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Pubien v. U.S. Department of Justice

United States District Court, District of Columbia

August 29, 2017



          AMY BERMAN JACKSON, United States District Judge

         In this action filed pro se against the Department of Justice, plaintiff alleges that DOJ's Office of Professional Responsibility (“OPR”) improperly withheld records that he requested, in violation of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Pending are Plaintiff's Motion for Summary Judgment [Dkt. # 16] and Defendant's Renewed Motion for Summary Judgment, which was filed in light of plaintiff's clarification of his FOIA request and OPR's subsequent search and release of responsive records. See Def.'s Mot. at 1 [Dkt. # 17]. Having considered the entire record, and for the reasons explained below, the Court will grant defendant's motion, deny plaintiff's motion, and enter judgment accordingly.


         As a result of an “investigation of a large-scale conspiracy to traffic cocaine” in the area of Fort Lauderdale, Florida, plaintiff and other individuals “were charged in a 32-count indictment for various drug crimes.” United States v. Pubien, 349 Fed. App'x 473, 475 (11th Cir. 2009). A jury in the U.S. District Court for the Southern District of Florida convicted plaintiff, and he was sentenced to “six concurrent terms of imprisonment for life.” Id. at 476. AUSA Julia J. Vaglienti was the prosecuting attorney.

         In February 2016, plaintiff mailed a FOIA request to OPR captioned “Request for Information on a Complaint Filed Against Assistant United States Attorney Julia J. Vaglienti as to a Fraudulent Indictment, ” and seeking:

[A]ny and all documents which relates to any investigation taken by this office. To be specific, my request is for: (1) Any information pertaining to Assistant Attorney Julia J. Vaglienti's involvement with the fraudulent indictment. (2) Any information pertaining to any law enforcement officials involved with Ms. Vaglienti. (3) Any other individuals that may be part of this investigation. (4) All documents as to the proceedings for obtaining the indictment, if any exist, [attendance record of the grand jury, polling sheet, transcripts of the grand jury's return of a True Bill].

Def.'s Ex. A, FOIA Request at 2 [Dkt. # 17-1] (bold type and bracket in original). Plaintiff prefaced the request with a narrative in which he stated: “after about 33 months of this office having possession of my complaint, I was sent a correspondence dated February 1, 2016, stating that it was without jurisdiction to investigate the matter.”[1] Id. at 1.

         OPR interpreted plaintiff's request as seeking “investigative records relating to any . . . investigations OPR may have conducted regarding AUSA Vaglienti in connection with a fraudulent indictment or other law enforcement agents” and refused to either confirm or deny the existence of responsive records. Def.'s Ex. B, Second Decl. of Ginae Barnett 4 [Dkt. # 17-2]. Such action is commonly known as a Glomar response.[2] The Office of Information Policy, to which FOIA decisions by DOJ components are appealed, affirmed OPR's decision. First Decl. of Ginae Barnett Decl. ¶ 11 [Dkt. #13-2] .

         Plaintiff filed this lawsuit in September 2016, and defendant filed its first summary judgment motion on November 13, 2016, based on OPR's Glomar response. Plaintiff filed his own summary judgment motion on January 3, 2017, asserting that OPR's declarant had “misconstrued” his FOIA request. Mot. at 2. Based on plaintiff's “clarification, ” OPR determined that plaintiff was “only seeking investigative records pertaining to an investigation of AUSA Vaglenti's [sic] conduct in response to Plaintiff's complaints to DOJ.” Second Barnett Decl. ¶¶ 5-6. The declarant then conducted a search by plaintiff's name of “OPR's electronic Law Manager (LM) and Hummingbird DM (DM) databases, ” which she avers “are the only systems of records maintained by OPR likely to identify or contain [responsive] records[.]” Id. ¶ 6. The declarant located 126 pages and, on January 17, 2017, released all but two pages to plaintiff in their entirety. A few third-party names and a third-party's personal e-mail address were redacted from the remaining two pages under FOIA Exemption 6. Id. ¶ 12 and Ex. A. That same day, defendant withdrew its initial summary judgment motion and filed the pending renewed motion for summary judgment.


         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In a FOIA action, the Court may award summary judgment solely on the information provided in affidavits or declarations 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.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.' ” SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991), quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears “ logical” or “plausible.” Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (citations omitted).

         An inadequate search may constitute an improper withholding under the FOIA. See Maydak v. U.S. Dep't. of Justice, 254 F.Supp.2d 23, 44 (D.D.C. 2003). So, when an agency's search is questioned, the agency prevails on summary judgment if it shows that it made “a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).


         In his opposition to defendant's renewed motion, plaintiff contends that there “are material facts of misleading statements, and the inadequate search of records pertaining to AUSA Vaglienti's involvement in Plaintiff's fraudulent claim.” Opp'n ...

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