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Spataro v. Department of Justice

United States District Court, District of Columbia

September 29, 2017



          RANDOLPH D. MOSS, United States District Judge

         This 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.

         The Court will, accordingly, GRANT in part and DENY in part the Department's motion to dismiss or, in the alternative, for summary judgment. Dkt. 26.

         I. BACKGROUND

         Plaintiff 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).

         The FBI 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.

         Rather 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 1.

         The 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 explained:

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).

         Spataro's 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. ¶¶ 23-34).

         In 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.

         The 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).

         The 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 2.

         Shortly 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.

         Pursuant 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.


         The 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).

         “FOIA 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 ...

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