Donato v. EOUSA, No. 16-0632, 2018 WL 1801168 (D.D.C. Apr. 16, 2018) (Jackson, J.)

Donato v. EOUSA, No. 16-0632, 2018 WL 1801168 (D.D.C. Apr. 16, 2018) (Jackson, J.)

Re: Request for records concerning alleged plot by inmate to frame another inmate and staff member for conspiracy to commit murder

Disposition: Granting in part and denying in part defendants' motion for summary judgment

• Exemption 7(C), Glomar:  "[Plaintiff] has sought records about an investigation that the FBI has not previously acknowledged concerning private individuals whose interests could be harmed if the FBI confirms that it possesses records pertaining to any such investigation[,]" and, "[t]hus, [the] Court concludes that the FBI properly refused to confirm or deny the existence of records responsive to [plaintiff's] FOIA request."  "[The] Court readily concludes that all of the third parties mentioned in [plaintiff's] FOIA request have sufficient privacy interests at stake."  The court also finds that "[plaintiff] admits that the public's alleged interest [is] the misconduct of inmates and informants, who are private citizens, not government personnel."  Additionally, the court finds that "[plaintiff] . . . fails to provide any basis for his bald suggestion that the FBI, USAO, and BOP might have acted improperly."  Responding to plaintiff's argument, the court finds that "to prevail under the public domain doctrine, [plaintiff] must show that the FBI has acknowledged that it investigated [the third party's] alleged scheme, and thus would be likely to have records about that plot, and [plaintiff] has done nothing to demonstrate any such acknowledgement by the FBI."
   
• Fees and Fee Waivers, Fee Waivers:  "[The] Court agrees with EOUSA's determination that [plaintiff] has not made the requisite showing that he is entitled to a public interest fee waiver under the FOIA."  The court finds that plaintiff does "not [have] a sufficient means . . . to disseminate any of the requested records."  The court notes that [plaintiff] points to letters he sent to newspaper reporters with USA Today and the New York Post, who he believes would have an interest in publishing records regarding the alleged murder plot."  "However, [plaintiff] provides no evidence that either newspaper has responded to his correspondence, let alone expressed any interest in actually publishing any records [plaintiff] may forward."  "And [plaintiff] has not provided any details about the reach of the . . . website [on which he intends to publish information]; indeed, the sole detail that [plaintiff] has offered is a link to [the] purported website . . . yet as far as this Court can tell, the listed webpage either does not exist or is not actually publicly available."
  
  However, "[g]iven the uncertainty in the current record regarding whether or not EOUSA has properly responded to the records request that [plaintiff] actually submitted, by providing him with two hours of search time and up to 100 pages of records responsive to his request for documents related to [the third party's] alleged murder-conspiracy plot, this Court has no other option but to conclude that summary judgment is inappropriate at this juncture."
   
• Litigation Considerations, Vaughn Index/Declaration:  The court holds that, "[g]iven the clearly manifest deficiencies in the supporting statements that BOP has provided, Defendants have failed to establish that BOP is entitled to summary judgment."  The court finds that "each declaration is utterly silent as to the scope or method of the search that BOP staff conducted, nor do the declarants reveal the search terms used."  "Moreover, there is also no indication of the agency's reasons for believing that responsive records would likely be found in the places where it searched."  "The withholding justifications that BOP lays out in its declarations are similarly deficient."  "The declaration provides little, if any, explanation about 'what types of documents these pages belong to, who created the documents and for what purpose, and how the exemptions relate to the nature of the documents themselves.'"  "The statement also lacks any discussion of 'whether the "pages" are part of stand-alone, single-page documents, or comprise parts of various multi-page documents that Defendants identified as responsive to [plaintiff's] document request.'"