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ANTONELLI v. BUREAU OF ALCOHOL

August 16, 2005.

Michael C. Antonelli, Plaintiff,
v.
Bureau of Alcohol, Tobacco, Firearms & Explosives, et al., Defendants.



The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge

MEMORANDUM OPINION

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 components.*fn1

I. FACTUAL BACKGROUND

  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.

  1. ATFE Records

  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.

  2. BOP Records

  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] ...


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