17-20,) the release of which

“could reasonably be expected to constitute an unwarranted invasion of [the third party’s]

personal privacy,” 5 U.S.C. § 552(b)(7)(C). If ATF were to confirm or deny the existence of

records responsive to Plaintiff’s FOIA request, its declarant explains, the third party would be

“subject . . . to embarrassment, harassment, ridicule, speculation, and stigma associated with

being identified in law enforcement records.” (Kil Decl. ¶ 26.)

       “[P]rivacy interests cognizable under Exemption 6 are cognizable under Exemption

7(C),” Stern v. FBI, 737 F.2d 84, 91 (D.C. Cir. 1984), and an alleged government employee

would have an “interest in protecting the privacy of his employment records against public

disclosure, whether the information contained in them is favorable or unfavorable,”

Dunkelberger v. Dep't of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990). Further, any individual



                                                  3
has a “strong interest in not being associated unwarrantedly with alleged criminal activity.”

Stern, 737 F.2d at 91-92. Here, ATF adequately shows that the third party’s privacy interests are

significant. (See Kil Decl. ¶¶ 4, 26.)

       Plaintiff might prevail if he could identify a public interest in releasing the information he

seeks of such magnitude that it outweighs the privacy interests at stake. See U.S. Dep’t of Justice

v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776 (1989) (noting that “a court

must balance the public interest in disclosure against the interest Congress intended the

Exemption to protect”). He fails to meet his burden, however, due to his failure to respond to

Defendant’s summary judgment motion.

       “If an individual is the target of a FOIA request, the agency to which the FOIA request is

submitted may provide a ‘Glomar’ response, that is, the agency may refuse to confirm or deny

the existence of records or information responsive to the FOIA request on the ground that even

acknowledging the existence of responsive records constitutes an unwarranted invasion of the

targeted individual’s personal privacy.” Lewis v. U.S. Dep’t of Justice, 733 F. Supp. 2d 97, 112

(D.D.C. 2010) (citations omitted). The court concludes that ATF’s Glomar response was

appropriate. Therefore, Defendant’s summary judgment motion will be granted. An Order is

issued separately.



DATE: April 3, 2019                                   /s/
                                                      TANYA S. CHUTKAN
                                                      United States District Judge




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