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Antonelli v. Bureau of Alcohol

April 28, 2008

MICHAEL C. ANTONELLI, PLAINTIFF,
v.
BUREAU OF ALCOHOL, TOBACCO, FIREARMS & EXPLOSIVES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

In what remains of this action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiff challenges the responses of the Executive Office for United States Attorneys ("EOUSA") to his multiple requests for records about himself and third-party individuals.*fn1 EOUSA moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and (b)(6) or for summary judgment pursuant to Rule 56.*fn2 Upon consideration of the parties' submissions and the relevant parts of the record, the Court will grant in part and deny in part defendant's summary judgment motion.*fn3

I. BACKGROUND

Defendant has had the unenviable task of sorting through plaintiff's "Response to Motion for a More Definite Statement" [Dkt. No. 54], which is considered to be the Amended Complaint that the Court had directed plaintiff to file in granting defendant's motion for a more definite statement. Order of March 16, 2005 [Dkt. No. 49]. Plaintiff attaches "Exhibits 1 through No. 133," which he describes as "all correspondence to and from [EOUSA] that I either sent or received in any way connected to [the pending action]." Pl's Res. at 1. Defendant rightly describes the filing as "135 pages of documents, generally disordered, that failed to narrow the scope of the claims at issue . . . ." Def.'s Mem. of P. & A. at 2. The Court has substantially relied on defendant's recitation of the facts which, for the most part, plaintiff has not disputed.

I.

By letter of May 14, 1999, plaintiff requested records about himself and James Valona, who had signed a third-party authorization. In March 2002, EOUSA inquired of plaintiff's continued interest in receiving a response and advised him to respond in 30 days or the file (FOIA Nos. 99-1506 and 99-1511) would be closed. Having received no response, EOUSA closed the file on May 23, 2002. Def.'s Mot., Attachment 1 (Declaration of John Boseker) ("Boseker Decl.") ¶¶ 28, 30, 31, 33, 35, 36. By letter of October 30, 2002, plaintiff replied that he was still interested in a response to the request. Id. ¶¶ 3, 7. Plaintiff appealed to the Office of Information and Privacy ("OIP") by letter dated July 15, 2003. Id. ¶ 38. By letter of September 2, 2003, OIP informed plaintiff that it was remanding his file to EOUSA to conduct a search for records. Id. Plaintiff does not dispute that he has "attached no correspondence indicating a FOIA file . . . to assist EOUSA in locating [the remanded] file." Id. ¶ 38, n.5.

II.

By letter of November 5, 2001, plaintiff requested records about himself maintained by multiple United States Attorneys Offices ("USAO"). Id ¶ 39. EOUSA created separate FOIA files to reflect its search of offices in the Northern District of Illinois (No. 02-244), Southern District of Illinois (Nos. 02-290, 02-1296), Northern District of Indiana (No. 02-291), Eastern District of Wisconsin (No. 02-292), Western District of Wisconsin (No. 02-293), District of Nevada (No. 02-294), Eastern District of Oklahoma (No. 02-295), and the Western District of Oklahoma (No. 02-3777).

Northern District of Illinois (No. 02-244)

By letter of June 3, 2002, EOUSA informed plaintiff about 111 cases located in the Northern District of Illinois, the processing of which would be costly. It provided the list of case files to plaintiff to assist him with narrowing the scope of the request to reduce costs, gave plaintiff 20 days to reply and advised him about his appeal rights. Boseker Decl. ¶ 41. Because plaintiff had not replied to the June 2002 letter, EOUSA sent another letter on August 13, 2003, advising him again about the volume and potential costs and giving him 20 days to respond. Id. ¶ 42. Plaintiff responded by letter of August 27, 2003, informing EOUSA that he wanted all records from the 111 files and acknowledged his obligation to make an advance fee payment. Id. ¶ 43. By letter of November 5, 2003, EOUSA assessed an advance fee of $362 based on a search consisting of 50 boxes each containing 2000-4000 pages. Id. ¶ 44. EOUSA reiterated its previous advice about reducing costs, gave plaintiff 20 days to pay the assessed fee and informed him of his appeal rights. Id. Plaintiff appealed the fee assessment to the OIP by letter of November 26, 2003. Id. ¶ 46. OIP affirmed the fee assessment by letter of February 27, 2004. Meanwhile, by letter of January 22, 2004, EOUSA, having received no timely reply to its November 5th fee assessment letter, informed plaintiff that it was closing its file for his failure to pay fees. Id. ¶ 45.

Southern District of Illinois (Nos. 02-290, 02-1296)

By letter of March 21, 2002, EOUSA released 178 pages of records located in the Southern District of Illinois. It withheld 20 pages of records in their entirety under FOIA exemptions 5 and 7(C) and Privacy Act exemption (j)(2). EOUSA further informed plaintiff about approximately 1,350 pages of public records that he could obtain upon request and subject to copying fees, and his appeal rights. Id. ¶ 50. Plaintiff appealed to OIP the withholding of 20 pages, which OIP affirmed by letter of February 6, 2003. Id. ¶ 52. Plaintiff requested the 1,350 pages of public records by letter of April 6, 2002. By letter of July 29, 2002, EOUSA sent plaintiff 310 pages of public records. Id. ¶¶ 54-55. Plaintiff appealed the page number discrepancy, but OIP affirmed the release attributing the original number to a counting error. Id. ¶ 56.

Northern District of Indiana (No. 02-291)

By letter of March 25, 2002, EOUSA informed plaintiff that no responsive records were located in the Northern District of Indiana. The OIP affirmed the decision by letter of August 21, 2003. Id. ¶¶ 58, 60.

Eastern District of Wisconsin (02-292)

By letter of October 20, 2002, plaintiff expressed his continued interest in records maintained by the Eastern District of Wisconsin and committed to paying the processing fees. Id., Ex. 41. Plaintiff reiterated his interest in a response dated July 15, 2003, to EOUSA's letter to him dated July 3, 2003. ΒΆΒΆ 63-64. EOUSA ...


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