United States District Court, District of Columbia
A. HOWELL Chief Judge.
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"), 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
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.
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).
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.
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").
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.
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.
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.
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.
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. 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
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.").
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. ...