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Antonelli v. Federal Bureau of Prisons

August 4, 2008

MICHAEL C. ANTONELLI, PLAINTIFF,
v.
FEDERAL BUREAU OF PRISONS ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

In this action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiff, proceeding pro se, sues components of the Department of Justice ("DOJ") and the Department of Homeland Security's Immigration and Customs Enforcement ("ICE") for their responses to his FOIA requests.*fn1 In addition, plaintiff sues the Bureau of Prisons ("BOP") for alleged violations of the Privacy Act, 5 U.S.C. § 552a. The complaint, which was assigned to the undersigned judge as related to Antonelli v.BATF, No. 04-1180, consists of 27 counts.

Plaintiff has moved against all defendants for partial summary judgment [Dkt. No. 13]. In opposing plaintiff's motion, defendants have cross moved for summary judgment. Pending before the Court are plaintiff's motion for partial summary judgment, ICE's cross motion for summary judgment [Dkt. No. 30] and the Marshals Service's motion to dismiss [Dkt. No. 32]. Upon consideration of the parties' submissions and the relevant parts of the record, and taking judicial notice of rulings made in Civ. Action No. 04-1180, the Court will deny plaintiff's motion for partial summary judgment against ICE and the Marshals Service and will grant ICE's cross motion for summary judgment and the Marshals Service's motion to dismiss as converted to one for summary judgment.*fn2

I. BACKGROUND

1. Immigration and Customs Enforcement

In the only count of the complaint applicable to ICE, Count XVI, plaintiff challenges ICE's release of one redacted page of information that the Marshals Service had forwarded to it for processing. Compl. at 7; Def. ICE's Statement of Material Facts as to Which There is No Genuine Issue ¶¶ 1-2. ICE withheld information pursuant to FOIA exemptions 2, 6 and 7(C). ICE's Mot., Ex. A (Declaration of Mark Vugrinovich ["Vugrinovic Decl."] ¶ 5). Plaintiff's administrative appeal of that determination was denied. Id. ¶ 7.

2. United States Marshals Service

In the only count of the complaint applicable to the Marshals Service, Count XVII, plaintiff challenges the Marshals Service's and OIP's release of 421 pages of records to him in February 2007 following his payment of the processing fee of $42.10.*fn3 Compl. at 7; Pl.'s Memorandum in Support of Response to Motion to Dismiss by Marshals ("Pl.s' Opp.") [Dkt. No. 41] at 1-3; Marshals Service's Reply at 1. Plaintiff alleges that the Marshals Service "released certain records . . . and withheld some in part and blanket denied some." Compl. at 7. Although plaintiff alleges that he submitted an administrative appeal of the release determination, OIP has no record of the appeal. Marshals Service Mot., Ex. A (Declaration of Janice Galli McLeod ["McLeod Decl."] ¶ 65).

II. DISCUSSION

Summary judgment for the movant is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In his generalized motion for partial summary judgment, plaintiff concludes that the named defendants "are all in blatant and flagrant violation of the statutory time limits of the FOIA." Pl.'s Mot.*fn4

Plaintiff has not established his entitlement to judgment against ICE because the underlying claim is not based on an original FOIA request made to ICE to trigger the statutory time limits of 5 U.S.C. 552(a)(6)(A)(i).*fn5 As for the Marshals Service, plaintiff is barred by the doctrine of res judicata from seeking judgment on this issue because the current claim stems from the earlier related case in which the Court had granted summary judgment to the Marshals Service based on plaintiff's non-payment of the processing fee for the 421 pages now at issue. See Civ. Action No. 04-1180 (Dkt. No. 131, Mem. Op. at 2-3, 6). Thus, to the extent that plaintiff had an issue with the timing of the Marshals Service's processing of his request, he should have raised it in the prior action. Allen v. McCurry, 449 U.S. 90, 94 (1980) (Res judicata bars relitigation both of "issues that were" and of issues that "could have been raised" in the prior action). Besides, the Marshals Service's subsequent release of records negates the timing issue. See Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982) ("[H]owever fitful or delayed the release of information under the FOIA may be, once all requested records are surrendered, federal courts have no further statutory function to perform."); accord Boyd v. Criminal Div. of U.S. Dept. of Justice, 475 F.3d 381, 388 (D.C. Cir. 2007) ("[B]ecause the report was located in the work file and subsequently disclosed, the issue is moot for purposes of this FOIA action.") (citing Perry). The Court therefore denies plaintiff's motion for partial summary judgment against these defendants.

Turning to the defendants' respective dispositive motions, the FOIA authorizes the court only "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). Because the FOIA concerns the improper withholding of responsive records, the agency must demonstrate that it properly withheld information. The Court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations that describe "the justifications for nondisclosure [of records] with reasonably specific detail . . . 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). Such declarations are accorded "a presumption of good faith." Long v. United States Dep't of Justice, 450 F. Supp.2d 42, 54 (D.D.C. 2006).

1. ICE's Motion for Summary Judgment

ICE asserts that it properly withheld portions of the one-page document referred from the Marshals Service under FOIA exemptions 2, 6 and 7(C). The document is a "fascimile cover sheet that was part of a transmission between two law enforcement agencies . . . related to a criminal law ...


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