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Clemente v. Federal Bureau of Investigation

September 28, 2010


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


This Freedom of Information Act case is before the Court on the parties' cross-motions for summary judgment. After the parties had filed their initial motions for summary judgment, the defendant Federal Bureau of Investigation released additional documents to the plaintiff. The FBI and its co-defendant, the Department of Justice, then filed a second, supplemental motion for summary judgment, while the plaintiff filed a supplemental memorandum in support of her cross-motion. Upon consideration of the parties' arguments, the documents released by the FBI, and the entire record in this case, the Court will grant in part and deny without prejudice in part all three motions: the defendants' two motions for summary judgment and the plaintiff's cross-motion.*fn1 As described in this Opinion, the FBI will be required to supplement its Vaughn index, after which the parties may file renewed motions for summary judgment with regard to any of the plaintiff's claims still outstanding at that time.


Plaintiff Angela Clemente works as a "forensic analyst and paralegal" specializing in the investigation of, among other things, "systemic governmental misconduct within the FBI's New York office and the U.S. Attorney[']s Office for the Eastern District of New York." 1st Clemente Decl. ¶¶ 2-3. In particular, Ms. Clemente has devoted considerable time to researching Gregory Scarpa, Sr., a high-ranking member of the Mafia who, beginning in 1961, also served as an informant for the FBI. Id. ¶ 4; see also PMSJ, Ex. 8, attach. 2 at 18 n.17; PMSJ, Ex. 10. According to Ms. Clemente, during his decades-long tenure as a "top echelon" informant for the FBI, Mr. Scarpa committed several murders of which his FBI handlers were or should have been aware. PMSJ at 2. Indeed, Ms. Clemente alleges that in some instances, the FBI commissioned Mr. Scarpa "to commit violent crimes" against targets of FBI investigations. 1st Clemente Decl. ¶ 5; PMSJ, Ex. 10 at 3.

Ms. Clemente's contentions, though seemingly sensational, are supported by mainstream media accounts and court documents concerning Mr. Scarpa. See, e.g., People v. Devecchio, No. 6825/05, 2007 N.Y. Misc. LEXIS 7827 (N.Y. Sup. Ct. Nov. 1, 2007) (submitted as PMSJ, Ex. 16); Fredric Dannen, The G-Man and the Hit Man, NEW YORKER, Dec. 16, 1996 (submitted as P. Supp., Ex. 3). In 2007, Lindley DeVecchio, formerly Mr. Scarpa's FBI handler, was prosecuted in New York for four murders committed, allegedly with Mr. DeVecchio's indirect assistance, by Gregory Scarpa, Sr. See PMSJ, Ex. 9, attach. 2 at 1; People v. Devecchio, 2007 N.Y. Misc. LEXIS 7827. The case against Mr. DeVecchio was dismissed when the prosecution's chief witness, the former mistress of Mr. Scarpa, was found to lack credibility. See People v. Devecchio, 2007 N.Y. Misc. LEXIS 7827, at *7. Ms. Clemente provided assistance to the special district attorney subsequently appointed to investigate the possibility that the discredited witness had committed perjury. See PMSJ, Ex. 8, attach. 2 at 18.

On April 12, 2008, Ms. Clemente sent a letter to the records division of FBI headquarters ("FBIHQ"), requesting "copies of the entire UNREDACTED FBI file of Gregory Scarpa Sr." 2d Am. Compl., Ex. 1. She sent a second copy of the letter to FBIHQ on May 21, 2008. Id., Ex. 2. The FBI confirmed by letter dated June 9, 2008, that it had received Ms. Clemente's letters and was processing them as requests made under the Freedom of Information Act ("FOIA"). See id., Ex. 3. In a letter dated July 9, 2008, and marked as sent "via certified mail," Ms. Clemente's counsel informed the FBI that, having retained an attorney, Ms. Clemente "wish[ed] to clarify her request" for documents "in certain respects." Id., Ex. 4 at 1. Specifically, Ms. Clemente's FOIA request was "directed to any informant file on Mr. Scarpa, including in particular any Top Echelon ('TE') Informant File." Id. Furthermore, Ms. Clemente requested that any responsive documents located by the FBI be placed in the following order: first, "all records pertaining to New Orleans Mafia Chief Carlos Marcello," about whom Mr. Scarpa may have provided information to the FBI, and who "is suspected by some of having been involved in the assassination of President Kennedy"; second, "all records pertaining to any trip made by Scarpa to Costa Rica"; and third, all remaining responsive documents, placed "in chronological sequence, commencing with the earliest date through latest date." Id. at 1-2. Once the documents had been ordered as requested, Ms. Clemente asked that she be sent copies of only "the first 500 pages." Id. at 1. She also requested a waiver of copying and processing fees. Id. at 2.

According to Ms. Clemente, in addition to that first letter dated July 9, 2008 ("First July 9 Letter"), she also sent the FBI a second letter dated July 9, 2008 ("Second July 9 Letter"). See 2d Am. Compl. ¶ 24; id., Ex. 9. Unlike the First July 9 Letter, the second letter was not marked as having been sent via certified mail and bore no tracking number. Compare 2d Am. Compl., Ex. 9 at 1, with id., Ex. 3 at 1. The second letter contained a set of instructions from Ms. Clemente regarding her FOIA request that differed substantially from, and in some ways conflicted with, the instructions in the First July 9 Letter. In the second letter, Ms. Clemente's counsel stated that his client "requests all records on or pertaining to Gregory Scarpa wherever they may be located or filed in whatever form or format they are maintained." Id., Ex. 9 at 1. He also requested that the FBI do the following: "search your Central Records System for all main files and all 's[e]es' or cross-references" relating to Mr. Scarpa; provide to Ms. Clemente copies of "cross-refererence [sic] materials," including "not only the initial page of the cross-[re]ferencing document and those pages to wh[i]ch [Mr. Scarpa's] name is indexed but the entire document"; "search your electronic surveillance... for all references to Mr. Scarpa"; and "use all nicknames, aliases, pseudonyms, or code names used by Mr. Scarpa" in searching FBI databases for responsive documents. Id. at 1-2 (emphasis in original). The Second July 9 Letter did not mention Carlos Marcello or any trips by Mr. Scarpa to Cuba, nor did it limit to 500 the number of responsive pages that Ms. Clemente wished to receive.

In a letter dated October 10, 2008, David M. Hardy of the FBIHQ's Records Management Division informed Ms. Clemente that her request for a fee waiver had been denied. See 2d Am. Compl., Ex. 7 at 1. He then stated his understanding that Ms. Clemente's July 9, 2008 letter to FBIHQ had notified the agency that Ms. Clemente wished to "limit her request to the first 500 pages which fall within three categories: (1) all records pertaining to New Orleans Mafia Chief Carlos Marcello; (2) all records pertaining to any trip made by Scarpa to Costa Rica; (3) all records in any informant file in chronological sequence." Id. at 2. The agency had located "approximately 1170 pages which are potentially responsive" to Ms. Clemente's request, and Ms. Clemente would be required to pay duplication costs if she elected to receive copies of any of those pages. Id. at 2. Mr. Hardy made no reference to any of the instructions contained in the Second July 9 Letter, and the FBI maintains that it never received that letter at all. See, e.g., Opp. to PMSJ at 1.

In response to Mr. Hardy's letter, Ms. Clemente sent the FBI a check for $107.00 - enough to cover the duplication fees for all 1170 documents located by the FBI. See DMSJ, Ex. G. She also appealed the denial of her request for a fee waiver. She then filed this action on July 21, 2008, before she had received any substantive response to her requests from the FBI, and named as defendants the FBI, the Department of Justice, and ten "Joe Doe Agenc[ies]." See Compl. at 1. The complaint contained two counts. The first, entitled "Scarpa Information Files," alleged that Ms. Clemente had filed a FOIA request with FBIHQ, and that the agency had failed to supply the requested documents. Id. ¶¶ 7-14. In particular, Ms. Clemente claimed that she had requested and not received the following:

... the first 500 pages [in "the file on SCARPA"] falling within the following three categories:

(a) all records pertaining to New Orleans Mafia Chief Carlos Marcello;

(b) all records pertaining to any trip SCARPA made to Costa Rica;

(c) all records in any informant file in chronological sequence....

Id. ¶ 10. Count II of the complaint alleged that the FBI had wrongfully denied Ms. Clemente's request for a fee waiver. See id. ¶¶ 15-18. The complaint neither referred to nor included a copy of the Second July 9 Letter. A subsequently filed amended complaint also made no mention of the second letter. See 1st Am. Compl.

On November 24, 2008, the FBI released 500 pages of documents to Ms. Clemente and filed a motion for summary judgment. See DMSJ, Ex. I. In response, Ms. Clemente, with leave from the Court, filed a second amended complaint. That complaint contains the same two counts as the first two complaints, plus a third count, which is based in part on Ms. Clemente's allegation that "[b]y letter dated July 9, 2008, [she] submitted [to FBIHQ] a second, expanded request for records pertaining to SCARPA." 2d Am. Compl. ¶ 24. A citation following that allegation refers to the Second July 9 Letter, which is appended to the second amended complaint as an exhibit. See id. Ms. Clemente alleges further that

[t]he FBI has to date not directly acknowledged this request, except to the extent that its letter of October 10, 2008, indicates that it has processed approximately 1,170 pages of responsive records, more than double the number of pages responsive to CLEMENTE's April 12/May 21, 2008 request as modified by her first June 9, 2008 letter limiting that request to 500 pages.

Id. ¶ 25. The third count of the second amended complaint thus appears to raise two separate but related issues: (1) whether the FBI received and responded appropriately to the Second July 9 Letter, and (2) to what extent information contained in responsive documents not falling within the first 500 pages initially released to Ms. Clemente must be disclosed under the FOIA.

On March 3, 2009, the FBI released 653 additional pages of responsive records to Ms. Clemente, bringing the total released to approximately 1,170. D. Supp. SMF ¶ 4. On March 13, 2009, Ms. Clemente filed a cross-motion for summary judgment. The FBI and the Department of Justice filed a second, supplemental motion for summary judgment several months later.

The pending motions for summary judgment concern three issues corresponding to the three counts of Ms. Clemente's complaint: (1) whether Ms. Clemente is entitled to a waiver of the search and duplication fees associated with her FOIA request; (2) whether the FBI met its obligations under the FOIA in releasing the first 500 documents requested by Ms. Clemente; and (3) whether the FBI complied with the FOIA in releasing an additional 650 documents to the plaintiff in March of 2009. The Court will address those issues in two stages, first discussing the plaintiff's request for a fee waiver, and then evaluating the extent to which the FBI has conducted an adequate search for responsive documents and released any information that must be disclosed under the FOIA.


A. The Freedom of Information Act

The fundamental purpose of the FOIA is to assist citizens in discovering "what their government is up to." Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (emphasis in original). The FOIA strongly favors openness, as Congress recognized in enacting it that an informed citizenry is "vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978); see also Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (purpose of the FOIA is "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny"). Thus, "disclosure, not secrecy, is the dominant objective of the Act." Dep't of the Air Force v. Rose, 425 U.S. at 361.

B. Summary Judgment

The Court will grant a motion for summary judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits or declarations 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). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits its own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Defenders of Wildife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. United States Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007); Farrugia v. Executive Office for United States Attorneys, Civil Action No. 04-0294, 2006 WL 335771, at *3 (D.D.C. Feb. 14, 2006). In a FOIA case, the Court may award summary judgment solely on the basis of information provided in affidavits or declarations when the affidavits or declarations are "relatively detailed and non-conclusory," SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and describe "the documents and 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, 826-27 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974); Hertzberg v. Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003). An agency must demonstrate that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978); see also Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001); Hertzberg v. Veneman, 273 F. Supp. 2d at 74.


An agency may charge fees for the search for and duplication of records released in response to a FOIA request unless the requester is eligible for a statutory fee waiver. See 5 U.S.C. § 552(a)(4)(A)(ii)-(iii). Ms. Clemente maintains that the FBI should not have required her to pay $107.00 in fees because she was entitled to a "public interest" fee waiver. See PMSJ at 9-13. A requester qualifies for such a waiver "if disclosure of the information [she seeks] is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). The Court reviews an agency's decision to deny a fee waiver request de novo, but may rely only upon the record that was before the agency. See id. § 552(a)(4)(A)(vii).

Both before the agency and before a reviewing court, the FOIA requester bears the burden of demonstrating that she meets the statutory requirements for a waiver of fees. Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003). Relevant factors to be considered in determining whether "disclosure of the information... is likely to contribute significantly to public understanding" of government activities include the following: (1) "[w]hether the subject of the requested records concerns 'the operations or activities of the government'"; (2) whether the records sought are "'likely to contribute' to an understanding of" those government activities; (3) whether disclosure would aid the understanding of the "public" - that is, "a reasonably broad audience of persons interested in the subject"; and (4) whether any such contribution to public understanding would be "significant." 28 C.F.R. ยง 16.11(k)(2)(i)-(iv) (Department of Justice's regulations concerning FOIA fee waivers); see also Judicial Watch, Inc. v. Rossotti, 326 F.3d at 1312 (considering similar regulations in determining whether an agency properly denied a fee waiver request). The third factor, regarding whether disclosure of the requested information would ...

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