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Donato v. Executive Office United States Attorneys

United States District Court, District of Columbia

April 16, 2018

ANTHONY DONATO, Plaintiff,
v.
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, et al., Defendants.

          MEMORANDUM OPINION

          KETANJI BROWN JACKSON UNITED STATES DISTRICT JUDGE

         Pro se plaintiff Anthony Donato is an inmate who is incarcerated at the Federal Correctional Institution in Danbury, Connecticut. Between 2011 and 2014, Donato submitted a series of document requests to various components of the Department of Justice under the Freedom of Information Act, 5 U.S.C. § 552 (“the FOIA”), seeking records related to an alleged plot by an inmate housed at the Metropolitan Correction Center in New York (“MCC New York”) to frame another inmate and a staff member of the Bureau of Prisons (“BOP”) for conspiracy to commit murder. (See Compl., ECF No. 1, ¶¶ 10, 25, 29, 35.) Donato's document-request letters were addressed to the Executive Office for United States Attorneys (“EOUSA”), the Federal Bureau of Investigation (“FBI”), and BOP (collectively, “Defendants”), and by separate correspondence addressed only to BOP, Donato also sought records related to BOP's consideration of various statutory factors “when making designation placement determinations for all [Donato's] prison transfers.” (See Id. ¶¶ 10, 25, 29, 35, 40). Donato has filed the instant four-count complaint to challenge (1) EOUSA's denial of his request for a fee waiver (Claim 1), (2) the FBI's refusal to confirm or deny the existence of any records regarding the alleged murder-conspiracy plot (Claim 2), and (3) the adequacy of BOP's search for records in response to Donato's requests, and also that agency's invocation of certain FOIA exemptions to withhold records about the alleged murder-conspiracy plot (Claims 3 and 4). (See Compl. at 10-16.)[1]

         Before this Court at present is Defendants' collective motion for summary judgment. (See Defs.' Mot. for Summ. J. (“Defs.' Mot.”), ECF No. 18.) The motion argues that each of the defendant agencies, including BOP, conducted an adequate search for records and properly invoked any applicable FOIA exemptions. (Id. at 8- 13.) Defendants further maintain that EOUSA properly denied Donato's request for a public interest fee waiver because he failed to demonstrate the requisite ability to disseminate information to the public (see Defs.' Reply in Support of Mot. for Summ. J., ECF No. 25, at 3-4), and the FBI properly refused to confirm or deny the existence of records responsive to Donato's murder-conspiracy plot request (see Def.'s Mot. at 13-25). Donato disputes these contentions. (See Opp'n to Defs.' Mot. for Summ. J., ECF No. 23; Opp'n to Defs.' Reply in Support of Mot. for Summ. J., ECF No. 27.)

         On March 31, 2018, this Court issued an order GRANTING IN PART and DENYING IN PART Defendants' motion for summary judgment. The instant Memorandum Opinion explains the reasons for that order. In short, with respect to Donato's claim against EOUSA, this Court finds that EOUSA properly denied Donato's request for a fee waiver, but that EOUSA is nonetheless obliged to produce 100 pages of responsive records to Donato at no charge, and summary judgment cannot be entered in that agency's favor because it is not clear from the instant record that EOUSA has done so. The Court further finds that the FBI properly declined to confirm or deny the existence of records pertaining to the alleged murder-conspiracy plot, and is thus entitled to summary judgment, but BOP's declarations do not provide sufficient details regarding the searches that that agency conducted, or its invocation of FOIA exemptions, to warrant summary judgment at this time.

         I. BACKGROUND

         A. The Alleged MCC Murder-Conspiracy Plot

         “Dominick Cicale is a former captain in the Bonanno organized crime family[, ]” who began cooperating with the government in 2006 with respect to its investigation and prosecution of members of the Bonanno and other organized crime families. United States v. Cicale, No. 05-CR-60-2, 2018 WL 388941, at *1 (E.D.N.Y. Jan. 11, 2018). Cicale was incarcerated at MCC New York, and was a participant in BOP's Witness Security program (“WitSec”), during the cooperation period. While at MCC New York, Cicale purportedly ordered “other WitSec inmates to create mischief in the unit” by, for instance, spilling coffee on the floor prior to an inspection. United States v. Basciano, No. 03cr929, 2008 WL 794945, at *2 (E.D.N.Y. Mar. 24, 2008). In addition, and significantly for present purposes, in June of 2007, Cicale allegedly attempted to frame Vincent Basciano (another member of the Bonanno crime family) and a BOP Correctional Officer (Marco Santomaggio) by asking another inmate at MCC New York (Carlos Medina) to tell government attorneys that Santomaggio had hired him to kill Cicale on behalf of Basciano. (See Aff of Mary Wade-Jones (“Wade-Jones Aff”), Ex. 2 to Pl.'s Opp'n, ECF No. 23-1 at 4-7, ¶¶ 5-6; see also Ex. 11 to Pl.'s Opp'n, ECF No. 23-1, at 36.)

         Instead of carrying out Cicale's nefarious request, Medina allegedly reported the plot to BOP Correctional Counselor Gloria Black, who prepared a memorandum regarding Cicale's alleged murder-conspiracy scheme. (See Wade-Jones Aff ¶ 6.) Approximately two months later, Black provided a copy of the memorandum to a BOP Special Investigative Supervisor (see Id. ¶¶ 2, 6-7), who then purportedly referred the matter only to BOP's internal affairs office, and did not “refer the allegations regarding a possible murder plot to any other law enforcement agency such as the FBI[.]” (Id. ¶ 13.)

         B. Donato's FOIA Requests And Defendants' Pre-Litigation Responses

         As mentioned, at issue in this opinion are FOIA requests that Donato made regarding two types of records: records concerning the murder-conspiracy scheme that Cicale allegedly orchestrated inside MCC New York, and separately, records documenting the factors that BOP took into account when it transferred Donato to various prisons within the federal system. Although Donato is a member of the same organized crime family as Cicale, see Donato v. United States, No. 09cv5617, 2012 WL 4328368, at *1 (E.D.N.Y. Sept. 20, 2012), he does not allege anywhere in the instant complaint or other filings that he was involved in any way in Cicale's alleged murder-conspiracy plot or BOP's investigation of it; rather, it appears that Donato was engaged in the process of gathering information about the purported plot for other reasons.[2] Donato sought these categories of records from different components of DOJ, as follows.

         1. Donato's Requests For Information Regarding The Murder-Conspiracy Plot

         Between 2011 and 2014, Donato submitted five substantively identical FOIA requests to agencies within DOJ: one to EOUSA, three to the FBI, and one to BOP. Each request sought records relating to Cicale's alleged scheme to frame Basciano and BOP Officer Santomaggio for conspiracy to commit murder. Specifically, Donato sought

all documents, e-mails, inter-office memos, including the Carlos Medina 7-page letter to BOP Counselor Gloria Black from the U.S. Attorney's Offices in the Southern District of NY and the Eastern District of NY pertaining to the Dominick Cicale plot to frame Vincent Basciano and BOP officer Santomaggio with the help of Carlos Medina in a phony murder conspiracy in the WitSec Unit at MCC Manhattan on or about June, 2007.

(Ex. 1 to Compl., ECF No. 1-1 at 5 (“EOUSA Murder-Conspiracy Plot Request”); see also Ex. 10 to Compl., ECF No. 1-1 at 20 (“First FBI Request”); Ex. 12 to Compl., ECF No. 1-1 at 22-24 (“Suppl. FBI Requests”); Ex. Ex. 18 to Compl., ECF No. 1-1 at 37 (“BOP Murder-Conspiracy Plot Request”).)[3] Each agency's response to Donato's FOIA request (or requests) is detailed below.

         a. Request Nos. 11-3389 and 11-2390 (The EOUSA Murder-Conspiracy Plot Request)

         Donato submitted his request for records pertaining to the murder-conspiracy plot to EOUSA on May 31, 2011. (See Compl. ¶ 10). In subsequent correspondence, Donato clarified that he was seeking records from the United States Attorney's Offices in both the Southern District and the Eastern District of New York (see Id. ¶¶ 11-12), and thus, EOUSA separated his request into Request No. 11-2389 for the Southern District inquiry, and No. 11-2390 for the Eastern District request (see Id. ¶ 13). EOUSA found no responsive documents in the Southern District of New York (id. ¶ 14), but advised Donato that it had located 55 “unindexed boxes of documents from this multi-defendant case [i.e., the Basciano case] that are potentially responsive” to his request in the Eastern District of New York, each of which might contain 2, 000 to 4, 000 pages of records. (Id., Ex. 2.) EOUSA further informed Donato that completing its search for responsive records would take an additional 55 hours beyond the two free hours that the FOIA allots to each FOIA requester, and would therefore cost $1, 540. (Id. ¶ 15.) Donato requested a waiver of those fees, but EOUSA denied this request. (See Id. ¶¶ 16-17.)

         Donato then administratively appealed this denial to DOJ's Office of Information Policy (“OIP”), which concluded that EOUSA's denial of the fee waiver request was proper. (See Id. ¶¶ 19, 21.) OIP remanded the matter to EOUSA with instructions for EOUSA to provide Donato with his “statutory entitlement of 2 hours of search time and up to 100 pages of duplication without cost[.]” (Id. ¶ 21.) At the time Donato filed his complaint, he had not received any documents in response to the EOUSA Murder-Conspiracy Plot Request. (See Id. ¶ 24.)

         b. Request Nos. 1175243-000 and 1286073-000 (The FBI Murder-Conspiracy Plot Requests)

         Donato submitted his first FOIA request to the FBI (“the First FBI Request”) on May 25, 2011, and the FBI assigned it Request No. 11752443-000. (See Id. ¶¶ 25-27.) As of the filing of the complaint in the instant case, Donato had not received any response to this request. (See Id. ¶ 28.) Thereafter, on July 23, 2014, Donato submitted additional, substantively identical FOIA requests to two different FBI field offices (“the Supplemental FBI Requests”): one to the FBI Field Office in Albany, New York, and one to an FBI office in Manhattan. (See Id. ¶ 29.) The FBI assigned Request No. 1286073-000 to both of the Supplemental FBI Requests, and it informed Donato that, because his requests pertained to third parties (Gloria Black, Carlos Medina, Dominick Cicale, Vincent Basciano, and Marco Santomaggio), it would not process the request until Donato had submitted either “(1) an authorization and consent from [each] individual; (2) proof of death; or (3) a justification that the public interest in disclosure outweighs personal privacy[.]” (Compl. ¶ 30.) The FBI further informed Donato that, in the absence of any of these items, it could neither confirm nor deny the existence of responsive records. (See id.)

         In response, Donato asserted that the privacy interests of those third parties “were nullified because the names of those involved in the Cicale plot are public knowledge[, ]” given that Cicale and Media had testified in open court and the relevant events had been reported in newspapers and in published court opinions. (Compl. ¶ 31.)

         Donato also insisted that “[t]he public has an interest to know which of the government's informants perjured himself at trial . . ., and why the government allowed this to take place without any ramifications to either informant.” (Ex. 14 to Compl., ECF No. 1-1, at 28.) Donato further maintained that there is a public interest in knowing “how the FBI and DOJ carried out their respective statutory duties to investigate and prosecute criminal conduct, i.e.[, ] murder conspiracy and perjury.” (Id.)

         The FBI stood firm, refusing to confirm or deny whether it had any responsive records, on the grounds that Donato had “‘not sufficiently demonstrated that the public's interest in disclosure outweighs [the] personal privacy interests of the subject.'” (Compl. ¶ 32 (quoting Ex. 15 to Compl., ECF No. 1-1, at 29).) During the subsequent administrative appeal, OIP upheld the FBI's decision. (Id. ¶ 34.)

         c. Request No. 2011-08565 (BOP Murder-Conspiracy Plot Request)

         On May 31, 2011, Donato submitted a document request to BOP, seeking records related to the alleged murder-conspiracy plot, and BOP designated Donato's letter as Request No. 2011-08565. (See Id. ¶¶ 35-36.) BOP located 225 pages of responsive records, and on September 28, 2011, it advised Donato that it was withholding all of the records in their entirety under Exemptions 2, 5, 6, 7(C), 7(D), 7(E), and 7(F). (See id. ¶ 36.) OIP affirmed BOP's withholding determination on appeal. (See id. ¶ 39.)

         2. Donato's Request For Information Regarding ...


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