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Manna v. United States Department of Justice

United States District Court, District of Columbia

September 15, 2016

LOUIS MANNA, Plaintiff,


          BERYL A. HOWELL Chief Judge.

         The plaintiff, Louis Anthony Manna, who is proceeding pro se, brings this action against the U.S. Department of Justice ("DOJ") and the Federal Bureau of Investigation ("FBI") (collectively, the "defendant"), [1]under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701, et seq. The plaintiff, a former organized crime operative who has been incarcerated for nearly three decades, seeks the release of information provided to the government by an informant, who was an associate of the plaintiff prior to the latter's arrest and prosecution. Pending before the Court is the defendant's motion to dismiss the plaintiffs claim under the APA for failure to state a claim and for summary judgment as to the plaintiffs FOIA claim. Def's Mot. Summ. J. & Mot. Dismiss ("Def's Mot."), ECF No. 10. For the reasons set forth below, the defendant's motion is granted.

         I. BACKGROUND

         In moving for summary judgment, the defendant submitted a Statement of Material Facts about Which There is No Genuine Dispute ("Def's SMF"), ECF No. 10-1, as required by D.C. Local Civil Rule 7(h)(1). In responding to the defendant's motion, the plaintiff failed to submit a corresponding statement specifically identifying those facts as to which the plaintiff contends "there exists a genuine issue necessary to be litigated, " D.C. Local Civil Rule 7(h)(1), choosing instead to incorporate additional factual allegations into his opposition to the defendant's motion. See generally Pl.'s Mem. Opp'n Dismissal, or Alt., Summ. J. ("Pl.'s Opp'n), ECF No. 12. The Court has carefully considered these submissions in evaluating the parties' factual assertions and arguments and the inferences that can be drawn in favor of the plaintiff as the non-moving party. The facts pertinent to the plaintiffs claims are summarized below, with any remaining factual disputes noted.[2]

         The plaintiff was a high-ranking member of the American mafia in New York and New Jersey in the 1980s. Def's SMF at 1. Following an investigation by the FBI, the plaintiff was convicted in 1989 of violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq., based on predicate offenses under the Hobbs Act, 18 U.S.C. § 1951, and the Taft-Hartley Act, 29 U.S.C. § 186, for organized gambling, and for three separate convictions for conspiracy to commit murder. Id. The defendant was sentenced to eighty years' imprisonment and has been incarcerated for nearly three decades. Id.; Pl's Opp'n at 25. While in prison, the plaintiff has submitted numerous FOIA requests to the defendant, Decl. David M. Hardy (Oct. 10, 2015) ("Hardy DecL") ¶ 5, ECF No. 10-3, which have spurred at least three prior cases in this jurisdiction and the District of New Jersey, see Manna v. U.S. Dep 't of Justice, 106 F.Supp.3d 16 (D.D.C. 2015); Manna v. U.S. Dep't of Justice, No. CIV. A. 93- 81, 1994 WL 808070 (D.N.J. Apr. 13, 1994); Manna v. U.S. Dep't of Justice, 832 F.Supp. 866, 869 (D.N.J. 1993), aff'd, 51 F.3d 1158 (3d Cir. 1995).

         The present action arises out of testimony provided by Peter Caporino, an associate of the plaintiff prior to his arrest and conviction, in the 2006 criminal trial of Michael Crincoli (the "Crincoli trial"). In that trial, Caporino testified that he previously provided information to the government about the plaintiff prior to the plaintiff's prosecution. Def's SMF at 2. In light of this testimony, the plaintiff submitted a FOIA request to the defendant in August 2014 seeking "all information provided by Mr. Peter Caporino to any FBI agent, United States Attorney, or any other agency that he provided information or material evidence to" regarding the investigation and conviction of the plaintiff. Def's SMF at 2; Compl., Ex. 1 (Ltr. from Louis Anthony Manna to FBI Records Management Division, dated Aug. 5, 2014) at 1, ECF No. 1. This same letter also indicates that the request is for "any information provided by Peter Caporino from the onset of his opening as an informant for the government up to and including [August 5, 2014]." Def's SMF at 2; Compl., Ex. 1 at 9.

         On October 23, 2014, the FBI acknowledged receipt of the plaintiffs request and, recognizing the "important privacy interest" implicated, invited the plaintiff to provide: (1) "an authorization and consent from" Caporino; (2) "proof of [Caporino's] death;" or (3) "a justification that the public interest in disclosure outweighs [Caporino's] personal privacy." Def's SMF at 2; Compl., Ex. 3 (Ltr. from David M. Hardy to Louis Anthony Manna, dated Oct. 23, 2014) at 1, ECF No. 1. Absent such additional information, the FBI informed the plaintiff, the agency "can neither confirm nor deny the existence of any records responsive to [plaintiffs] request, which, if they were to exist, would be exempt from disclosure pursuant to FOIA Exemptions (b)(6) and (b)(7)(C)." Compl., Ex. 3 at 1. The letter further advised the plaintiff of his right to appeal the agency's initial determination to the DO J Office of Information Policy ("OIP"). Id.

         Pursuant to the procedures set out in the FBI's initial response, the plaintiff appealed this initial determination on November 12, 2014. Def's SMF at 3; Compl., Ex. 4 (Ltr. from Louis Anthony Manna to DOJ OIP, dated Nov. 12, 2014), ECF No. 1. In so doing, the plaintiff contended that Caporino's "open court declarations, " as well as concurrent media coverage of Caporino's testimony about his status as an informant, waived privacy concerns and amounted to "if not express [then] implied consent" for the release of records responsive to the plaintiffs FOIA request. Compl. Ex. 4 at 2. On March 9, 2015, the OIP affirmed the FBI's initial determination, on partially modified grounds, and concluded that, because "any non-public records responsive to [plaintiffs] request would be categorically exempt from disclosure, " the FBI properly asserted Exemption 7(C) and "was not required to conduct a search for requested records." Def's SMF at 3; Compl. Ex. 6 (Ltr. from Sean R. O'Neill to Louis A. Manna, dated March 9, 2015) at 1, ECF No. 1. The OIP further advised the plaintiff of his right to appeal this final decision. Compl. Ex. 6 at 1.

         The plaintiff commenced the instant action on May 29, 2015. See Compl. Challenging the defendant's decision not to produce any records in response to his August 2014 request, the plaintiff renews his argument that the release of records responsive to his request would not constitute an "unwarranted invasion of personal privacy" because it "does not seek information that can be considered personal or private in nature, as the information sought became public with Caporino's admission and [is] warranted as Caporino claimed involvement in the investigation and conviction of the plaintiff. Id. at 5-6. Additionally, the plaintiff argues that the defendant's refusal to process his FOIA request is "arbitrary, capricious and an abuse of discretion, not in accordance with law and without observance of procedure required by law, " in violation of the APA. Id. at 6. With this in mind, the plaintiff seeks an order directing the defendant to "immediately process the requested records" and to produce any responsive records to the plaintiff. Id.

         On October 16, 2015, the defendant moved to dismiss plaintiffs claim under the APA, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim, and for summary judgment as to the plaintiffs FOIA claim. Def's Mem. P. & A. Supp. Mot. Summ. J. & Mot. Dismiss ("Def's Mem.") at 1, ECF No. 10-2. This motion is now ripe for consideration.


         Congress enacted the FOIA as a means "to open agency action to the light of public scrutiny, " Am. Civil Liberties Union v. U.S. Dep't of Justice, 750 F.3d 927, 929 (D.C. Cir. 2014) (quoting Dep 't of Air Force v. Rose, 425 U.S. 352, 361 (1976)), and "to promote the 'broad disclosure of Government records' by generally requiring federal agencies to make their records available to the public on request, " DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (citing Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988)). As the Supreme Court has "consistently recognized[, ] ... the basic objective of the Act is disclosure." Chrysler Corp. v. Brown, 441 U.S. 281, 290 (1979). At the same time, the statute represents a "balance [of] the public's interest in governmental transparency against legitimate governmental and private interests that could be harmed by release of certain types of information." United Techs. Corp. v. U.S. Dep't of Def, 601 F.3d 557, 559 (D.C. Cir. 2010) (internal quotation marks and citations omitted). Reflecting that balance, the FOIA contains nine exemptions set forth in 5 U.S.C. § 552(b), which "are explicitly made exclusive and must be narrowly construed." Milner v. U.S. Dep't of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citations omitted) (citing FBI v. Abramson, 456 U.S. 615, 630 (1982)); see Murphy v. Exec. Office for U.S. Attys., 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice (CREW), 746 F.3d 1082, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). "[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Rose, 425 U.S. at 361.

         The agency invoking an exemption to the FOIA has the burden "to establish that the requested information is exempt." Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979); see U.S. Dep 't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755 (1989); DiBacco, 795 F.3d at 195; CREW, 746 F.3d at 1088; Elec. Frontier Found, v. U.S. Dep't of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014); Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). In order to carry this burden, an agency must submit sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that the government has analyzed carefully any material withheld, to enable the court to fulfill its duty of ruling on the applicability of the exemption, and to enable the adversary system to operate by giving the requester as much information as possible, on the basis of which the requester's case may be presented to the trial court.[3] See Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) ("The description and explanation the agency offers should reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection .... [which] serves the purpose of providing the requestor with a realistic opportunity to challenge the agency's decision." (citation omitted)); see also CREW, 746 F.3d at 1088 ("The agency may carry that burden by submitting affidavits that 'describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'" (quoting Larson v. U.S. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). While "an agency's task is not herculean[, ]" it must "describe the justifications for nondisclosure with reasonably specific detail and demonstrate that the information withheld logically falls within the claimed exemption." Murphy, 789 F.3d at 209 (internal quotation marks omitted) (citing Larson, 565 F.3d at 862).

         The FOIA provides federal courts with the power to "enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant, " 5 U.S.C. § 552(a)(4)(B), and "directs district courts to determine de novo whether non-disclosure was permissible, " Elec. Privacy Info. Ctr. v. U.S. Dep 't of Homeland Sec, 111 F.3d 518, 522 (D.C. Cir. 2015). A district court must review the Vaughn index and any supporting declarations "to verify the validity of each claimed exemption." Summers v. U.S. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). Moreover, a district court has an "affirmative duty" to consider whether the agency has produced all segregable, non-exempt information. Elliott v. U.S. Dep't of Agric, 596 F.3d 842, 851 (D.C. Cir. 2010) (referring to court's "affirmative duty to consider the segregability issue sua sponte") (quoting Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007)); Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008) ("[B]efore approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld.") (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007)); Trans-Pac. Policing Agreement v. U.S. Customs Serv., Ill. F.3d 1022, 1028 (D.C. Cir. 1999) ("[W]e believe that the District Court had an affirmative duty to consider the segregability issue sua sponte .... even if the issue has not been specifically raised by the FOIA plaintiff."); see also 5 U.S.C. § 552(b) ("Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.").

         Summary judgment is appropriate when "there is no genuine dispute as to any material fact." Fed.R.Civ.P. 56. "In FOIA cases, summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Judicial Watch, Inc. v. U.S. Secret Serv.,726 F.3d 208, 215 (D.C. Cir. 2013) (internal quotation marks omitted) (quoting Consumer Fed'n of Am. v. U.S. Dep't of Agric,455 F.3d 283, 287 (D.C. Cir. 2006)). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible.'" Judicial Watch, Inc. v. U.S. Dep't of Def.,715 F.3d 937, 941 (D.C. Cir. ...

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