Clemente v. Federal Bureau of Investigation , 71 F. Supp. 3d 262 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANGELA CLEMENTE,
Plaintiff,
Civil Action No. 13—cv-108 (TFH)
FEDERAL BUREAU OF
INVESTIGATION,
Defendant.
Amended Memorandum Opinion1
Plaintiff Angela Clemente filed the present suit against the Federal Bureau of Investigation
(“FBI”) seeking injunctive relief under the Freedom of Information Act (“F OIA”), 5 U.S.C. § 552.
Clemente alleges that the FBI failed to comply with the statutory deadlines to respond to two FOIA
requests Clemente submitted in 2011. Both requests relate to the relationship between the FBI and
several of its informants in the world of organized crime. This Memorandum concerns Clemente’s
Motion for an Order Requiring Prompt Review and Release of All Responsive Records [ECF No.
11]; the FBI’s Opposition to Plaintiffs Motion for An Order Requiring Prompt Review and Release
of All Nonexempt Responsive Records and Request for an Open America Stay [ECF No. 13] (“FBI
Mot”); and Clemente’s Reply to Defendant’s Opposition to Plaintiff’s Motion to Expedite Review
and Release of all Nonexempt Materials and Opposition to Defendant’s Motion for an Open America
Stay [ECF No. 14] (“Pl.’s Reply”). On October 22, 2013, this Court heard oral argument on the
parties’ motions. After careful consideration of the entire record, the Court orally granted Clemente’s
1 This Memorandum Opinion was amended on October 24, 2014 to correct typographical and citation
errors. The Order announced from the bench at the public hearing held on October 22, 2013 stands.
motion and denied the FBI’s motion for an Open America stay. The Court then ordered the FBI to
process 5,000 pages a month responsive to Clemente’s FOIA request, beginning November 15, 2013.
This Memorandum sets forth the reasoning behind that decision.
I. Background
Angela Clemente is a forensic analyst who has conducted extensive research on alleged
corruption resulting from the collaboration between the FBI and its so—called “top echelon”
informants. P1.’s Mem. of P. & A. in Supp. of Mot. for an Order Requiring Prompt Review and
Release of All Nonexempt Responsive Records 3 [ECF N0. 11] (“Pl.’s Mem. of P. & A.”). For the
past ten years, Clemente’s research has focused on Gregory Scarpa, a high ranking member of the
mafia who served as an FBI informant as early as 1960. Pl.’s Reply Ex. 1, Clemente Decl. fl 3 [ECF
No. 14-1]. Clemente states that her research has revealed that Scarpa’s handler, Supervisory Special
Agent Lindley Devecchio, and others at the FBI were complicit in or actively aided the cover-up of
murders and other violent crimes committed by Scarpa and other FBI informants. Pl.’s Mem. of P. &
A. 3-4. These allegations haVe been the focus of a number of media reports and an ongoing
investigation by the Office of the Inspector General for the Department of Justice, with which
Clemente is assisting. Id. at 7; Pl.’s Reply 3, 4. Clemente also conducts research on behalf of
relatives of persons allegedly victimized by Scarpa and other informants. Clemente Decl. 11 4 [ECF
No. 14-1].
Clemente believes that her work will uncover more evidence of systemic corruption involving
the FBI and its informants associated with organized crime, but she is concerned that she may not
live long enough to complete her research. Pl.’s Mem. of P. & A. 7. Clemente’s liver was “gravely
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agencies that delay the processing of requests meriting expedition” (citing Leadership Conference on
Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 260—61 (D.D.C. 2005))); see also, e.g., EPIC, 933 F.
Supp. 2d at 50 (setting deadlines for processing documents following denial of Open America stay);
Buc, 762 F. Supp. 2d at 73 (same).
Clemente’s request that the FBI process 5,000 pages a month is higher than the rate would be
in an ordinary case, but the FBI has successfully processed documents at that rate in other cases. See,
e.g., Joint Status Report, Lardner v. FBI, No. 03-cv-874 (D.D.C. Aug. 1, 2012). The Court is
cognizant that the FBI’s resources are limited, but finds that Clemente’s proposed processing rate is
reasonable in light of the importance of her work and the possibility that she may have only a limited
time in which to do it. Therefore, the Court has ordered the FBI to process 5,000 documents per
month responsive to the plaintiff s request and to produce responsive, non—exempt documents on a
rolling basis. The Order became effective on November 15, 2013. This Court further orders that the
parties shall advise the Court in writing of the status of this matter no later than February 15, 2014.
October 24, 2014
Thomas F. Hogan
SENIOR UNITED STATEEDISTR
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damaged through medical surgery and she is desperately in need of a liver transplant,” but her doctors
have advised her “that her prospect of getting one in time is dim.” Id. Therefore, Clemente “faces a
very limited lifespan without much prospect that she will be able to carry further” with her research.
Id.
On June 26, 2011, Clemente submitted a request to the New York FBI Field Office for
records concerning Gregory Scarpa and the murders of John Minerva, Michael Imbergamo, Salvatore
Scarpa, and Matty Ianiello. Compl. 11 8. This request was limited to 500 pages to facilitate a faster
response. P1.’s Mem. of P. & A. 5. On October 30, 2011, Clemente submitted a second request for
“all records on or pertaining to Gregory Scarpa wherever they may be located or filed, in whatever
form or format they are maintained.” Id. at 6.2 At the time Clemente filed this lawsuit on January 25,
2013, she had received no records responsive to either request. Id. On June 28, 2013, six months
after this suit was filed and two years after she had made her original request, the FBI produced the
500 pages responsive to Clemente’s first FOIA request. Id.
The FBI has identified approximately 30,000 additional documents responsive to the
plaintiff’ 3 request. FBI Mot. 2. By the time the FBI filed its response to Clemente’s motion, the FBI
represented that it had processed a total of 1,420 pages responsive to Clemente’s FOIA request and
had released 920 pages to Clemente. Id. at 3-4.
The FBI initially offered to process Clemente’s request at the customary rate of 500
documents per month, but Clemente argues that at that rate she is likely to die before the documents
are turned over to her. Pl.’s Mem. of P. & A. 2. The FBI later raised its offer to 1,500 documentsper
2 The plaintiffs Complaint initially included a request for a public interest fee waiver, which the FBI
has now agreed to grant. See FBI Proposed Scheduling Order 1 [ECF No. 7].
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month. See FBI Proposed Scheduling Order 2 [ECF No. 7]. Clemente argues that the processing rate
should instead be not less than 5,000 pages per month in light of her ill health and the fact that the
documents relate to an issue of great importance to the public. Pl.’s Mem. of P. & A. 7. In support
of her motion, Clemente attached a declaration describing the nature of her research and several
newspaper articles describing recently uncovered crimes allegedly committed by FBI informants, to
Show that her work is in the public interest. Pl.’s Reply Ex. 1 [ECF No. 14-1]; P1.’s Mem. of P. & A.
Ex. 2 [ECF No. 11-2].
The FBI opposed the plaintiff s motion and cross-moved for an Open America stay. See FBI
Mot. 1. The defendant argues it is entitled to a stay “because of the tremendous number of FOIA
requests filed with the FBI in light of limited resources.” Id. at 3. The FBI argues that reviewing the
relevant documents will be time-consuming due to the sensitive nature of the materials Clemente has
requested, but states that it has nevertheless worked diligently to respond to the requests. Id. at 11-
12. The FBI also offered to increase its processing rate to 2,000 pages a month. Id. at 2, 13. The
FBI’S brief did not address what, if any, impact Clemente’s declining health should have on the
Court’s decision to stay her request. In her reply, Clemente argues that that the FBI does not meet the
standards for an Open America stay and rejects the FBI’s offer to process 2,000 pages a month. P1.’s
Reply 2.
11. Standard of Review
Under F OIA, an agency responding to a request must:
[D]etermine within 20 days (excepting Saturdays, Sundays, and legal public holidays)
after the receipt of any such request whether to comply with such request and shall
immediately notify the person making such request of such determination and the
reasons therefor, and of the right of such person to appeal to the head of the agency
any adverse determination.
5 U.S.C. § 552(a)(6)(A)(i). The DC. Circuit has held that while an agency need not produce all of
the requested documents within the statutory time period, “the agency must at least inform the
requester of the scope of the documents that the agency will produce, as well as the scope of the
documents that the agency plans to withhold (under any FOIA exemptions.” Citizens for
Responsibility & Ethics in Washington v. FEC, 711 F.3d 180, 186 (DC. Cir. 2013). If the agency
fails to appropriately respond within the statutory time limit, the requester shall be deemed to have
exhausted administrative remedies and may sue without seeking an administrative appeal. Id. at 184-
85 (discussing 5 U.S.C. § 552(a)(6)(C)(i)).
After the requester files a lawsuit, a court may extend an agency’s time to respond to the
request if the agency can “show exceptional circumstances exist,” and that the agency “is exercising
due diligence in responding to the request.” 5 U.S.C. § 552(a)(6)(C)(i). FOIA defines “exceptional
circumstances” specifically to exclude “a delay that results from a predictable agency workload of
[FOIA] requests . . . unless the agency demonstrates reasonable progress in reducing its backlog of
pending requests.” Id. § 552(a)(6)(C)(ii). In Open America v. Watergate Special Prosecution Force,
the DC. Circuit found that an agency is entitled to a stay if the agency is:
[D]eluged with a volume of requests for information vastly in excess of that
anticipated by Congress, when the existing resources are inadequate to deal with the
volume of such requests within the [statutory time limit]. . . .
547 F.2d 605, 616 (DC. Cir. 1976). Other circumstances warranting an Open America stay may
include “an agency’s efforts to reduce the number of pending requests, the amount of classified
material, [and] the size and complexity of other requests processed by the agency.” Elec. Privacy
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Info. Ctr. v. FBI, 933 F. Supp. 2d 42, 46 (D.D.C. 2013) (“EPIC”) (quoting Elec. Frontier Found. v.
Dep’t ofJustice, 517 F. Supp. 2d 111, 117 (D.D.C. 2007)).
III. Discussion
A. The defendant’s request for an Open America stay
The FBI does not dispute that Clemente has exhausted administrative remedies. Therefore,
the Court will consider whether the FBI is entitled to more time to respond to her request. The FBI
must make two showings before the Court may grant a stay of the proceedings: (1) that exceptional
circumstances exist; and (2) that the agency is “exercising due diligence” in processing Clemente’s
request. EPIC, 933 F. Supp. 2d at 46-47 (quoting 5 U.S.C. § 552(a)(6)(C)(i)). The FBI argues that it
satisfies both requirements and asks the Court to grant a stay for an unspecified amount of time. FBI
Mot. 13. First, the FBI asserts that its FOIA workload is “dramatically more complex and
significantly more demanding” than in the past, but that it has nevertheless “made significant strides
in reducing the backlog of FOIA and Privacy Act requests.” Id. at 7, 8. Second, the FBI argues that
it has “shown due diligence specifically with regard to Plaintiff” s FOIA requests at issue here.” Id. at
12. As set forth below, the Court finds that the FBI failed to show exceptional circumstances exist in
this case and therefore does not address the FBI’s second argument. See EPIC, 933 F. Supp. 2d at \
47.
The FBI’s arguments in favor of a finding of exceptional circumstances closely mirror its
arguments in EPIC, decided in March of 2013. In both cases, the FBI attached affidavits purporting
to show that the number of FOIA requests and the size of those requests have “significantly risen,”
but that the FBI is nevertheless making progress in eliminating its backlog. FBI Mot. 9; EPIC, 933 F.
Supp. 2d at 47. Clemente disputes the FBI’s characterization of its backlog and its progress in
processing its requests, arguing that though the FBI receives a high number of FOIA requests, the
volume of requests cannot be considered “unanticipated.” Pl.’s Reply 9.
To show the increase in requests, the FBI states that in 2005 it received an average of 911
FOIA requests a month, but in 2012 the number had increased to an average of 1,716 requests a
month. FBI Mot. 9. The FBI does not provide monthly request data for the intervening years.
However, the public data provided by the Department of Justice shows that although there are more
FOIA requests now than in 2005, the number of requests has actually dropped by over 25% between
FY 2008 (17,241 requests) and FY 2012 (12,783 requests).3 These numbers indicate that the FBI is
not “deluged with [a] volume of requests . . . vastly in excess of that anticipated by Congress.”
EPIC, 933 F. Supp. 2d at 47 (quoting Open America, 547 F.2d at 616).
The FBI argues that in addition to looking at raw numbers, this Court should also consider the
increase in the average size and complexity of the FBI’s FOIA requests. FBI Mot. 9. But as the FBI
acknowledges, the increase in size of requests is due to a change in the Department of J ustice’s own
regulations. Id. In 2009, the Department of Justice issued new FOIA guidelines, to which the FBI
attributes the increased average size of requests. Id. As Judge Kollar—Kotelly noted in EPIC in
response to the same argument, the FBI does not explain how a change in its own agency’s policy
“should support a finding for exceptional circumstances, as opposed to being considered part of the
3 The Department of Justice data is not directly comparable because the data provided by the FBI
includes Privacy Act cases, but is still helpful in showing the “overall trend of decreased requests.”
EPIC, 933 F. Supp. 2d at 47. The data can be found at
http://www.foia.gov/data.html#foiaReportsTable.
‘predictable workload” the statute specifically states does not justify a stay.” EPIC, 933 F. Supp. 2d
at 48. As for the increased complexity of recent requests, other courts have found that “there is
simply insufficient evidence in the record to draw any concrete and meaningful conclusions as to the
composition of the [F BI’s] workload today in comparison to years past, at least in terms of
complexity.” Id. (quoting Buc v. Food & Drug Admin, 762 F. Supp. 2d 62, 68 (D.D.C. 2011)).
The FBI also points to the fact that it is the defendant in 144 FOIA lawsuits, and states that in
“a number of these cases” the FBI must devote significant resources to comply with court ordered
deadlines. FBI Mot. Ex. 1, Hardy Decl. 11 38(a)-(e) [ECF No. 13-1]. But this “anecdotal evidence”
does not demonstrate anything about the FBI’s “workload as it has developed over time.” EPIC, 933
F. Supp. 2d at 48 (quoting Buc, 762 F. Supp. 2d at 69). Without more information, this Court cannot
conclude that obligations resulting from various lawsuits are more than the predictable workload of
the agency.
Because the FBI cannot show that the delay is caused by something other than the
“predictable agency workload,” it must demonstrate that it has made “reasonable progress in reducing
its backlog of pending requests.” Id. at 49 (quoting 5 U.S.C. § 552(a)(6)(C)(ii)). The FBI states that
it has taken a number of steps to streamline its process and reduce the backlog. FBI. Mot. 10—13. But
according to the publicly available data,
the number of F OIA requests received by the FBI increased by 15% in FY 2012, but
the backlog of requests increased by 65%. For broader context, consider that the FBI
backlog of FOIA requests increased by 55% between FY 2008 (1476 pending
requests) and FY 2012 (2296 pending requests), despite a 27% decrease in new FOIA
requests.
EPIC, 933 F. Supp. 2d at 49 (citing DOJ data). In EPIC, Judge Kollar—Kotelly found that though the
“FBI’s efforts to increase efficiency of its systems” was “certainly commendable,” those efforts had
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not led to sufficient “reasonable progress” to warrant a stay. EPIC, 933 F. Supp. 2d at 49. This
Court agrees and finds that the FBI has not shown exceptional circumstances or sufficient progress in
reducing its backlog to warrant an Open America stay.
B. The plaintiff’s proposed production schedule
Having determined that a stay is not appropriate, this Court must now decide whether to grant
Clemente’s request that the FBI process 5,000 pages per month. Clemente argues that two related
circumstances in this case warrant rapid processing. First, the records “relate to an issue of national
importance,” specifically, the alleged “pervasive corruption in the FBI’s collaboration with Top
Echelon Mafia informants in murderous activities.” Pl.’s Mem. of P. & A. 7. Second, Clemente is
terminally ill, and “[g]iven the status of Clemente’s health, the public interest in securing their
prompt disclosure will be thwarted by further delay.” Id. at 11.
The purpose of F CIA “is to ensure an informed citizenry, vital to the functioning of a
‘ democratic society, needed to check against corruption and to hold the governors accountable to the
governed.” Memphis Pub. Co. v. FBI, 879 F. Supp. 2d 1, 6 (D.D.C. 2012) (quoting NLRB v. Robbins
Tire & Rubber Co., 437 US. 214, 242 (1978)). In this case, Clemente is investigating very serious
allegations of corruption. There has been additional public attention on the issue following the trial
of James “Whitey” Bulger, which brought to light new allegations of widespread corruption in the
FBI’s handling of its organized crime cases. See P1.’s Reply 4~5. In 2006, Agent Devecchio, the
primary subject of Clemente’s investigation, was charged with aiding and abetting four murders.
P1.’s Mem. of P. & A. 4. The case was dismissed when the prosecution’s chief witness, Scarpa’s
former mistress, was found to lack credibility. See Clemente v. FBI, 854 F. Supp. 2d 49, 54 (D.D.C.
2012) (discussing the Devecchio prosecution). Clemente has studied these issues for the past ten
years, and her knowledge of the facts and the major players makes her a valuable resource for law
enforcement and others investigating alleged FBI corruption. Clemente attached a June 30, 2013
New York Times article explaining that her research has assisted in Devecchio’s prosecution and in an
ongoing investigation conducted by the Office of the Inspector General for the Department of Justice.
See Pl.’s Mem. of P. & A. Ex. 2, Alan Feuer, An Investigation of the F.B.I., by an Unlikely Sleuth,
NY. Times, June 30, 2013 [ECF No. ll~2]. Clemente also “represents persons whose family
members were victims” of Scarpa’s alleged crimes and who have “presently pending legal cases.”
Pl.’s Reply Ex. 1, Clemente Decl. 11 4 [ECF No. 14—1].
In Clemente’s previous FOIA lawsuit against the FBI, Judge Friedman noted that Clemente
has “shown considerable capacity to disseminate information to the public.” Clemente v. FBI, 741 F.
Supp. 2d 64, 76-77 (D.D.C. 2010). The Court has reviewed Clemente’s medical records to verify the
extent of her illness, and the Court is concerned that if the FBI processes documents at the rate it has
proposed, Clemente may not be able to complete her important research. As Clemente has noted, her
“June 26, 2011 request was not processed at all until after her lawsuit was filed in 2013, and it took
two years to produce a mere 500 pages.” Pl.’s Reply 11. The DC. Circuit has found that
“unreasonable delays in disclosing non—exempt documents violate the intent and purpose of the
F OIA, and the courts have a duty to prevent [such] abuses.” Elec. Privacy Info. Ctr. v. D0], 416 F.
Supp. 2d 30, 35 (D.D.C. 2006) (quoting Payne Enters. v. United States, 837 F.2d 486, 494 (DC. Cir.
1988)). A court therefore may use its equitable powers to require the agency to process documents
according to a court—imposed timeline. See Elec. Privacy Info. Ctr. v. D0], 416 F. Supp. 2d at 38
(noting “relevant case law establishes that courts have the authority to impose concrete deadlines on
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