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Sandy v. Executive Office of United States Attorneys

United States District Court, District of Columbia

March 18, 2016

KESTER SANDY, Plaintiff,
v.
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR KOTELLY United States District Court Judge

This matter is before the Court on the parties’ cross-motions for summary judgment [ECF Nos. 14 and 16]. For the reasons discussed below, the Court will enter judgment for the defendant.

I. BACKGROUND

Plaintiff, a prisoner who is currently incarcerated at the Coxsackie Correctional Facility in New York, brings this action under the Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552, against the Executive Office for United States Attorneys (“EOUSA”), a component of the United States Department of Justice (“DOJ”). See Compl. ¶¶ 1, 4-6.

In August 2013, plaintiff submitted a FOIA request to the United States Attorney’s Office for the Eastern District of Pennsylvania (“USAO/EDPA”), id. ¶ 7, for the following information:

Special Assistant U.S. Attorney Lisa R. Cipoletti[’s] proof of appointment, oath of office for such title, when she was appointed such title, was she appointed in the year of 2004 and who appointed her such title and was she acting under the direction and supervision of the U.S. Attorney during the above said year, particularly 04-cr-324TJS U.S. v. Sandy; and any further information

Id., Ex. A (Freedom of Information Request dated August 12, 2013). The request was forwarded to the EOUSA’s Freedom of Information Act Unit in Washington, D.C. for processing. Id. ¶ 8; see id., Ex. B (Letter to plaintiff from Susan Falken, FOIA Contact, EDPA, dated August 21, 2013). The EOUSA acknowledged receipt of plaintiff’s request, which was assigned Request No. 13-3142.[1] Id. ¶ 9; see id., Ex. C (Letter to plaintiff from Susan B. Gerson, Assistant Director, Freedom of Information & Privacy Staff, EOUSA, dated September 12, 2013).

A search of EOUSA personnel records produced no information about Ms. Cipoletti. Def.’s Mem. of P. & A. in Support of its Mot. for Summ. J. [ECF No. 14-1] (“Def.’s Mem.”), Ex. A (“Richardson Decl.”) ¶ 11. Although the EOUSA was notified of this result by email on January 29, 2014, Richardson Decl. ¶ 12, plaintiff was not informed of this “no records” result until May 22, 2015, see Def.’s Mem., Ex. K (Letter to plaintiff from Susan B. Gerson dated May 22, 2015) at 1.

Meanwhile, and in error, the EOUSA notified plaintiff that it denied his request in full, id. ¶ 9, relying on Exemptions 6 and 7(C), id., Ex. H (Letter to plaintiff from Susan B. Gerson dated June 30, 2014) at 1. Plaintiff appealed the EOUSA’s determination administratively to the DOJ’s Office of Information Policy (“OIP”). Id. ¶ 10. OIP affirmed “on partly modified grounds, ” that is, relying on Exemption 6 alone. Id., Ex. L (Letter to plaintiff from Matthew Hurd, Senior Attorney, Administrative Appeals Staff, dated March 6, 2015) at 1.

After plaintiff initiated this lawsuit, staff reviewed the EOUSA’s files and “discovered that on January 29, 2014, it received a notification from the [United States Attorney’s Office for the Eastern District of Pennsylvania] that the [office] no longer employed . . . Cipoletti and it no longer possessed records related to her oath.” Def.’s Mem., Ex. J (Motion for Extension of Time to Respond to Plaintiff’s Complaint, Sandy v. Exec. Office of United States Attorneys, No. 15-cv-628 (D.D.C. filed May 29, 2015)) at 2. On the belief that Ms. Cipoletti had been an Assistant United States Attorney, plaintiff was informed that responsive records had been transferred to the General Service Administration’s National Personnel Records Center (“NPRC”). See id., Ex. J. at 2.

Plaintiff submitted a FOIA request to the NPRC, see Notice of Motion [ECF No. 16] (“Pl.’s Mot. for Summ. J.”) at 4 (page numbers designated by ECF); see id., Ex. (Freedom of Information Request dated August 10, 2015).[2] NPRC informed plaintiff that he should submit his request directly to the subject’s last or current employing agency. Id., Ex. (Returned Request Form).

Counsel for defendant explains that Ms. Cipoletti was not a federal government employee; at the time of plaintiff’s criminal prosecution in the Eastern District of Pennsylvania, she “was ‘cross-designated’ as a [Special Assistant United States Attorney] under the Project Safe Neighborhoods Initiative while simultaneously holding the position of Assistant District Attorney employed with the Lehigh County District Attorney’s Office.” Reply to Pl.’s Opp’n to Defs.’ Mot. for Summ. J. [ECF No. 17] at 4. Counsel further explains that the EOUSA would not have maintained a personnel file for Ms. Cipoletti, and the personnel file “is the most likely location for information responsive to [p]laintiff’s FOIA request.” Id.

Plaintiff emphasizes that he seeks Ms. “Cipoletti’s oath of office, etc., which is public information, ” but not personal information about her. Compl. ¶ 15. He demands release of the records he requested, among other relief. See id. at 4 ...


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