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George Lardner v. Federal Bureau of Investigation

April 4, 2012

GEORGE LARDNER, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge,

MEMORANDUM OPINION

I.INTRODUCTION

This Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 552 et seq., case comes before the court on cross-motions for summary judgment.Plaintiff George Lardner ("Lardner") filed this action against defendants, Federal Bureau of Investigation ("FBI"), United States Department of Justice, Drug Enforcement Agency ("DEA"), and five other John Doe federal agencies. The defendants filed a motion [50] for summary judgment, and the plaintiff filed a motion [51] for partial summary judgment, motion [58] to compel the release of records, and supplemental cross-motion [80] for summary judgment. Upon consideration of the filings, the entire record herein and the relevant law, the Court will GRANT--IN--PART the defendants' motion for summary judgment, finding in favor of the defendants with respect to the reasonableness of the FBI's search for responsive records and DENY-IN-PART WITHOUT PREJUDICE as it pertains to the merits of the defendants' withholdings; and (2) GRANT--IN-- PART plaintiff's motion for partial summary judgment with respect to the request ordering the defendants to reprocess all responsive records and DENY-IN-PART WITHOUT PREJUDICE as it pertains to the merits of the defendants' withholdings. The Court additionally DENIES the plaintiff's motion to compel as moot.*fn1

II.BACKGROUND

A.Plaintiff's FOIA Requests

Lardner is a Pulitzer Prize winning journalist and author. Pl.'s Supp. Mot. at 1. By letters dated September 14, 1993 and January 21, 2003, Lardner filed FOIA requests, seeking access to an array of records pertaining to Aniello Dellacroce ("Dellacroce"), the Underboss of the Gambino Crime Family who died in 1985; Sam Giancana ("Giancana"), the deceased underboss of the Chicago Crime Family; and all records concerning the FBI's Top Hoodlum Program. Vaughn Index, Hardy Second Supp. Decl. ("Hardy Decl. 2") at 9-10. A detailed description of the handlings of Lardner's requests is set forth below.

1. FOIA Request Concerning Aniello Dellacroce

By letter dated January 21, 2003, addressed to FBIHQ, Lardner made a FOIA request for all records at FBIHQ and all FBI field offices concerning Dellacroce. Hardy Decl. 2 at 9. In addition, Lardner requested a search of all the electronic surveillance (ELSUR) *fn2 indices, including confidential source and informant files. Id. By letter dated February 3, 2003, FBIHQ acknowledged receipt of Lardner's FOIA request and assigned it FOIPA Request Number 972696. Defs.' Mot. Summ. J., Hardy Supp. Decl. ("Hardy Supp. Decl.") at 13. By letter dated October 20, 2005, FBIHQ released records concerning Dellacroce to Lardner. Id. at 14. By letter dated December 21, 2005, FBIHQ made a further release of records concerning Dellacroce to plaintiff. In this letter, the FBI advised Lardner that some documents concerning Dellacroce that originated with other agencies were referred to those agencies for direct response to him. Id. at 15.

2.FOIA Request Concerning the Top Hoodlum Program Prior to 1960 By letter dated September 14, 1993, addressed to FBIHQ, Lardner made a FOIA request for all records dated prior to 1960 concerning Sam Giancana and the FBI's Top Hoodlum Program. Id. at 15. By letter dated September 24, 1996, FBIHQ advised Lardner that this request was assigned FOIPA Request Number 380541. Id. at 16. By letter dated June 11, 2001, FBIHQ released 2,531 pages of documents to Lardner concerning this request. Id. at 18.

3.FOIA Request Concerning the Top Hoodlum Program from 1960 Forward By letter dated January 21, 2003, addressed to FBIHQ, Lardner made a FOIA request for all records at FBIHQ, including ELSUR records, concerning the Top Hoodlum Program from 1960 forward and any successor or related program or files. By letter dated February 3, 2003, FBIHQ acknowledged receipt of Lardner's FOIA request and assigned it FOIPA Request Number 972694. Over the following three years, the FBI released tens of thousands of documents to Lardner concerning this request and the request for records prior to 1960.

B.Procedural History

On April 11, 2003, Lardner filed this complaint, requesting the release of all records of the FBI, DEA, and five other John Doe federal agencies pertaining to his FOIA requests. On February 23, 2004, the parties filed a joint report with the Court and a signed stipulation in which the FBI agreed to process approximately 34,000 pages of investigative records concerning the Top Hoodlum Program prior to and after 1960. The FBI also agreed to provide the Court and Lardner with a Status Report regarding any documents referred to other agencies and agreed to attempt to track down documents designated as missing.*fn3 Additionally, the FBI agreed to search the ELSUR indices in the 19 field offices.

Plaintiff selected 150 sample documents from the thousands of processed records so that the FBI could create a Vaughn index. The FBI examined the 307 pages and filed its motion for summary judgment on November 24, 2008. The plaintiff filed a motion for partial summary judgment on November 26, 2008, raising arguments as to the adequacy of the search and request for reprocessing of all responsive documents.

The FBI filed a Vaughn index on August 27, 2010. The plaintiff subsequently filed a supplemental cross-motion for summary judgment on December 14, 2010. Accordingly, the parties' cross-motions for summary judgment are now ripe for review.

III.ANALYSIS

A.Legal ...


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