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Clemente v. Federal Bureau of Investigation

United States District Court, D. Columbia

January 27, 2014

ANGELA CLEMENTE, Plaintiff
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant

For ANGELA CLEMENTE, Plaintiff: James H. Lesar, LEAD ATTORNEY, Silver Spring, MD.

For FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE, Defendants: Heather D. Graham-Oliver, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

Page 19

MEMORANDUM OPINION

Thomas F. Hogan, UNITED STATES DISTRICT JUDGE.

Plaintiff Angela Clemente filed the present suit against the Federal Bureau of Investigation seeking injunctive relief under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552. Clemente alleges that the FBI failed to comply with the statutory deadlines to respond to two FOIA requests Clemente had submitted in 2011. Both requests relate to the relationship between the FBI and several of its informants in the world of organized crime. This Memorandum concerns Clemente's Motion for and Order Requiring Prompt Review, ECF No. [11] (" PL Mot." ); the FBI's Opposition and Motion for an Open America Stay, ECF No. [13] (" FBI Mot." ); and Clemente's Reply supporting her motion and in opposing the FBI's motion for an Open America stay, ECF No. [14] (" PL Rep." ). On October 22, 2013, this Court heard oral argument on the parties' motions. After careful consideration of the entire record, the Court orally granted Clemente's motion and denied the FBI's motion for an Open America stay. The Court then ordered the FBI to process 5,000 pages a month responsive to Clemente's FOIA requests beginning November 15, 2013. This Memorandum sets forth the reasoning behind that decision.

I. Background

Angela Clemente is a forensic analyst who has conducted extensive research on alleged corruption resulting from the collaboration between the FBI and its so-called " top echelon" informants. For the past ten years, Clemente's research has focused Gregory Scarpa, a high ranking member of the mafia who served as an FBI informant beginning in 1961. Compl., ECF No. [1], ¶ 3. Clemente states that her research has revealed that Scarpa's handler, Supervisory Special Agent Lindley Devecchio, and others at the FBI were complicit in or actively aided the cover-up of murders and other violent crimes committed bye Scarpa and other FBI informants. PL Mot. at 3-4. These allegations have been the focus of a number of media reports and an ongoing Office of Inspector General investigation, which Clemente is assisting. Id. at 2-3. Clemente also conducts research on behalf of relatives of persons allegedly murdered by Scarpa and other informants. Id. at 2.

Clemente believes that her work will uncover more evidence of systemic corruption involving the FBI and informants associated with the organized crime, but she is concerned that she may not live long enough to complete her research. Clemente's liver was " gravely damaged through medical surgery and she is desperately in need of a liver transplant," but her doctors have advised her " that her prospect of getting on in time is dim." Id. at 7. Therefore, Clemente " faces a very limited lifespan without much prospect that she will be able to carry forward" her research. Id.

On June 26, 2011, Clemente submitted a request to the New York FBI Field Office (" NYO" ) for records concerning Gregory

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Scarpa and the murders of John Minerva, Michael Imbregamo, Salvatore Scarpa, and Matty Ianiello. Compl. at ¶ 8. This request was limited to 500 pages to facilitate a faster response. Pl. Mot. at 5. On October 30, 2011, Clemente submitted a second request for " all records on or pertaining to Gregory Scarpa wherever they may be located or filed, in whatever format they are maintained." Id. at 6.[1] At the time Clemente filed this lawsuit on January 25, 2013, she had received no records responsive to either request. On June 28, 2013, six months after this suit was filed and two years after she had made her original request, the FBI produced the 500 pages responsive to Clemente's first FOIA request. Id. at 6.

The FBI has identified approximately 30,000 additional documents responsive to plaintiff's request. FBI Mot. at 2. By the time the FBI filed its response to Clemente's motion, the FBI represented that it had processed a total of 1,420 pages responsive to Clemente's FOIA request and had released 920 pages to Clemente. Id. at 4.

The FBI initially offered to process Clemente's request at the customary rate of 500 documents per month, but Clemente argues that at that rate, she was likely to die before the documents are turned over to her. Pl. Mot. at 2. The FBI later raised its offer to 1,500 documents per month. FBI Proposed Scheduling Order, ECF No. [7], at 2. Clemente argues that the processing rate should instead be 5,000 pages per month in light of her ill health and fact that the documents relate to an issue of great importance to the public. Pl. Mot. at 7. In support of her motion, Clemente attached a declaration describing the nature of her research and several newspaper articles describing recently-uncovered crimes allegedly committed by FBI informants to support her argument that her work is in the public interest. Id. at Ex. 1-2; see also Pl. Reply at Ex. 2-4.

The FBI opposed plaintiff's motion and cross-moved for an Open America stay. See FBI Mot. at 1. Defendant argues it is entitled to a stay " because of the tremendous number of FOIA requests filed with the FBI in light of limited resources." Id. at 3. The FBI argues that reviewing the relevant documents will be time-consuming due to the sensitive nature the of the materials Clemente has requested, but states that it has nevertheless worked diligently to respond to the requests. Id. at 11-12. The FBI also offered to increase its processing rate to 2,000 pages a month if Clemente agreed to settle this lawsuit. Id. The FBI's brief did not address what, if any, impact Clemente's declining health should have on the Court's decision to ...


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