The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge
This action, brought under the Freedom of Information Act
("FOIA"), 5 U.S.C. § 552, is before the Court on defendants'
third motion for partial summary judgment. The motion is brought
on behalf of the Bureau of Alcohol, Tobacco, Firearms and
Explosives ("ATFE"), and the Bureau of Prisons ("BOP"). Upon
consideration of the parties' submissions and the relevant
portions of the record, the Court will grant in part and deny in
part defendants' motion with respect to these
The following facts are taken from defendants' Third Statement
of Material Facts Not in Genuine Dispute and supporting
declarations, the Complaint, and Plaintiff's Response to
Defendant's Second Partial Motion for Summary Judgment ("Pltf.'s
Opp.") and supporting exhibits.
By letter dated November 5, 2001, plaintiff requested ATFE
records pertaining to him created since January 1, 1996. ATFE informed plaintiff by letter
of January 7, 2002, that a search of its Criminal Record System
identified records created in 1977 that were destroyed pursuant
to the National Archives and Records Administration Record
Retention Guidelines. ATFE invited plaintiff to provide
additional information that may assist it in locating post-1996
records. Deft's Facts ¶ 2. In an appeal letter dated July 4,
2002, plaintiff attached "an ATF Receipt for Property provided to
a Ms. Nancy Antonelli in connection with an investigation titled:
Alsip Bombing Investigation." Id. ¶ 7. This led to ATFE's
"discovery of responsive material." Id. ¶ 8. By letter dated
July 15, 2002, plaintiff was informed about the material and
"further advised that to achieve maximum access to the records a
notarized authorization from his ex-wife would be beneficial;
otherwise, the Disclosure Division would process the request as a
thirty-party request." Id. By letter dated August 2, 2002,
plaintiff "indicated that he was attempting to secure a notarized
authorization from his ex-wife but in the interim" informed ATFE
to proceed as a third-party request. Id. ¶ 9. By letter dated
August 21, 2002, ATFE informed plaintiff that it was awaiting the
notarization before processing, but, on September 5, 2002, it
received a letter from plaintiff dated August 28, 2002, advising
it to proceed without his ex-wife's authorization, Id. ¶¶
10-11. By letter dated September 11, 2002, ATFE denied
plaintiff's third-party request under the Privacy Act,
5 U.S.C. § 552a, and FOIA exemption 7(C) by neither confirming nor denying
the existence of such records. Id. ¶ 12.
On administrative appeal, plaintiff asserted that "he was
seeking the file `Alsip Bombing Investigation' and that his
ex-wife's involvement with the investigation was only
tangential." Id. ¶ 13. ATFE reversed its denial decision and
conducted a search for records "connected to Investigation Number
772045-01-0018 (Alsip Bombing Investigation)." Id. ¶ 14. It
located responsive records but denied plaintiff's request under FOIA
exemption 7(A). Id. By letter dated October 1, 2002, plaintiff
provided ATFE with Nancy Antonelli's notarized authorization for
release of records and requested records pertaining to her. Id.
¶ 15. By letter dated October 10, 2002, ATFE informed plaintiff
that it located no responsive records and advised him about his
appeal rights. Plaintiff appealed the determination by letter
dated October 17, 2002. Id. ¶ 16-17.
On June 20, 2002, plaintiff requested ATFE records pertaining
to himself. By letter dated August 1, 2002, ATFE informed
plaintiff that a search "revealed that the records he requested
were destroyed in 1999 in accordance with the Bureau's general
record schedule." Id. ¶ 20. Plaintiff unsuccessfully appealed
the decision. Id. ¶¶ 21-23.
On November 30, 2002, plaintiff requested ATFE records
pertaining to James Valona, who had provided a Privacy Act
waiver. By letter dated December 21, 2002, ATFE informed
plaintiff that it located no responsive records. In his appeal
letter dated January 22, 2003, plaintiff suggested that records
pertaining to Valona may be contained in his criminal
investigative file. Id. ¶ 26. By letter dated January 27, 2003,
ATFE informed plaintiff that it did not search plaintiff's
criminal investigative file because "that file was previously
requested by plaintiff and denied. . . . Furthermore, an
Assistant United States Attorney had advised ATF that the
investigation related to that file was still open." Id. ¶ 27.
Plaintiff unsuccessfully appealed this determination. Id. ¶¶
28-30. Similar events unfolded as to plaintiff's requests for
records about Robert Bily, ¶¶ 31-37, Nicholas Bernth, ¶¶ 38-42,
Ronald Antonelli, ¶¶ 43-47, Susan Marie Antonelli, ¶¶ 58-62,
Nicholas Michael Cronin, ¶¶ 63-67, Jason Cronin, ¶¶ 68-72, and
Michael Anthony Cronin, ¶¶ 73-77. In Count 7 of the complaint, plaintiff alleges that by letter
of December 7, 2002, he requested records pertaining to Frederick
Miller. In Count 8, plaintiff alleges that by letter dated
December 6, 2002, he requested records pertaining to Patrick
Gerard Cronin. In each instance, plaintiff alleges that he
appealed "the no records response." Complaint at 7. In response
to this lawsuit filed on July 14, 2004, ATFE conducted a search
for plaintiff's FOIA requests made during the past five years. It
located no requests or appeals for Miller or Cronin records.
Deft.'s Facts ¶¶ 48-51.
By letter dated April 15, 2003, plaintiff requested ATFE
records pertaining to Edward Omar Spearman. By letter dated May
12, 2003, ATFE informed plaintiff that it had located responsive
records but was withholding them under FOIA exemption 7(A). Id.
¶ 53. Plaintiff unsuccessfully appealed the determination. Id.
¶¶ 54-56. During the course of this litigation, ATFE determined
that it could now "release ? the first 100 pages provided to
plaintiff in a separate FOIA response [and that] plaintiff should
be receiving the first 100 pages soon with instruction on how to
receive the additional 7,328 responsive pages once ATF receives
the associated copying fee of $732.80." Id. ¶ 57.
On July 31, 2002, the Executive Office for United States
Attorneys ("EOUSA") referred 25 pages of documents to BOP for
processing and a direct response to plaintiff. BOP assigned the
referral Request No. 2002-08514. By letter dated September 10,
2002, BOP released 20 pages in their entirety and withheld five
pages in their entirety under FOIA exemptions 5 and 7(C). Id. ¶
82. On March 17, 2003, the FBI referred five documents to BOP for
processing and direct response to plaintiff. BOP assigned the
referral Request No. 2003-04556. By letter dated June 12, 2003, BOP released 23 pages, withholding information
from seven pages under exemptions 7(C), 7(E) and 7(F). BOP
withheld seven pages and plaintiff's presentence investigation
report in their entirety under exemption 7(F). Deft's Facts ¶ 85.
On January 8, 2002, plaintiff requested BOP records pertaining
to him "since he `first came into federal custody on September
15, 1978, to this instant date.'" Id. ¶ 86. Upon reviewing his
inmate file and narrowing his request, plaintiff received 134
pages from his "Central File and Judgement[sic] and Commitment
file." Id. ¶ 94. Following an appeal, plaintiff was provided
his mental health records on July 11, 2002. Id. ¶ 100.
On December 10, 2002, plaintiff requested from BOP taped
telephone conversations made to two telephone numbers between
October 16, 2001 and July 15, 2002, from the Metropolitan
Correctional Center in Chicago. A search yielded 74 phone calls.
By letter of January 24, 2003, BOP informed plaintiff about an
estimated processing fee of $392 that he was required to pay in
advance of its processing the request. Id. ¶ 104. Plaintiff was
informed that otherwise he could modify his request to reduce the
estimated fee. Id. BOP told plaintiff that it "would hold in
abeyance any further action on this request until it had received
his response." Id. BOP "records indicate [that] ...