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Antonelli v. Federal Bureau of Prisons

December 22, 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

This action brought pro se under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, is before the Court on the motion of the Federal Bureau of Investigation ("FBI") to dismiss or for partial summary judgment [Dkt. No. 33] and the joint motion of the Federal Bureau of Prisons ("BOP") and the Office of Information and Privacy ("OIP") to dismiss or for partial summary judgment [Dkt. No. 37].*fn1 Both motions contain the respective movant's opposition to plaintiff's motion for partial summary judgment [Dkt. No. 13], which will be denied for non-compliance with the rule governing such motions. Upon consideration of the parties' submissions and the relevant parts of the record,*fn2 the Court will grant the FBI's motion for partial summary judgment and OIP's motion to dismiss*fn3 and will grant in part and deny in part BOP's motion for partial summary judgment.

I. BACKGROUND

FOIA Claims

1. FBI Records

In Count 18 of the Complaint [Dkt. No. 1], plaintiff challenges the FBI's responses to his separate FOIA requests. By letter of July 11, 2005, plaintiff requested from FBI Headquarters "the addresses of all FBI Field Offices" and the "addresses of satellite offices to those field offices." Def.'s Mot., Declaration of David M. Hardy ("Hardy Decl."), Ex. A [Dkt. No. 33-7]. Because the information is publicly available, the FBI did not respond to plaintiff's request. Hardy Decl. ¶ 6. On November 5, 2006, plaintiff requested a search of "Hard-Drives or I-Files in the Chicago & Milwaukee FBI Offices" for records pertaining to himself, Nancy Antonelli and James Valona. Id., Ex. B. Although plaintiff claimed that he was amending his initial FOIA request for such records, the FBI treated the request as new and by letter of February 8, 2007, informed plaintiff that it would not process the request for third-party records without proof of death or a privacy waiver from Nancy Antonelli and Valona. Id., Ex. C. By letter of February 18, 2007, plaintiff responded that he was "not sending you any more waivers from either Nancy Antonelli and James Valona because I have already done so back in 2004 when I requested this same information. . . ." Id., Ex. D. Plaintiff also requested a search of the "I-Drives/I-Files in both the Chicago and Milwaukee FBI Field Offices" for records pertaining to himself, Nancy Antonelli and Valona. Id. By letter of March 6, 2007, FBI Headquarters replied that "[s]hould you desire a check of our field office files, it will be necessary for you to direct your request to the appropriate field office," id., Ex. E, which plaintiff did by letter of March 12, 2007 to the Chicago Field Office. Id., Ex. F. Plaintiff stated that he was enclosing "copies of the written authorizations from Nancy Antonelli and James Valona for me to receive their records." Id.

By letter of April 17, 2007, FBI Headquarters informed plaintiff that a search of the "computer network shared drives" was not conducted because the "drives contain unindexed and random subject matter material and the difficulties and effort of such a search would be unreasonably burdensome to this agency." Id., Ex. G. The letter further advised plaintiff about his right to appeal the decision to OIP. Plaintiff lodged his administrative appeal by notice of April 24, 2007, Ex. H, but OIP informed plaintiff by letter of May 18, 2007 that his appeal was closed because he owed another DOJ component, the Executive Office for United States Attorneys, $50.00 in processing fees. Id., Ex. I. However, the FBI has since confirmed that plaintiff paid the outstanding fee on March 14, 2008. Hardy Decl. ¶ 14.

2. BOP Records

Plaintiff's FOIA claims against BOP are set forth at Counts 1-15 of the Complaint; his Privacy Act claims are set forth at Counts A-I of the Complaint.

In Count 1 of the Complaint, plaintiff alleges that he mailed a FOIA request to the BOP Director to review the BOP file of Anthony Allan Lemay and included Lemay's written authorization to release his records to plaintiff. According to plaintiff, BOP never responded to the request but BOP claims that it advised plaintiff by letter of December 21, 2006 that he had not submitted a proper FOIA request "because plaintiff did not request a copy of a BOP document or record." Def.'s Mot., Declaration of Karen Summers ("Summers Decl.") ¶¶ 6-7. OIP has no record of an appeal from plaintiff with regard to this request. Def.'s Mot., Declaration of Janice Galli McLeod ("McLeod Decl.") ¶ 7.

Count 2 of the Complaint concerns plaintiff's request of August 9, 2005 for videotapes taken on June 16, 2005 in the B2 housing unit of the Federal Correctional Complex ("FCC") in Forrest City, Arkansas. On September 8, 2005, "staff at FCC Forrest City were instructed to conduct a search pursuant to plaintiff's request and forward any responsive records to [BOP's South Central Regional Office ("SCRO")]." Summers Decl. ¶ 9. But on September 21, 2005, FCC Forrest City informed SCRO that its "video taping system, or camera/video taping system records images for approximately 60 days and after this 60 day period, the tapes are erased." Id. ¶ 11. Thus, "[n]o video tapes were located with retrievable data for the time period of June 16, 2005." Id. By letter of September 21, 2005, BOP informed plaintiff that it had located no responsive records because "the video recordings that would have been responsive . . . were routinely destroyed prior to the submission of your request." It also advised plaintiff of his right to appeal to OIP. Id., Ex. 7. By letter of April 9, 2007, OIP informed plaintiff that it was closing his appeal because of his failure to pay "past-due fees" to EOUSA. Id., Ex. 8.

Count 3 of the Complaint concerns plaintiff's alleged request of January 1, 2007 to the Supervisor of Education at the United States Penitentiary Big Sandy in Inez, Kentucky, for "a copy of all records she had with 'some person high up in the ranks of [DOJ]' concerning plaintiff's [FOIA] requests," and to which plaintiff had attached a copy of an "identical letter" he had mailed to the BOP Director. Compl. at 3. Plaintiff alleges that he filed an appeal with OIP on March 4, 2007. OIP "received an appeal from plaintiff dated March 4, 2007, stating the BOP failed to respond to his FOIA request dated January 12, 2007." Summers Decl. ¶ 15. But "[a] review of the BOP's FOIA database indicates" that BOP never received a request from plaintiff dated January 12, 2007. Id. By letter of April 26, 2007, OIP informed plaintiff that it was referring his March 4 letter to BOP for processing. McLeod Decl. ¶ 19.

Count 4 of the Complaint concerns plaintiff's alleged requests for "a copy of the syllabus/curriculum that he had submitted to the education department at Forrest City, Arkansas FCC," and, by letter of August 27, 2006, for "copies of everything in the Education Department files at Forrest City, Arkansas Medium Facility in connection to the classes he tutored or attempted to tutor." Compl. at 3. By letter of November 29, 2006, BOP released seven unredacted pages. Summers Decl. ¶ 18 & Ex. 11. Plaintiff alleges that he "appealed the insufficient search for records by the BOP." Compl. at 3. But OIP has no record of the appeal. McLeod Decl. ¶ 20.

Count 5 of the Complaint concerns plaintiff's request of April 19, 2007 for "electronic phone records of a phone call he made to his son Michael on Christmas Eve 2006." Compl. at 3. By letter of June 5, 2007, BOP informed plaintiff that it had located a responsive record but, because the recording could not be "reasonably segregated," BOP could not release the record without "the appropriate written authorization from all parties involved in the recorded conversation." Summers Decl., Ex. 15. Plaintiff was further informed that if he provided a written authorization, BOP could "release the call on a CD to an address outside the prison, or e-mail the call to a valid e-mail address." Id. Otherwise, plaintiff could consider the response as a denial of records under FOIA exemption 7(C) and appeal the decision to OIP. Id. Plaintiff alleges that he appealed the "blanket denial" by letter of June 6, 2007. Compl. at 3. OIP acknowledged plaintiff's appeal by letter of June 20, 2007, but had yet to "adjudicate[]" it at "the outset of this litigation." McLeod Decl. ¶ 22.

Count 6 of the Complaint concerns plaintiff's request of March 5, 2007 for "a copy of all telephonic recordings had with his attorney Doug Roller in the possession of the BOP." Compl. at 4. By letter of April 12, 2007, BOP informed plaintiff that it had located no responsive records and advised him of his right to appeal to OIP. Summers Decl., Ex. 19. Plaintiff lodged an appeal by letter of April 18, 2007, but by letter of June 5, 2007, OIP informed plaintiff that it had closed his appeal because of his debt owed to EOUSA. McLeod Decl. ¶¶ 23-24. By letter of July 29, 2007, plaintiff allegedly "provided the OIP with concrete factual evidence that he paid what he purportedly owed to the EOUSA on March 14, 2007 [and] asked that all his closed appeals be reopened." Compl. at 4. During the course of this litigation, OIP, by letter of January 15, 2008, informed plaintiff that "EOUSA had again searched its records for any evidence of payment of his past-due FOIA debt, but found none." McLeod Decl. ¶ 26. Thus, OIP advised plaintiff that it would not process any of his appeals until it received confirmation of his payment to EOUSA.

Id., Ex. DDD.

Count 7 of the Complaint concerns plaintiff's request of August 3, 2005 for "all SIS, SIS and investigative records compiled at FCC Medium in Forrest City, Arkansas." Compl. at 4. By letter of January 6, 2006, BOP released to plaintiff 30 pages of records, 13 of which contained information redacted pursuant FOIA exemption 7(C). Summers Decl. ΒΆ 29. In response to plaintiff's administrative appeal, OIP, by letter of March 30, 2006, released "additional information from two ...


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