Petrucelli v. Department of Justice , 51 F. Supp. 3d 142 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
JOHN A. PETRUCELLI, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-1780 (RBW)
)
DEPARTMENT OF JUSTICE, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
This matter came before the Court on the Defendant’s Renewed Motion to Dismiss or,
Alternatively, Motion for Summary Judgment. ECF Nos. 40-41. 1 On March 31, 2014, the Court
granted the defendant’s motion in part and denied it in part without prejudice. 2 This
Memorandum Opinion sets forth the reasons for the decision.
I. BACKGROUND
The plaintiff, a federal prisoner, brings this action under the Freedom of Information Act
(“FOIA”), see 5 U.S.C. § 552 (2006), against the United States Department of Justice (“DOJ”),
1
Further references to the defendant’s renewed motion or supporting memorandum of points
and authorities are references to the Errata to Defendant’s Renewed Motion to Dismiss or,
Alternatively, Motion for Summary Judgment. ECF No. 44. References to the defendant’s
exhibits are to those items submitted with its initial renewed motion. ECF Nos. 40-41.
2
The March 31, 2014 Order also denied the plaintiff’s Motion for Judicial Notice, ECF No. 43,
his Motion Pursuant to Rule 18 and/or 20(a) of the Federal Rules of Civil Procedure, ECF No.
46, and Plaintiff’s Motion to File Sur-reply, ECF No. 69.
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demanding the release of records maintained by the Federal Bureau of Prisons (“BOP”), the
Executive Office for United States Attorneys (“EOUSA”), and the Federal Bureau of
Investigation (“FBI”), and also against the BOP under the Privacy Act, see 5 U.S.C. § 552a
(2006). It appears that the information of interest to the plaintiff pertains to the date of his arrest
and his eligibility for the death penalty. See Complaint for Injunctive Relief and Monetary
Damages in Excess of $10,000, ECF No. 1 (“Compl.”) ¶¶ 5-6, 11; Plaintiff[’s] Second Amended
Complaint for Injunctive Relief and Monetary Damages in Excess of $10,000, ECF No. 10
(“Am. Compl.”) ¶¶ 5-6.
A. The Plaintiff’s Criminal History
The plaintiff’s criminal history has been summarized as follows:
Throughout the early 1990s, John Petrucelli was a member
of the Tanglewood Boys, a violent gang that regularly engaged in
murder, armed robbery, burglary, loan sharking, and bookmaking
in the Bronx and Westchester County[, New York]. The
Tanglewood Boys’ membership was comprised chiefly of young
men who wished to become members of the Luchese Organized
Crime Family.
In the early morning of June 20, 1995, Tanglewood Boy
member Darin Mazzarella was shot by Michael Zanfardino, an
associate of the rival Genovese Family. Petrucelli witnessed the
shooting. A few hours later, near P.S. 108 in the Bronx, Petrucelli
stabbed Paul Cicero, a cousin of a Genovese Family associate, to
avenge the shooting of Mazzarella. Sean McKernan, a childhood
acquaintance of both Petrucelli and Cicero, saw Petrucelli lunge at
Cicero from his position seated on a stoop near P.S. 108, but he did
not observe the stabbing because a concrete wall blocked the lower
three-quarters of Petrucelli’s and Cicero’s bodies. After Petrucelli
left the scene, Cicero passed in front of the stoop where McKernan
was sitting and said, “That bastard Johnny just stabbed me” while
clutching his stomach. Cicero subsequently bled to death on the
operating table at a nearby hospital.
On June 21, 1995, the day after the shooting and stabbing,
Steven Crea, the Underboss of the Luchese Family, summoned
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Petrucelli to a meeting. Crea explained that the Genovese Family
had contacted him to prevent the Tanglewood Boys from taking
revenge against Zanfardino. Petrucelli informed Crea that he had
stabbed Cicero in response to Mazzarella’s shooting. Petrucelli
then fled to Las Vegas, where he stayed with his grandmother, and
later his aunt and uncle, for several weeks.
A few days later, Acting Boss of the Genovese Family,
Liborio Bellomo, requested a meeting with Joseph Defede, the
Acting Boss of the Luchese Family, to discuss the circumstances
surrounding the shooting and stabbing. Bellomo asked Defede to
ensure that the Tanglewood Boys not to [sic] pursue Zanfardino
and argued that the Cicero murder constituted sufficient revenge
against the Genovese Family for Mazzarella’s shooting. Defede
granted Bellomo’s request.
In early 1996, after Mazzarella had recovered from his
gunshot wounds, he met with Defede to discuss his desire to
retaliate against Zanfardino. Defede explained that revenge would
be unjustified because of Cicero’s murder and instructed
Mazzarella not to exact retribution. Several days later, at Defede’s
request, Mazzarella and Zanfardino met and formally called a
truce.
Petrucelli v. United States, No. 05-cv-9582, 2009 WL 4858081, at *1-2 (S.D.N.Y. Dec. 15,
2009). “The original indictment against [the] plaintiff resulted from a long FBI investigation
into [the] plaintiff[’s] . . . organized crime activities.” Memorandum of Points and Authorities in
Support of Defendant’s Motion to Dismiss or, Alternatively, Motion for Summary Judgment,
ECF No. 23 (“Def.’s First Mem.”), Declaration of David M. Hardy (“Hardy Decl.”) ¶ 5.
Ultimately, the plaintiff was charged with and convicted of murder in aid of racketeering in
violation of 18 U.S.C. § 1959(a)(1), and is serving a term of life imprisonment. Hardy Decl. ¶ 5;
see United States v. Petrucelli, 97 F. App’x 355 (2d Cir. 2004) (affirming conviction on direct
appeal).
The plaintiff alleges that “[o]n January 28, 2002[, he] was arrested by F.B.I. Agents
Orango and Munger,” Am. Compl. ¶ 10, with the assistance of “a fully armed F.B.I. Swat team,”
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id. ¶ 11. He further alleges that he “was photographed and fingerprinted by F.B.I. Agents while
being held in the White Plains headquarters” office, id. ¶ 13, after which he “was transported by .
. . Agents Orango and Munger to [the BOP’s Metropolitan Detention Center in Brooklyn, New
York (MDC Brooklyn)] at about 5:00 PM” on that same date. Id. ¶ 15. These agents, the
plaintiff alleges, transported him from MDC Brooklyn “to his arraignment at [the] Manhattan
Federal Court” on February 1, 2002. Id. ¶ 16. The plaintiff apparently believes that responsive
records showing an “original arrest date of January 28, 20[0]2, and favorable evidence . . . could
exculpate [him] from unlawful confinement.” Affidavit of Facts in Support of []Notice[] of
Missing Facts of Evidence, ECF No. 27 ¶ 4.
B. The Plaintiff’s Request for Amendment of BOP Records
Through the BOP’s administrative remedy procedure, see Def.’s First Mem., Declaration
of Donna Johnson, ECF No. 23-2 (“Johnson Decl.”) ¶¶ 9-10, on September 11, 2011, the
plaintiff submitted the following request to the Warden of the Federal Correctional Institution in
Manchester, Kentucky:
I am writing in reference to my record date of arrest and arrival to
[the] BOP . . . as being incorrect. “1/31/02” I ask . . . that my
arrest date and arrival to M.D.C. Brooklyn reflect the correct date
of Jan. 28[,] 2002 . . . . I . . . ask for my records to be amended
showing [my] actual arrest, incarceration at M.D.C. Brooklyn
being Jan. 28, 2002.
Johnson Decl., Ex. B (Request for Administrative Remedy dated September 11, 2011). After
having reviewed “the U.S. Marshals Report, Presentence Investigation Report (PSR), Prisoner
Remand Form, and the SENTRY data base,” and after having made “contact with the FBI’s field
office in the Southern District of New York,” the Acting Warden informed the plaintiff that his
“date of arrest in Yonkers, New York, and subsequent delivery to MDC Brooklyn [was] January
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31, 2002.” Id., Ex. B (Request for Administrative Remedy, Remedy ID # 656846-F1, Part B –
Response from R.D. Ranum, Acting Warden, dated October 4, 2011). He further stated that
“[t]here [was] no documentation which indicates an earlier date of arrest.” Johnson Decl. ¶ 12.
The plaintiff’s administrative appeal to the BOP’s Mid-Atlantic Regional Office of the denial to
amend his BOP records was subsequently denied. Id.; see id., Ex. B (Regional Administrative
Remedy Appeal, Part B – Response from C. Eichenlaub, Regional Director, Mid-Atlantic
Region, BOP, dated November 22, 2011).
C. The Plaintiff’s Requests for BOP Records
1. FOIA/PA Request Number 2010-07999
In the plaintiff’s first FOIA request to the BOP, he sought the following:
(1) any and all records, reports, files, memos and materials
to include electronic filings that contain any information
concerning my initial intake screening on January 28, 2002 at
[MDC Brooklyn];
(2) a copy of the log book on January 28, 2002 at [MDC
Brooklyn] when I was delivered into their custody;
(3) Copy of the warrant being executed for my arrest and
delivery to [MDC Brooklyn];
(4) Copy of fingerprint card taken during intake screening
and other data taken by . . . MDC officials or staff upon my intake
and processing; [and]
(5) copy of medical information taken by medical staff at
[MDC Brooklyn] during my medical screening on January 28,
2002[.]
Johnson Decl., Ex. C (Freedom of Information Act and Privacy Act request dated March 12,
2010) at 1. Because the plaintiff was incarcerated at the United States Penitentiary in Canaan,
Pennsylvania (“USP Canaan”) at the time of this request, its Legal Services Department staff and
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the Secretary of the plaintiff’s Unit Team searched for medical and other records responsive to
the request, which had been assigned FOIA Request Number 2010-07999. See id., Ex. D-E
(email messages dated May 20, 2010 and May 24, 2010, respectively). Of 56 pages of records
deemed responsive to the request, the BOP released 55 pages in full and withheld one page in
full under FOIA Exemption 7(F). Id. ¶¶ 20-21; see id., Ex. F (Letter to the plaintiff from Henry
J. Sadowski, Regional Counsel, Northeast Regional Office, BOP, dated September 21, 2010).
The plaintiff pursued an administrative appeal to the DOJ’s Office of Information Policy
(“OIP”), id. ¶ 46, which remanded the matter to the BOP, id. ¶ 49. At the time the BOP’s
declarant executed her declaration following the remand, the agency had not yet completed the
re-processing of the records. Id. ¶ 52. The BOP thereafter reviewed 22 pages of records, 18 of
which were released in full and three of which were released in redacted form after information
was deleted pursuant to FOIA Exemptions 6, 7(C), ad 7(F). Defendant’s Reply in Support of
Motion to Dismiss or, Alternatively, Motion for Summary Judgment, ECF No. 31, Ex. 8 (Letter
to the plaintiff from Michael D. Tafelski, Regional Counsel, Northeast Regional Office, BOP,
dated October 4, 2012).
2. FOIA/PA Request Number 2010-08695
The plaintiff’s second FOIA request to the BOP sought “a record of a telephone call
placed on Jan[uary] 28, 2002 to phone number #914-345-2815.” Johnson Decl., Ex. G (Freedom
of Information Act and Privacy Act request dated March 16, 2010). It was “determined that [the
plaintiff] was not in BOP custody on January 28, 2002, the date of the call he requested.” Id. ¶
24. For this reason, the BOP’s declarant “concluded that there were no records responsive to
[the] request,” and the plaintiff was so notified. Id.; see id., Ex. H (Letter to the plaintiff from
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Henry J. Sadowski dated June 8, 2010). The OIP affirmed this determination in response to the
plaintiff’s administrative appeal. Id. ¶¶ 53-54; see id. Ex. CC (Letter to the plaintiff from Anne
D. Work, Senior Counsel, Administrative Appeals Staff, OIP, dated May 18, 2011).
3. FOIA/PA Request Number 2010-09077
The plaintiff’s third FOIA request to the BOP sought:
(1) Any and all records, reports, files, memos, and materials to
include electronic filings that contain any information concerning
my Death Penalty Status.
(2) “Notice” That the Gov’t believes that circumstances are
justified for a sentence of death.
(3) Any known aggravating factors that [the] government, if the
defendant is convicted, proposed to prove.
(4) Any substantive motion or activity connected to Death Penalty.
(5) Any mitigation memorandum submitted by counsel . . . .
Id., Ex. I (Freedom of Information Act and Privacy Act request dated March 22, 2010) at 1.
Staff at USP Canaan located one responsive record, id. ¶ 28, and that document was withheld in
its entirety under Exemption 5, id. ¶ 29. The plaintiff was notified that the document was being
withheld, id.; see id., Ex. K (Letter to plaintiff from Henry J. Sadowski dated July 30, 2010), and
he successfully administratively appealed that determination to the OIP; on remand, the BOP
released the document in its entirety. Id. ¶¶ 57-58.
4. FOIA/PA Request Number 2010-10411
The plaintiff’s fourth FOIA request to the BOP sought the “detention order[] issued on
Jan[uary] 28 or Jan[uary] 29[,] 2002,” which purportedly indicated that the plaintiff was “waiting
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on a ‘Captain’s Review.’” Id. ¶ 30; see id., Ex. L (Freedom of Information Act and Privacy Act
request dated June 30, 2010). No responsive records were found, id. ¶¶ 32-33, and the plaintiff
was so informed, see id., Ex. N (Letter to the plaintiff from Henry J. Sadowski dated August 2,
2010). The plaintiff’s administrative appeal of this determination was rejected as untimely. Id.
¶¶ 59-60; see id., Ex. FF (Letter to the plaintiff from Anne D. Work dated February 23, 2011).
5. FOIA/PA Request Number 2011-01572
In his fifth FOIA request to the BOP, the plaintiff sought:
The compiled file containing the signing in of John A. Petrucelli
by FBI Agent or Agents F. Orango and C. Munger to MDC
Brooklyn on Jan[uary] 28, 2002 at approximately 6:00 pm. Also
the signing out of inmate John A. Petrucelli on Feb[ruary] 1[,]
2002 at approximately 6:30 AM by FBI Agent or Agents F.
Orango and C. Munger.
Id., Ex. O (Freedom of Information Act and Privacy Act request dated October 18, 2010). A
search of records maintained at MDC Brooklyn yielded nothing responsive to the request. Id. ¶
41. A search of the plaintiff’s Central File did yield 15 pages of responsive records, see id. ¶¶
42, 44, and 12 of these pages were released in full, id. ¶ 45; see id., Ex. V (Letter to the plaintiff
from Michael D. Tafelski dated July 23, 2012) at 1. The three remaining pages were released in
part after redacting information under FOIA Exemptions 6, 7(C), and 7(F). Id. ¶ 45.
D. The Plaintiff’s Requests for EOUSA Records
1. Request Number 03-2265
The plaintiff sought information from the EOUSA, including files, police reports, and
videotapes, “believed to be within the possession of the [United States Attorney’s Office] for the
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Southern District of New York” and “in relation to [his] criminal prosecution in the United
States District Court in New York, New York in the criminal case titled and numbered under
United States v. John Petrucelli, No. 02CR[]099.” Def.’s First Mem., Declaration of David
Luczynski (“Luczynski Decl.”), Ex. A (Freedom of Information Act/Privacy Act Request dated
July 1, 2003). The EOUSA denied the request in full, id. ¶ 6, relying on FOIA Exemptions 3, 5,
7(A), 7(C), 7(D), and 7(F), id., Ex. C (Letter to the plaintiff from Marie A. O’Rourke, Assistant
Director, Freedom of Information/Privacy Act Staff, EOUSA, dated October 30, 2003). In
addition, the EOUSA notified the plaintiff that it located approximately 2,112 pages of public
records that he could obtain from the Clerk of Court of the Southern District of New York
directly. Id., Ex. C at 2.
2. Request Number 04-2972
The plaintiff’s second FOIA request to the EOUSA also sought information pertaining to
the prosecution of his criminal case. See id., Ex. F (Freedom of Information Act/Privacy Act
Request dated June 18, 2004). Specifically, the plaintiff requested:
Books, Papers, Photographs, Recorded Tapes, Files, Reports,
Records, Video Tapes, Police Reports, and Other Documentary
Materials or Data, regardless of physical form or characteristic
made or received by any officer or employee of your agency
relating to, regarding, or naming me.
Id., Ex. F at 1. The plaintiff provided the title and number of the criminal case in the United
States District Court for the Southern District of New York, and agreed to pay any fees
associated with the request. Id.
EOUSA staff located records responsive to the request and released 40 pages of records
in full, released 12 pages in part, and withheld two pages in full. Id. ¶ 10. In addition, agency
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staff referred 65 pages of records to the FBI for its direct response to the plaintiff. Id.; see id.,
Ex. G (Letter to the plaintiff from Marie A. O’Rourke dated December 29, 2004) at 2. 3 The
plaintiff administratively appealed these decisions and the OIP affirmed the determinations. Id. ¶
11; see id., Ex. I (Letter to the plaintiff from M.A. O’Rourke dated September 12, 2008).
E. The Plaintiff’s Requests for FBI Records
1. FOIPA No. 1000298-000
On June 18, 2004, the plaintiff made a “request[] for all records about himself . . . to the
FBI.” Plaintiff’s Memorandum in Opposition to Defendant’s Renewed Motion to Dismiss and to
Defendant[’]s Renewed Motion for Summary Judgment, ECF No. 64 (“Pl.’s Opp’n”) at 5 (page
numbers designed by the plaintiff). Responsive records, the plaintiff believed, would have been
“located in Washington, DC, White Plains, New York, and Manhattan, New York agency
offices, possibly in relation, but not limited to [his] criminal prosecution, Case #: 02CR00099-01
(TPG) United States v. John A. Petrucelli, prosecuted within the Southern [D]istrict of New
York, which stemmed from State of New York v. Darin Mazzarella (Yonkers, NY).”
Defendant’s Reply in Further Support of its Renewed Motion to Dismiss or for Summary
Judgment, ECF No. 67 (“Def.’s Reply”), Second Declaration of David M. Hardy (“Second
Hardy Decl.”), Ex. A (Freedom of Information Act/Privacy Act Request dated June 18, 2004).
The FBI acknowledged receipt of the request, which was designated FOIPA No. 1000298-000.
See Pl.’s Opp’n, Ex. 3 (Letter to the plaintiff from David M. Hardy, Section Chief,
Record/Information Dissemination Section, Records Management Division, FBI, dated July 1,
3
The EOUSA stated in error that 75 pages of records were referred to the FBI, and it was later
determined that “in fact only 65 pages had been referred.” Def.’s First Mem., Luczynski Decl.
¶ 11.
10
2004). On September 7, 2004, the plaintiff submitted another request for the same information,
see Second Hardy Decl. ¶ 8, noting that responsive records were “believed to be located at
Agency Headquarters and in the Southern District of New York agency offices,” pertaining to
his own criminal case or the case of Darin Mazzarella, id., Ex. C (Freedom of Information
Act/Privacy Act Request dated September 7, 2004). It does not appear that the FBI assigned the
September 7, 2004 request a tracking number or that it conducted a separate search in response
to it. 4
The FBI denied the plaintiff’s June 18, 2004 request in its entirety, see id. ¶ 9, relying on
FOIA Exemptions 7(A) and 7(C), id., Ex. D (Letter to the plaintiff from D.M. Hardy dated
September 29, 2004). This determination was affirmed on administrative appeal to the OIP, see
id., Second Hardy Decl. ¶¶ 10-12, on the ground that the responsive records were “protected
from disclosure under [FOIA Exemption 7(A)],” id., Ex. G (Letter to the plaintiff from Janice
Galli McLeod, Associate Director, OIP, dated December 31, 2007).
2. FOIPA No. 1019355-000
The FBI reviewed 65 pages of records referred to the FBI by the EOUSA and determined
that all of the records were exempt from disclosure in full under FOIA Exemptions 7(A), 7(C)
and 7(D). Def.’s First Mem., Declaration of David M. Hardy (“Hardy Decl.”) ¶ 8; see id., Ex. B
(Letter to the plaintiff from David M. Hardy, Chief, Records/Information Dissemination Section,
Records Management Division, FBI). This determination was affirmed on administrative appeal
4
The plaintiff’s September 7, 2004 request was substantially similar to the June 18, 2004
request. Both sought information about the plaintiff, identified the plaintiff by name, aliases,
Social Security number, date and place of birth, and identified the plaintiff’s criminal case by
case number and judicial district. Presumably the FBI’s response to the September 7, 2004
request would have been the same as its response to the June 18, 2004 request.
11
by the OIP. Id. ¶¶ 9-10; see generally id., Ex. D (Letter to the plaintiff from Janice Galli
McLeod, Associate Director, OIP, dated September 12, 2008) at 1.
“Upon . . . the filing of the instant complaint, the FBI conducted another review of the
referred records” and determined that FOIA Exemption 7(A) “no longer applied since the
investigation was no longer pending.” Second Hardy Decl. ¶ 14. However, because “the
information previously [protected under] FOIA Exemption []7(A) still warranted protection
pursuant to other applicable FOIA exemptions,” the FBI withheld all of the records “in their
entirety.” Id. ¶ 14; see generally id., Ex. I (deleted page information sheets).
3. FOIPA No. 1150194-000
The plaintiff submitted a separate FOIA request to the FBI for “[a]ny and all records,
reports, files, memos, and materials to include electronic filings that contain any information
concerning [his] arrest date,” purported to be January 28, 2002. Hardy Decl., Ex. E (Letter to
D.M. Hardy from the plaintiff dated June 7, 2010) at 1. A search of the FBI’s Central Records
System initially yielded 913 pages of potentially responsive records. Id. ¶ 15; see id., Ex. I
(Letter to the plaintiff from D.M. Hardy dated January 18, 2011). On further review, the FBI
determined that only 760 pages of records were actually responsive to the request, id. ¶ 21 n.6,
and of these records, 495 pages were released in full on April 16, 2012, id. ¶ 21. 5 One of these
records was “a report by FBI Special Agents, dated February 1, 2005, documenting the January
5
The package mailed to the plaintiff on April 16, 2012, was returned to the FBI by the United
States Postal Service as undeliverable, Second Hardy Decl. ¶ 15, and the FBI sent paper copies
of the documents to another address provided by the plaintiff on September 27, 2012, id. ¶¶ 17-
19. The FBI’s declarant later clarified that the FBI released 499 pages of records to the plaintiff,
that it withheld 242 pages in full, and that it withheld 19 pages in full as duplicates. Id. ¶ 20.
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31, 2002 arrest of [the plaintiff].” Id. ¶ 22; see id., Ex. P. “Of the remaining 265 pages, 246
were withheld in full pursuant to [FOIA Exemptions 3, 5, 6, 7(C), 7(D), 7(E), and 7(F),] and 19
pages were withheld in full as duplicates.” Id. ¶ 21; see id., Ex. O (Letter to the plaintiff from
D.M. Hardy dated April 16, 2012).
II. DISCUSSION
A. The Plaintiff’s Privacy Act Claims
Notwithstanding the filing of the plaintiff’s amended complaint, it is not clear that he has
abandoned the Privacy Act claims raised in the original complaint, particularly his claims against
the BOP under the amendment, accuracy and damages provisions of the Privacy Act. 6 See
Compl. at 2. The plaintiff’s Request for Administrative Remedy asked, “[i]n accordance with
. . . 5 USC § 552a(d) . . . for [his] records to be amended showing actual arrest, incarceration at
MDC Brooklyn being Jan[uary] 28, 2002.” Johnson Decl., Ex. B. He also demanded that the
BOP “[m]aintain all records accurately.” Id. Lastly, the plaintiff demanded a declaratory
judgment that the BOP is “liable for using erroneous information to make determinations adverse
to [him] in three separate court proceedings in violation of sections (e)(5)[,] (g)(1)(c) and (g)(4)
of the [P]rivacy [A]ct.” Compl. at 2.
The defendant represents that the Inmate Central File contains records pertaining to an
inmate’s arrest, and that the system of records where Inmate Central Files are maintained is
exempt from the Privacy Act’s amendment, accuracy and damages provisions. See
6
None of the plaintiff’s submissions to the EOUSA or the FBI reasonably can be construed as a
request under the Privacy Act. Accordingly, the Court will deny the plaintiff’s demand for a
declaratory judgment holding the “EOUSA and FBI liable for using erroneous information to
make determinations adverse to [him] in three separate court proceedings.” Am. Compl. at 4.
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Memorandum of Points and Authorities in Support of Defendant’s Renewed Motion to Dismiss
or, Alternatively, for Summary Judgment [ECF No. 40] (“Def.’s Renewed Mem.”) at 12;
Defendant’s Statement of Material Facts To Which There Is No Genuine Dispute ¶¶ 1-2. The
plaintiff deems the defendant’s “brief . . . particularly confusing . . . where [it] argues that
various records systems are exempt under the Privacy Act.” Pl.’s Opp’n at 23-24. He argues
instead that he made his requests for information under the Privacy Act as well as the FOIA, and
the applicability of the Privacy Act does not “exempt [any information] from release under the
FOIA, except insofar as [the information] fall[s] under one of the seven FOIA exemptions.” Id.
at 24; see id. at 4 n.7. The plaintiff, however, does not respond substantively to the defendant’s
argument that information contained in the Inmate Central File is exempt from the Privacy Act’s
amendment, accuracy and damages provisions. He has thus conceded this point, see, e.g.,
Maydak v. DOJ, 579 F. Supp. 2d 105, 107 (D.D.C. 2008), and the Court therefore will grant the
defendant’s motion to dismiss the plaintiff’s Privacy Act claims.
B. The Plaintiff’s FOIA Claims
1. Summary Judgment Standard of Review in a FOIA Case
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). Courts will
grant summary judgment to an agency as the movant if it shows that there is no genuine dispute
as to any material fact and if the agency is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). More specifically, in a FOIA action to compel production of agency records, the
agency “is entitled to summary judgment if no material facts are in dispute and if it demonstrates
‘that each document that falls within the class requested either has been produced . . . or is
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wholly exempt from the [FOIA’s] inspection requirements.’” Students Against Genocide v.
Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352
(D.C. Cir. 1978)).
Summary judgment in a FOIA case may be based solely on information provided in an
agency’s supporting affidavits or declarations if they are “relatively detailed and non-
conclusory,” Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal
quotations and citations omitted), and when they
[d]escribe the documents and 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 [or] by
evidence of agency bad faith.
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “To successfully challenge
an agency’s showing that it complied with the FOIA, the plaintiff must come forward with
‘specific facts’ demonstrating that there is a genuine issue with respect to whether the agency has
improperly withheld extant agency records.” Span v. DOJ, 696 F. Supp. 2d 113, 119 (D.D.C.
2010) (quoting DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989)).
2. The Agencies’ Searches for Responsive Records 7
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“The FOIA requires every federal agency, upon request, to make promptly available to any
person any records so long as the request reasonably describes such records.” Assassination
Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) (internal quotation marks and
citation omitted). If an agency withholds information, it may do so “only if the information falls
within one of nine statutory exemptions,” and the agency “bears the burden of establishing than
an exemption applies.” People for the Ethical Treatment of Animals v. Nat’l Inst. of Health, 745
F.3d 535,540 (D.C. Cir. 2014) (citations omitted). Here, the plaintiff does not challenge the
adequacy of the BOP’s search for records responsive to his FOIA requests, nor does he object to
the BOP’s decisions to withhold information under FOIA Exemptions 6, 7(C), and 7(F). He
“believes” that the BOP “released all maintained records,” Pl.’s Opp’n at 1, and now demands
(Continued . . .)
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a. EOUSA
“The ‘LIONS’ system is the computer system used by United States Attorneys offices to
track cases and to retrieve files pertaining to cases and investigations.” Luczynski Decl. ¶ 13.
Through LIONS, “the user can access databases which can be used to retrieve . . . information
based on a defendant’s name, the USAO number (United States[] Attorney’s Office internal
administrative number), and the district court case number.” Id. “Each United States Attorney’s
Office maintains the case files for criminal matters prosecuted by that office.” Id.
The plaintiff identified himself and his criminal case by number and judicial district in
each of his two FOIA requests to the EOUSA. See id., Ex. A and F. “Upon receiving the
[plaintiff’s] request,” the EOUSA “forwarded the request to the FOIA Contact for the Southern
District of New York.” Id. ¶ 13. “The FOIA Contact” searched “for records on ‘John A.
Petrucelli’ to determine the location of any and all files relating to [the] plaintiff in order to
comply with his request,” and “for records from the case files in Case # 02CR00099-01, the
criminal prosecution case [the] plaintiff identified in his request.” Def.’s Renewed Mem.,
Declaration of David Luczynski [ECF No. 40-4] (“Second Luczynski Decl.”) ¶ 13. The FOIA
Contact not only queried LIONS, but also “sent emails to the Assistant United States Attorney in
the Southern District of New York Criminal Division to ascertain whether [that office] had any
responsive records.” Id.
(. . . continued)
duplicate copies of all BOP records because they “were taken from him by the [BOP] and never
returned,” id., during the course of the plaintiff’s transfer from FCI Manchester to FCI
Allenwood in June 2012, id. In other words, he does not challenge the BOP’s compliance with
its actual obligations under the FOIA and instead purports to impose another. The FOIA does
not require an agency to replace copies of records previously released to a requester who
subsequently loses them. With respect to the plaintiff’s FOIA claims against the BOP, the Court
will therefore grant the defendant’s motion for summary judgment in part as conceded.
16
Because the “plaintiff’s prosecution took place in the Southern District of New York, the
United States Attorney’s Office for the District of Columbia would not have records related to
[his] prosecution.” Id. ¶ 13. The declarant avers that “[t]here are no other records systems or
locations within the EOUSA or DOJ in which other files pertaining to [the] plaintiff were
maintained.” Id. Thus, he states, “[a]ll documents responsive to [the] plaintiff’s FOIA request
have been located through the United States Attorney’s Office for the Southern District of New
York.” Id. ¶ 14; see Luczynski Decl. ¶¶ 13-14.
The plaintiff counters that, notwithstanding his stated belief that responsive records might
be found in the Southern District of New York (“SDNY”), “he had no possible way of knowing
where they were kept,” and the EOUSA improperly limited the scope of its search “to only those
files kept in the SDNY.” Pl.’s Opp’n at 11. The plaintiff also noted the EOUSA’s failure to
locate his “case file, despite the fact that the [p]laintiff mentioned [his] case number twice in
each FOIA request.” Id. at 11-12. According to the plaintiff the EOUSA thus ignored his July
18, 2004 request for the same records insofar as it stated the plaintiff’s “belie[f] the records were
located in both Washington, D.C. and the Southern District of New York.” Id. at 11.
The plaintiff acknowledges that he was prosecuted in the Southern District of New York,
and puts forth no valid reason to suspect that records related to his criminal case likely would be
located in any other federal district. Nor is there any basis to conclude that responsive EOUSA
records would have included “exculpatory materials originating from . . . the [New York] State
Police.” Id. at 13-14. Nor does the plaintiff proffer any authority for the proposition that a
federal agency is obliged to consult with or to retrieve documents from a state law enforcement
agency. “Adequacy and reasonableness turn not on the yield of the search, but on the
‘appropriateness of the methods used to carry out the search.’” Waldner v. U.S. Dep’t of Justice,
17
__ F. Supp. 2d __, __, 2013 WL 5974904, at *3 (D.D.C. Sept. 23, 2013) (citing Iturralde v.
Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)). The plaintiff’s challenge pertains
only to the results of the EOUSA’s search, and such an assertion alone is far too weak to
undermine the defendant’s entitlement to summary judgment.
b. FBI
The FBI’s Central Records System (“CRS”) includes “administrative, applicant, criminal,
personnel, and other files compiled for law enforcement purposes,” and “consists of a numerical
sequence of files broken down according to subject matter.” Hardy Decl. ¶ 24. The subject
matter of a CRS file “may relate to an individual, organization, company, publication, activity or
foreign intelligence matter (or program).” Id. FBI Headquarters maintains certain CRS records;
FBI field offices maintain those CRS records “that are pertinent to specific field offices.” Id. In
order to search the CRS, “the FBI uses . . . the Automated Case Support System (‘ACS’).” Id.
FBI Headquarters and Field Offices access the CRS using alphabetically ordered General
Indices. Id. ¶¶ 25-26. “The General Indices consist of index cards on various subject matters
that are searched either manually or though the automated indices.” Id. ¶ 25. There are two
categories of General Indices:
(a) A “main” entry – A “main” entry, or “main” file, carries the
name corresponding with a subject of a file contained in the CRS.
(b) A “reference” entry – A “reference” entry, sometimes called a
“cross reference,” is generally only a mere mention or reference to
an individual, organization, or other subject matter, contained in a
document located in another “main” file on a different subject
matter.
18
Id. “Searches made in the General Indices to locate records concerning a particular subject, such
as John A. Petrucelli, are made by searching the subject requested in the index.” Id. ¶ 26.
Since 1995, FBI Headquarters, Field Offices and Legal Attaches use the ACS system,
which “consolidate[s] portions of the CRS that were previously automated.” Id. ¶ 27. “Because
the CRS cannot electronically query the case files for data, such as an individual’s name or
[S]ocial [S]ecurity number, the required information is duplicated and moved to the ACS so that
it can be searched.” Id. “ACS consists of three integrated, yet separately functional, automated
applications that support case management functions for all FBI investigative and administrative
cases.” Id. ¶ 28. The Investigative Case Management application “provides the ability to open,
assign, and close investigative and administrative cases [and to] set, assign, and track leads.” Id.
¶ 28(a). Each new case is assigned a Universal Case File Number, “which is utilized by all FBI
field offices . . . and FBI [Headquarters] . . . conducting or assisting in the investigation.” Id.
The Electronic Case File application “serves as the . . . electronic repository for the FBI’s official
text-based documents.” Id. ¶ 28(b). The Universal Index application provides “a complete
subject/case index to all investigative and administrative cases.” Id. ¶ 28(c). The FBI does not
index every name in its files; an FBI Special Agent assigned to an investigation decides which
information is “pertinent, relevant, or essential for future retrieval,” and indexes the information
accordingly. Id. ¶ 29. Without an index “to this enormous amount of data, information essential
to ongoing investigations could not be readily retrieved,” and the agency’s files “would thus be
merely archival in nature.” Id. “[T]he General Indices to the CRS are the means by which the
FBI can determine what retrievable information, if any, [it] may have in its CRS files on a
particular subject matter,” such as the plaintiff. Id.
19
Electronic surveillance indices (“ELSUR”) “maintain information on a subject whose
electronic and/or voice communications have been intercepted as a result of a consensual
electronic surveillance and/or a court-ordered (and/or sought) electronic surveillance conducted
by the FBI.” Id. ¶ 30. “The ELSUR indices are a separate system of records from the CRS,” id.,
and “include individuals who were the (a) targets of direct surveillance, (b) participants in
monitored conversations, and (c) owners, leasers, or licensors of the premises where the FBI
conducted electronic surveillance,” id. ¶ 31. Both FBI Headquarters and FBI field offices
maintain ELSUR indices. Id. ¶¶ 30, 33.
In response to the plaintiff’s June 7, 2010 request, using the plaintiff’s name and
variations of his name as search terms, FBI staff “conducted a search of the automated indices to
the CRS to identify all potentially responsive main FBI Headquarters files indexed to John A.
Petrucelli.” Hardy Decl. ¶ 35. In addition to any main FBI Headquarters files indexed to the
plaintiff’s name, this search would have “identified any file indexed under [the] plaintiff’s name,
including both main and/or cross-references, as well as any potentially responsive file from any
FBI field office.” Second Hardy Decl. ¶ 22. The search identified two New York Field Office
files. Id.; see Hardy Decl. ¶ 35. A search of the FBI’s ELSUR Indices, using the plaintiff’s
name, variations of the plaintiff’s name, his date of birth, Social Security Number and FBI
number as search terms, yielded no responsive records. Hardy Decl. ¶ 36.
According to the FBI’s declarant, the CRS search in response to the plaintiff’s June 18,
2004 request “was completed using the same search parameters,” yielding “files 281A-NY-
25430 and 281A-NY-269024.” Second Hardy Decl. ¶ 23. Both files contained “various sub-
files that were also processed for [the] plaintiff,” and were indeed “the same ones located in the
search conducted in 2010.” Id. Where responsive records “were from multi-subject
20
investigative files[,] only the portions of the files that pertained exclusively to [the plaintiff] were
considered for processing.” Id. ¶ 24. “Records pertaining to other subjects of the file were not
considered responsive to [the] plaintiff’s request.” Id. ¶ 25.
The plaintiff challenges both the scope and the outcome of the FBI’s searches for
responsive records. He opines that “[t]he FBI’s file should be at least five thousand pages long,”
Pl.’s Opp’n at 3, and finds it “inconceivable that only 500 pages of records exist for this case,”
id. at 1, particularly in light of the “seven-year investigation and prosecution under RICO [for]
the murder of Paul Cicero,” id., and the involvement of “numerous alleged co-conspirators,” id.
at 3. In addition, he objects to the FBI’s decision to limit its searches to records maintained in
New York, notwithstanding his belief that records also may have been located in Washington,
D.C. Id. at 11.
The FBI’s failure to produce particular documents, or the plaintiff’s “mere speculation
that as yet uncovered documents might exist, does not undermine” the adequacy of the
searches. Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004) (per curiam). The declarant
explains that the CRS searches would have located not only FBI Headquarters files indexed to
the plaintiff’s name, but also any other file indexed to the plaintiff’s name, including “main
and/or cross-references, as well as any potentially responsive file from any [FBI] field office.”
Second Hardy Decl. ¶ 22. The Court concludes that the searches conducted by the FBI were
reasonable under the circumstances of this case.
21
3. FOIA Exemptions 8
a. Exemption 5
FOIA Exemption 5 protects from disclosure “inter-agency or intra-agency memorand[a]
or letters which would not be available by law to a party other than an agency in litigation with
the agency.” 5 U.S.C. § 552(b)(5). “[T]he parameters of Exemption 5 are determined by
reference to the protections available to litigants in civil discovery; if material is not available in
discovery, it may be withheld from FOIA requesters.” Burka v. U.S. Dep’t of Health & Human
Servs., 87 F.3d 508, 516 (D.C. Cir. 1996) (internal quotation marks omitted); see NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 148 (1975). This exemption “is interpreted to encompass . . .
three evidentiary privileges: the deliberative process privilege, the attorney-client privilege, and
the attorney work product privilege.” Tax Analysts v. IRS, 294 F.3d 71, 76 (D.C. Cir. 2002); see
Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Educ., 905 F. Supp. 2d 161,
173 (D.D.C. 2012) (citations omitted).
i. The Deliberative Process Privilege
The deliberative process privilege “shields only government ‘materials which are both
predecisional and deliberative.’” Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir. 1997)
(quoting Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768, 774 (D.C. Cir. 1988) (en
8
Both the EOUSA and the FBI withhold grand jury information under FOIA Exemption 3 in
conjunction with Federal Rule of Criminal Procedure 6(e). See Second Luczynski Decl. ¶¶ 18-
20; Hardy Decl. ¶ 45. These DOJ components also withhold information obtained pursuant to
wiretaps as is permissible under 18 U.S.C. §§ 2510-2520. See Second Luczynski Decl. ¶ 21;
Hardy Decl. ¶¶ 46-47. The plaintiff nowhere in his filings mentions FOIA Exemption 3 or the
defendants’ legal arguments for withholding the grand jury and wiretap information found in the
responsive records. As to these grounds for withholding responsive documents, the Court
therefore will grant in part the defendant’s summary judgment motion as conceded.
22
banc)). “To show that a document is predecisional, the agency need not identify a specific final
agency decision; it is sufficient to establish ‘what deliberative process is involved, and the role
played by the documents at issue in the course of that process.’” Heggestad v. DOJ, 182 F.
Supp. 2d 1, 7 (D.D.C. 2000) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d
854, 868 (D.C. Cir. 1980)). A document is “deliberative” if “it makes recommendations or
expresses opinions on legal or policy matters.” Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir.
1975). The deliberative process privilege is thought to “prevent injury to the quality of agency
decisions.” Sears, Roebuck, 421 U.S. at 151. Such protection is designed to encourage frank
discussion of policy matters, prevent premature disclosure of proposed policies, and avoid public
confusion that may result from disclosure of rationales that were not ultimately grounds for
agency action. See, e.g., Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir.
1982).
ii. The Attorney Work Product Privilege
“The work-product doctrine shields materials ‘prepared in anticipation of litigation or for
trial by or for another party or by or for that other party’s representative.’” Judicial Watch, Inc.
v. DOJ, 432 F.3d 366, 369 (D.C. Cir. 2005) (quoting Fed. R. Civ. P. 26(b)(3)); see Hickman v.
Taylor, 329 U.S. 495 (1947). Records may be withheld as attorney work product if they contain
the “mental impressions, conclusions, opinions or legal theories of a party’s attorney” and were
“prepared in anticipation of litigation.” Fed. R. Civ. P. 26(b)(3)(B); see Miller v. DOJ, 562 F.
Supp. 2d 82, 115 (D.D.C. 2008) (concluding that documents which “reflect such matters as trial
preparation, trial strategy, interpretation, personal evaluations and opinions pertinent to [a
plaintiff’s] criminal case” qualify as attorney work product under FOIA Exemption 5);
Heggestad, 182 F. Supp. 2d at 8 (stating that the attorney work product privilege “covers factual
23
materials prepared in anticipation of litigation, as well as mental impressions, conclusions,
opinions, and legal theories”).
Both the deliberative process privilege and the attorney work product privilege may apply
to the same information. See, e.g., Miller, 562 F. Supp. 2d at 114-15 (concluding that draft grand
jury indictment, trial attorney certification and draft affidavit supporting a request for the
plaintiff’s extradition were protected under Exemption 5 insofar as they reflected “predecisional
communications among government personnel such as discussions of various litigation issues,
alternatives, and strategies,” and “such matters as trial preparation, trial strategy, interpretation,
personal evaluations and opinions pertinent to [the plaintiff’s] criminal case”); Heggestad, 182 F.
Supp. 2d at 8-12 (concluding that prosecution memoranda prepared by attorneys to assist their
superiors in determining whether to authorize prosecution of the targets of a criminal
investigation prior to the final decision to prosecute properly were withheld under Exemption 5).
The FBI “cite[s] the deliberative process privilege” as the basis for withholding in full an
eight-page document, which the declarant describes as containing “a break down of the
investigative steps used during the investigation of [the] plaintiff, and [which] was gathered and
used by the prosecution prior to the trial of [the] plaintiff.” Hardy Decl. ¶ 51. The EOUSA
relies on both the deliberative process privilege and the attorney work product privilege, see
Luczynski Decl. ¶¶ 20-24; Second Luczynski Decl. ¶¶ 22-26, to protect records or portions of
records identified as “drafts of an indictment, emails between attorneys, drafts of a prosecutorial
memorandum, and . . . pages . . . [hand]written by attorneys preparing the case.” Second
Luczynski Decl. ¶ 26. Its declarant states “[t]he records or portions of records” at issue “include
information related to trial preparation, trial strategy, interpretations, and personal evaluations
and opinions pertinent to [the] plaintiff’s criminal case,” as well as “deliberations concerning
24
asset forfeiture decisions [and] possible strategies as they relate to the case.” Id. ¶ 24. “[I]n
certain instances,” the declarant explains, the records “contain the deliberative process of the
United States Attorney’s Office and other federal and state agencies in their consideration of
possible criminal actions against [the] plaintiff.” Id. ¶ 25. The records not only were “prepared
by, or at the request or direction of an attorney, . . . in anticipation of, or during litigation,” id. ¶
24, but also included “pre-decisional communications among government personnel such as
discussions of various litigation issues, alternatives, and strategies,” id. ¶ 25. Thus, the declarant
asserts, “[t]he attorney work product and deliberative process are so interwoven as to make . . .
all [of the information], in essence, attorney work product.” Id. ¶ 25.
The plaintiff counters that “[t]he files of the EOUSA are not all attorney work product or
all attorney-client communications.” Pl.’s Opp’n at 21. Rather, he argues, because these files
“should contain voluminous materials from the FBI and NY State Police,” they “are law
enforcement records and not prepared under the direction of an attorney.” Id. He contends,
therefore, that FOIA Exemption 7, not FOIA Exemption 5, should apply. Id. Further, the
plaintiff asserts that the records should be processed under FOIA Exemption 7, analyzed for
privilege, and any “[w]ithheld records should be accounted for in a privilege log, which in this
context becomes part of the [d]efendant’s Vaughn Index.” Id. The Court rejects the plaintiff’s
arguments for the following reasons.
The plaintiff merely speculates as to the content of records maintained by the EOUSA.
The declarant does not indicate that the EOUSA acquired records originating with the New York
State Police. Moreover, insofar as the EOUSA’s records included records originating with the
FBI, the declarant explains that these records had been referred to the FBI. See Luczynski Decl.
¶¶ 10-11; Second Luczynski Decl. ¶ 10. The plaintiff fails to demonstrate that the records or
25
portions of records withheld under FOIA Exemption 5 are law enforcement records to which
FOIA Exemption 7 applies, or that these DOJ components are obligated to account for privileged
material by any means other than through their supporting declarations. “The function of
a Vaughn index is essentially to ‘enable[] the adversary system to operate by giving the requester
as much information as possible, on the basis of which he can present his case to the trial court.’”
Coleman v. FBI, 972 F. Supp. 5, 7 (D.D.C. 1997) (alteration in original) (quoting Keys v.
DOJ, 830 F.2d 337, 349 (D.C. Cir. 1987)). The focus is on the function of the Vaughn index, not
its format, see Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006), and documents
need not be Bates-stamped or otherwise numbered, see Brown v. DOJ, 734 F. Supp. 2d 99, 104
(D.D.C. 2010). So long as the agency’s supporting declaration “provide[s] a relatively detailed
justification, specifically identif[ying] the reasons why a particular exemption is relevant and
correlat[ing] those claims with the particular part of a withheld document to which they apply,”
Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977), a separate
Vaughn index is not required.
b. Exemption 7
i. Law Enforcement Records
FOIA Exemption 7 protects from disclosure “records or information compiled for law
enforcement purposes,” but only to the extent that disclosure would cause an enumerated harm.
5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622 (1982). “To show that . . .
documents were compiled for law enforcement purposes, the [agency] need only establish a
rational nexus between [an] investigation and one of the agency’s law enforcement duties and a
connection between an individual or incident and a possible security risk or violation of federal
26
law.” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011) (internal quotation marks and citations
omitted).
The EOUSA’s declarant asserts that its responsive records were “compiled for law
enforcement purposes – namely, to facilitate the investigation and criminal prosecution of the
[plaintiff].” Luczynski Decl. ¶ 25; Second Luczynski Decl. ¶ 27. The FBI’s declarant avers that
“[d]ocuments responsive to [the] plaintiff’s request relate to the FBI’s investigation of [the]
plaintiff related to organized crime activity and murder, . . . racketeering activity and
murder/kidnapping (murder in aid of racketeering).” Hardy Decl. ¶ 53. The declarants
adequately establish, and the plaintiff does not dispute, that the responsive records at issue in this
case were compiled for law enforcement purposes within the scope of FOIA Exemption 7.
ii. Exemption 7(C) 9
FOIA Exemption 7(C) protects from disclosure information in law enforcement records
that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(7)(C). In determining whether this exemption applies to particular information,
the Court must balance the interest in privacy of individuals mentioned in the records against the
public interest in disclosure. See ACLU v. DOJ, 655 F.3d 1, 6 (D.C. Cir. 2011). The privacy
interest at stake belongs to the individual, not the government agency, see DOJ v. Reporters
Comm. for Freedom of the Press, 489 U.S. 749, 763-65 (1989), and “individuals have a strong
9
The FBI generally asserts FOIA Exemption 6 in conjunction with FOIA Exemption 7(C)
when withholding information that could reasonably be expected to constitute an unwarranted
invasion of the personal privacy of third parties. Hardy Decl. ¶ 54 n.16. The Court finds that
the information identified as protected by these two exemptions is protected under FOIA
Exemption 7(C) alone, and it therefore need not consider FOIA Exemption 6 separately with
respect to the same information. See Roth v. DOJ, 642 F.3d 1161, 1173 (D.C. Cir. 2011).
27
interest in not being associated unwarrantedly with alleged criminal activity,” Stern v. FBI, 737
F.2d 84, 91-92 (D.C. Cir. 1984). When balancing an individual’s privacy interest against the
public interest in disclosure, “the only public interest relevant for purposes of Exemption 7(C) is
one that focuses on ‘the citizens’ right to be informed about what their government is up to.’”
Davis v. DOJ, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting Reporters Comm., 489 U.S. at
773). It is a FOIA requester’s obligation to articulate a public interest sufficient to outweigh an
individual’s privacy interest, and the public interest must be significant. See Nat’l Archives and
Records Admin. v. Favish, 541 U.S. 157, 172 (2004).
Law Enforcement Personnel
Under FOIA Exemption 7(C), the EOUSA withholds “the identit[ies] of third party
individuals, such as . . . law enforcement personnel.” Second Luczynski Decl. ¶ 28. Its declarant
explains that disclosure of such information “could subject [them] to an unwarranted invasion of
their personal privacy.” Id. He further explains that “[r]elease of such personal identifiers could
result in . . . efforts to gain further access to [these third parties] or to personal information about
them – or subject them to harassment, harm, or exposure to unwanted and/or derogatory
publicity and inferences – all to their detriment.” Id. The EOUSA could not identify a
“countervailing public interest in the release of this privacy-protected information, because its
dissemination would not help explain government activities and operations nor did the public’s
interest in the disclosure of this information outweigh the third-party individuals’ privacy rights
in the information withheld.” Id. ¶ 29.
Similarly, the FBI withholds the names of and identifying information about “FBI
[Special Agents]. . . responsible for conducting, supervising, and/or maintaining the investigative
28
activities reported in the documents responsive to [the] plaintiff’s request,” Hardy Decl. ¶ 58, as
well as the same information concerning “state and/or local law enforcement employees,” id. ¶
63. Its declarant explains that Special Agents “conduct official inquiries into violations of
various criminal statutes and national security cases.” Id. ¶ 59. In the performance of their
duties, such as conducting searches and making arrests, the agents “come into contact with all
strata of society” and create “serious disturbances to people and their lives.” Id. “It is possible,”
the declarant states, that “an individual targeted by such law enforcement actions [might] carry a
grudge which may last for years, and . . . seek revenge on the agents involved in a particular
investigation.” Id. Thus, any publicity resulting from the release of agents’ identities “in
connection with a particular investigation could trigger hostility toward” those “agent[s].” Id.
Moreover, publicity “regarding any particular investigation to which they have been assigned
may seriously prejudice their effectiveness in conducting other investigations.” Id. ¶ 58.
Accordingly, the declarant states, “disclosure of this information . . . could reasonably be
expected to constitute an unwarranted invasion of their personal privacy.” Id. ¶ 59.
The FBI applies a similar rationale for its decision to withhold the names of and
identifying information about “state and/or local law enforcement employees,” including
members of the New York Police Department and the Yonkers Police Department. Id. ¶ 63. The
declarant explains that “[t]hese employees were acting in their official capacities and aided the
FBI in its law enforcement efforts,” and that disclosure of their identities “could subject them . . .
to unofficial inquiries not anticipated in connection with their assistance to the FBI.” Id. The
FBI identifies no public interest to be served if their identities were disclosed. See id. ¶¶ 59-60.
The plaintiff’s first challenge pertains to the privacy interests of these law enforcement
officers. Citing Butler v. DOJ, No. 86-2255, 1994 WL 55621 (D.D.C. Feb. 3, 1994), the plaintiff
29
asserts that “FBI agents and other law enforcement personnel ‘may not have as great a claim to
privacy as that afforded ordinarily to private citizens.’” Pl.’s Opp’n at 16 (quoting Butler, 1994
WL 55621, at *5) (quoting Lesar v. DOJ, 636 F.2d 472, 487 (D.C. Cir. 1980)). Even if
“Exemption 7(C) . . . protect[s] the identity of FBI agents involved in investigations when their
interest in not being harassed in the performance of their official duties outweighs the public
interest in disclosure,” Pl.’s Opp’n at 16, the plaintiff suggests that protection is not warranted in
this case, particularly where “the defendant has made bald claims, unsupported by any factual
evidence, that the release of these names will subject the FBI supervisory agent to harassment,”
id. at 17 (quoting Butler, 1994 WL 55621, at *5) (internal quotation marks omitted).
Admittedly, there is no “blanket exemption for the names of all FBI agents in all
documents.” Baez v. DOJ, 647 F.2d 1328, 1339 (D.C. Cir. 1980) (footnote and citation omitted).
However, even if these law enforcement personnel “may not have as great a claim to privacy as
that afforded ordinarily to private citizens,” they do not “by virtue of [their] official status . . .
forgo altogether any privacy claim in matters related to official business.” Lesar, 636 F.2d at
487. They retain “a legitimate interest in preserving the secrecy of matters that conceivably
could subject them to annoyance or harassment in either their official or private lives.” Id.; see
also Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice, No. 12-5223,
2014 WL 1284811, at *5 (D.C. Cir. Apr. 1, 2014) (notwithstanding the “well-publicized
announcement” by the former Majority Leader of the United States House of Representatives
confirming that “he had been, but was no longer, under investigation” by the FBI, he “retained a
second, distinct privacy interest in the contents of the investigative files” sought by the
requester). Accordingly, “[w]hile an individual’s official position may enter the 7(C) balance, it
30
does not determine, of its own accord, that the privacy interest is outweighed.” Bast v. DOJ, 665
F.2d 1251, 1254-55 (D.C. Cir. 1981) (citation omitted).
In the face of law enforcement officers’ legitimate privacy interests, it is the plaintiff’s
burden to demonstrate the existence of a public interest that outweighs those privacy interests.
See Reporters Comm., 489 U.S. at 774-76. The plaintiff’s personal interest in “seeking
documents that should have been produced and made available to him at his criminal trial,” Pl.’s
Opp’n at 27, does not suffice. See, e.g., Oguaju v. United States, 288 F.3d 448, 450 (D.C. Cir.
2002) (finding that a requester’s “personal stake in using the requested records to attack his
convictions does not count in the calculation of the public interest”), vacated and remanded, 541
U.S. 970 (2004), on remand, 378 F.3d 1115 (D.C. Cir. 2004) (reaffirming prior decision), cert.
denied, 544 U.S. 983 (2005); Engelking v. DEA, 119 F.3d 980, 980-81 (D.C. Cir. 1997) (per
curiam) (“To the extent [the appellant] argues that he seeks exculpatory information, [his]
personal need for information is immaterial to whether that information is protected from
disclosure by one of the exemptions to the FOIA.”); Brown v. DOJ, 742 F. Supp. 2d 126, 133
(D.D.C. 2010) (“Assuming that plaintiff seeks documents responsive to his request in order to
challenge his conviction and/or bring to light possible government misconduct, the Court finds
that plaintiff has not demonstrated that either of these reasons constitute[s] a ‘significant’ public
interest in documents concerning [a third party].”). Nor does the plaintiff’s assertion of a
generic public “interest in the administration of justice,” Pl.’s Opp’n at 26, suffice. See, e.g.,
McCutchen v. Dep’t of Health & Human Servs., 30 F.3d 183, 188 (D.C. Cir. 1994) (“A mere
desire to review how an agency is doing its job, coupled with allegations that it is not, does not
create a public interest sufficient to override the privacy interests protected by Exemption
7(C).”). Absent production by the plaintiff of “evidence that would warrant a belief by a
31
reasonable person that . . . Government impropriety might have occurred,” Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007) (quoting Favish, 541 U.S. at 174), the
plaintiff cannot demonstrate the existence of a public interest calling for the release of
information pertaining to these third parties.
Here, the Court concludes that the FBI Special Agents and other law enforcement
personnel mentioned in the relevant records have legitimate privacy interests sufficient to
outweigh any public interest in disclosure of their names or identifying information about them.
See, e.g., Stone v. FBI, 727 F. Supp. 662, 664-65 (D.D.C. 1990) (recognizing the privacy
interests of the non-supervisory FBI Special Agents and Los Angeles Police Department officers
named in the FBI’s file on the assassination of Robert F. Kennedy), aff’d per curiam, No. 90-
5065, 1990 WL 134431, at *1 (D.C. Cir. Sept. 14, 1990). The EOUSA and the FBI therefore
properly withhold this information under FOIA Exemption 7(C). See, e.g., Thompson v. DOJ,
851 F. Supp. 2d 89, 99 (D.D.C. 2012) (protecting the names of and identifying information about
FBI Special Agents and support personnel, third parties with investigative interest to the FBI,
third parties merely mentioned in documents related to the FBI’s criminal investigation of
plaintiff, local law enforcement officers, and third parties interviewed by the FBI during the
investigation); Lasko v. DOJ, 684 F. Supp. 2d 120, 133 (D.D.C. 2010) (protecting the identities
of DEA Special Agents and state and local law enforcement officers), aff’d per curiam, No. 10-
5068, 2010 WL 3521595, at *1 (D.C. Cir. Sept. 3, 2010); Richardson v. DOJ, 730 F. Supp. 2d
225, 236 (D.D.C. 2010) (“[T]he EOUSA properly [withheld] the identities of and personal
information about all the third parties mentioned in the records responsive to plaintiff's FOIA
request, whether or not these third parties are law enforcement officers or support personnel.”).
32
Other Third Parties
The FBI withholds the names of and identifying information about “third parties who
provided information to the FBI during the course of the investigations of [the] plaintiff.” Hardy
Decl. ¶ 56. The declarant explains that the FBI relies on information obtained from individuals
during interviews, and in the agency’s experience, such interviewees typically “fear that their
identit[ies] may be exposed and, consequently, that they could be harassed, intimidated, or
threatened with legal consequences, economic reprisal, or possible physical harm.” Id. ¶ 57.
The FBI addresses these fears through assurances “that their names and personally-identifying
information will be held in the strictest confidence.” Id.
In addition, the FBI withholds the names of and identifying information about “third
parties . . . [who] were of investigative interest to the FBI because of their criminal activities.”
Id. ¶ 61. The declarant explains that “[d]isclosure of [their] identities could subject them to
harassment, embarrassment and could cause undue public attention.” Id. Similarly, the agency
withholds information about “third parties merely mentioned in documents related to the FBI’s
investigation of [the] plaintiff.” Id. ¶ 62. Such information found its way into FBI records in
this case “during the course of its investigation into [the] plaintiff’s possible involvement in
drugs, organized crime, and murder,” and its release, the declarant states, would reveal the
individuals’ connection to a criminal investigation, carrying with it “an extremely negative
connotation.” Id. These third parties thus would be subjected “to possible harassment or
criticism” or “derogatory inferences and suspicion.” Id.
The names of and information about FBI support personnel, id. ¶ 60, and “non-FBI
federal government personnel,” id. ¶ 64, are also withheld under FOIA Exemption 7(C). FBI
33
support personnel, the declarant explains, “were assigned to handle tasks related to the official
investigation into [the] plaintiff,” and “were, and possibly are, in a position to access information
regarding official law enforcement investigations,” and thus “could become targets of harassing
inquiries for unauthorized access to investigations if their identities were released.” Id. ¶ 60.
The same rationale applies to the FBI’s decision to withhold identifying information about non-
FBI federal employees. Id. ¶ 64. In none of these circumstances does the FBI find a public
interest sufficient to outweigh the privacy interests of these third parties. Id. ¶¶ 57, 60-62, 65.
The EOUSA withholds “the identit[ies] of third party individuals, such as potential
witnesses” under FOIA Exemption 7(C). Second Luczynski Decl. ¶ 28. “Release of such
personal identifiers,” the declarant states, “could result in unwarranted efforts to gain further
access to [them] or to personal information about them – or subject them to harassment, harm, or
exposure to unwanted and/or derogatory publicity and inferences.” Id.
The plaintiff argues that the defendant “may not withhold the names of the third parties
mentioned in the documents, unless the information about them is private in nature.” Pl.’s Opp’n
at 16. He further asserts that “[w]itnesses expect their names and testimony to be revealed in a
hearing,” for example, and therefore their privacy interests do not prevail. Id.
“As a general rule, third-party identifying information contained in [law enforcement]
records is ‘categorically exempt’ from disclosure.” Lazaridis v. U.S. Dep’t of State, 934 F. Supp.
2d 21, 38 (D.D.C. 2013) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 896
(D.C. Cir. 1995)); see Blackwell, 646 F.3d at 41 (“As a result of Exemption 7(C), FOIA
ordinarily does not require disclosure of law enforcement documents (or portions thereof) that
contain private information.”). “FOIA Exemption 7(C) takes particular note of the strong
34
interest of individuals, whether they be suspects, witnesses, or investigators, in not being
associated unwarrantedly with alleged criminal activity.” Dunkelberger v. DOJ, 906 F.2d 779,
781 (D.C. Cir. 1990) (internal quotation marks and citation omitted); see also Fitzgibbon v.
CIA, 911 F.2d 755, 768 (D.C. Cir. 1990) (“It is surely beyond dispute that the mention of an
individual’s name in a law enforcement file will engender comment and speculation and carries a
stigmatizing connotation.” (internal quotation marks and citation omitted)); Stern, 737 F.2d at 91
(recognizing that a government “employee has at least a minimal privacy interest in his or her
employment history and job performance evaluations”).
The plaintiff offers no support for the proposition that the third parties whose identities
have been protected under FOIA Exemption 7(C) have waived their privacy interests in any way,
even if any of these individuals had already testified in open court. See, e.g., Jones v. FBI, 41
F.3d 238, 247 (6th Cir. 1994) (rejecting the “plaintiff’s argument that certain agents waived 7(C)
protection by testifying at plaintiff’s habeas proceeding”). And these third parties maintain an
interest in their personal privacy even if the plaintiff already knows, or is able to guess, their
identities. See Weisberg v. DOJ, 745 F.2d 1476, 1491 (D.C. Cir. 1984).
iii. Exemption 7(D)
FOIA Exemption 7(D) protects from disclosure those records or information compiled
for law enforcement purposes that
could reasonably be expected to disclose the identity of a
confidential source . . . [who] furnished information on a
confidential basis, and, in the case of a record or information
compiled by criminal law enforcement authority in the course of a
criminal investigation . . ., information furnished by a confidential
source.
35
5 U.S.C. § 552(b)(7)(D). There is no general “presumption that a source is confidential within
the meaning of [FOIA] Exemption 7(D) whenever [a] source provides information [to a law
enforcement agency] in the course of a criminal investigation.” DOJ v. Landano, 508 U.S. 165,
181 (1993). Rather, a source’s confidentiality must be determined on a case-by-case basis. Id. at
179-80. “A source is confidential within the meaning of [E]xemption 7(D) if the source
‘provided information under an express assurance of confidentiality or in circumstances from
which such an assurance could be reasonably inferred.’” Williams v. FBI, 69 F.3d 1155, 1159
(D.C. Cir. 1995) (per curiam) (quoting Landano, 508 U.S. at 170-74).
Express Assurance of Confidentiality
Where an agency withholds information provided under an express grant of
confidentiality, it “is required to come forward with probative evidence that the source did in fact
receive an express grant of confidentiality.” Davin v. DOJ, 60 F.3d 1043, 1061 (3d Cir. 1995).
Such
[p]roof could take the form of declarations from the agents who
extended the express grants of confidentiality, contemporaneous
documents from the FBI files reflecting the express grants of
confidentiality, evidence of a consistent policy of expressly
granting confidentiality to certain designated sources during the
relevant time period, or other such evidence that comports with the
Federal Rules of Evidence.
Id. Here, the FBI makes the necessary showing; however, the EOUSA does not.
The FBI has withheld “the name [of], identifying data [about] and information . . .
concerning plaintiff’s violent criminal activities” provided by several individuals under an
express assurance of confidentiality. Hardy Decl. ¶ 71. The declarant explains that “the words
‘PROTECT IDENTITY’ [appear] when [each] individual’s name is referenced in the file,”
36
which is “a positive indication of an express assurance of confidentiality.” Id. According to the
declarant, “[a]ll of the individuals would reasonably fear that disclosure of their identit[ies]
would place them in danger since they provided information related to the FBI’s investigation
into [the] plaintiff’s violent criminal activities.” Id.
The FBI has also withheld “the informant file number of a permanent confidential
symbol number source,” described by the declarant as an informant who regularly provides
information to the FBI under an express assurance of confidentiality and to whom a unique
number is assigned. Id. ¶ 72. According to the FBI’s declarant, “[d]isclosure of the confidential
source file number[] at various times and in various documents could ultimately identify [this
source by] reveal[ing] the connections [between the] confidential informant[] to the information
[he or she] provided.” Id. ¶ 73. “Repeated release[s],” according to the declarant, of a
confidential source file number along with the information he or she provided would “narrow the
possibilities of [his or her] true identity.” Id.
The FBI has therefore presented “probative evidence that the source[s] did in fact receive
. . . express grant[s] of confidentiality,” Davin, 60 F.3d at 1061, and that its decision to withhold
information under FOIA Exemption 7(D) is proper. See, e.g., Roth v. DOJ, 642 F.3d 1161, 1185
(D.C. Cir. 2011) (protecting FBI source-symbol-number informants); Willis v. DOJ, 581 F.
Supp. 2d 57, 77 (D.D.C. 2008) (protecting source where the phrase “Protect Identity” appears
after the individual’s name in the responsive records).
The EOUSA also purports to withhold “information . . . provided with an express
assurance of confidentiality.” Second Luczynski Decl. ¶ 34. Its declarant, however, merely
makes a “bald assertion that express assurances were given,” proffering “little more than
37
recitation of the statutory standard, which [the D.C. Circuit has] held is insufficient,” Billington
v. DOJ, 233 F.3d 581, 584 (D.C. Cir. 2000). Its declaration is so lacking in detail that the Court
cannot determine whether there is a valid basis to invoke FOIA Exemption 7(D) with respect to
the confidential source or sources.
Implied Assurance of Confidentiality
“When no express assurance of confidentiality exists, courts consider a number of factors
to determine whether the source nonetheless spoke with an understanding that the
communication would remain confidential.” Roth, 642 F.3d at 1184 (internal quotation marks
and citation omitted). The FBI has withheld “the names, identifying information, and
investigative information concerning [the] plaintiff’s violent criminal activities provided by third
parties under an implied assurance of confidentiality.” Hardy Decl. ¶ 69. Specifically, it
withheld “portions of interviews where the release of the information could clearly identify the
source of that information.” Id. ¶ 70.
“The mere fact that a person . . . provides information to a law enforcement agency does
not render that person a confidential source within the meaning of [FOIA Exemption] 7(D).”
Campbell v. DOJ, 164 F.3d 20, 34 (D.C. Cir. 1998) (internal quotation marks and citation
omitted). Rather, “[t]he nature of the crime . . . investigated and the source’s relation to it” are
factors relevant to determining whether implied confidentiality exists,” Landano, 508 U.S. at
180. The FBI’s declarant states only that “[t]he sensitivity of the information, and the position of
the sources, are such that it may be inferred that the information was provided with the
expectation of confidentiality,” Hardy Decl. ¶ 70, without having explained adequately the
connection between the plaintiff’s criminal activities and the protected informant or informants
38
and the nature of the information provided. The FBI has thus failed to demonstrate that it
properly withheld information under FOIA Exemption 7(D) with respect to source(s) who
purportedly provided information to the FBI under an implied assurance of confidentiality.
The EOUSA fares better in its application of FOIA Exemption 7(D) “to protect
individuals who provided information as confidential sources during a criminal investigation
(both their identit[ies] and the information provided), disclosure of which would likely produce
a disastrous impact upon the ability to ever obtain such investigative information again, as it
would create a chilling effect upon the free-flow of information essential to resolve criminal
prosecutions.” Luczynski Decl. ¶ 29. In addition, the declarant states, disclosure of this
information would render these informants “targets of harassment or other forms of reprisal.”
Second Luczynski Decl. ¶ 31. In support of the EOUSA’s position, the declarant notes that the
“plaintiff was . . . convicted . . . of a retaliatory murder – a revenge killing that is connected to a
racketeering enterprise where [the plaintiff’s] accomplices are surely likely to continue the
endeavor.” Id. ¶ 33. The informants at issue, the declarant explains, “supplied information to
law enforcement officers in connection with the enterprise, which is characterized as violent.”
Id. For this reason, the declarant asserts that the informants “were interviewed under
circumstances in which the assurance of confidentiality may be implied since they were
reporting on fraudulent activities of an organized crime group involving plaintiff and others,”
and “[i]t can [also] be implied that these individuals would reasonably fear that disclosure of
their identit[ies] would place them in danger.” Id.
The plaintiff contends that any “[i]nformation relating to informants disclosed at trial has
been officially acknowledged and must be processed along with any other responsive
information.” Pl.’s Opp’n at 17. Accordingly, he argues, FOIA Exemption 7(D) does not apply
39
to “any informant files or documents relating to acknowledged informants and co-operating
witnesses and co-defendants, such as Joseph DeFede, Michael Zanfardino, Darryn Mazzarella
and Sean McKernan.” Id. at 18. However, “once an informant’s confidentiality has been
established, almost nothing can eviscerate Exemption 7(D) protection.” Reiter v. DEA, No. 96-
0378, 1997 WL 470108 at *6 (D.D.C. Aug. 13, 1997), aff’d, No. 97-5246, 1998 WL 202247
(D.C. Cir. Mar. 3, 1998). The exemption makes no mention of waiver, and courts literally
interpreting it generally have held that “once the agency receives information from a
‘confidential source’ during the course of a legitimate criminal investigation . . . all such
information obtained from the confidential source receives protection.” Parker v. DOJ, 934 F.2d
375, 380 (D.C. Cir. 1991) (citing Lesar, 636 F.2d at 492 & n.114). Ultimately, protection of
information under FOIA Exemption 7(D) depends on whether the source spoke with
confidentiality, “even after the source has been revealed to the requester or when the requester
knows the source’s identity.” Reiter, 1997 WL 470108, at *6 (citations omitted); see Moffat v.
DOJ, 716 F.3d 244, 253 (1st Cir. 2013) (“Exemption 7(D)’s shield does not necessarily
disappear when some fraction of the information requested has come to light.”), cert. denied, __
U.S. __, 134 S. Ct. 950 (2014).
Under the circumstances presented here by the EOUSA’s declarant, where the plaintiff
has been involved in organized crime and has been convicted of a revenge killing related to that
activity, it is reasonable to conclude that the informants provided information under an implied
assurance of confidentiality. See, e.g., Miller, 562 F. Supp. 2d at 123 (protecting interviewees
who provided detailed information about activities of the requester and his associates,
particularly given requester’s history of kidnapping, murder and dismemberment of bodies);
Truesdale v. DOJ, No. 03-1332, 2005 WL 3294004, at *7 (D.D.C. Dec. 5, 2005) (protecting
40
witnesses to drug trafficking activities of a requester who had been “convicted of engaging in a
continuing criminal enterprise, a conspiracy to distribute cocaine, and firearms offenses”).
iv. Exemption 7(E)
FOIA Exemption 7(E) protects from disclosure law enforcement records “to the extent
that the production of such . . . information . . . would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions . . . if such disclosure could reasonably be expected to risk
circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Under FOIA Exemption 7(E), the FBI
“protects procedures and techniques used by FBI agents to conduct criminal investigations.”
Hardy Decl. ¶ 76. According to the FBI’s declarant, “[d]isclosure of this information could
enable subjects of FBI investigations to circumvent similar currently used techniques and
procedures by law enforcement,” such that “[t]he relative benefit of these techniques and
procedures could be diminished,” in turn “facilitat[ing] the accumulation of information by other
investigative subjects regarding the circumstances under which these techniques and procedures
were used or requested and the value of the information obtained.” Id. Contrary to the
plaintiff’s argument that FOIA Exemption 7(E) “doesn’t exempt routine techniques and
procedures already known to the public,” Pl.’s Opp’n at 19, “even commonly known procedures
may be protected from disclosure if the disclosure could reduce or nullify their effectiveness.”
Judicial Watch v. U.S. Dep’t of Commerce, 337 F. Supp. 2d 146, 181 (D.D.C. 2004) (citations
omitted). While the FBI’s position may have merit, its showing is deficient due to its “near-
verbatim recitation of the statutory standard.” Citizens for Responsibility & Ethics in
Washington, 2014 WL 1284811, at *13. The FBI is obligated to “at least provide some
explanation of what procedures are involved and how they would be disclosed.” Id. From what
41
has been provided, the Court neither can determine whether FOIA Exemption 7(E) applies with
respect to the information withheld nor whether any reasonably segregable information can be
disclosed.
v. Exemption 7(F)
FOIA Exemption 7(F) protects from disclosure information contained in law enforcement
records that “could reasonably be expected to endanger the life or physical safety of any
individual.” 5 U.S.C. § 552(b)(7)(F). “While courts generally have applied [FOIA] Exemption
7(F) to protect law enforcement personnel or other specified third parties, by its terms, the
exemption is not so limited; it may be invoked to protect ‘any individual’ reasonably at risk of
harm.” Long v. DOJ, 450 F. Supp. 2d 42, 79 (D.D.C. 2006) (quoting 5 U.S.C. § 552(b)(7)(F));
see Gonzalez v. Bureau of Alcohol, Tobacco, and Firearms, No. 04-2281, 2005 WL 3201009, at
*10 (D.D.C. Nov. 9, 2005) (protecting identities of undercover DEA agents); Durham v. DOJ,
829 F. Supp. 428, 434 (D.D.C. 1993) (protecting third parties, some of whom requested
placement in Federal Witness Protection Program, with knowledge of murder the plaintiff
committed). “In reviewing claims under [FOIA E]xemption 7(F), courts have inquired whether
there is some nexus between disclosure and possible harm and whether the deletions were
narrowly made to avert the possibility of such harm.” Antonelli v. Fed. Bureau of Prisons, 623
F. Supp. 2d 55, 58 (D.D.C. 2009) (citing Albuquerque Pub. Co. v. DOJ, 726 F. Supp. 851, 858
(D.D.C. 1989)); see Linn v. DOJ, No. 92-1406, 1995 WL 631847, at *8 (D.D.C. Aug. 22, 1995)
(noting court’s inquiry as to “whether there is some nexus between disclosure and possible
harm”). Within limits, the court defers to the agency’s assessment of danger. See Garcia v.
DOJ, 181 F. Supp. 2d 356, 378 (S.D.N.Y. 2002) (quoting Linn, 1995 WL 631847, at *9).
42
The FBI withholds a source’s identifying information on the ground that its release would
place him or her at great risk, and particularly did so here “[i]n light of both the detailed nature of
the information [he or she] has provided to the FBI and the fact that [the] plaintiff is serving a
life sentence for racketeering and murder/kidnapping (murder in aid of racketeering[)].” Hardy
Decl. ¶ 78. This broad statement may not alone establish the requisite nexus between the
disclosure of the information and any potential danger to the source. However, when coupled
with the nature of the plaintiff’s criminal activity – particularly his conviction of murder in
furtherance of racketeering – the FBI manages to support its decision to withhold identifying
information about and information provided by this source.
The EOUSA offers a somewhat muddled explanation for withholding records and
portions of records under FOIA Exemption 7(F) alone and in some instances in conjunction with
other exemptions, particularly FOIA Exemption 7(C). See Second Luczynski Decl. ¶¶ 36-37.
The agency appears to withhold in full “an internal memorandum from the AUSA in the
Southern District of New York,” which “explained in detail [the plaintiff’s] conviction for
murder in aid of racketeering and imposition of a life sentence.” Id. ¶ 36. Its declarant mentions
a “closely related case . . . which also charges violent organized-crime racketeering [and]
involves many of the same witnesses [and] evidence,” and also mentions the fact that the
plaintiff “was a target of an investigation into witness tampering and intimidation.” Id. The
EOUSA’s declarant represents that “[t]he release of any records or information regarding the
case could reasonably be expected to interfere with law enforcement proceedings,” id., but he
does not clarify whether the case he is referring to is the plaintiff’s case or the case of another
43
suspect or criminal defendant. 10 And even if “[m]any . . . documents consist of reports of
interviews of victims of crimes committed by [the plaintiff], his co-conspirators, and co-
racketeers” and include “information about the victims’ relatives,” id., the declarant only states
in conclusory fashion that no information can be released. Lastly, the declaration does not
distinguish clearly which withholdings have been made under FOIA Exemption 7(F) alone, and
which are made “in conjunction with other exemptions, particularly [FOIA Exemption 7(C)].”
Id. ¶ 37. The Court therefore cannot determine based on the existing record whether the
EOUSA’s reliance on FOIA Exemption 7(F) is proper.
III. CONCLUSION AND ORDER
For the reasons set forth above, the Court concludes that the BOP conducted reasonable
searches for records responsive to the plaintiff’s FOIA requests, and that it properly has withheld
information under FOIA Exemptions 6, 7(C), and 7(F). In addition, the Court concludes that the
EOUSA and the FBI have conducted reasonable searches for information responsive to the
plaintiff’s FOIA requests, and that their withholdings under FOIA Exemptions 3, 5 and 7(C)
were proper. In these respects, the Court grants summary judgment for the defendant. However,
because the EOUSA failed to justify its decisions to withhold information under FOIA
Exemptions 7(D) (express grant of confidentiality) and 7(F), and because the FBI failed to
adequately justify its decisions to withhold information under FOIA Exemptions 7(D) (implied
assurance of confidentiality) and 7(E), the Court denies summary judgment without prejudice as
to the assertion of these exemptions. The Court defers its ruling on segregability.
10
The declarant’s reference to law enforcement proceedings suggests that FOIA Exemption
7(A) may be applicable, notwithstanding a prior assertion, see Second Luczynski Decl. ¶ 6 &
n.1, that the EOUSA no longer relies on FOIA Exemption 7(A).
44
Accordingly, in accordance with this Memorandum Opinion and the Order issued on
March 31, 2014, it is hereby
ORDERED that the Defendant’s Renewed Motion to Dismiss or, Alternatively, Motion
for Summary Judgment [ECF No. 40] is GRANTED IN PART and DENIED IN PART
WITHOUT PREJUDICE; it is
FURTHER ORDERED that the plaintiff’s Motion for Judicial Notice [ECF No. 43], his
Motion Pursuant to Rule 18 and/or 20(a) of the Federal Rules of Civil Procedure [ECF No. 46],
and Plaintiff’s Motion to File Sur-reply [ECF No. 69] are DENIED; and it is
FURTHER ORDERED that, within 45 days of this Order, the parties either shall submit a
joint proposed schedule for further proceeding in this case, or shall file renewed dispositive
motions.
SO ORDERED.
DATE: June 27, 2014 /s/
REGGIE B. WALTON
United States District Judge
45