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Meserve v. United States Dep't of Justice

August 14, 2006

BRIAN EUGENE MESERVE, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

This matter is before the Court on defendants' motion for summary judgment. Having considered defendants' motion, plaintiff's opposition, and the record in this case, the Court will grant the motion.

I. BACKGROUND

A. Request No. 04-1652

On or about December 11, 2003, plaintiff submitted a request for information pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to the Executive Office for United States Attorneys ("EOUSA"), a component of the United States Department of Justice. Amended Complaint ("Amd. Compl.") ¶ 2. Generally, he sought records pertaining to himself and the criminal case that had been filed against him. Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss,*fn1 Attach. ("Boseker I Decl."), Ex. A (December 10, 2003 FOIA Request). The EOUSA acknowledged receipt of plaintiff's request, and assigned it Request No. 03-4096. Id., Ex. B (January 13, 2004 letter from M.A. O'Rourke, Asst. Dir., Freedom of Information/Privacy Act Unit, EOUSA). In the letter, the EOUSA asked that plaintiff identify the United States Attorney's Office where he believed the relevant records were located, and notified him that fees may be charged to duplicate any responsive records. Id. The request was closed, with the understanding that the EOUSA would open a new file upon receipt of a corrected request. Id.

Plaintiff submitted a new FOIA request on or about January 20, 2004. Amd. Compl. ¶ 4. He identified the United States Attorney's Office for the District of Maine as the appropriate office, and revised his request as follows:

The files I request include but are not limited to (Cr. Docket Case 99-CR-19/99-CR-30). I further request copies of any and all records reference [sic] myself including but not limited to, documents, reports, memoranda, letters, electronic files, database reference, "Do not files," "O&C files," "P&C files," or any other files; audio or video tapes, electronic (ELSER) or "June mail," "mail covers, trash covers, miscellanious [sic] files, and any index citations relating or reference [sic] me.

Boseker I Decl., Ex. C (January 16, 2004 FOIA Request) at 1-2 (emphasis in original). The EOUSA acknowledged receipt of the request, and assigned it Request No. 04-1652. Id., Ex. D (June 2, 2004 letter from M.A. O'Rourke).

The EOUSA notified plaintiff of its decision to release 300 pages of records in full, release 173 pages in part, withhold 451 pages in full, withhold 46 pages of grand jury records in full, and refer 41 pages of records to the agencies where they originated.*fn2 Id. ¶ 10 & Ex. E (January 13, 2005 letter from M.A. O'Rourke) at 1. However, only 100 pages of records were included in the January 13, 2005 release, as these pages were provided without plaintiff being required to pay any fee. Id., Ex. E at 3. Plaintiff was advised that, upon payment of $37.30 in copying fees, the EOUSA would release the remaining 373 pages of records and refer the 41 pages of records to other agencies: the Federal Bureau of Investigation ("FBI"), the Bureau of Alcohol, Tobacco, Firearms and Explosives ("BATFE"), and the United States Marshals Service ("USMS"). Id., Ex. E at 2. Plaintiff challenged this partial denial of his request by submitting an appeal to the Justice Department's Office of Information and Privacy ("OIP"). Id., Ex. F (undated Appeal received by OIP on February 3, 2005). The OIP then notified plaintiff that it had closed the appeal administratively due to plaintiff's apparent failure to pay the copying fees in full. Id., Ex. G (March 3, 2005 letter from R. L. Huff, Co-Dir., OIP). The EOUSA later realized that plaintiff had paid the copying fees. Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment ("Defs.' Mot."), Attach. ("Boseker II Decl.") ¶ 1 & Ex. i (January 13, 2005 letter from M.A. O'Rourke). As a result of this discovery, on March 28, 2005, the EOUSA released the remaining 373 pages of records, and referred records to the other agencies as set forth in its January 13, 2005 letter. Id., Ex. i.

The EOUSA referred eight pages of records to the FBI. Boseker I Decl., Ex. E at 2. Evidently, all eight pages were withheld in full under FOIA Exemption 7(C). Defs.' Mot., Attach. A (April 21, 2005 letter from D.H. Hardy, Records Management Division, FBI).*fn3 The USMS released in part the one page referred to it after having redacted the "[n]ames of and/or information on government employees" under FOIA Exemption 7(C). Id., Attach. A (June 21, 2005 letter from W.E. Bordley, Assoc. Gen. Counsel/FOIPA Officer). The disposition of the 32 pages of records referred to the BATFE, see Boseker I Decl., Ex. E at 2, was not explained. See id., Attach. A (April 6, 2005 letter from P.J. Chisholm, Disclosure Specialist, BATFE).*fn4 Plaintiff was instructed to pursue any challenge to these responses by contacting defendants' counsel. See id., Ex. E. Defendant's counsel represented that plaintiff "has not indicated any dissatisfaction." Defs.' Mot. at 4 n.4.

Some weeks later, the United States Attorney's Office for the District of Maine ("USAO/DME") notified the EOUSA that it had located additional records responsive to plaintiff's FOIA request, and forwarded these documents to the EOUSA. Boseker II Decl. ¶ 2. After notifying plaintiff of the existence of these additional records and the estimated copying fees, the EOUSA released to plaintiff another 1,118 pages of records. Id. ¶¶ 3-6 & Ex. iv (July 26, 2005 letter from M.A. O'Rourke). The EOUSA explained that it was withholding an undetermined number of pages of records in full, and that these records would be described in more detail as this litigation progressed. Id., Ex. iv.

B. Request No. 04-4145

Plaintiff submitted an additional FOIA request to the EOUSA on June 14, 2004. Amd. Compl. ¶ 10. In the second request he sought:

[A]ll of the following information and documents pertaining to: Federal A.U.S.A. James McCarthy, S/A Kenneth McMasters at the U.S. Attorney Office; P.O[.] Box 2460, Bangor, Maine 04402-2460. This pertains to all federal cases, dockets, investigations. To my knowledge there are two: 99-Cr-00019 and 99-Cr-00030. I would like you to forward me general request information. However, I am particularly interested in anything pertaining to a Holly Grant []. Her cooperation, how she was located, questioned, interviewed, her criminal cases, relationships with authorities[,] phone calls with police, agreements to cooperate, or anything else.

Boseker I Decl., Ex. H (June 14, 2004 FOIA Request) (emphasis added). The EOUSA responded to this request, which it assigned Request No. 04-4145, explaining its refusal to search for records "absent express authorization and consent of the third party, proof that the subject of [the] request is deceased, or a clear demonstration that the public interest in disclosure outweighs the personal privacy interest and that significant public benefit would result from the disclosure of the requested records." Id., Ex. I (November 5, 2004 letter from M.A. O'Rourke).

Plaintiff objected to this response, principally on the ground that Holly Grant's role in prosecuting the criminal case against him was public information, included both in newspaper articles and in the published opinion affirming his conviction. See Plaintiff's Response in Affidavit to Defendant's Motion for Summary Judgment ("Pl.'s Opp.") at 6-12; see also United States v. Meserve, 271 F.3d 314 (1st Cir. 2004). The EOUSA reconsidered its decision, and bifurcated Request No. 04-4145 "into those documents relating to [Ms. Grant's] participation as a witness, and any other documents which may or may not exist relating to her determined not to relate to that participation." Defendant's Reply Memorandum in Support of Defendant's Summary Judgment Motion ("Defs.' Reply"), Attach. ("Boseker III Decl.") ΒΆ 2. Accordingly, the EOUSA "confirm[ed] the existence of responsive records of approximately 115 ...


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