Petrucelli v. DOJ, No. 11-1780, 2014 WL 2919285 (D.D.C. June 27, 2014) (Walton, J.)

Petrucelli v. DOJ, No. 11-1780, 2014 WL 2919285 (D.D.C. June 27, 2014) (Walton, J.)

Re: Request for records concerning plaintiff's arrest and eligibility for death penalty

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Procedural Considerations:  The court holds that it "will . . . grant [BOP's] motion for summary judgment in part as conceded."  The court notes that plaintiff "does not challenge the BOP's compliance with its actual obligations under the FOIA and instead purports to impose another."  The court relates that plaintiff "now demands duplicate copies of all BOP records because they 'were taken from him by the [BOP] and never returned.'"  The court finds that "[t]he FOIA does not require an agency to replace copies of records previously released to a requester who subsequently loses them."
   
• Procedural Considerations, Searching for Responsive Records:  The court holds that defendants' searches were adequate.  First, the court finds that EOUSA "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.'"  The court also finds that "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."  Second, the court finds "that the searches conducted by the FBI were reasonable under the circumstances of this case."  The court explains that "[t]he declarant explains that the [Central Records System] 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.'"  Additionally, the court finds that "[t]he 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."
   
• Exemption 5, Deliberative Process Privilege, Attorney Work-Product:  The court upholds defendants' use of Exemption 5.  The court relates that "[t]he 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.'"  The court states that "EOUSA relies on both the deliberative process privilege and the attorney work product privilege . . . 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.'"  The court relates that EOUSA's "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 asset forfeiture decisions [and] possible strategies as they relate to the case.'"
   
• Litigation Considerations, Vaughn Index / Declaration:  The court rejects plaintiff's argument to the contrary and holds that "[s]o 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,' . . . a separate Vaughn index is not required."
   
• Exemption 7, Threshold:  The court notes that "[t]he 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."
   
• Exemption 7(C):  The court first "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" and "EOUSA and the FBI therefore properly withhold this information under FOIA Exemption 7(C)."  The court also finds that "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," "[a]nd these third parties maintain an interest in their personal privacy even if the plaintiff already knows, or is able to guess, their identities."
   
• Exemption 7(D), Express Confidentiality:  The court addresses express assurances of confidentiality and holds that "the FBI makes the necessary showing; however, the EOUSA does not."  The court explains that "[the FBI] explains that 'the words 'PROTECT IDENTITY' [appear] when [each] individual's name is referenced in the file,' which is 'a positive indication of an express assurance of confidentiality'" and the court finds that "[t]he FBI has therefore presented 'probative evidence that the source[s] did in fact receive ... express grant[s] of confidentiality,' . . . and that its decision to withhold information under FOIA Exemption 7(D) is proper."  However, the court finds that EOUSA "merely makes a 'bald assertion that express assurances were given,' proffering 'little more than recitation of the statutory standard, which [the D.C. Circuit has] held is insufficient.'"
   
• Exemption 7(D), Implied Confidentiality:  The court addresses implied assurances of confidentiality and finds that "[t]he FBI has . . . 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 court explains that "[t]he 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,' . . . without having explained adequately the connection between the plaintiff's criminal activities and the protected informant or informants and the nature of the information provided."  However, the court finds that "[u]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."
   
• Exemption 7(D), Waiver of Confidentiality:  The court rejects plaintiff's claim that Exemption 7(D) has been waived and holds that "'once an informant's confidentiality has been established, almost nothing can eviscerate Exemption 7(D) protection.'"  The court explains that "[t]he 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.'"  The court states that "[u]ltimately, 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.'"
   
• Exemption 7(E):  The court finds that"[w]hile the FBI's position may have merit, its showing is deficient due to its 'near verbatim recitation of the statutory standard.'"  The court holds that "[f]rom what 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."
   
• Exemption 7(F):  Concerning the FBI, the court notes that "[t]he 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 [) ].'"  The court finds that "[t]his 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."  Concerning EOUSA, the court finds that it "cannot determine based on the existing record whether the EOUSA's reliance on FOIA Exemption 7(F) is proper."  The court explains that "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,' . . . but he does not clarify whether the case he is referring to is the plaintiff's case or the case of another suspect or criminal defendant."  "And even if '[m]any ... documents consist of reports of interviews of victims of crimes committed by [the plaintiff], his co-conspirators, and coracketeers' and include 'information about the victims' relatives,' . . . 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) ].'"