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Clemente v. Federal Bureau of Investigation

United States District Court, D. Columbia.

October 24, 2014

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

Page 263

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 264

Amended Memorandum Opinion[1]

Thomas F. Hogan, SENIOR UNITED STATES DISTRICT JUDGE.

Plaintiff Angela Clemente filed the present suit against the Federal Bureau of Investigation (" FBI" ) 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 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 an Order Requiring Prompt Review and Release of All Responsive Records [ECF No. 11]; the FBI's Opposition to Plaintiffs Motion for An Order Requiring Prompt Review and Release of All Nonexempt Responsive Records and Request for an Open America Stay [ECF No. 13] (" FBI Mot." ); and Clemente's Reply to Defendant's Opposition to Plaintiff's Motion to Expedite Review and Release of all Nonexempt Materials and Opposition to Defendant's Motion for an Open America Stay [ECF No. 14] (" Pl.'s Reply" ). 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 request, 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. Pl.'s Mem. of P. & A. in Supp. of Mot. for an Order Requiring Prompt Review and Release of All Nonexempt Responsive Records 3 [ECF No. 11] (" Pl.'s Mem. of P. & A." ). For the past ten years, Clemente's research has focused on Gregory Scarpa, a high ranking member of the mafia who served as an FBI informant as early as 1960. Pl.'s Reply Ex. 1, Clemente Deck ¶ 13 [ECF No. 14-1]. 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 by Scarpa and other FBI informants. Pl.'s Mem. of P. & A. 3-4. These allegations have been the focus of a number of media reports and an ongoing investigation by the Office of the Inspector General for the Department of Justice, with which Clemente is assisting. Id. at 7; Pl.'s Reply 3, 4. Clemente also conducts research on behalf of relatives of persons allegedly victimized by Scarpa and other informants. Clemente Deck ¶ 4 [ECF No. 14-1].

Clemente believes that her work will uncover more evidence of systemic corruption involving the FBI and its informants associated with organized crime, but she is concerned that she may not live long enough to complete her research. Pl.'s Mem. of P. & A. 7. 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 one in time is dim." Id. Therefore, Clemente " faces a very limited lifespan without much

Page 265

prospect that she will be able to carry further" with her research. Id.

On June 26, 2011, Clemente submitted a request to the New York FBI Field Office for records concerning Gregory Scarpa and the murders of John Minerva, Michael Imbergamo, Salvatore Scarpa, and Matty Ianiello. Compl. ¶ 8. This request was limited to 500 pages to facilitate a faster response. Pl.'s Mem. of P. & A. 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 form or format they are maintained." Id. at 6.[2] At the time Clemente filed this lawsuit on January 25, 2013, she had received no records responsive to either request. Id. 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.

The FBI has identified approximately 30,000 additional documents responsive to the plaintiff's request. FBI Mot. 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 3-4.

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 is likely to die before the documents are turned over to her. Pl.'s Mem. of P. & A. 2. The FBI later raised its offer to 1,500 documents per month. See FBI Proposed Scheduling Order 2 [ECF No. 7]. Clemente argues that the processing rate should instead be not less than 5,000 pages per month in light of her ill health and the fact that the documents relate to an issue of great importance to the public. Pl.'s Mem. of P. & A. 7. In support of her motion, Clemente attached a declaration describing the nature of her research and several newspaper articles describing ...


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