United States District Court, District of Columbia
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
matter is before the Court on the Department of Justice's
renewed motion for summary judgment. Dkt. 45. Plaintiff
Michael Spataro, proceeding pro se, is suing the
Department under the Freedom of Information Act
(“FOIA”) to obtain agency records that refer to
him; specifically, records from the criminal investigation
that resulted in his trial and conviction before the U.S.
District Court for the Eastern District of New York.
Previously, the Court granted in part and denied in part the
Department's motion for summary judgment. Dkt. 26. For
the reasons set forth below, the Court will now
GRANT the Department's renewed motion
for summary judgment.
facts of this case are set out in the Court's prior
opinion. See Dkt. 35 at 2-7. To summarize, Plaintiff
was convicted of conspiracy to commit murder in aid of
racketeering, assault with a dangerous weapon in aid of
racketeering, and use of a firearm during and in relation to
a crime of violence in 2006, for which he received a sentence
of 338 months' imprisonment. Id. at 2. In 2013,
he submitted a FOIA request to the Federal Bureau of
Investigation (“FBI”), seeking all agency records
“pertaining” to him-in particular, those that
“concern[ed] in part” the criminal investigation
leading up to his trial and conviction in the Eastern
District of New York. Id. (quoting Dkt. 1-2 at 3).
Upon receiving no responsive documents, Plaintiff brought
this FOIA action against the FBI on February 3, 2014. Dkt.
1-1 at I. In response, the FBI asked for a stay in
proceedings so that it could locate and process all
responsive records. Dkt. 12 at 1. The FBI released certain
responsive records, and, on February II, 2015, Plaintiff
filed an amended complaint challenging the FBI's
withholdings of “[r]ecords furnished during the
stay.” Dkt. 24 at 1 (Amended Compl. ¶ 2).
March 23, 2015, the Department moved to dismiss, or, in the
alternative, for summary judgment, arguing that it had
“produc[ed] all responsive, non-exempt documents”
and that, “where information has been withheld, ”
it had properly invoked FOIA Exemptions 3, 6, 7(C), and 7(D).
Dkt. 26 at 3-4 (citing 5 U.S.C. §§ 552(b)(3), (6),
(7)(C), & (7)(D)). The Court agreed in part and disagreed
in part. The Court held that it could not conclude that
“the FBI ha[d] reasonably exhausted its efforts to
locate responsive records” because there were damaged
files that were “still . . . ‘awaiting
remediation;'” the Court noted that, if the
remediation process “yield[ed] records that [were] both
responsive . . . and non-exempt under FOIA, the FBI should
release those records.” Dkt. 35 at 24-25. Moreover,
although the Court held that the Department had justified its
withholdings under FOIA Exemptions 6 and 7(C), see
Id. at 12-17, it concluded that the Department had
failed to offer sufficient support for its withholdings under
FOIA Exemptions 3 and 7(D), see Id. at 10-11, 19-20.
with new declarations responsive to the Court's concerns,
the Department renewed its motion for summary judgment on
January 25, 2018. Dkt. 45. Plaintiff did not respond-despite
twice being ordered to so-until October 18, 2018. Dkt. 50;
see also Dkt. 47 (ordering Plaintiff to respond);
Dkt. 46 (same). Plaintiff's opposition, moreover, fails
to dispute any facts the Department relied on in support of
its summary judgment motion. See generally Dkt. 50.
Accepting the government's factual representations as
true,  the Court concludes that the Department
has satisfied its FOIA obligations and will, accordingly,
grant the motion for summary judgment.
Freedom of Information Act 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). Two FOIA exemptions are
relevant here. First, 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) (alteration in original) (quoting 5
U.S.C. § 552(b)(3)(A)). Second, Exemption 7(D) protects
from disclosure “records or information compiled for
law enforcement purposes, ” but “only to the
extent that” disclosure “could reasonably be
expected to disclose the identity of a confidential source .
. . [or] information furnished by a confidential
source.” 5 U.S.C. § 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, 322
(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 (D.D.C. 2008) (alteration in original)
(quoting Military Audit Project v. Casey, 656 F.2d
724, 738 (D.C. Cir. 1981)). The Court reviews the
agency's determinations de novo, and the agency
bears the burden of sustaining its actions. 5 U.S.C. §
Department argues that it has now (1) adequately searched for
records responsive to Plaintiff's FOIA request, and (2)
sufficiently justified the FBI's withholdings. The Court
will address each argument in turn.
Adequacy of Search
the Court denied summary judgment because the Department had
not processed the records damaged by Hurricane Sandy. Dkt. 35
at 24-25. The Court noted, however, that once the
“remediation process” of those records was
complete, the Department could “file a renewed motion
for summary judgment.” Id. at 25-26. The
Department contends that it has now finished remediating
those records and that it has released to Plaintiff the
non-exempt responsive portions of those records in two
productions, one on January 24, 2018, and the other on
February 28, 2018. Dkt. 45-1 at 1 (Def.'s SUMF
¶¶ 1-2). In support of its motion, the Department
offers a third declaration from David Hardy, the Section
Chief of the FBI's Record/Information Dissemination
Section (“RIDS”). Dkt. 45-2 (Third Hardy Decl.).
Hardy attests that the “FBI [has now] reviewed all
thirteen documents previously subject to ongoing
remediation.” Id. at 3 (Third Hardy Decl.
¶¶ 6-7). Of the thirteen documents, Hardy attests
that “eleven were found responsive to the request, and
were processed and non-exempt portions of the documents
totaling 56 pages were released to Plaintiff.”
Id. (Third Hardy Decl. ¶ 7); see also
Dkt. 45-1 at 1 (Def.'s SUMF ¶ 2). “The
remaining two documents . . . did not contain any information
regarding Plaintiff.” Dkt. 45-2 at 3 (Third Hardy Decl.
¶ 7). With respect to the eleven responsive documents,
the FBI advised Plaintiff that “information was being
withheld pursuant to [FOIA] Exemptions” 3, 6, 7(C),
7(D), 7(E), 7(F), “as well as exemption (j)(2) under
the Privacy Act.” Id. (Third Hardy Decl.
¶ 8); see also Id. at 30 (Ex. A) (Jan. 24, 2018
Letter); id. at 34 (Ex. B) (Feb. 28, 2018 Letter).
noted in the Court's previous opinion, the adequacy of an
agency's FOIA search “is judged by a standard of
reasonableness.” Weisberg v. U.S. Dep't of
Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). “In
order to obtain summary judgment[, ] the agency must show
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). Now that that the Department has completed