Petrucelli v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
JOHN A. PETRUCELLI, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-1780 (RBW)
)
U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. )
_________________________________________ )

MEMORANDUM OPINION

This matter is before the Court on the Plaintiff’s Motion for an Order to Produce Records

Withheld Pursuant to FOIA Exemption b(7)(C) and for a Vaughn Index of Withheld Records

[ECF No. 88], the Executive Office for United States Attorney’s Renewed Motion for Partial

Summary Judgment [ECF No. 93], and the Plaintiff’s Memorandum in Opposition to

Defendant’s Motion for Summary Judgment and Renewed Cross-Motion for Summary Judgment

[ECF No. 97]. For the reasons stated below, the Court will grant summary judgment for the

defendant.

I. BACKGROUND

The Court begins with a review of the two requests for information submitted by the

plaintiff to the Executive Office for United States Attorneys (“EOUSA”), a component of the

United States Department of Justice (“DOJ”), under the Freedom of Information Act (“FOIA”),

see 5 U.S.C. § 552 (2006).

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 Initially, 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 . . . 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.” 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 Luczynski (“First

Luczynski Decl.”), Exhibit (“Ex.”) A (Freedom of Information Act/Privacy Act Request dated

July 1, 2003) at 1. The request was denied in full by the EOUSA based on FOIA Exemptions 3,

5, 7(C), 7(D), and 7(F). First Luczynski Decl. ¶ 6.

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 [the plaintiff].
Id., Ex. F at 1. The plaintiff provided to the EOUSA the title and number of his criminal case,

and he agreed to pay any fees associated with the request. Id. The EOUSA staff located records

responsive to the request and released to the plaintiff forty pages of records in full and twelve

pages in part, and withheld two pages in full, relying on FOIA Exemptions 3, 7(C), 7(D), and

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7(F). Id. ¶ 10; see id., Ex. G (Letter to the plaintiff from Marie A. O’Rourke, Assistant Director,

Freedom of Information/Privacy Act Staff, EOUSA, dated December 29, 2004) at 1. 1

The Court previously found that the EOUSA conducted a reasonable search for

responsive records, see Petrucelli v. Dep’t of Justice, 51 F. Supp. 3d 142, 158 (D.D.C. June 27,

2014), that the plaintiff did not oppose the EOUSA’s reliance on FOIA Exemption 3, see id. at

160 n.8, and that the EOUSA properly withheld information under FOIA Exemption 5, see id. at

163. In addition, the Court concluded that the responsive records, all of which were maintained

by the United States Attorney’s Office for the Southern District of New York (“USAO/SDNY”)

in its Criminal Case File System (Justice/USA-007), had been compiled for law enforcement

purposes within the scope of FOIA Exemption 7. Id.

The EOUSA initially relied on FOIA Exemption 7(C) “to protect the identity of third-

party individuals, such as potential witnesses and law enforcement personnel[,]” First Luczynski

Decl. ¶ 26, on FOIA Exemption 7(D) “to protect individuals who provided information as

confidential sources during a criminal investigation,” id. ¶ 29, and on FOIA Exemption 7(F) “in

conjunction with other exemptions, particularly [FOIA Exemption 7](C),” based on its

assessment of “a reasonable likelihood that a threat of harm could be posed . . . should the

withheld material be released,” id. ¶ 33; see also Memorandum of Points and Authorities in

Support of Defendant’s Renewed Motion to Dismiss or, Alternatively, for Summary Judgment

[ECF No. 40], Declaration of David Luczynski (“Second Luczynski Decl.”) ¶¶ 27-37. The Court

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Based on records subsequently retrieved from the Federal Records Center, the EOUSA’s declarant states, “the
number of pages released in part (‘RIP’) did not match the number of pages RIP listed in the December 29, 2004
letter . . . .” Memorandum in Support of the Final Motion for Summary Judgment on Behalf of the Executive Office
for United States Attorneys (“EOUSA”), and in Response to Plaintiff’s Motion for Reconsideration of This Court’s
May 26, 2015, Decision [ECF No. 93], Declaration of David Luczynski (“Fourth Luczynski Decl.”) ¶ 13. “[T]he
file contains 17 pages classified as RIP,” and “[s]ince it is unclear from the file which pages were sent to the
plaintiff in 2004, EOUSA [provided the] plaintiff with all 17 pages RIP” on July 21, 2015. Id.; see id., Ex. J (Letter
to the plaintiff from Susan B. Gerson, Freedom of Information & Privacy Staff, EOUSA, dated July 21, 2015).

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was not totally persuaded, and denied the defendant’s second summary judgment motion in part

without prejudice. See Petrucelli, 51 F. Supp. 3d at 169 (concluding that EOUSA made

insufficient showing to assert Exemption 7(D)); id. at 172-73 (same conclusion as to Exemption

7(F)).

Subsequently, the EOUSA “concluded that it [was] unable to adequately support

Exemption 7(F) . . . [and] Exemption 7(D).” Memorandum of Points and Authorities in Support

of Defendant’s Renewed Motion for Summary Judgment [ECF No. 78-1] (“Def.’s Third Mem.”),

Declaration of David Luczynski (“Third Luczynski Decl.”) ¶ 6 n.2. As a result, the EOUSA

purportedly abandoned its reliance on FOIA Exemptions 7(D) and 7(F), see Def.’s Third Mem.

at 2-3, and instead claimed to rely only on FOIA Exemption 7(C), see id. at 3, with respect to

any of the same information. Nevertheless, the EOUSA’s declaration described at length the

withholding of information under FOIA Exemption 7(D), see Third Luczynski Decl. ¶¶ 30-34, as

well as the applicability of FOIA Exemption 7(C), see id. ¶¶ 27-29. The Court then found that

the EOUSA again had failed to justify its decision to withhold information under FOIA

Exemptions 7(D) and 7(F), and also 7(C); the Court therefore denied the defendant’s third

summary judgment motion in part without prejudice. See Petrucelli v. Dep’t of Justice, __ F.

Supp. 3d __, __, 2015 WL 3372345, at *6 (D.D.C. May 26, 2015).

The EOUSA finally has settled on FOIA Exemption 7(C) alone and has provided a

Vaughn Index describing the withheld information. See Memorandum in Support of the Final

Motion for Summary Judgment on Behalf of the Executive Office for United States Attorneys

(“EOUSA”), and in Response to Plaintiff’s Motion for Reconsideration of This Court’s May 26,

2015, Decision [ECF No. 93], Declaration of David Luczynski (“Fourth Luczynski Decl.”) ¶¶

16-23; id., Ex. K. The plaintiff has submitted copies of the fifteen pages of records at issue. See

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Plaintiff John Petrucelli’s Reply to Defendant’s Opposition to Plaintiff’s Cross Motion for

Summary Judgment [ECF No. 101] (“Pl.’s Reply”), Ex. A.

II. DISCUSSION

A. Summary Judgment Standard

“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) (citations

omitted). 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 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) (quoting

Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)), 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

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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)).

B. Exemption 7(C)

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). For example, 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 Exemption 7(C) applies to particular information, the Court must

balance the privacy interest 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, 763-66 (1989); cf. Sherman v. U.S. Dep’t of the Army, 244

F.3d 357, 364 (5th Cir. 2001) (holding “that only the individual whose informational privacy

interests are protected by exemption 6 can effect a waiver of those privacy interests when they

are threatened by an FOIA request”). 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

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an individual’s privacy interest, and the public interest must be significant. See Nat’l Archives &

Records Admin. v. Favish, 541 U.S. 157, 172 (2004).

At issue are fifteen pages of records (fourteen documents) described as correspondence

between the plaintiff’s defense counsel and the attorneys who prosecuted the plaintiff’s criminal

case. See generally Fourth Luczynski Decl., Ex. K (Doc. # 2-16). 2 From these documents the

EOUSA withholds “the names of DOJ employees who were responsible for investigating and

prosecuting the plaintiff,” Fourth Luczynski Decl. ¶ 20, and “the names and phone numbers for

local and state law enforcement employees,” id. ¶ 22. For example, the EOUSA redacts “the

name of a special agent involved in the case,” id., Ex. K (Doc. #13), and the name of an FBI

agent, id., Ex. K (Doc. #14). According to the declarant, “[d]isclosure of their names could

subject them to unauthorized inquiries by members of the media and the general public who seek

access to information regarding the inner workings of DOJ and its law enforcement, investigative

and prosecutorial functions.” Id. ¶ 20. Further, the declarant states, “release of these DOJ

employees’ names could subject them to threats and intimidation,” id., while failing “to

demonstrate how the DOJ performs its statutory duties in prosecuting individuals such as [the]

plaintiff for various federal and state/local criminal activities,” id. ¶ 21. The declarant applies

this same rationale with respect to state and local law enforcement personnel, asserting that

disclosure of their identities “could subject [them] to unauthorized inquires and harassment

which could constitute an unwarranted invasion of their personal privacy.” Id. ¶ 22.

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The EOUSA withheld in full a two-page document described as “a computer printout labelled ‘Finest Message
Switching System’ from NYSpin Response Screen.” Fourth Luczynski Decl., Ex. K (Doc. #1). The plaintiff opted
to “forgo his rights to the mysterious ‘NYSpin Response Screen’ document.” Plaintiff’s Memorandum in
Opposition to Defendant’s Motion for Summary Judgment and Renewed Cross-Motion for Summary Judgment
[ECF No. 96] at 3 n.2.

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 In addition, the EOUSA withholds “the names [of] and identifying information

concerning third parties in contact with the DOJ or other law enforcement agencies for

investigative purposes.” Id. ¶ 23. For example, the EOUSA redacts the name of a government

witness from a letter dated September 20, 2002 “addressed to [the] plaintiff’s attorney at the

time, explaining how the government intend[ed] to prove that the plaintiff is a member of La

Casa Nostra[.]” Id., Ex. K (Doc. #2). And it has withheld the names of and costs associated

with “protecting and relocating third parties,” id., Ex. K (Doc. #5), the name of a third party who

described an item furnished in discovery, id., Ex. K (Doc. #12), and the names of other third

parties and witnesses, see id., Ex. K (Docs. #9, 14-16). The declarant asserts that “[r]elease of

the identities of these third parties would not only constitute an unwarranted invasion of their

personal privacy, but [also] could subject [them] to harassment, embarrassment, intimidation, or

result in undue public attention.” Id. ¶ 23. Finally, the declarant represents that the EOUSA

cannot identify any public interest that outweighs the third parties’ privacy interest. See id. ¶¶

21-23.

The plaintiff deems “[t]he [d]efendant’s 4th Motion for Summary Judgment . . . just as

inadequate as its 3rd.” Plaintiff’s Memorandum in Opposition to Defendant’s Motion for

Summary Judgment and Renewed Cross-Motion for Summary Judgment [ECF No. 97] (“Pl.’s

Opp’n”) at 3. In his view, the EOUSA “has refiled what is essentially the same motion,” id. at 4,

with a declaration containing “no new information that would justify the application of

Exemption (b)(7)(C), which is the reason the Court denied the . . . previous . . . motion,” id. at 5.

Furthermore, the plaintiff asserts, the defendant’s “parade of horribles, no matter how vague,

cannot assert a plausible threat of harm to anyone when all but one[] of the records at issue are

letters written to the [p]laintiff’s own attorneys.” Id. at 3. And he opines that these letters

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“would not have been privileged because they were between opposing counsel.” Id. at 5 n.3.

The plaintiff believes that the criminal case “was based entirely on the testimony of cooperating

witnesses, and any discussion of witnesses . . . would be of great interest to him, in determining

whether his attorneys ever compromised his position in a way that benefitted his co-defendants.”

Id. Moreover, he claims, “[t]he [d]efendant cites no authority to justify the withholding of the

[p]laintiff’s own attorneys’ names, let alone [the] witness[es’] names.” Pl.’s Reply at 1-2.

“[Exemption 7(C)] recognizes the stigma potentially associated with law enforcement

investigations and affords broader privacy rights to suspects, witnesses, and investigators.” Bast

v. DOJ, 665 F.2d 1251, 1254 (D.C. Cir. 1981) (citation omitted). As noted already, the privacy

interest at issue belongs to the individual. See generally Reporters Comm., 489 U.S. at 763-66.

That interest can be waived, see Comput. Prof’ls for Soc. Responsibility v. U.S. Secret Serv., 72

F.3d 897, 904 (D.C. Cir. 1996), but only by the individual whose interest is affected, see Milton

v. U.S. Dep’t of Justice, 596 F. Supp. 2d 63, 66 (D.D.C. 2009) (citing Reporters Committee, 489

U.S. at 776) (additional citation omitted); cf. Sussman v. U.S. Marshals Serv., 494 F. 3d 106,

1115-16 (D.C. Cir. 2007) (discussing a subject’s waiver of his own privacy interest under the

FOIA and noting that his “waiver has no effect on the privacy interests of others”). Considering

an individual’s “strong interest in not being associated unwarrantedly with alleged criminal

activity,” Stern v. FBI, 737 F.2d 84, 91-92 (D.C. Cir. 1984), a government agency is not at

liberty to disclose the name of or identifying information about an individual referenced in law

enforcement records, even if the requester already knows, or is able to guess, the individual’s

identity, see Weisberg v. DOJ, 745 F.2d 1476, 1491 (D.C. Cir. 1984). Here, the individuals

identified in the correspondence have a legitimate privacy interest, and neither the EOUSA nor

the plaintiff identifies a public interest of any kind, let alone a public interest of such magnitude

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that it outweighs the individuals’ privacy interest. The EOUSA has therefore adequately

demonstrated the propriety of its reliance on FOIA Exemption 7(C).

C. Segregability

If a record contains some information that is exempt from disclosure, any reasonably

segregable information not exempt from disclosure must be released after deleting the exempt

portions, unless the non-exempt portions are inextricably intertwined with exempt portions. 5

U.S.C. § 552(b); see Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022,

1026-27 (D.C. Cir. 1999) (citation omitted). The Court errs if it “simply approve[s] the

withholding of an entire document without entering a finding on segregability, or the lack

thereof.” Powell v. U.S. Bureau of Prisons, 927 F.2d 1239, 1242 n.4 (D.C. Cir. 1991) (quoting

Church of Scientology of Cal. v. U.S. Dep’t of the Army, 611 F.2d 738, 744 (9th Cir. 1979)).

On review of all of the defendant’s supporting declarations and the EOUSA’s Vaughn

Index, the Court concludes that the defendant has adequately specified “which portions of the

document[s] are disclosable and which are . . . exempt.” Vaughn v. Rosen, 484 F.2d 820, 827

(D.C. Cir. 1973).

III. CONCLUSION

The EOUSA has established that it properly withheld information under FOIA

Exemption 7(C). The Executive Office for United States Attorney’s Renewed Motion for Partial

Summary Judgment therefore will be granted. On the other hand, the Plaintiff’s Motion for an

Order to Produce Records Withheld Pursuant to FOIA Exemption b(7)(C) and for a Vaughn

Index of Withheld Records and the Plaintiff’s Memorandum in Opposition to Defendant’s

Motion for Summary Judgment and Renewed Cross-Motion for Summary Judgment will be

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denied. All of the issues in this case having now been decided, a final Order will be issued

separately.

DATE: January 27, 2016 /s/
REGGIE B. WALTON
United States District Judge

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