Antonelli v. United States Parole Commission ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Michael C. Antonelli, :
:
Plaintiff, :
v. : Civil Action No. 07-1932 (CKK)
:
United States Parole Commission, :
:
Defendant. :
MEMORANDUM OPINION
In this action brought under the Freedom of Information Act (“FOIA”), 5 U.S.C.§ 552,
plaintiff, proceeding pro se, challenges the United States Parole Commission’s response to his
request for records. On November 17, 2008, defendant moved to dismiss or for summary
judgment in part and for a stay of the proceedings in part to complete its processing of plaintiff’s
request submitted during the course of this litigation on March 21, 2008. In a supplemental filing
on March 30, 2009, defendant, having processed the latter request, effectively withdrew the
motion to stay on the ground that it is moot. See Notice of Filing of Supplemental Exhibits To
Defendant’s Renewed Motion to Dismiss, or in the Alternative, for Summary Judgment (“Def.’s
Suppl.”) [Dkt. No. 52] at 1. Thus, upon consideration of defendant’s dispositive motion,
plaintiff’s opposition and the entire record, the Court will grant defendant’s motion for summary
judgment.
I. BACKGROUND
By letter of August 17, 2006, plaintiff requested Parole Commission records “that are in
any way connected to my name [,including] all parole hearing tapes, confidential witness tapes,
all appeals and all National Appeals records.” Def.’s Reply to Plaintiff’s Opposition to (1)
Defendant’s Motion to Dismiss, or in the Alternative, for Summary Judgment and (2) Motion for
a Stay of Judicial Proceedings to Complete Plaintiff’s March 21, 2008 FOIA Request,
Declaration of Anissa N. Hunter (“Hunter Decl.”) [Dkt. No. 49-2], Ex. 1. Plaintiff requested all
records generated since his “initial incarceration” in September 1978, including those defendant
previously disclosed to him. Id. By letter of August 24, 2006, plaintiff requested a copy of his
“parole revocation packet and/or parole mini file, in connection to the upcoming parole violator
warrant/hearing[.]” Id., Ex. 2. By letter of December 5, 2006, defendant released 122 pages of
documents generated since its last disclosure to plaintiff on May 6, 2002. It redacted material
from a police report under FOIA exemptions 6 and 7(C), 5 U.S.C. § 552(b). Id., Ex. 6.
Defendant informed plaintiff that the release did not include copies of previously disclosed
documents, documents the Bureau of Prisons (“BOP”) prohibits inmates from possessing or
documents duplicative of those contained in plaintiff’s BOP file, the latter two categories of
which were accessible via request to BOP. Id. Plaintiff unsuccessfully appealed to the Chair of
the Parole Commission. Id., Exs. 7, 8. By letter of February 13, 2007, defendant informed
plaintiff that it had referred 14 pages of BOP documents to that component for processing and a
direct response. Id., Ex. 10.
In what defendant treated as a new FOIA request, plaintiff sought substantially the same
aforementioned records on a form captioned “FOIA Appeal,” dated February 17, 2007. Id., Ex.
11. By letter of March 13, 2007, plaintiff’s parole representative, Cecil C. McCall, also
requested those records and provided plaintiff’s Privacy Act waiver. Id., Ex. 15. In each
instance, defendant acknowledged the request and advised of a possible delay because of a
backlog. Id., Exs. 12, 16. By letter of March 11, 2007, plaintiff sought expedited processing of
his request based on his upcoming parole revocation hearing on April 26, 2007, and committed
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to paying “the fees incurred.” Id., Ex. 14. In response to defendant’s response to McCall,
plaintiff, by letter of March 29, 2007, agreed “to pay a fee more than $25.00 for processing my
FOIA request,” and reiterated his request to expedite. Id., Ex. 18. By letter of April 23, 2007,
defendant assessed plaintiff “a deposit of $250," which plaintiff paid by letter of May 8, 2007.
Id., Ex. 20. By letter of May 16, 2007, defendant acknowledged plaintiff’s payment but denied
his request to expedite processing. Id., Ex. 21.
By letter of December 20, 2007, defendant released to plaintiff 2,712 pages of material
responsive to his February 17, 2007 request. It withheld a two-page letter dated March 1, 1979,
under FOIA exemption 6 and redacted information from 12 documents under FOIA exemptions
6 and 7(C). In addition, defendant informed plaintiff that it had referred other material to the
Executive Office for United States Attorneys, the Federal Bureau of Investigation, the Bureau of
Prisons, the United States Marshals Service, the Office of Information and Privacy and the Court
Services and Offender Supervision Agency of the District of Columbia (“CSOSA”) for
processing and a direct response.1 Id., Ex. 38. Plaintiff appealed and, by letter of February 8,
2008, was awarded partial relief including the release in full of 68 pages that had been referred to
CSOSA and the previously withheld two-page letter dated March 1, 1979. Id. ¶ 22 & Ex. 41.
The Chairman also informed plaintiff that the Commission would search for parole hearing tapes
but cautioned that “[s]ome tapes may no longer be retrievable because of the passage of time and
the routine destruction of archived records.” Ex. 41 at 2. By letter of March 28, 2008, defendant
1
Although defendant has properly followed up on the referrals, see Hunter Decl. ¶¶25,
27-29, plaintiff has not challenged the referrals or named any of the aforementioned components
as defendants to this action. The Court therefore will not address the referred records, which are
likely the subject of plaintiff’s other FOIA cases either pending or previously resolved by this
Court.
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released a redacted e-mail message and copies of audiotapes of hearings held on September 2,
1993 and December 13, 1994. Id., Ex. 58. On appeal, the Chairman affirmed the redaction of
material from the e-mail message under FOIA exemptions 2, 6 and 7(C) and released a copy of
the audiotape of a hearing held on May 21, 2007, which “contain[ed] no recording of any voice.”
Id., Ex. 63. Defendant released the audiotape of a hearing held on May 21, 1997, by letter of
April 3, 2008. Ex. 60.
By letter of July 13, 2007, plaintiff requested records pertaining to his parole revocation
hearing on May 21, 2007, and the notice of action dated June 12, 2007. Id., Ex. 22. Plaintiff’s
parole representative McCall updated his request to include the same records. Id., Ex. 26. By
letter of November 5, 2007, defendant released to McCall per plaintiff’s instruction (Ex. 28) 18
unredacted pages of material and advised about appealing the decision to the Chair of the Parole
Commission. Id. ¶ 15 & Ex. 31.
By letter of March 21, 2008, plaintiff requested “a copy of all records used by the
National Appeals Board in deciding to affirm the previous decision as shown in the Notice of
Action dated March 19, 2008.” 2nd Declaration of Anissa N. Hunter [Dkt. No. 44-3], Ex. 68. By
letter of February 5, 2009, defendant released in full “documents pertaining to the National
Appeals Board’s decision dated March 19, 2008.” Def.’s Suppl., Ex. 74. In response to
plaintiff’s administrative appeal based on the omission of “any records that Attorney Andrea
Gambino submitted on my behalf[,]” Ex. 75, the Chairman stated that plaintiff’s file contained
no “documents from Andrea Gambino from January 1, 2006 to present.” Id., Ex. 76.
II. LEGAL STANDARD
Summary judgment is appropriate upon a showing that there is “no genuine issue as to
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any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). “[A] material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party” on an element of the claim. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
The FOIA requires a federal agency to release all records responsive to a properly
submitted request except those protected from disclosure by one or more of nine enumerated
exemptions. See 5 U.S.C. § 552(b). The agency’s disclosure obligations are triggered by its
receipt of a request that “reasonably describes [the requested] records” and “is made in
accordance with published rules stating the time, place, fees (if any), and procedures to be
followed.” 5 U.S.C. § 552(a)(3)(A). The FOIA authorizes the court only "to enjoin [a federal]
agency from withholding agency records or to order the production of any agency records
improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). Thus, the elements of a
FOIA claim are (1) improperly (2) withheld (3) agency records. “Judicial authority to devise
remedies and enjoin agencies can only be invoked under the jurisdictional grant conferred by [5
U.S.C.] § 552 [(a)(4)(B)], if the agency has contravened all three components of this obligation.”
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980).
In a FOIA case, the Court may award summary judgment to an agency solely on the
information provided in affidavits or declarations when they describe “the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld logically
falls within the claimed exemption, and are not controverted by either contrary evidence in the
record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied,
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415 U.S. 977 (1974). Such affidavits are “accord[ed] substantial weight.” 5 U.S.C. § 552(a)
(4)(B). In opposing a summary judgment motion, plaintiff may not “replace conclusory
allegations of the complaint or answer with conclusory allegations of an affidavit,”
Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990), but rather must “set forth
specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248.
III. DISCUSSION
Plaintiff challenges defendant’s search only to the extent that it failed to locate “the
parole Hearing Tape of May 1997 in which Nancy Antonelli was recorded as an adverse witness
to plaintiff at that time.” Plaintiff’s Response to Defendant’s Renewed Motion to Dismiss, or in
the Alternative for Summary Judgment; and Opposition to Motion for a Stay (“Pl.’s Opp’n”)
[Dkt. No. 46] at 2. In addition, plaintiff “generically requests an in-camera inspection of the
records to rule whether the material withheld actually fits within the parameters of the
exemptions claimed.”2 Id. at 1.
1. Plaintiff’s Request for an In Camera Review
An in camera inspection is unnecessary when, as here, “a district court finds that a law
enforcement agency's affidavits sufficiently describe the documents and set forth proper reasons
for invoking an exemption[.]” Juarez v. Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008); see
1st Hunter Decl. ¶ 23 & Ex. 38. Plaintiff has provided no factual basis for questioning the
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Plaintiff also complains about having to pay twice for a parole manual that he received
and defendant’s delay in releasing the records pertaining to the National Appeals Board’s March
2008 decision. Such facts, even if true, are not material to a FOIA claim. See Perry v. Block,
684 F.2d 121, 125 (D.C. Cir. 1982) (“[H]owever fitful or delayed the release of information
under the FOIA may be, once all requested records are surrendered, federal courts have no further
statutory function to perform.”); accord Boyd v. Criminal Div. of U.S. Dept. of Justice, 475 F.3d
381, 388 (D.C. Cir. 2007) (“[B]ecause the report was located in the work file and subsequently
disclosed, the issue is moot for purposes of this FOIA action.”) (citing Perry).
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agency’s declarations, which are otherwise accorded "a presumption of good faith[.]” Long v.
U.S. Dep’t of Justice, 450 F. Supp.2d 42, 54 (D.D.C. 2006) (citation and quotation omitted); see
Ground Saucer Watch, Inc. v. C.I.A., 692 F.2d 770, 771 (D.C. Cir. 1981) (plaintiff “must point to
evidence sufficient to put the Agency's good faith into doubt”). The Court therefore declines
plaintiff’s invitation to review the records in camera.
2. Defendant’s Search for Responsive Records
An agency is required “to make a good faith effort to conduct a search for the requested
records, using methods which can reasonably be expected to produce the information requested.”
Int’l Trade Overseas, Inc. v. Agency for Int’l Dev., 688 F. Supp. 33, 36 (D.D.C. 1998) (quoting
Marrera v. Dep't of Justice, 622 F. Supp. 51, 54 (D.D.C. 1985)) (citation omitted). When an
agency's search for records is challenged, “the agency must show beyond material doubt [] that it
has conducted a search reasonably calculated to uncover all relevant documents.” Weisberg v.
U.S. Dep’t. of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). For purposes of this showing, the
agency "may rely upon affidavits . . . , as long as they are relatively detailed and nonconclusory
and . . . submitted in good faith." Id. (citations and quotation marks omitted). The required
level of detail "set[s] forth the search terms and the type of search performed, and aver[s] that all
files likely to contain responsive materials (if such records exist) were searched. . . ." Oglesby v.
United States Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); accord Valencia-Lucena v.
U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). “[T]he fact that a particular document
was not found does not demonstrate the inadequacy of a search.” Boyd v. Criminal Div. of U.S.
Dep’t of Justice, 475 F.3d 381, 391 (D.C. Cir. 2007) (citations omitted). This is because “the
adequacy of a FOIA search is generally determined not by the fruits of the search, but by the
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appropriateness of the methods used to carry out the search.” Iturralde v. Comptroller of
Currency, 315 F.3d 311, 315 (D.C. Cir. 2003).
Hunter describes a reasonable search targeted specifically at plaintiff’s parole hearing
tapes, 1st Hunter Decl. ¶¶ 24, 26, 30, 31, which, in fact, located a tape of a hearing held on May
21, 1997, that was eventually released to plaintiff, id., Ex. 60. Plaintiff baldly suggests that the
released tape is not responsive to his request because it does not contain the testimony of Nancy
Antonelli, whom he claims was “recorded as an adverse witness to plaintiff at that time.” Pl.’s
Opp’n at 2. Plaintiff also asserts that the requested tape “was supposedly loaned to the EOUSA
or FBI and not yet returned to the Defendant.” Id. Plaintiff’s speculation about the location of
the tape does not advance his claim against the Parole Commission because an agency
component is obligated to produce only those records in its custody and control at the time of the
FOIA request. McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983). Thus, in the absence of
any evidence that EOUSA or the FBI referred the alleged missing tape to defendant, the Court
finds no triable issue on the Parole Commission’s search for responsive records.
3. Record Segregability
Although plaintiff has not contested defendant’s specific withholdings, the Court finds
that defendant properly documented its bases for withholding portions of information from 27
released pages under the FOIA’s personal privacy provision set forth at exemption 7(C). See
Hunter Decl. ¶ 23. Furthermore, the Court is satisfied from Hunter’s description of the withheld
information and her assurance that “[e]ach document was individually reviewed for segregability
of non-exempt information” that defendant released “all reasonably segregable information.” Id.
¶ 33.
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IV. CONCLUSION
For the foregoing reasons, the Court finds that no genuine issue of material fact exists
with regard to defendant’s response to plaintiff’s FOIA requests and concludes that defendant,
having satisfied its disclosure obligations, is entitled to judgment as a matter of law. A separate
Order accompanies this Memorandum Opinion.
__________s/s__________________
COLLEEN KOLLAR-KOTELLY
DATE: May 29, 2009 United States District Judge
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