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Gary L. Kretchmar v. Federal Bureau of Investigation

July 25, 2012


The opinion of the court was delivered by: John D. Bates United States District Judge


In this action brought pro se under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiff challenges the Federal Bureau of Investigation's ("FBI") release of redacted records and its search for responsive records.*fn1 Pending before the Court are defendant's motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure [Dkt. # 10] and plaintiff's cross motion for summary judgment [Dkt. # 11]. Upon consideration of the parties' submissions and the entire record, the Court will grant defendant's motion, deny plaintiff's motion, and enter judgment accordingly.


Plaintiff is a Pennsylvania state prisoner serving a life sentence for first-degree murder. Compl. [Dkt. # 1] ¶ 1; see generally Commonwealth v. Kretchmar, 971 A.2d 1249 (Pa. Super. 2009). "The victim suffered three gunshot wounds. Ballistics tests revealed that a .22 caliber firearm was used to inflict the wounds." Kretchmar, 971 A.2d at 1250. During plaintiff's trial in November 1988, two FBI lab examiners testified for the Commonwealth "about evidentiary conclusions drawn from firearms identification analysis" and "from the forensic scientific technique of Neutron Activation Analysis . . . , also known as, Comparative Bullet Lead Analysis (CBLA)." Compl. ¶¶ 8-10; see Kretchmar, 971 A.2d at 1251-52.

In 2004, a study published by the National Research Council of the National Academies ("NAS") "assessed the reliability of the science of CBLA and its usefulness as a forensic evidentiary tool and [] raise[d] questions as to the usefulness of CBLA evidence." Kretchmar, 971 A.2d at 1252. "At about the same time, a former chief metallurgist for the FBI . . . offered public criticism of CBLA [and] CBLA soon came under attack in a post-conviction context . . . ." Id. at 1252-53 (citation omitted). "It appears that sometime after the NAS issued its report, the FBI discontinued CBLA." Id. at 1254.

In the instant action, plaintiff alleges that on November 16, 2007, the FBI issued a public statement acknowledging "that it made mistakes in handling bullet lead testimony . . . .," and, on November 18, 2007, announced that it would "release all bullet-lead files involving convictions." Compl. ¶¶ 11-12 (quoting "60 Minutes" and The Washington Post). But see Kretchmar, 971 A.2d at 1254 n.10 (disputing in plaintiff's post-conviction action "that the [FBI's] press release [states] that the FBI had made mistakes in handling bullet lead testimony"). As a result of the FBI's announcement, plaintiff submitted a FOIA request on November 28, 2007, to FBI Headquarters "seeking release of his bullet-lead case file." Compl. ¶ 13. He received responsive records on October 31, 2008. Id. ¶ 16. On November 5, 2008, plaintiff submitted a FOIA request to the FBI "seeking release of an April 15, 1997 Office of Inspector General Report" on the findings "Critical of Forensic Work Performed by Certain Lab Examiners." Id. ¶ 17. Plaintiff received the report in May 2009. Id. ¶ 19.

By letter of January 25, 2010, plaintiff requested from the Executive Office for United States Attorneys ("EOUSA") records pertaining to the "FBI/DOJ review of the . . . CBLA testimony provided" at his criminal trial and records "contain[ing] any legal issues and/or legal conclusions that have been identified by the FBI/DOJ review of the . . . CBLA testimony . . . ." Decl. of David M. Hardy ("Hardy Decl.") [Dkt. # 10-3), Ex. A [Dkt. # 10-5]. Plaintiff also requested any such records that were sent to the District Attorney's Office of Bucks County, Pennsylvania, and the Bensalem, Pennsylvania, Police Department. Id. In August 2010, EOUSA informed plaintiff that it had referred his request to the FBI, which informed plaintiff by letter of December 8, 2010, that a search of its records showed that the requested records were previously released to plaintiff in response to his request dated November 28, 2007. Id., Ex. D.

Plaintiff unsuccessfully appealed the FBI's determination to the Department of Justice's Office of Information Privacy ("OIP"). Id., Exs. E, G. Following OIP's decision dated April 7, 2011, plaintiff filed this lawsuit on June 28, 2011, "seeking the complete production of agency records from the DOJ's [July 2009] review of the bullet-lead analysis testimony at [his] 1988 state court trial[,]" Compl. ¶ 5, "which was conducted after the October 28, 2008 FOIA release of plaintiff's bullet-lead case file." Id. ¶ 32. On September 13, 2011 -- the same date of plaintiff's motion for summary judgment -- the FBI released to plaintiff a total of 110 responsive pages, consisting of "a copy of the FBI Laboratory's July 17, 2009 letter as well as the three reviewers' work papers which includes copies of the transcript from plaintiff's state criminal trial used to review the FBI witness' CBLA testimony at plaintiff's criminal trial." Hardy Decl. ¶ 21. The FBI redacted third-party information from seven of those pages pursuant to FOIA exemptions 6 and 7(C). Id. ¶ 23 & Ex. H (Vaughn index).


Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "citing to particular parts of materials in the record, including . . . documents, electronically stored information, affidavits or declarations . . . admissions . . . or other materials" that it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see also Celotex, 477 U.S. at 323.

The FOIA requires federal agencies to release all records responsive to a proper request except those protected from disclosure by any of nine enumerated exemptions set forth at 5 U.S.C. § 552(b). The disclosure requirement generally covers only those records that are in the agency's custody and control at the time of the FOIA request. McGehee v. Central Intelligence Agency, 697 F.2d 1095, 1110 (D.C. Cir. 1983). A district court is authorized "to enjoin [a federal] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B); Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980).

The agency has the burden of proving that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation marks omitted); accord Maydak v. U.S. Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000). The district court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations that 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); accord Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973). Agency declarations are accorded "a presumption of good faith . . .," Long v. U.S. Dep't of Justice, 450 F. Supp. 2d 42, 54 (D.D.C. 2006) (citation and quotation omitted), and to rebut them plaintiff "must point to evidence sufficient to put the Agency's good faith into doubt." Ground Saucer Watch, Inc. v. C.I.A., 692 F.2d 770, 771 (D.C. Cir. 1981). III. DISCUSSION

1. Claimed Exemptions

Invoking FOIA exemption 6 in conjunction with exemption 7(C), the FBI redacted the names of FBI Laboratory personnel "responsible for conducting a review of bullet lead laboratory results that were used in the state criminal prosecution of plaintiff." Hardy Decl. ΒΆ 32. Hardy states that lab personnel assignments "are not by choice" and publicity surrounding an investigation "may seriously prejudice [the employees'] effectiveness in conducting other investigations." Id. As to the privacy interests at stake, Hardy states that lab personnel could be subjected to "unofficial questioning as to the conduct of this or other investigations" and to harassment by targets of the investigation. Id. Hardy further states that "[t]he FBI could ...

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