United States District Court, D. Columbia.
JOHN A. PETRUCELLI, Plaintiff,
U.S. DEPARTMENT OF JUSTICE, Defendant
January 27, 2016
A. PETRUCELLI, Plaintiff, Pro se, WHITE DEER, PA.
JOHN A. PETRUCELLI, Plaintiff: Paul David Wolf, LEAD
ATTORNEY, Denver, CO.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant: Timothy E.
Broomhead, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE,
B. WALTON, United States District Judge.
matter is before the Court on the Plaintiff's Motion for
an Order to Produce Records Withheld Pursuant to FOIA
Exemption b(7)(C) and for a Vaughn Index of Withheld
Records [ECF No. 88], the Executive Office for United States
Attorney's Renewed Motion for Partial Summary Judgment
[ECF No. 93], and the Plaintiff's Memorandum in
Opposition to Defendant's Motion for Summary Judgment and
Renewed Cross-Motion for Summary Judgment [ECF No. 97]. For
the reasons stated below, the Court will grant summary
judgment for the defendant.
Court begins with a review of the two requests for
information submitted by the plaintiff to the Executive
Office for United States Attorneys (" EOUSA" ), a
component of the United States Department of Justice ("
DOJ" ), under the Freedom of Information Act ("
FOIA" ), see 5 U.S.C. § 552 (2006).
the plaintiff sought information from the EOUSA, including
files, police reports, and videotapes, " believed to be
within the possession of the [United States Attorney's
Office] for the . . . Southern District of New York" and
" in relation to [his] criminal prosecution in the
United States District Court in New York, New York in the
criminal case titled and numbered under United States v.
John Petrucelli, No. 02CR099." Memorandum of
Points and Authorities in Support of Defendant's Motion
to Dismiss or, Alternatively, Motion for Summary Judgment
[ECF No. 23] (" Def.'s First Mem." ),
Declaration of David Luczynski (" First Luczynski
Decl." ), Exhibit (" Ex." ) A (Freedom of
Information Act/Privacy Act Request dated July 1, 2003) at 1.
The request was denied in full by the EOUSA based on FOIA
Exemptions 3, 5, 7(C), 7(D), and 7(F). First Luczynski Decl.
plaintiff's second FOIA request to the EOUSA also sought
information pertaining to the prosecution of his criminal
case. See id., Ex. F (Freedom of Information
Act/Privacy Act Request dated June 18, 2004). Specifically,
the plaintiff requested:
Books, Papers, Photographs, Recorded Tapes, Files, Reports,
Records, Video Tapes, Police Reports, and Other Documentary
Materials or Data, regardless of physical form or
characteristic made or received by any officer or employee of
your agency relating to, regarding, or naming [the
Id., Ex. F at 1. The plaintiff provided to the EOUSA
the title and number of his criminal case, and he agreed to
pay any fees associated with the request. Id. The
EOUSA staff located records responsive to the request and
released to the plaintiff forty pages of records in full and
twelve pages in part, and withheld two pages in full, relying
on FOIA Exemptions 3, 7(C), 7(D), and 7(F). Id.
¶ 10; see id., Ex. G (Letter to the plaintiff
from Marie A. O'Rourke, Assistant Director, Freedom of
Information/Privacy Act Staff, EOUSA, dated December 29,
2004) at 1.
Court previously found that the EOUSA conducted a reasonable
search for responsive records, see Petrucelli v.
Dep't of Justice, 51 F.Supp.3d 142, 158 (D.D.C. June
27, 2014), that the plaintiff did not oppose the EOUSA's
reliance on FOIA Exemption 3, see id. at
160 n.8, and that the EOUSA properly withheld information
under FOIA Exemption 5, see id. at 163. In
addition, the Court concluded that the responsive records,
all of which were maintained by the United States
Attorney's Office for the Southern District of New York
(" USAO/SDNY" ) in its Criminal Case File System
(Justice/USA-007), had been compiled for law enforcement
purposes within the scope of FOIA Exemption 7. Id.
EOUSA initially relied on FOIA Exemption 7(C) " to
protect the identity of third-party individuals, such as
potential witnesses and law enforcement personnel[,]"
First Luczynski Decl. ¶ 26, on FOIA Exemption 7(D)
" to protect individuals who provided information as
confidential sources during a criminal investigation,"
id. ¶ 29, and on FOIA Exemption 7(F) " in
conjunction with other exemptions, particularly [FOIA
Exemption 7](C)," based on its assessment of " a
reasonable likelihood that a threat of harm could be posed .
. . should the withheld material be released,"
id. ¶ 33; see also Memorandum of
Points and Authorities in Support of Defendant's Renewed
Motion to Dismiss or, Alternatively, for Summary Judgment
[ECF No. 40], Declaration of David Luczynski (" Second
Luczynski Decl." ) ¶ ¶ 27-37. The Court was
not totally persuaded, and denied the defendant's second
summary judgment ...