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Sarno v. United States Department of Justice

United States District Court, District of Columbia

September 29, 2017




         Michael John Sarno, an incarcerated individual, submitted Freedom of Information Act requests to several agencies, including the Bureau of Alcohol, Tobacco and Firearms (ATF) and the Tax Division of the Department of Justice (Tax). These requests sought records related to the criminal case that led to his incarceration. See Compl. [Dkt. 1] ¶ 11. Dissatisfied with the response received from the agencies, Mr. Sarno has sued to enforce his FOIA rights.

         The agencies have moved for summary judgment. For the reasons stated below, the Court will grant Tax's Motion for Summary Judgment and deny ATF's motion.


         Michael John Sarno is incarcerated at the Federal Corrections Center in Petersburg, Virginia. After a jury trial, he was convicted of conspiracy to violate the Racketeering and Corrupt Organizations Act (RICO), 18 U.S.C. §1962(d) (2012), and conducting an illegal gambling business, in violation of 18 U.S.C. § 1955. He was sentenced on March 15, 2012 to 240 months' incarceration on the RICO conviction and sixty months, to run consecutively, on the illegal gambling conviction. On September 23, 2014, Mr. Sarno submitted FOIA requests to both ATF and Tax, seeking documents related to his criminal case. Compl. ¶¶ 11, 13, 21.

         A. Mr. Sarno's FOIA Request to ATF

         ATF is a federal bureau that operates within the United States Department of Justice. ATF received Mr. Sarno's FOIA request on October 7, 2014. ATF's Partial Statement of Material Facts Not in Genuine Dispute (ATF SOF) [Dkt. 11-1] ¶ 1. Receiving no response, Mr. Sarno requested status updates from ATF on November 19, 2014 and January 29, 2015. Compl. ¶¶ 14-15. On March 27, 2015, having received no response from ATF to any of his inquiries, Mr. Sarno appealed the constructive denial of his FOIA request to the Department of Justice's Office of Information Policy (OIP).[1] ATF SOF ¶ 2. ATF thereafter acknowledged receipt of Mr. Sarno's FOIA request on June 9, 2015.[2]

         Because Mr. Sarno's criminal case was brought in the Northern District of Illinois, ATF's Disclosure Division, which handles FOIA requests, determined that its Chicago Field Office would likely possess any records responsive to Mr. Sarno's request. ATF MSJ Ex. 2, Decl. of Stephanie M. Boucher (Boucher Decl.) [Dkt. 11-2] ¶ 8. The Disclosure Division submitted a search request to the Chicago Field Office on June 10, 2015, and the Chicago Field Office responded six weeks later on July 28, 2015 that it had reviewed Mr. Sarno's case file. It provided a categorical description of the documents the file contained. Id. ¶ 9-10.

         In May 2016, the Disclosure Division conducted a search in both the “N-FORCE” and Treasury Enforcement Communications System (TECS) databases to ascertain whether additional responsive records existed. Id. ¶ 12. N-FORCE is ATF's official case file database, which allows users to run queries on a number of identifying characteristics associated with a particular individual, including name, date of birth, or properties or vehicles associated with that person. Id. ¶ 14. Similarly, TECS is an inter-departmental database maintained by the Bureau of Customs and Border Protection “designed to identify individuals and businesses suspected of or involved in violation of Federal law.” Id. ¶ 15. The Disclosure Division queried both databases using the personally-identifying information of Mr. Sarno, including his name, Social Security number, and date of birth. Id. ¶ 17. The search of TECS produced no results, and the search of N-FORCE identified only the case file already identified by the Chicago Field Office. Id. ¶ 18.

         After concluding its search, ATF identified the following collections of documents: (1) approximately 21 bankers boxes of material; (2) a file cabinet drawer; (3) a 500 GB hard drive; (4) fourteen containers filled with computer discs; and (5) physical evidence not subject to FOIA, such as firearms and chemicals. Id. ¶ 19. This resulted in the collection of between 32, 575-43, 370 paper documents, as well as the contents of the 500 GB hard drive, 207 to 257 computer discs, 12 cassette tapes, and 2 VHS tapes. Id. ¶ 34. In reviewing the documents, ATF identified eight separate categories into which each document fell. They are: (1) grand jury material; (2) tax return information; (3) firearms trace reports; (4) wiretap, pen register, and GPS tracking information; (5) pole camera and consensual recording information; (6) reports of investigations, operational plans, and supporting investigative materials; (7) search warrants; and (8) documents originating with the United States Attorney's Office. Id. ¶¶ 34-42.

         Ultimately, ATF concluded that all responsive documents were exempt from disclosure, and released none to Mr. Sarno. Id. ¶ 20. ATF further concluded that no part of any of the 32, 575-43, 370 documents, nor any document found on any electronic media, could be reasonably segregated from exempt information. Id. ¶ 93.

         Receiving no further contact from ATF after its June 2015 acknowledgment of his request, Mr. Sarno filed the immediate lawsuit on April 8, 2016. On May 16, 2016, ATF informed Mr. Sarno that it had determined that all records responsive to Mr. Sarno's request were subject to withholding and therefore would not produce any documents to him. Id. ¶ 5.

         B. Mr. Sarno's FOIA Request to Tax

         Mr. Sarno sent Tax a substantively similar FOIA request on September 23, 2014. Compl. ¶ 13. Tax received this request on October 6, 2014, and ran its initial searches that day. Tax MSJ Ex. 1, Decl. of Carmen M. Banerjee (Banerjee Decl.) [Dkt. 19-1] ¶¶ 8, 17. Tax also sent Mr. Sarno an initial response shortly thereafter, on October 22, 2014. Id. ¶ 10.

         Tax performed its initial search using its TaxDoc database for civil or criminal matters associated with Mr. Sarno's personally-identifying information, including his name and Social Security number. Id. ¶ 18. This search yielded one paper criminal file that contained records pertaining to Mr. Sarno. Id. ¶ 19. Having found this paper file, Tax also searched its electronic Document Management System for any records associated with that file. Id. ¶ 23. This search yielded no records. Id. ¶ 24.

         After Mr. Sarno filed this lawsuit, Tax again searched its electronic Document Management System using somewhat broader search terms. See Id. ¶ 30. It also searched records of its Outlook Exchange entries to identify any electronic calendar items that may have been associated with Mr. Sarno. Id. ¶ 32. These additional searches returned no additional unique responsive documents. Id. ¶¶ 31, 33.

         In total, Tax identified 29 pages of responsive documents. Tax found that ten of these pages originated within Tax itself; of those ten, it withheld five in part, withheld three in total, and wholly released two to Mr. Sarno. Id. ¶ 35. Tax referred six of the pages to the Internal Revenue Service, which withheld all six pages as exempt. Id. ¶¶ 39, 41. Tax also referred eight pages to the Executive Office of U.S. Attorneys (EOUSA). Id. ¶42. EOUSA withheld six of those pages as exempt, and referred the two remaining pages to the IRS; the IRS partially released one of the pages to Mr. Sarno. Id. ¶ 45; 53. Finally, Tax referred five pages to the FBI, which withheld all five. Id. ¶ 56.


         Section 552(a)(4)(B) of the U.S. Code grants this Court subject matter jurisdiction over all actions brought under FOIA, and makes this an appropriate forum for venue purposes. 5 U.S.C. § 552(a)(4)(B) (“On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.”); see Jones v. Nuclear Regulatory Comm'n, 654 F.Supp. 130, 131 (D.D.C. 1987).

         The Court's jurisdiction under FOIA extends only to claims arising from the improper withholding of agency records. See 5 U.S.C. § 552(a)(4)(B); see also Lazaridis v. U.S. Dep't of Justice, 713 F.Supp.2d 64, 66 (D.D.C. 2010) (citing McGehee v. CIA, 697 F.2d 1095, 1105 (D.C. Cir. 1983)).


         A. Summary Judgment

         FOIA cases are typically and appropriately decided on summary judgment. See Sanders v. Obama, 729 F.Supp.2d 148, 154 (D.D.C. 2010). Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The party moving for summary judgment “bears the initial responsibility . . . [to] demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, a court must draw all justifiable inferences in favor of the nonmoving party and accept the nonmoving party's evidence as true. See Anderson, 477 U.S. at 255. The nonmoving party, however, must provide more than a “mere existence of a scintilla of evidence . . . . [T]here must be evidence on which the jury could reasonably find for the [nonmoving party].” Id. at 252.

         B. FOIA

         FOIA “represents a balance struck by Congress between the public's right to know and the government's legitimate interest in keeping certain information confidential.” Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003). Under FOIA, federal agencies must release records to the public upon request, unless one-or more-of nine statutory exemptions applies. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975); 5 U.S.C. § 552(b). To prevail in a FOIA case, a plaintiff must show that an agency has improperly withheld agency records. See Odland v. FERC, 34 F.Supp.3d 1, 13 (D.D.C. 2014). The defending agency must demonstrate that its search for responsive records was adequate, that any invoked exemptions actually apply, and that any reasonably segregable non-exempt information has been disclosed after redaction of exempt information. See id.

         Because Mr. Sarno's FOIA requests involve multiple government agencies, all of which assert varied FOIA exemptions, a brief ...

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