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Petrucelli v. U.S. Department of Justice

United States District Court, D. Columbia.

January 28, 2016

JOHN A. PETRUCELLI, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant

         Decided: January 27, 2016

          JOHN A. PETRUCELLI, Plaintiff, Pro se, WHITE DEER, PA.

         For JOHN A. PETRUCELLI, Plaintiff: Paul David Wolf, LEAD ATTORNEY, Denver, CO.

         For UNITED STATES DEPARTMENT OF JUSTICE, Defendant: Timothy E. Broomhead, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

         MEMORANDUM OPINION

         REGGIE B. WALTON, United States District Judge.

         This 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.

         I. BACKGROUND

         The 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).

         Initially, 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. 02CR[]099." 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. ¶ 6.

         The 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 plaintiff].

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.[1]

         The 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.

         The 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 ...


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