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HARVEY v. U.S. DOJ

August 21, 1990

JERRY LEE HARVEY, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, et al., Defendants


Stanley Sporkin, United States District Judge.


The opinion of the court was delivered by: SPORKIN

STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE

 Plaintiff, proceeding pro se, was incarcerated at a federal correctional facility in Milan, Michigan at the time this action was commenced. He brings this action pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (1977 & Supp. I 1990) [hereinafter "FOIA"], and the Privacy Act, 5 U.S.C. § 552a (1977 & Supp. I 1990) [hereinafter "PA"], seeking documents allegedly held by defendants the Department of Justice ("DOJ"), the United States Attorney's Offices ["USAO"] for the Southern District of Florida and the Eastern District of Missouri, *fn1" the United States Parole Commission ["Parole Commission"], the Executive Office of the United States Attorney ["EOUSA"] and the United States Bureau of Prisons ["BOP"]. Plaintiff also seeks attorney's and researcher's fees, and costs. This matter is before the Court on the parties' cross-motions for summary judgment pursuant to Fed. R. Civ. P. 56. *fn2"

 Plaintiff submits exhibits in support of his motion. *fn3" Defendants Parole Commission, BOP, and the EOUSA submit affidavits and exhibits in support of their motions.

 I. FACTUAL BACKGROUND

 Plaintiff brings a seven count complaint which alleges that each of the defendants failed to comply with his requests for information pursuant to the FOIA and the PA.

 A. FOIA/PA Requests to the Department of Justice

 In a letter dated December 26, 1987, plaintiff made a request to the DOJ for a copy of his pre-sentence investigation report. Complaint para. 5; Plaintiff's Exhibit ["Pl. Ex."] pp. 1-3 to his Motion for Partial Summary Judgment. The DOJ allegedly responded that there would be a delay in processing his request due to a backlog created by similar requests. Complaint para. 6.

 The DOJ subsequently forwarded plaintiff's request for his pre-sentence investigation report to the Parole Commission *fn4" (Pl. Ex. p. 21) which in turn forwarded the request to its North Central Regional Office ["Regional Office"] in Kansas City, Missouri. This Regional Office processes "first party" disclosure requests from persons within the jurisdiction where plaintiff Harvey was then an inmate (the federal correctional facility in Milan, Michigan). The Regional Office informed plaintiff that it lacked a parole file on him and that one would not be established until after his initial parole hearing. United States Parole Commission Exhibit ["USPC Ex."] 3 (attachment to USPC Motion).

 B. FOIA/PA Requests to the United States Parole Commission

 Plaintiff submitted undated letters to defendant Parole Commission which requested "any and all information in connection to his name." McLeod Dec. para. 6, 7. These requests were forwarded to the Regional Office which advised plaintiff that no records existed which pertained to him. Id., USPC Ex. 5, 7. The Regional Office informed plaintiff that the Parole Commission lacked a parole file on him and that one would not be established until approximately two weeks after his initial parole hearing. USPC Motion at 1-2, USPC Ex. 5, 7.

 Plaintiff's initial parole hearing was scheduled for July, 1988. During this parole hearing the parties determined that further information was needed. Therefore, the hearing was postponed to complete the record. Subsequent to filing this action, plaintiff requested a copy of the audio tape of the above referenced hearing. USPC Ex. 8. Plaintiff asked that the tape be sent to his attorney, James McMasters, in Coral Gables, Florida. McLeod Dec. para. 8. A parole file was established for plaintiff at about this time. Id. In a letter dated August 30, 1988, Michael Antonelli, a paralegal, submitted a second request on plaintiff's behalf for "all documents" in plaintiff's file. Id. P 10, USPC Ex. 10.

 On December 12, 1988, the Parole Commission released seventy-four pages of documents and a copy of the audio tape of plaintiff's partial parole hearing. Id. P 13, USPC Ex. 13. The Parole Commission asserts that this material is all that was contained in plaintiff's parole file at that time.

 On March 22, 1989, the Parole Commission advised plaintiff that it received 967 pages of documents from Assistant U.S. Attorney Michael Fagan. McLeod Dec. para. 16. The Parole Commission informed plaintiff that if he wanted copies of this new material under the FOIA/PA, he would have to submit payment in the amount of $ 86.70 to cover reproduction costs. Plaintiff then requested "a copy of everything you have in the regional file, except the newly arrived 967 pages from Fagan[.]" USPC Ex. 19. The Parole Commission processed this request and released an additional seventy-seven pages but excluded the 967 pages as instructed by plaintiff. *fn5" McLeod Dec. para. 18, USPC Ex. 20.

 In sum, defendant Parole Commission submits that it released all of the material responsive to plaintiff's requests that existed in his parole file as of December 1988, including a second audio tape and seventy-seven additional pages in response to new requests. USPC Motion at 1, McLeod Dec. para. 20.

 C. FOIA/PA Requests to the United States Attorney's Offices and to the Executive Offices for United States Attorneys

 The EOUSA accepted the responsibility to respond to plaintiff's requests for information from the United States Attorney's Offices for the Southern District of Florida and the Eastern District of Missouri. Plaintiff then received a letter from the EOUSA dated May 19, 1988, which advised him that his request would be handled as soon as possible. Complaint para. 19; Pl. Ex. p. 15.

 1. Request to the USAO for the E.D. of Missouri

 On September 16, 1988, the EOUSA informed plaintiff that a search undertaken in the USAO for the Eastern District of Missouri revealed that he was the subject of a pending law enforcement proceeding. Wright Dec. para. 10(a), EOUSA Ex. F. The EOUSA withheld the six boxes of records relying on FOIA exemption (b)(7)(A), 5 U.S.C. § 552(b)(7)(A). Wright Dec. para. 10(a), EOUSA Ex. F. The EOUSA asserts that these records pertained to plaintiff's impending trial and that; plaintiff received most of this material during pre-trial discovery; he had access to all of the transcripts relevant to the proceedings; and, that as a result of his impending trial, segregation of the records could not be done at the same time as trial preparation. Wright Dec. para. 10(a). Plaintiff was also advised that a disclosure determination would be made on these records upon completion of his pending criminal trial. Id. Although this criminal case is closed, plaintiff is in the process of appealing his conviction. Id. P 36. The EOUSA asserts that it will make a disclosure determination on the six boxes of documents upon receipt of copying fees currently owed by plaintiff. Id.

 2. Request to the USAO for the S.D. of Florida

 On September 16, 1988, the EOUSA informed plaintiff that a search in the USAO for the Southern District of Florida revealed eight cases, criminal and civil, responsive to plaintiff's request. Id. P 10(b), EOUSA Ex. F. Plaintiff was advised that two case files which could not be located would be processed upon their discovery, and that records of a civil case pending against plaintiff were not provided to avoid charging fees for material he may already possess, and to prevent duplication of material of which he could gain access from the Clerk of the Court. Wright Dec. para. 10(b)(1)-(2). Plaintiff was also advised that the remaining five case files consisted of 397 pages of USAO documents which were accorded the following treatment: 182 pages were entirely withheld pursuant to FOIA exemptions, 5 U.S.C. § 552(b)(5) & (7)(D); three pages were partially excised pursuant to another FOIA exemption, 5 U.S.C. § 552(b)(7)(C); and 212 pages were released in their entirety to plaintiff. Id. P 10(b)(3), EOUSA Ex. F. Grand jury records located in one of the five cases were withheld pursuant to 5 ...


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