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Giovanetti v. Federal Bureau of Investigation

United States District Court, District of Columbia

March 31, 2016



Reggie B. Walton, United States District Judge

The plaintiff, a federal prisoner proceeding pro se, challenges the responses of the Federal Bureau of Investigation (“FBI”) and the Executive Office for United States Attorneys (“EOUSA”) to his requests for his records under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012). What remains of this case concerns only FBI records. See Mar. 26, 2015 Mem. Op. and Order (“Mar. 26, 2015 Opinion”) at 5-6 (finding “that EOUSA has satisfied its disclosure obligations under the FOIA and is entitled to judgment as a matter of law”). The FBI’s declarant stated that the FBI had processed 699 pages of records and had released to the plaintiff all but 237 of those pages completely or partially. Id. at 3. The declarant further stated that the plaintiff was provided the “Bates-stamped, processed and coded pages, ” but those pages were not placed in the record. Id. at 6. Thus, the defendants were ordered “to supplement the record with the pages and/or a declaration that describes the contents of the withheld documents in reasonable detail to permit a proper examination.” Id. at 7 (citations omitted).

Currently pending before the Court is the defendants’ Renewed Motion for Summary Judgment on Plaintiff’s Complaint (“Defs.’ Renewed Mot.”), supported by the Third Declaration of David M. Hardy (“Third Hardy Decl.”) and an index pursuant to Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975) (“Vaughn Index”), ECF No. 27. Hardy incorporates by reference his prior declarations. See Third Hardy Decl. ¶ 4. For the reasons explained below, the Court will grant the defendants’ renewed motion for summary judgment, and enter judgment in their favor accordingly.


In response to the Mar. 26, 2015 Opinion, the FBI reevaluated the documents that were withheld completely, determined that additional information could be released to the plaintiff, and, by letter dated May 26, 2015, released 79 additional redacted pages to the plaintiff. Id. ¶ 11. The FBI has now released a total of 541 pages, 237 of which contain redactions, and it has withheld 158 pages in full. Id. ¶ 10. The FBI has withheld information under FOIA exemptions 3, 5, 6, 7(C), 7(D), and 7(E), codified in 5 U.S.C. § 552(b). Declaration of David M. Hardy (“Second Hardy Decl.”) ¶ 53, ECF No. 13-4.


In his opposition to the motion now before the Court, the plaintiff has highlighted in his copy of the Vaughn Index which exemptions of documents claimed by the defendant he concedes and which ones he disputes as unsupportive of “a claim that the document is properly withheld in full.”[1] Memorandum in Support of Plaintiff’s Opposition to Renewed Motion for Summary Judgment of Plaintiff’s Complaint (“Pl.’s Opp’n Mem.”) ¶¶ 11-12 and Vaughn Index, ECF No. 34. In addition, the plaintiff questions the FBI’s “[t]rustworthiness” in light of its discovery (and release) of hundreds of responsive pages in 2014 after its initial release of 18 pages in 2009. Pl.’s Opp’n Mem. ¶ 6.

1. The Plaintiff’s Challenge to the Agency’s Trustworthiness

The plaintiff contends that “after turning over [the] 18 pages [in 2009], the FBI represented that it had no other [documents] responsive to Plaintiff’s FOIA request, ” and he notes “a sense of irony that now, at last, [the FBI represents that it] has no other [responsive] documents.” Pl.’s Opp’n Mem. ¶ 6. But the plaintiff has not pointed to anything in the record supporting the suggested misrepresentation, and his “skepticism, ” id. ¶ 7, is based on a mistaken premise. The plaintiff either ignores or overlooks the fact that the FBI’s 2009 release of 18 pages was in response solely to a referral of those records from EOUSA. See First Declaration of David M. Hardy (“First Hardy Decl.”) ¶ 9 and Exhibit D (Oct. 20, 2009 Letter), ECF No. 13-3. In response to the plaintiff’s direct request, the FBI “located one main file” pertaining to the plaintiff. First Hardy Decl. ¶ 16. It “initially withheld all responsive records under FOIA exemption 7(A) due to a pending investigation . . . . In response to this litigation, the FBI processed the request again and determined that the investigation was no longer pending.” Mar. 26, 2015 Op. at 3 (citations omitted). The FBI made its first release to the plaintiff on March 27, 2014, and it “released additional information contained in the released pages” on June 6, 2014. Id.

The plaintiff has not created a genuine factual dispute concerning the reasonableness of the FBI’s search, nor has he produced any evidence of agency bad faith. And “however fitful or delayed the release of information under the FOIA may be, once all requested records are surrendered, federal courts have no further statutory function to perform.” Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982); accord Boyd v. Criminal Div. of U.S. Dep’t of Justice, 475 F.3d 381, 388 (D.C. Cir. 2007); see, e.g., Murphy v. Executive Office for U.S. Attorneys, 789 F.3d 204, 212 n.5 (D.C. Cir. 2015) (noting that “Murphy’s inadequate-search challenge fails because the adequacy of the search becomes a moot point if the requested information is in fact found but not disclosed”) (citation omitted)); Whitmore v. U.S. Dep’t of Justice, __F.Supp.3d __, __, 2015 WL 5675579, at *3 (D.D.C. Sept. 25, 2015) (“As long as the agency conducts a reasonable search, it fulfills its obligations under the FOIA even if the search yields no responsive records.”) (citation omitted)). Therefore, the plaintiff’s trustworthiness argument does not preclude the Court from awarding the FBI summary judgment.

2. The FBI’s Asserted Exemptions

As reflected in the plaintiff’s copy of the Vaughn Index, he has conceded the defendants’ justifications for withholding information under FOIA exemptions 3, 7(D) and 7(E), see also Pl.’s Opp’n Mem. ¶ 11, and the Court finds from its own examination of the defendants’ evidence that those withholdings are properly justified, see Second Hardy Decl. ¶¶ 16-20 (applying Exemption 3 to information obtained from the Financial Crimes Enforcement Network (“FinCEN”) under the Bank Secrecy Act (“BSA”), 31 U.S.C. § 5319, which specifically exempts from the FOIA FinCEN “report[s] and records of reports”); id. ¶¶ 41-44 (applying Exemption 7(D) to confidential information provided by a local law enforcement agency during the financial fraud investigation of the plaintiff and others); id. ¶¶ 45-48 (applying Exemption 7(E) to specifically identified investigative techniques and procedures), cf. Petrucelli v. Dep’t of Justice, 51 F.Supp.3d 142, 168-171, 173 (D.D.C. 2014) (discussing exemptions 7(D) and 7(E)); Rosenberg v. United States Dep’t of Immigration & Customs Enf't, 13 F.Supp.3d 92, 115 (D.D.C. 2014) (approving Exemption 3 withholding in accordance with the BSA).

The common thread of most of the withholdings disputed by the plaintiff is that they concern third-party individuals (law enforcement personnel, government employees, persons of investigative interest, and informants) that were withheld under the FOIA’s personal privacy exemptions provided for in 5 U.S.C. § 552(b)(6) and 7(C). See Vaughn Index, Bates-numbered pages 8, 54, 256, 249, 251, 278, 280-82, 284-85, 409, 411-13, 415-16, 500-01, 543-44, 633, 657-60, 669, 678, 681; Second Hardy Decl. ¶ 14 (“Summary of Justification Categories”). In addition, the FBI has invoked FOIA Exemption 5, in conjunction with FOIA exemptions 6 and ...

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