United States District Court, D. Columbia
August 16, 2005.
Michael C. Antonelli, Plaintiff,
Bureau of Alcohol, Tobacco, Firearms & Explosives, et al., Defendants.
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
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] plaintiff has
made no attempts to narrow his scope nor has he provided advance
payment as required." Id. ¶ 105. Plaintiff unsuccessfully
appealed the fee calculation. Id. ¶¶ 106-07.
On February 5, 2004, plaintiff requested "all records, within
the entire Bureau of Prisons that is in any way connected to,
related to, or even remotely referenced to Nancy Antonelli."
Id. ¶ 108. He specifically requested searches of his central
and investigative files at certain facilities. Id. BOP assigned
this Request No. 2003-04107. Plaintiff was informed that he could
arrange to review the non-exempt portions of his central file, but that his
request for investigative records about Nancy Antonelli was
considered "overly broad." Id. ¶ 109. He was told "to provide
additional information such as the location of the investigation,
the date of the subject matter of the incident being
investigated, or other information to assist staff in locating
responsive documents." Id. As to the non-exempt information in
his central file, plaintiff was informed by letter of April 29,
2004, that 34 pages of responsive records were located.
Eventually, BOP released 31 pages in their entirety and two pages
with redactions pursuant to FOIA exemption 7(C). BOP withheld one
page in its entirety under FOIA exemption 5. Id. ¶ 115.
On March 10, 2004, plaintiff requested a letter from BOP to
Chief Judge Charles Kocoras. BOP released an unsigned copy of the
letter in its entirety by letter dated March 30, 2004. Id. ¶
II. STANDARD OF REVIEW
Summary judgment is appropriate when there is "no genuine issue
as to any material fact and ? the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c). The FOIA
requires a federal agency to release all records responsive to a
request except those protected from disclosure by one or more of
nine enumerated exemptions. See 5 U.S.C. § 552(b). This Court
has jurisdiction under the FOIA "to enjoin [a federal] agency
from withholding agency records or to order the production of any
agency records improperly withheld from the complainant."
5 U.S.C. § 552(a)(4)(B); see Kissinger v. Reporters Comm. for
Freedom of the Press, 445 U.S. 136, 139 (1980). The Court may
award summary judgment in a FOIA case solely on the information
provided in affidavits or declarations when the affidavits or
declarations describe "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 nor by evidence of agency bad
faith." Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826
(D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).
1. ATFE Records
Plaintiff's claims arising from his requests for ATFE records
are set forth in Counts 1 through 13 of the complaint. Count 1
concerns plaintiff's request for records about him "that the ATF
has or had in its possession since January 1, 1996 that is in any
way connected to, related to, or even remotely in reference to
his name." Complaint at 3. Defendants withheld responsive records
pertaining to the "Alsip Bombing Investigation" in their entirety
under FOIA exemption 7(A).
FOIA Exemption 7 protects from disclosure "records or
information compiled for law enforcement purposes, but only to
the extent that the production of such records or information"
would cause one of six enumerated harms. 5 U.S.C. § 552(b)
(7)(A)-(F). An agency must prove that the withheld records were
compiled for law enforcement purposes "before [withholding]
requested documents on the basis of any of [that exemption's]
subparts." Pratt v. Webster, 673 F.2d 408, 416 (D.C. Cir.
1982). Under exemption 7(A), the agency may withhold from
disclosure "records or information compiled for law enforcement
purposes, but only to the extent that the production . . . could
reasonably be expected to interfere with enforcement
proceedings." 5 U.S.C. § 552(b)(7)(A).
The withheld records were compiled during the course of an
investigation by a local police department, with ATFE assistance,
of the bombing of a residence in Alsip, Illinois, in April 2001. Declaration of Averill P. Graham ("Graham Decl.") ¶
83.*fn2 They therefore satisfy the threshold requirement of
having been compiled for law enforcement purposes. Exemption 7(A)
requires a demonstration that "disclosure (1) could reasonably be
expected to interfere with (2) enforcement proceedings that are
(3) pending or reasonably anticipated." Mapother v. Department
of Justice, 3 F.3d 1533, 1540 (D.C. Cir. 1993). "Reasonably
anticipated" means a "concrete prospective law enforcement
proceeding." See Bevis v. Department of State, 801 F.2d 1386,
1389 (D.C. Cir. 1986) (quoting Carson v. United States
Department of Justice, 631 F.2d 1008, 1018 (D.C. Cir. 1980)).
According to Mr. Graham, the withheld records consist of
"`investigative notes' prepared by ATF during the course of the
[ongoing] investigation and include accompanying documents. . . .
Any release of the information . . . could reasonably be expected
to interfere with prospective enforcement proceedings." Graham
Decl. ¶¶ 84, 92. The records "describe what has transpired in an
investigation during a particular reporting period along with
detailed plans for future investigative activity." Id. ¶ 85.
They include witness statements, property transmittal reports,
incident reports and the like that if disclosed prematurely
could, among other harms, "endanger" witnesses, "discourage
future witnesses from cooperating with ATF," and "reveal
investigative techniques and the scope, limits, and direction of
the investigation." Id. ¶¶ 86-91. Plaintiff does not dispute
defendants' invocation of exemption 7(A) and therefore has failed
to present a genuine issue of material fact concerning
defendants' otherwise proper justification for the withholdings.
The Court will grant defendants' motion with respect to Count 1. Counts 2-6 and 10-13 arise from defendants' failure to locate
records responsive to plaintiff's requests for first-party
records at an ATFE field office (Count 2) and third-party records
(remaining counts). When, as here, an agency's search for
documents is questioned, "the issue to be resolved is not whether
there might exist any other documents possibly responsive to the
request, but rather whether the search for those documents was
adequate." Weisberg v. United States Department of Justice,
745 F.2d 1476, 1485 (D.C. Cir. 1984). The agency prevails on a motion
for summary judgment only where it shows "beyond material doubt
? that it has conducted a search reasonably calculated to
uncover all relevant documents." Weisberg v. United States
Department of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). For
purposes of this showing, the agency "may rely upon affidavits
. . ., as long as they are relatively detailed and nonconclusory
and . . . submitted in good faith." Id. (citations and
quotations omitted). The required level of detail "set[s] forth
the search terms and the type of search performed, and aver[s]
that all files likely to contain responsive materials (if such
records exist) were searched. . . ." Oglesby v. United States
Department of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990);
accord Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326
(D.C. Cir. 1999).
Mr. Graham avers that ATFE "executed an independent and
thorough search for all responsive materials responsive to ?
each of Plaintiff's FOIA requests. . . . all indices and file
systems, including TECS, that would contain information
pertaining to Mr. Antonelli's requests were reasonably searched."
Graham Decl. ¶ 93. The Court is satisfied from Mr. Graham's
description of ATFE's filing systems and the manner of the
searches that ATFE conducted searches reasonably calculated to
locate responsive records. See Graham Decl. ¶¶ 94-109; 112-119.
Moreover, plaintiff has not credibly refuted defendants'
declaration with respect to the first-party records sought under Count 2 stating that the investigative file
containing responsive records "dated back to [the] mid-1970's"
and was destroyed in January 1999 "in accordance with ATF's
Record Retention Schedule." Id. ¶ 11. Absent any evidence of
agency bad faith, the Court will grant defendants' motion with
respect to Counts 2-6 and 10-13.
In Count 7 of the complaint, plaintiff alleges that by letter
dated December 7, 2002, he requested records pertaining to
Frederick Miller who had provided a written authorization for the
release of his records. Complaint at 7. Plaintiff alleges that
ATFE located no responsive records and denied his appeal of that
determination. Id. Plaintiff makes the same allegations in
Count 8 with respect to a request dated December 6, 2002 for
records about Patrick Gerard Cronin. Id. at 7-8. Defendants
aver that in response to this lawsuit, "ATF's Disclosure Division
retrieved for litigation purposes all FOIA requests made by
Plaintiff over the last 5 years. A complete and thorough search
of the Disclosure Division's database, which captures all FOIA
requests received by the Bureau, resulted in no records found
[regarding a request for Miller's records]." Graham Decl. ¶ 51.
Moreover, "a search of OIP's appeal log reveals no existence of
an appeal as to Mr. Miller's records." Id. ¶ 52. Mr. Graham
avers the same about plaintiff's alleged request for Cronin's
records. Id. ¶¶ 53-54. In his opposition papers, plaintiff
disagrees with defendants' assertions and states that he sent the
requests. See Objections to Third Statement of Material Facts
Purportedly Not in Genuine Dispute at 3 [Doc. No. 69]; Antonelli
Affidavit at 2 [Doc. No. 69-2]. Plaintiff has attached the
requests and completed authorization forms to his Motion for
Partial Summary Judgment as to ATF [Doc. No. 60], Exhibits
59-62,*fn3 but he has not provided ATFE's alleged response, his "appeal?[of] the no records
response of ATF to the OIP," and OIP's alleged "affirm[ance][of]
the action of the ATF." Complaint at 7 (Counts 7 and 8). Nor has
plaintiff provided any evidence that he mailed the requests.
Under the totality of the circumstances, the Court finds that
plaintiff has failed to present a genuine issue of material fact
with respect to the agency's receipt of his FOIA requests for
records pertaining to Miller or Cronin. The Court therefore will
grant defendants' motion with respect to Counts 7 and 8 based on
plaintiff's failure to exhaust administrative remedies by
submitting his FOIA requests to the agency and then
administratively appealing the agency's denial of records.
In Count 9 of the complaint, plaintiff alleges that by letter
dated "April 15, 2002," he requested records pertaining to Edward
Omar Spearman.*fn4 He alleges that ATFE provided a "blanket"
denial, which he unsuccessfully appealed. Complaint at 8. ATFE
withheld the Spearman records under exemption 7(A). Defendants
aver that this claim is moot because it is the subject of a
separate FOIA lawsuit in which they are no longer asserting
exemption 7(A) and are releasing records "to Mr. Antonelli."
Graham Decl. ¶ 60 (citing Exhibit CCC). Inexplicably, defendants'
exhibit is the commonly known Fox-Neal order this Court issued
in Spearman v. Bureau of Alcohol, Tobacco & Firearms, Civ.
Action No. 03-1411 (CKK). Plaintiff is not a party to that
lawsuit; thus, it is unclear how this claim can be moot.
Plaintiff's response is inconsistent inasmuch as he "agree[s]"
with defendants' position in his affidavit at page 2 (¶ 57), but
"disagrees with this statement" in his separate objection to
defendants' statement of facts. Pltf.'s Objections at 4 ¶ 57. The
Court will deny defendants' motion with respect to Count 9 without prejudice to reconsideration upon clarification of the
2. BOP Records
Plaintiff's claims arising from his requests for BOP records
are set forth in Counts 38-46 of the complaint. In Count 38,
plaintiff alleges that by letter dated November 5, 2001, he
requested BOP records "in connection to his name." Complaint at
23. Plaintiff was informed about the opportunity to review his
prison file at the location of his confinement. Plaintiff alleges
that by letter dated May 31, 2002, he "complained to BOP that he
yet awaits review of his mental health records from Milan,
Greenville and Rochester facilities." Id. He appealed BOP's
"inaction" by letter of July 2, 2002. By letter of July 11, 2002,
BOP informed plaintiff "that 49 pages of mental health records
were going to be provided him at the institution of his
confinement." Id. By letter of August 6, 2002, plaintiff
alleges that he "appealed the absence of the Greenville FCI
records in the most recent release to him." Id. Plaintiff does
not refute defendants' assertion that all of his mental health
records were provided to him in the July 11 release and that the
correspondence had "inadvertently only listed two of the
institutions [FDC Milan and FMC Rochester]." Declaration of
LeeAnn D. Tufte ("Tufte") ¶ 21 & Attachment K; cf. Antonelli
Affidavit at 9 (agreeing with ¶ 21 of Tufte's declaration). The
Court will grant defendants' motion with respect to Count 38.
In Count 39, plaintiff alleges that "[b]y letter to the SIS Lt
Supervisor at USP Beaumont, Texas, [he] requested the records
viewed by the SIA Wilson the day he arrived and was interviewed
by the SIA at USP Beaumont." Complaint at 24. In Count 41,
plaintiff alleges that "[b]y letter to the Health Services
Administrator at USP Beaumont, [he] asked for a copy of the
contract between the medical provider and the USP that exist[s]
to provide medical services to the inmates." Id. Neither of
these requests appears to be proper insofar as they were not addressed to BOP's FOIA office. Indeed, in response to the
allegation in Count 39, the then-supervisory lieutenant stated
that he did not receive such a request from plaintiff. If he had,
however, he "would have informed him to send an FOI Request to
the Central Office in Washington, D.C." Declaration of Linda Nutt
("Nutt Decl."), Exhibit A. Similarly, in response to plaintiff's
"Inmate Request to Staff" forming the basis of Count 41, BOP told
him by notice dated September 3, 2002, that "[t]his document
cannot be provided at the local level." Id., Exhibit B. It
provided an address in Washington, D.C. for plaintiff to submit a
FOIA request and advised him about copying charges. Id. The
FOIA obligates an agency to "make [requested] records promptly
available" upon a request that "(i) reasonably describes such
records and (ii) is made in accordance with published rules
stating . . . procedures to be followed."
5 U.S.C. § 552(a)(3)(A).*fn5 Plaintiff does not allege that he mailed
his requests to BOP's FOIA office and therefore has not
demonstrated that he followed proper procedures. The Court
therefore will grant defendants' motion with respect to Counts 39
and 41 based on plaintiff's failure to exhaust administrative
In Count 40, plaintiff alleges that "[b]y letter dated August
23, 2002, to the BOP in Washington, D.C., [he] requested all
medical and mental health records and SIS files. By letter dated
August 26, 2002 to the Warden at USP Beaumont, Texas, [he]
requested all medical, mental health, SIS and Disciplinary
records." Complaint at 24. Plaintiff alleges that his associate
warden, by response dated September 9, 2002, told him "to write
the BOP in Washington, D.C. for the records," which he did by
letter dated September 20, 2002. He alleges that BOP did not respond to his request. Id. Defendants aver
that a search of "the BOP EPM FOIA Database," where FOIA requests
are logged, failed to locate plaintiff's request. Declaration of
Ruthlee Gowins ("Gowins Decl.") ¶¶ 3-4. Plaintiff "disagree[s]"
with Ms. Gowins, but he has not proffered any documentation to
support his claim that he "did send said request." Antonelli
Affidavit at 7. Absent any evidence to contradict Ms. Gowins'
declaration, the Court will grant defendants' motion with respect
to Count 40 based on plaintiff's failure to exhaust
In Count 42, plaintiff challenges BOP's invocation of FOIA
exemptions "(b)(6) and (b)(5)" to justify its withholding of five
pages of information referred from the EOUSA. See Complaint at
24-25.*fn6 In its initial determination, BOP cited
exemptions 5 and 6. Gowins Decl., Attachment B. On administrative
appeal, the Office of Information and Privacy affirmed the
determination but invoked exemptions 5 and 7(C). Id.,
Attachment C. Exemptions 5 and 7(C) are at issue here.
BOP applied exemption 5 to a four-page document described as "a
Litigation Report written by an Attorney Advisor in support of
civil litigation filed against the agency." Gowins Decl. ¶ 8.
Exemption 5 of the FOIA protects from disclosure "inter-agency or
intra-agency memorandums or letters which would not be available
by law to a party . . . in litigation with the agency."
5 U.S.C. § 552(b)(5). This provision applies to materials that normally
are privileged in the civil discovery context, including those
protected by the attorney work product privilege, the
attorney-client privilege, and the deliberative process
privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149
(1975); see also FTC v. Grolier, Inc., 462 U.S. 19, 26 (1983) ("The test under Exemption 5 is whether the
documents would be `routinely' or `normally' disclosed upon a
showing of relevance."); accord Martin v. Office of Special
Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987). BOP properly
justified withholding the four-page document as protected by the
attorney work-product privilege. See Hertzberg v. Veneman,
273 F. Supp.2d 67, 75 (D.D.C. 2003) (attorney work product enjoys
"nearly absolute privilege"). The Court will grant defendants'
motion with respect to the four-page document forming part of the
basis of Count 42.
BOP withheld a one-page document under exemption 7(C) "as it
was written by staff detailing conversation with another staff
member." Gowins Decl. ¶ 8. Exemption 7(C) shields law enforcement
records to the extent that disclosure "could reasonably be
expected to constitute an unwarranted invasion of personal
privacy." 5 U.S.C. § 522(b)(7)(C). Defendants have proffered no
evidence from which the Court may find for them on the threshold
requirement, i.e., that the information was compiled for law
enforcement purposes.*fn7 See supra at 7. The Court
therefore cannot reach the question of whether disclosure could
reasonably be expected to constitute an unwarranted invasion of
personal privacy. The Court will deny defendants' motion with
respect to their invocation of exemption 7(C) to the one-page
document forming the basis of the remaining part of Count 42.
In Count 43, plaintiff alleges that by letter dated October 29,
2002, to the warden of USP Beaumont, Texas, he requested "copies
of all taped [telephone] conversation to certain numbers from his PIN." Complaint at 25. Plaintiff made a similar request
to the wardens of MCC Chicago and FTC Oklahoma. Id. MCC Chicago
acknowledged plaintiff's request by letter of November 15, 2002.
Id. "By letter to the BOP in Washington, D.C. dated November
21, 2002, plaintiff sent the letter from MCC Chicago . . . to the
Office of the General Counsel of the BOP." Id. The request to
MCC Chicago dated October 29, 2002, is the only request of the
three that is before the Court, see Tufte Decl., Attachment Q,
because it was the only one received by BOP's FOIA office. By
letter of January 24, 2003, in response to plaintiff's request,
BOP assessed a processing fee of $392 and advised plaintiff that
advance payment was required before his request would be
processed. Tufte Decl. ¶ 25. Plaintiff was also told that he
could narrow his request to reduce the assessment. Id.
Plaintiff unsuccessfully appealed the fee calculation, id. ¶
27-28, as "an extravagant price." Id., Attachment T.
Defendants move to dismiss Count 43 for failure to exhaust
administrative remedies. The payment or waiver of assessed fees
or an administrative appeal from the denial of a fee waiver
request is a condition precedent to filing a FOIA claim in the
district court. Oglesby v. U.S. Dep't of Army, 920 F.2d 57,
65-67 (D.C. Cir. 1990); Trueblood v. U.S. Department of
Treasury, I.R.S., 943 F. Supp. 64, 68 (D.D.C. 1996) (citing
Pollack v. Department of Justice, 49 F.3d 115, 120 (4th Cir.),
cert. denied, 518 U.S. 1032 (1995)); see also accord Judicial
Watch, Inc. v. F.B.I., 190 F. Supp.2d 29, 33 (D.D.C. 2002). The
FOIA provides for a fee waiver or a reduced fee upon a
requester's showing that "disclosure . . . is in the public
interest . . . and is not primarily in the commercial interest of
the requester." 5 U.S.C. § 552(a) (4)(A)(iii). Plaintiff
"agree[s]" that he neither paid the fee nor narrowed his request
to reduce the fee. Antonelli Affidavit at 10 (agreeing with Tufte
Decl. ¶ 26). Moreover, plaintiff does not allege that he sought,
and was denied, a fee waiver. He appealed the assessment merely
because he "believed it to be an extravagant price." Tufte Decl., Attachment T. In the absence of
plaintiff's payment of the assessed fee, the Court will grant
defendants' motion with respect to Count 43 on the ground that
plaintiff has failed to exhaust his administrative remedies.
In Count 44, plaintiff challenges BOP's treatment of records
referred from the FBI (Request No. 2003-04556). By letter dated
March 17, 2003, "the FBI forwarded to the BOP five ? documents
that originated with this agency for a disclosure determination.
Portions of the documents were excised by the FBI pursuant to
[exemptions 7(C) and (7)(D)]. Also enclosed were ten ? FBI
documents. . . ." Gowins Decl. ¶ 9. The BOP released 23 pages of
material, seven of which were released with redactions, and
withheld 32 pages in their entirety. Gowins Decl. ¶ 10. BOP
invoked exemptions 7(C), 7(E) and 7(F) to justify the redactions.
It avers that the "information revealed the identity of other
individuals as well as investigative techniques and procedures."
Id. ¶ 11. The redacted pages attached to the Gowins declaration
(Attachment F) demonstrate that, at least with respect to those
pages, the information pertains to James John Valona and
"Organized Crime/Drug Money Laundering." The information
contained therein therefore meets exemption 7's threshold
requirement of law enforcement records. Defendants' declaration,
however, provides no basis for the Court to find in their favor
on the asserted harms. Defendants' mere recitation of the
statutory language does not satisfy its burden of proof.
In their Opposition to Plaintiff's Motion for Summary Judgment
Filed on May 2, 2005 [Doc. No. 64], defendants attached a
Vaughn index regarding the BOP records, but the Gowins
declaration makes no reference to the index and the index, which
is not authenticated, appears to be incomplete. At the least, it
does not correspond entirely with Ms. Gowins' averments. For
example, regarding the FBI-referred records assigned Request No.
2003-04556, Ms. Gowins avers that the FBI forwarded what appears
to be a total of 15 documents. Gowins Decl. ¶ 9. She avers further that BOP released "23 pages of documents"
apparently in their entirety and seven pages with redactions and
withheld "32 pages of documents" in their entirety. Id. ¶ 10.
The Vaughn index lists under that request number only three
documents of which a total of 39 pages were withheld in their
entirety and seven pages were released with redactions. In
addition, the pages in Ms. Gowins' Attachment F do not appear to
be reflected in the Vaughn index. They reveal that BOP redacted
some information under exemption 7(D), but neither the
declaration nor the Vaughn index provides an explanation for
those withholdings. It is unclear if the pages contained in
Attachment F are taken from the 15 documents referred from the
FBI or are in addition to those records. The Court may award
summary judgment solely on the information provided in affidavits
or declarations only when they clearly describe "the
justifications for nondisclosure with reasonably specific detail
[and] demonstrate that the information withheld logically falls
within the claimed exemption. . . ." Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such is not the case
here. The Court therefore will deny defendants' motion with
respect to Count 44.*fn8
In Count 45, plaintiff challenges BOP's treatment of his
request in March 2004 "for a copy of the letter sent plaintiffs
[sic] sentencing judge explaining why plaintiff was not sent to
FMC Rochester, MN as strongly recommended." Complaint at 26.
Plaintiff admits that he "was provided a copy of the unsigned
letter to his sentencing judge," id., which is consistent with
BOP's declaration. Nutt Decl. ¶ 40. He challenges BOP's search
because it failed to locate the signed letter. The Court is
satisfied from Ms. Nutt's efforts to locate a signed copy of the
letter, id. ¶¶ 37-38, that BOP conducted an adequate search.
Plaintiff was provided an unredacted copy of the letter. The
Court therefore will grant defendants' motion to dismiss this
count as moot. In Count 46, plaintiff challenges BOP's treatment of his
request on February 5, 2004, for "all information in any way
connected to Nancy Antonelli in possession of the BOP. . . ."
Complaint at 27. Plaintiff specifically requested searches of his
central file and investigative files at certain BOP facilities.
By letter of March 12, 2004, BOP informed plaintiff that his
request for a search of the investigative files did not
"provide? adequate information to permit [such] a search;" thus,
his request was being construed only as one for records about
Nancy Antonelli maintained in his central file. Nutt Decl.,
Exhibit D. Plaintiff was advised that pursuant to BOP Program
Statement 1351.05, he could review his central file and arrange
to obtain copies of responsive records. Id. He was also advised
that he could resubmit his request for the investigative files
"with specific information that adequately describes the
requested record, such as the location of the investigation and
the date of the subject matter of the incident being
By letter dated March 18, 2004, plaintiff clarified his request
for investigative files, which prompted BOP eventually to conduct
a search. Id. ¶¶ 19-21. The searches located no additional
records than those located in plaintiff's central file. Id. ¶
23. BOP located 34 responsive records in plaintiff's central
file. By letter of November 26, 2004, it released 31 pages in
their entirety and two pages with redactions pursuant to
exemption 7(C). It withheld one-page in its entirety pursuant to
exemption 5. Id. ¶ 17. The one-page document is "an interagency
electronic message . . . between BOP staff [about] possible
criminal activity of plaintiff Antonelli, which was being
discussed between two BOP staff." Nutt Decl. ¶ 27. Defendants
aver that disclosure of the document "would reveal predecisional
communications among government personnel . . . which would
jeopardize the candid and comprehensive considerations essential
for efficient and effective agency decision-making." Id. ¶ 28. Exemption 5 encompasses material protected from disclosure by
the deliberative process privilege. See supra at 14-15. This
includes "`documents reflecting advisory opinion, recommendations
and deliberations comprising part of a process by which
governmental decisions and policies are formulated.'" Wilderness
Soc'y v. United States Department of Justice, 344 F. Supp.2d 1,
10 (D.D.C. 2004) (quoting Department of the Interior and Bureau
of Indian Affairs v. Klamath Water Users Protective Ass'n,
532 U.S. 1, 8 (2001) (other citation omitted). Defendants properly
justified withholding the one-page document as deliberative
process material. Defendants also properly justified redacting
from the two-page release the name and telephone number of an
employee of the United States Attorney's Office. Third-party
identifying information is categorically protected by exemption
7(C)'s privacy provision absent a showing, not made here, of an
overriding public interest warranting disclosure. See Lesar v.
U.S. Department of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980)
(finding legitimate interest in preserving the identities of
government officials where disclosure could subject them to
annoyance or harassment in either their official or private
lives); Pray v. Department of Justice, 902 F. Supp. 1, 3
(D.D.C. 1995), aff'd in relevant part, 1996 WL 734142 (D.C.
Cir. 1996) (finding the possibility of animosity toward FBI
agents outweighed any possible benefit of disclosure); Perrone
v. FBI, 908 F. Supp. 24, 26 (D.D.C. 1995) (citing cases)
(protecting the names and identities of individuals of
investigatory interest to law enforcement agencies and those
merely mentioned in law enforcement files). The Court will grant
defendants' motion on Count 46 with respect to the asserted
Plaintiff challenges BOP's search for investigative files
pertaining to Nancy Antonelli. When an agency's search for
documents is challenged, "the issue to be resolved is not whether
there might exist any other documents possibly responsive to the
request, but rather whether the search for those documents was adequate." Weisberg v. United
States Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir.
1984). The agency prevails on a motion for summary judgment only
where it shows "beyond material doubt ? that it has conducted a
search reasonably calculated to uncover all relevant documents."
Weisberg v. United States Department of Justice, 705 F.2d 1344,
1351 (D.C. Cir. 1983). For purposes of this showing, the agency
"may rely upon affidavits . . ., as long as they are relatively
detailed and nonconclusory and . . . submitted in good faith."
Id. (citations and quotations omitted). The required level of
detail "set[s] forth the search terms and the type of search
performed, and aver[s] that all files likely to contain
responsive materials (if such records exist) were
searched. . . ." Oglesby v. United States Department of the Army,
920 F.2d 57, 68 (D.C. Cir. 1990); accord Valencia-Lucena v.
U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999).
BOP avers only that "staff at FCI Greenville, MCC Chicago, and
the North Central Regional Office were contacted in an attempt to
locate any responsive documents," Nutt Decl. ¶ 21, and "[s]taff
at each facility responded that no responsive records were
located." Id. ¶ 22. It has proffered no declarations that
describe the searches undertaken or the file systems
searched.*fn9 In the absence of any evidence describing the
search for investigative records pertaining to Nancy Antonelli,
the Court will deny defendants' motion with respect to those
records sought under Count 46.
3. Segregability of Records
The Court is required to make a finding as to whether
defendants properly withheld documents in their entirety. See
Trans-Pacific Policing Agreement v. United States Customs Service, 177 F.3d 1022, 1027-28 (D.C. Cir. 1999). The Court
will defer its ruling on this issue until the record has been
supplemented. Defendants are warned, however, that the Court is
not convinced from the Vaughn index that they properly
justified withholding in their entirety the presentence report
(Request No. 2003-04556) pursuant to exemption 7(F) and the
one-page memorandum (Request No. 2002-8514) pursuant to exemption
7(C). Those exemptions routinely are applied to third-party
identifying information. Defendants are encouraged to explain in
its supplemental brief why those documents could not be released
in redacted form.
For the preceding reasons, defendants' motion for summary
judgment is granted in part and denied in part. A separate Order
accompanies this Memorandum Opinion.