United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS, United States District Judge
matter is before the Court on the motion of the U.S.
Department of Justice to dismiss or, in the alternative, for
summary judgment. Plaintiff Michael Spataro, proceeding
pro se, brought this Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, action against the
Department seeking agency records that refer to him,
including records from the criminal investigation that
culminated in Spataro's trial and conviction before the
United States District Court for the Eastern District of New
York. Like many FOIA cases, much of the relevant history in
this case occurred after suit was filed, and, as explained
below, several searches conducted after Spataro brought suit
have resulted in the production of responsive records. Today,
the Court concludes that, with one exception, the
Department's post-complaint searches were adequate, and
it concludes that the Department has otherwise satisfied its
obligations under FOIA. The sole remaining issue involves the
fate of eleven documents that were damaged-but, perhaps, not
lost-due to flooding caused by Hurricane Sandy. Because the
status of those documents remains unclear, further
proceedings remain necessary.
Court will, accordingly, GRANT in part and
DENY in part the Department's motion to
dismiss or, in the alternative, for summary judgment. Dkt.
Michael Spataro is currently incarcerated at the Fort Dix
Federal Correctional Institution. Dkt. 1 at 1. In 2006, he
was convicted on charges of conspiracy to commit murder in
aid of racketeering, assault with a dangerous weapon in aid
of racketeering, and using and carrying a firearm during and
in relation to a crime of violence. See United States v.
Persico, 293 F. App'x 24, 25 (2d Cir. 2008). He was
sentenced to 338 months' imprisonment. Id. In
July 2013, Spataro submitted a FOIA request to the FBI,
seeking all agency records “pertaining” to him,
including all “main files” and “see
reference files.” Dkt. 1-2 at 2. Spataro's FOIA
request further specified that it “concern[ed] in
part” the criminal investigation leading up to his
trial and conviction. Id. at 3 (referring to
“Case No. 04-CR-911”); see also United States
v. Spataro, No. 04-cr-911, 2006 WL 2010788 (E.D.N.Y.
July 10, 2006).
responded that it was “unable to identify main file
records responsive to” Spataro's request. Dkt. 1-4
at 2. Spataro appealed that determination, stressing that he
was seeking “any and all records of any type that
pertain to” him and that he was “placing no
limitations on [this] request.” Dkt. 1-5 at 2. He was
not, in other words, limiting his request to records found in
the FBI's “main file.” That appeal was
considered by the Department's Office of Information and
Policy (“OIP”), which concluded that the FBI had
“conducted an adequate, reasonable search” and
had otherwise met its obligations under FOIA. Dkt. 1-6 at 2.
With respect to Spataro's contention that the FBI had
failed to conduct “a cross-reference search, ”
OIP advised Spataro that he would need to provide additional
information “to enable the FBI to determine with
certainty [whether] any cross-references it [might] locate,
” were, in fact, related to Spataro. Id. OIP
suggested that Spataro might satisfy the FBI's need for
additional information by, among other things, providing
“the specific circumstances in which [he] had contact
with the FBI, ” the dates and locations of “such
contact, ” his Social Security number, date of birth,
and home address, and the names of any relevant associates of
his. Id. at 2-3.
than provide those details, Spataro brought this FOIA action
against the FBI. See Dkt. 1 at 1. Shortly after
Spataro brought suit, the FBI requested that the Court issue
a “stay of proceedings to permit [it] to locate and
process all available responsive records.” Dkt. 12 at
Court granted that motion, ordered the substitution of the
Department of Justice in place of the FBI, and ordered that
the Department “file periodic status reports every 30
days until such time as processing of the records responsive
to Plaintiff's [FOIA] requests [was] completed.”
Dkt. 15. Over the course of the next several months, the
Department identified potentially responsive documents,
produced over two hundred pages with certain redactions, and
withheld other records pursuant to various FOIA exceptions.
See Dkts. 16-19. The FBI also identified (1)
“approximately [eleven] potentially responsive
documents which had reportedly been stored in a closed file
facility in New Jersey that sustained significant flood
damage during Hurricane Sandy, ” Dkt. 16 at 3, and (2)
“[f]our potentially responsive documents, ” which
it was “unable to . . . locate [in the New York Field
Office] even after extensive efforts, ” Dkt. 18 at 2.
With respect to the flood-damaged documents, the Department
Eleven potentially responsive documents were damaged in the
flood that occurred on October 29, 2012. Remediation is
ongoing for the damaged records in that facility. At this
time, the FBI is unable to determine if or when those records
affected by the flood may become available for review. Even
assuming these documents were to become available at some
later date, the FBI cannot be certain that they actually
contain responsive information.
Id. at 2-3. Despite the unavailability of these
fifteen documents, the Department reported that “it
ha[d] produced all releasable materials located that were
responsive to [Spataro's] FOIA request.” Dkt. 19 at
2. The Department suggested that the Court nonetheless leave
the stay in place to provide Spataro with time to review the
production and to “report back to the Court on
whether some or all of the issues have been resolved to his
satisfaction.” Id. It subsequently requested
that the Court order Spataro to file a status report
“identifying any issues remaining to be decided in the
matter.” Dkt. 21-1 at 1. Spataro, in turn, filed a
motion for leave to amend his complaint to do just that.
See Dkt. 23. The Court granted his motion, and
denied as moot the Department's request that the Court
order Spataro to identify the issues still in dispute.
See Minute Order (Feb. 11, 2015).
amended complaint identifies those aspects of the FBI's
search and production that he contends fail to comply with
FOIA. First, he identifies seventy pages of records that he
contends were improperly redacted pursuant to FOIA Exemptions
6, 7(C), and 7(D). Dkt. 24 at 1-3 (Am. Compl. ¶¶ 4,
8, 12). Second, he objects to the FBI's failure to
produce the eleven documents that were apparently damaged
during Hurricane Sandy. Id. at 2-4 (Am. Compl.
¶¶ 5, 9, 15-18). Third, he identifies 143 pages
that the FBI evidently withheld from a production on July 31,
2014, and alleges that the FBI has failed to explain what
happened to those records. Id. at 4 (Am. Compl.
¶¶ 19-20). Fourth, without identifying a legal
deficiency, he notes that the FBI withheld six pages of
records pursuant to FOIA Exemption 3 and Title III, 18 U.S.C.
§ 2510 et seq. Id. (Am. Compl. ¶
21). Fifth, he observes that the FBI did not produce fourteen
pages of records in its September 2014 production,
“without [a] clearly defined or stated
justification.” Id. (Am. Compl. ¶ 22).
And, finally, he alleges generally that the FBI's
reliance on FOIA Exemption 7(C) and 7(D) was improper due to
the Department's disclosure of certain information at
issue at his trial and due to “the Government's
misconduct.” Id. at 4-7 (Am. Compl.
response to the amended complaint, the Department filed the
pending motion to dismiss or, in the alternative, for summary
judgment, Dkt. 26, along with the declaration of David M.
Hardy, the Section Chief of the Record/Information
Dissemination Section (“RIDS”) of the FBI's
Records Management Division, detailing the steps taken by
RIDS in responding to Spataro's FOIA request.
See Dkt. 26-1. Despite the breadth of his amended
complaint, Spataro's opposition brief raises only two
objections. First, he contends that “the search for
responsive records in this case was inadequate” because
(a) the FBI “declare[d] that remediation is ongoing
respecting the [eleven] potentially responsive records that
were stored at a closed file storage facility in New Jersey,
” and (b) under the facts as presented by the Hardy
declaration, “a reasonable search was not effected
concerning” the four potentially responsive documents
from the New York Field Office that the FBI was unable to
locate. Dkt. 27 at 3-4. Second, he “avers that the FBI
has not provided a V[aughn] index and thus hinders
Plaintiff's ability to respond appropriately to its
motion for summary jud[g]ment.” Id. at 6.
factual record, however, has continued to evolve. After
Spataro filed his opposition, the Department twice requested
additional time to file its reply. See Dkt. 28; Dkt.
29. In the first request, the Department asserted that it
“anticipate[d] the need to secure a supplemental
declaration” regarding “why some documents cannot
be located following a flood at the building where they were
stored before it was struck by [H]urricane Sandy.” Dkt.
28 at 2. That motion was granted. Minute Order (May 14,
2015). The second request explained that the FBI was
continuing to investigate the status of the records affected
by Hurricane Sandy. Dkt. 29 at 2. That request also advised
the Court that the FBI “had located three [of the]
missing file volumes” from the New York Field Office
and that the FBI needed time to review those files to
determine whether they contained any responsive records.
Id. The Court granted that request for an extension,
and it ordered that the parties file status reports in
several weeks advising the Court (1) whether any additional
records were found and released and (2) whether any further
release of records mooted portions of the dispute.
See Minute Order (June 10, 2015).
Department's status report indicated that “the
formerly missing documents . . . were subsequently
located” and that RIDS “received the records and
processed them, ” ultimately releasing all
“non-exempt portions of the responsive records.”
Dkt. 30-1 at 1. As explained in greater detail in the second
declaration of David Hardy, the FBI determined that one of
the four missing files “was an exact duplicate”
of records already released, that a second file contained
forty-eight pages referring to Spataro, and that “the
two remaining cross-references . . . were on the inventory
list of” files damaged by Hurricane Sandy and were
“awaiting remediation.” Dkt. 33-1 at 4-5 (Second
Hardy Decl. ¶¶ 6-8). Based on these developments,
the FBI argued that the issue regarding the previously
missing New York Field Office files was now moot. Dkt. 30 at
thereafter, the Court ordered that Spataro indicate whether
he intended to challenge any of the redactions made to the
recently released records, and set a schedule to complete the
briefing on the Department's motion to dismiss or, in the
alternative, for summary judgment. Minute Order (July 31,
2015). In response to that order, Spataro (1) challenged the
FBI's application of FOIA Exemption 3 to what he
characterized as “a pre-Title III check;” (2)
renewed his opposition to Defendant's motion to dismiss,
or in the alternative, for summary judgment; (3) again
questioned the status of the flood-damaged records; and (4)
requested both a Vaughn index and in camera
review of the documents that he argued contained excessive
redactions. See Dkt. 31. And, in yet another filing,
Spataro elaborated on his objections to the redactions in the
recent production, arguing that the FBI improperly redacted
“‘PRE-TITLE III' preliminary checks, made in
advance of seeking to secure TITLE III authorization”
and that “[t]he exemptions claimed under [5 U.S.C.
§ 552(b)(6)] . . . would clearly not have been the
subject of redaction, and [§ 552(b)(7)(C)] . . .
likewise, would not have constituted the material
redacted.” Dkt. 32 at 1-2.
to the Court's order, the Department then filed its reply
brief in support of its long-pending dispositive motion.
See Dkt. 33. Finally, the Court entered an order
cautioning Spataro that the Court would accept as true any
uncontroverted facts submitted by the Department and allowing
Spataro to make a further filing within thirty days. Dkt. 34.
To date, Spataro has declined to accept that invitation.
Freedom of Information Act is premised on the notion that an
informed citizenry is “vital to the functioning of a
democratic society, needed to check against corruption and to
hold the governors accountable to the governed.”
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1978). It thus mandates that an agency disclose records
on request, unless they fall within one of nine exemptions.
“These exemptions are explicitly made exclusive and
must be narrowly construed.” Milner v. Dep't of
Navy, 562 U.S. 562, 565 (2011) (citation and quotation
marks omitted). As relevant here, Exemption 3 “provides
that FOIA's disclosure obligation ‘does not apply
to matters that are . . . specifically exempted from
disclosure by [another] statute, ' if the statute
‘(i) requires that the matters be withheld from the
public in such a manner as to leave no discretion on the
issue, ' or ‘(ii) establishes particular criteria
for withholding or refers to particular types of matters to
be withheld.'” Labow v. U.S. Dep't of
Justice, 831 F.3d 523, 527 (D.C. Cir. 2016) (quoting 5
U.S.C. § 552(b)(3)(A)). Exemption 6 protects information
about individuals in “personnel and medical files and
similar files” when its disclosure “would
constitute a clearly unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6). Exemptions 7(C)
and 7(D) protect from disclosure “records or
information compiled for law enforcement purposes, ”
but “only to the extent that” disclosure
“could reasonably be expected to constitute an
unwarranted invasion of personal privacy, ”
id. § 552(b)(7)(C), or “could reasonably
be expected to disclose the identity of a confidential source
. . . [or] information furnished by a confidential source,
” id. § 552(b)(7)(D).
cases are typically resolved on motions for summary judgment
under Federal Rule of Civil Procedure 56.” Shapiro
v. U.S. Dep't of Justice, 153 F.Supp.3d 253, 268
(D.D.C. 2016). To prevail on a summary judgment motion, the
moving party must demonstrate that there are no genuine
issues of material fact and that he or she is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). “In a FOIA action, the Court may award summary
judgment to an agency solely on the basis of information
provided in affidavits or declarations that describe ‘.
. . the justifications for nondisclosure [of records] with
reasonably specific detail . . . and are not controverted by
either contrary evidence in the record nor by evidence of
agency bad faith.'” Thomas v. FCC, 534
F.Supp.2d 144, 145 ...