Viola v. United States Department of Justice et alMOTION for Summary JudgmentD.D.C.June 1, 2017IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ANTHONY L. VIOLA, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-1411 (TSC) ) U.S. DEPARTMENT OF JUSTICE, et al., ) ) Defendants. ) ____________________________________) DEFENDANTS’ RENEWED MOTION FOR SUMMARY JUDGMENT Defendants, the U.S. Department of Justice, (“Defendants”), by and through agency counsel, respectfully requests this Court to enter summary judgment in its favor on Plaintiff’s claims under the Freedom of Information Act (“FOIA”), on the grounds that there are no material facts in dispute and Defendants are entitled to judgment as a matter of law. Fed. R. Civ. P. 56. In support of this motion the Court is referred to the Memorandum of Points and Authorities, a Renewed Statement of Material Facts as to Which There Are No Genuine Issues, the declarations of David Luczynski, Attorney Advisor with the Executive Office of United States Attorneys (“EOUSA”), (hereinafter, “Luczynski Decl.”) and David Hardy, Section Chief of the Record/Information Dissemination Section ("RIDS"), Records Management Division ("RMD"), in Winchester, Virginia for the Federal Bureau of Investigation (“FBI”) (hereinafter, “Hardy Decl. 2”) (Attachment 2 with Exhibits), and the First Hardy Declaration (hereinafter, “Hardy Decl.”); and a proposed order. Defendants have satisfied their obligations under the Freedom of Information Act, 5 U.S.C. § 552, in response to Plaintiff’s request for information. Plaintiff, who is proceeding Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 1 of 37 2 pro se, should take notice that any factual assertions contained in the documents in support of this motion may be accepted by the Court as true unless the Plaintiff submits his own affidavit or other documentary evidence contradicting the assertions in the documents. See Neal v. Kelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992). Defendants also directs Plaintiff’s attention to LCvR 7(h), and Fed. R. Civ. P. 56(c) and 56(e), which provide, in pertinent part, as follows: (c) Procedures (1) Supporting Factual Positions. A person asserting that a fact cannot be or is genuinely disputed support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. * * * * (4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify to the matters stated. (e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purpose of the motion; (3) grant summary judgment if the motion and supporting materials – including the facts considered undisputed – show that the movant is entitled to it; or (4) issue any other appropriate order. Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 2 of 37 3 Fed. R. Civ. P. 56(c) and (e). Because this is a dispositive motion, Defendants have not sought pro se Plaintiff, Mr. Viola’s, consent before filing. See LCvR 7(m). Date: June 1, 2017 Respectfully submitted, CHANNING D. PHILLIPS, D.C. Bar No. 415793 United States Attorney DANIEL F. VAN HORN, D.C. Bar No. 924092 Chief, Civil Division /s/ By: TAMMY A. HOLLOWAY, MD Bar Special Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2633 / (202) 252-2599 (Facsimile) Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 3 of 37 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ANTHONY L. VIOLA, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-1411 (TSC) ) U.S. DEPARTMENT OF JUSTICE, et al., ) ) Defendants. ) ____________________________________) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ RENEWED MOTION FOR SUMMARY JUDGMENT On behalf of the U.S. Department of Justice, (“Defendants”), the undersigned counsel respectfully submits this Memorandum of Points and Authorities in Support of Federal Defendants’ Renewed Motion for Summary Judgment in response to the complaint filed pro se by Anthony Viola (“Plaintiff”). Summary Judgment should be entered in Defendants’ favor on all claims in Plaintiff’s complaint pursuant to Fed. R. Civ. P. 56. BACKGROUND AND FACTS Defendants hereby incorporate as though fully set forth herein the accompanying Renewed Statement of Material Facts Not in Genuine Dispute and the attachments thereto, including the following documents: • David Luczynski, Attorney Advisor with the EOUSA, (hereinafter, “Luczynski Decl.”), attached as Attachment 1 to Defendants’ SOMF. • David Hardy, Section Chief of the Record/Information Dissemination Section ("RIDS"), Records Management Division ("RMD"), in Winchester, Virginia for the Federal Bureau of Investigation (“FBI”), Second Hardy Declaration attached as Attachment 2 to Defendants’ SOMF (hereinafter, “Hardy Decl. 2”), and the First Hardy Declaration (hereinafter, “Hardy Decl.”) attached as Attachment 3 to Defendants’ SOMF. Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 4 of 37 2 INTRODUCTION Defendants are entitled to judgment as a matter of law because, in response to Plaintiff, Anthony L. Viola’s request for information made pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, Defendants have (1) conducted a reasonable search to locate records responsive to Plaintiff’s FOIA request; (2) produced all non-exempt portions of records responsive to Plaintiff’s FOIA request; and (3) properly withheld information pursuant to the statutory exemptions. ARGUMENT In accordance with Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), Defendants support this summary judgment motion by submitting the declarations, attachments, and exhibits of EOUSA and FBI’s agency officials. These declarations, attachments, and exhibits collectively provide the Court and Plaintiff with an explanation of the procedures used by EOUSA and FBI to search for, review, and process the records responsive to Plaintiff’s FOIA request, and their justifications for withholding records in full or in part pursuant to FOIA Exemptions 3,6, and 7, 5 U.S.C. §§§§§§§§ 552 (b)(3), (b)(6), (b)(7), (b)(7)(A), (b)(7)(C), (b)(7)(D), (b)(7)(E); and Privacy Act Exemption (j)(2), 5 U.S.C. § 552a (j)(2). Luczynski Decl. ¶ 3 and 16; Hardy Decl. 2 ¶ 12. FOIA Exemption 3 applies in conjunction with 18 U.S.C. § 2510- 20. Hardy Decl. 2 ¶ 12. Specifically, the declarations referenced in Defendants’ SOMF provide a detailed account of the extensive searches conducted by EOUSA and FBI in response to Plaintiff’s FOIA request. The Luczynski and Hardy declarations demonstrate that Defendants carefully reviewed the responsive records, and properly withheld information subject to FOIA exemptions. Thus, the declarations read in conjunction with the responsive records, is “adequate to inform Plaintiff of the nature of the information withheld and to permit the Court to determine the applicability of Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 5 of 37 3 each exemption claimed.” See Fischer v. U.S. Dep’t of Justice, 596 F. Supp. 2d 34, 43-44 (D.D.C. 2009). Any more specificity would result in disclosure of the very information withheld.” Id. The Court should therefore find that the declarations are sufficient and enter summary judgment in favor of Defendants. I. LEGAL STANDARDS Rule 56 – Summary Judgment Summary judgment is appropriate when the pleadings and evidence show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). The party seeking summary judgment must demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 248. A genuine issue of material fact is one that “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. In determining whether a genuine issue of material fact exists, the trier of fact must view all facts, and reasonable inferences drawn therefrom, in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. 242, 247- 48 (emphasis in original). The moving party may discharge this burden by “‘showing’ – that is point out to the [Court] – that there is an absence of evidence to support the non-moving party’s case.” Sweats Fashion, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1563 (Fed. Cir. 1987); see also Celotex, 477 U.S. at 332. Once the moving party has met its burden, the non-moving party may not rest upon the mere allegations or denials of his pleadings, and must establish more Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 6 of 37 4 than “the mere existence of a scintilla of evidence” in support of its position. Anderson, 477 U.S. at 252. Summary judgment is thus due if the non-moving party fails to offer “evidence on which the jury could reasonably find for the [nonmovant].” Id. Summary Judgment Standard in FOIA Cases “The Freedom of Information Act, 5 U.S.C. § 552(a), provides that ‘[e]ach agency shall make available to the public’ records in its possession unless the information is covered by one of Section 552(b)’s nine statutory exemptions.” Elec. Privacy Info. Ctr. v. Nat’l Sec. Agency, 678 F.3d 926, 931 (D.C. Cir. 2012); see 5 U.S.C. § 552(b). The “vast majority” of FOIA cases are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011); Media Research Ctr. v. U.S. Dep’t of Justice, 818 F. Supp. 2d 131, 136 (D. D.C. 2011) (“FOIA cases typically and appropriately are decided on motions for summary judgment.”); Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Labor, 478 F. Supp. 2d 77, 80 (D.D.C. 2007) (“CREW”). An agency may be entitled to summary judgment in a FOIA case if it demonstrates that no material facts are in dispute, it has conducted an adequate search for responsive records, and each responsive record that it has located either has been produced to the plaintiff or is exempt from disclosure. See Weisberg v. Dep’t of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). To meet its burden, a defendant may rely on reasonably detailed and non-conclusory declarations. See McGehee v. C.I.A., 697 F.2d 1095, 1102 (D.C. Cir. 1983); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert denied, 415 U.S. 977 (1974). “[T]he Court may award summary judgment solely on the basis of information provided by the department or agency in declarations when the declarations describe ‘the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.’” Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 7 of 37 5 CREW, 478 F. Supp. 2d at 80 (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). “[A]n agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Media Research Ctr., 818 F. Supp. 2d at 137 (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). II. LEGAL REQUIREMENTS OF FOIA Legal Requirements of Search An agency’s search for records in the context of a FOIA case is adequate if it was “reasonably calculated to uncover all relevant documents.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (internal quotation marks omitted); Campbell v. Dep’t of Justice, 164 F.3d 20, 27-28 (D.C. Cir. 1998). The agency must explain the “scope and method of the search [in] reasonable detail[,]” but need not provide “meticulous documentation [of] the details of an epic search.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982); see also Wolf v. CIA, 569 F. Supp.2d 1, 7 (D.D.C. 2008) (quoting Perry v. Block). Rather, 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. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “There is no requirement that an agency search every record system.” Id. A search is not inadequate merely because it failed to “uncover[] every document extant,” SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1201 (D.C. Cir. 1991). Specifically, “the issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984); Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890, 892 n.7 (D.C. Cir. 1995) (holding that Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 8 of 37 6 agency need only make “good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested”). In short, a search’s adequacy is measured by the methods employed, not by the results obtained. Weisberg, 745 F.2d at 1485. An agency can establish that it has performed a good faith search by submitting a declaration specifying the search terms used and type of search performed, and averring that all files likely to contain responsive records were searched. Stephens v. Dep’t of Justice, --- F.Supp. 2d ---, 2014 WL 1015803, at *3 (D.D.C. March 18, 2014) (citing Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973). Courts accord agency affidavits “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground SaucerWatch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). Legal Requirements Related To FOIA Exemptions The agency bears the burden of demonstrating that the documents it has withheld fall into one of the enumerated FOIA exemptions. See Natural Res. Defense Council, Inc. v. Nuclear Regulatory Comm’n, 216 F.3d 1180, 1190 (D.C. Cir. 2000). “[A]n agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Media Research Ctr., 818 F. Supp. 2d at 137 (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). If a record contains information exempt from disclosure, any “reasonably segregable,” non-exempt information must be disclosed after redaction of the exempt information, see 5 U.S.C. § 552(b); however, non-exempt portions of records need not be disclosed if they are “inextricably intertwined with exempt portions.” Mead Data Cent., Inc. v. Dep’t of the Air Force, 566 F.2d 242, Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 9 of 37 7 260 (D.C. Cir. 1977). To establish that all reasonably segregable, non-exempt information has been disclosed, an agency need only show “with ‘reasonable specificity’” that the information it has withheld cannot be further segregated. Armstrong v. Executive Office of the President, 97 F.3d 575, 578-79 (D.C. Cir. 1996); Canning v. Dep’t of Justice, 567 F. Supp. 2d 104, 110 (D. D.C. 2008). “Agencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material,” which must be overcome by some “quantum of evidence” by the requester. Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). An agency may meet its burden to establish the applicability of an exemption by providing a Vaughn index to “permit adequate adversary testing of the agency’s claimed right to an exemption.” National Treasury Employees Union v. U.S. Customs Service, 802 F.2d 525, 527 (D.C. Cir. 1986) (citing Mead Data, 566 F.2d at 251; Vaughn, 484 F.2d at 828). The index must contain “an adequate description of the records” and “a plain statement of the exemptions relied upon to withhold each record.” National Treasury, 802 F.2d at 527 n.9. Additionally, although a Vaughn index is a common device used by agencies to meet this burden of proof, “the Court may award summary judgment solely on the basis of information provided by the department or agency in declarations when the declarations describe ‘the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.’” CREW, 478 F. Supp. 2d at 80 (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)); see also Spirko v. U.S. Postal Service, 147 F.3d 992, 998 n.4 (D.C. Cir. 1998) (“The form of the Vaughn index is unimportant and affidavits providing similar information can suffice.”) (citing Gallant v. NLRB, 26 F.3d 168, 172-73 (D.C. Cir. 1994)). Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 10 of 37 8 III. SUMMARY OF ARGUMENT In accordance with Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), Defendants supports this summary judgment motion by submitting the declarations, attachments, and exhibits of EOUSA and FBI agency officials (David Luczynski and David Hardy, respectively). These declarations, attachments, and exhibits collectively provide the Court and Plaintiff with an explanation of the procedures used by Defendants to search for, review, and process the records responsive to Plaintiff’s FOIA request, and their justifications for withholding records in full or in part pursuant to FOIA Exemptions 3,16, and 7, 5 U.S.C. §§ 552 (b)(3), (b)(6), (b)(7), (b)(7)(A), (b)(7)(C), (b)(7)(D), (b)(7)(E), and Privacy Act Exemption (j)(2), 5 U.S.C. § 552a (j)(2). Luczynski Decl. ¶ 3 and 16; Hardy Decl. 2 ¶ 12. Specifically, Defendants’ declarations provides a detailed account of the extensive searches conducted by EOUSA and FBI in response to Plaintiff’s FOIA request, and demonstrates that their searches were reasonable and adequate. Defendants declarations demonstrates that EOUSA and FBI carefully reviewed the responsive records, and properly withheld information subject to FOIA exemptions. Thus, the declarations read in conjunction with the responsive records, provides a sufficiently detailed description of the Defendants’ search and is “adequate to inform Plaintiff of the nature of the information withheld and to permit the Court to determine the applicability of each exemption claimed.” See Fischer v. U.S. Dep’t of Justice, 596 F. Supp. 2d 34, 43-44 (D.D.C. 2009). Any more specificity would result in disclosure of the very information withheld.” Id. The Court should therefore find that the declarations are sufficient and enter summary judgment in favor of Defendants. 1FOIA Exemption 3 applies in conjunction with 18 U.S.C. §§ 2510-20. Hardy Decl. 2 ¶ 12. Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 11 of 37 9 Plaintiff claims in his complaint that the EOUSA and FBI failed to respond to his FOIA request, failed to respond in a timely manner, and withheld the documents that he was requesting. However, the Luczynski and Hardy declarations demonstrate that Defendants could not provide Plaintiff with responsive records without compromising ongoing law enforcement proceedings, and that Defendants properly withheld information pursuant to 5 U.S.C. §§ 552 (b)(3), (b)(6), (b)(7), (b)(7)(A), (b)(7)(C), (b)(7)(D), (b)(7)(E), and Privacy Act Exemption (j)(2), 5 U.S.C. § 552a (j)(2). Luczynski Decl. ¶ 6 and Hardy Decl. 2 ¶ 12. Since Defendants declarations thoroughly explain the justifications for withholding the records responsive to Plaintiff’s request with reasonably specific detail, and clearly demonstrates that the information withheld logically falls within claimed exemptions, and is not controverted by either contrary evidence in the record nor by evidence of agency bad faith, Defendants are entitled to summary judgment on Plaintiff’s claims. IV. DEFENDANTS CONDUCTED A REASONABLE SEARCH The Defendants’ search, which is described in detail in each declaration, clearly satisfied its obligations under the FOIA. An agency’s search will be deemed reasonable if the agency searches the “places most likely to contain responsive documents.” Carter, Fullerton & Hayes v. FTC, 637 F. Supp. 2d 1, 7 (D.D.C. 2009). Here, Defendants’ declarations clearly demonstrate that EOUSA and FBI have more than satisfied this standard in connection with Plaintiff’s FOIA request. EOUSA only performed the search for the portion of plaintiff’s FOIA request asking for public records. See Luczynski Decl. at ¶ 7. The other part of the request was categorically denied since it was seeking information about third parties.2 Id. Plaintiff did not provide any 2EOUSA initially intended to deny plaintiff’s request through the application of a Glomar exemption. However, additional information made it clear that plaintiff was already aware of the existence of records, an aspect Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 12 of 37 10 information which would permit him to receive information concerning individuals other than himself. Id. Since receipt of third party information was denied, the part of the search concerning third parties was omitted. Id. After receiving plaintiff’s FOIA request, EOUSA undertook a search for documents responsive to plaintiff’s FOIA request. Id. Each United States Attorney’s Office maintains the case files for criminal matters prosecuted by that office; thus, upon receiving plaintiff’s request for records relating to him in the Northern District of Ohio. EOUSA forwarded the request to EOUSA’s FOIA contact for the Northern District of Ohio (“the FOIA Contact”). Id. The FOIA Contact began a systematic search for records using name “Anthony L. Viola” and search terms provided by the requester in his FOIA request to determine the location of any and all files responsive to his request. Id. In connection with its search, the FOIA Contact used the computer tracking system for the United States Attorney Offices, the “LIONS” system. Id. The “LIONS” system is the computer system used by United States Attorney’s offices to track cases and to retrieve files pertaining to cases and investigations. Id. Through the ”LIONS” system, the user can access databases which can be used to retrieve the information based on a individual’s name, the USAO number (United States’ Attorney’s Office internal administrative number), and the district court case number for any court cases. Id. In this case, the FOIA Contact used the LIONS system to locate records responsive to plaintiff’s FOIA request. Id. All documents responsive to plaintiff’s FOIA request would have been located in the USAO/OHN. Id. There are no other records systems or locations within EOUSA in which other files pertaining to plaintiff’s request were maintained. Id. which application of a Glomar exemption means to protect. While plaintiff has knowledge about records’ existence, he is not entitled to receive those records when all of the records in question concern third party individuals. This is the exact situation which favors an application of a categorical denial of the request that on its face is seeking clearly exempt material. Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 13 of 37 11 All EOUSA documents responsive to plaintiff’s FOIA request were located through the United States Attorney’s Office for Northern District of Ohio, (“USAO/OHN”). See Luczynski Decl. at ¶ 8. The records responsive to plaintiff’s request are maintained in the USAO/OHN Criminal Case File System (Justice/USA-007). Id. EOUSA has no other records systems or locations within the Northern District of Ohio in which other files pertaining to plaintiff are maintained. See Luczynski Decl. at ¶ 9. Upon the FBI’s determination to pierce the original Glomar response concerning FOIA subject Judge Donald Nugent as it relates to the specific items detailed in Plaintiff’s request, the FBI conducted a CRS index search for responsive records employing the UNI application of ACS and a Sentinel index search. See Hardy Decl. 2 at ¶ 22. The FBI searched the following search terms: “Nugent, Donald,” “Nugent, D.” and “Nugent, Judge, Donald.” Id. The FBI’s search included a three-way phonetic breakdown of “Nugent, Judge, Donald” and “Nugent, Donald” and an on-the nose search for “Judge Donald Nugent.” Id. The FBI’s CRS search encompassed records maintained in FBIHQ as well as all FBI’s field offices. Id. The FBI used information in Plaintiff’s request letters, and litigation filings, such the date the public became aware of the wiretap conversations in a federal probe of county corruption in Cuyahoga County, Ohio, to facilitate the identification of responsive records. Id. As a result of this search effort, the FBI identified a cross- reference file number 194B-CV-73474 indexed to FOIA subject Donald Nugent pertaining to the county corruption investigation in Cuyahoga County, Ohio. Id. On or about March 10, 2017, RIDS contacted the FBI Cleveland Field Office Special Agent (“CVFO SA”) leading the investigation documented on file number 194B-CV-73474 referencing Donald Nugent, and inquired if the investigations were still pending. See Hardy Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 14 of 37 12 Decl. 2 at ¶ 23. On or about March 13, 2017, the CVFO SA advised that several outstanding appeals remain pending, and release of the information at this time could reasonably be expected to interfere with the enforcement proceeding. Id. In addition, the CVFO SA advised the Title III wiretap recordings, and transcripts are still under court seal. Id. Finally, the CVFO SA advised even the sealing order is under seal. Id. On or about March 31, 2017, the CVFO SA provided RIDS with all the responsive FD-302 records referencing Judge Donald Nugent in order for RIDS to review the material from the pending file in order to assert underlying exemptions. See Hardy Decl. 2 at ¶ 24. The responsive tapes and transcripts were under court seal; therefore, were not provided. On April 28, 2017, upon completion of the review of the responsive records, the FBI advised Plaintiff the specific material requested on subject Judge Donald Nugent is located in an investigative file which is exempt from disclosure pursuant to 5 U.S.C. § 552(b)(7)(A). Id. The FBI also advised Plaintiff that portions of those same records are also exempt pursuant to underlying Exemptions (b)(3) [18 U.S.C. Section 2510-20], (b)(6), (b)(7)(C), (b)(7)(D), and (b)(7)(E). Id. Finally, the FBI advised Plaintiff that “tape recordings [both oral and transcripts] of Judge Nugent talking with political leaders James Dimora and Frank Russo” are under seal pursuant to a court order issued by the United States District Court for the Northern District of Ohio, and sealed court records are not eligible for release under the FOIA. Id. FBI RIDS conducted a search reasonably calculated to locate all responsive records subject to FOIA. See Hardy Decl. 2 at ¶ 25. Given its comprehensive nature and scope, the CRS is the principal records system searched by RIDS, to locate information responsive to most FOIPA requests, because the CRS is where the FBI indexes information about Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 15 of 37 13 individuals, organizations, events, and other subjects of investigative interest for future retrieval. Id. The CRS is the FBI system where records responsive to this request would reasonably be found. Id. Plaintiff’s request is for specific information about subject Judge Donald Nugent as detailed in his request concerns a federal probe of county corruption in Cuyahoga County, Ohio. Id. Such information would reasonably be expected to be maintained and indexed in the CRS and located using the ACS and Sentinel index search methodology and terms described above. Id. The FBI concluded that these are the only records systems likely to maintain responsive records, and that no other records systems are likely to maintain responsive records. Id. V. DEFENDANTS PROPERLY ASSERTED FOIA EXEMPTIONS On January 26, 2017, EOUSA notified plaintiff that processing of his request was completed and that all of the public records he requested are being released to him. See Luczynski Decl. at ¶ 6. Plaintiff was also informed that since he has requested records concerning third parties, records pertaining to a third party generally cannot be released absent express authorization and consent of the third party, proof that the subject of the request is deceased, or a clear demonstration that the public interest in disclosure outweighs the personal privacy interest and that significant public benefit would result from the disclosure of the requested records. Id. Since Plaintiff did not furnished a release, death certificate, or public justification for release, the release of records concerning a third party was deemed to be result in an unwarranted invasion of personal privacy that would be in violation of the Privacy Act, 5 U.S.C.§ 552a. Id. Any such records are also generally exempt from disclosure pursuant to sections (b)(6) and (b)(7)(C) of the Freedom of Information Act, 5 U.S.C. § 552. Id. The Second Hardy Declaration supplements, and incorporates by reference the information previously provided in the First Hardy Declaration. See Hardy Decl. 2 at ¶ 4. As Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 16 of 37 14 detailed in the First Hardy declaration, the FBI will continue to rely on the FBI’s justification for an Exemption 6 and 7(C) Glomar response and failure to exhaust determination for third party subject Paul Tomko (See First Hardy Declaration, ¶¶ 15-18). In regards to Plaintiff’s request for FD-302s and agent’s interview notes referencing Judge Donald Nugent and tapes and transcripts of taped telephone conversations between Judge Nugent and third parties as it relates to a public corruption investigation in Cuyahoga County, Ohio, after further review, the FBI pierced the original Glomar response and is now categorically denying the records as exempt pursuant to FOIA exemptions 7(A), 6, and 7(C), and other underlying exemptions. Id. In addition, the tapes and transcripts are under court seal. Id. In accordance with Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), the Second Hardy Declaration provides FBI’s justification for categorically withholding records in full pursuant FOIA exemptions 7(A), 6, and 7(C). See Hardy Decl. 2 at ¶ 5. Also, in light of the D.C. Circuit’s ruling in Maydak v. U.S. Department of Justice, 218 F.3d 760 (D.C. Cir. 2000), the FBI is also asserting Exemptions 3, 7(D), and 7(E) of the FOIA as additional grounds for withholding records and information from this pending investigation, and other related investigations and prosecutions. Id. In addition, the tapes and transcripts are under court seal. Id. Upon FBI’s review of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgement (See ECF, Document No. 18, page 1, PART ONE) the FBI conducted a Public Access to Court Electronic Records (“PACER”) search of the case USA v. Anthony O. Calabrese, III, case No. 1:11-cr-437, N.D. Ohio, cited by Plaintiff as evidence the defense council in that case disclosed FOIA subject Judge Donald Nugent was intercepted in a telephone call in a larger public corruption investigation. See Hardy Decl. 2 at ¶ 6. The Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 17 of 37 15 Plaintiff believes he met the “prior disclosure … [of] specific information in the public domain that appears to duplicate that being withheld,” and the tapes and transcription of the tapes at issue in this FOIA request should be processed and released. Id. Judge Sara Lioi, in the matter before the United States District Court, Northern District of Ohio (See ECF, 11-cv-00437-SL, Docket No. 104) detailed the litigation issues relating to Defendant Calabrese. See Hardy Decl. 2 at ¶ 7. Judge Lioi explained that defendant Anthony Calabrese, III, asked for reconsideration of the Court’s April 27, 2012, Opinion and Order denying his motion to have the present case reassigned to a district judge by random draw (See ECF, 11-cv-00437-SL, Docket No. 102 [filed under seal]). Id. There were a multiple of charges pending against Calabrese stemming from an extensive three- year federal investigation into allegations of public corruption in Cuyahoga County, Ohio. Id. Calabrese was one of 50 individuals who have been charged in connection with the government’s investigation. Id. The present case against Calabrese was originally randomly assigned to the docket of the Honorable Donald Nugent. Id. As the case was related to other cases under Judge Lioi, Judge Nugent transferred the case to Judge Lioi as a related case under Local Criminal Rule 57.9(b)(3). Id. Following the reassignment, Calabrese moved to have the case returned to the random draw, alleging that the government withheld information from Judge Nugent that would have necessitated his recusal from this case. See Hardy Decl. 2 at ¶ 8. Calabrese produced a transcript of a brief telephone call involving Judge Nugent and one of Calabrese’s alleged co-conspirators that represented one of over 44,000 phone calls that were intercepted by the FBI during its investigation. Id. Calabrese also referenced a second phone call involving Judge Nugent and another alleged co-conspirator. Id. The two calls Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 18 of 37 16 had been the subject of a local newspaper article, and both alleged co-conspirators were Cuyahoga County public officials. Id. After reviewing the record, including the materials attached to Calabrese’s motion to transfer, the Court determined that the case had been properly transferred to Judge Lioi as a related case, pursuant to the local criminal rules. Id. Calabrese represented that his counsel received from an “unknown source” – a portion of an FBI Form 302 summarizing a December 1, 2010 interview between Judge Nugent and FBI agents. See Hardy Decl. 2 at ¶ 9. During the course of the interview, it appears that the FBI agents advised Judge Nugent of the existence of the public corruption investigation, and Judge Nugent expressed his surprise at the breath of the alleged corruption in Cuyahoga County. Id. Because this interview took place before the case was randomly assigned to Judge Nugent – a fact previously unknown to Calabrese and the present Court – Calabrese insists that Judge Nugent was required to recuse himself, and return the case to the random draw. Id. The Plaintiff in this instant action, believes this is an “official acknowledgement” of the investigation where Judge Nugent is recorded and the “tapes and transcripts” should be processed and released. Id. The FBI’s long-standing policy has been to provide an Exemption 6 and 7(C) Glomar response, neither confirming nor denying the existence of records in those instances where an individual seeks access to information regarding a third party but fails to provide a Certificate of Identity (a.k.a. Privacy Waiver) from the third party, or proof of death of that third party. (See 28 C.F.R. § 16.3(a)). See Hardy Decl. 2 at ¶ 10. The third prong of the FBI’s third party Glomar policy is whether the requester is able to provide sufficient evidence of a significant public interest in disclosure of the materials sought. Id. Without receipt of a Privacy Waiver, proof of death, or a showing of significant public interest in the Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 19 of 37 17 disclosure of the materials sought, the FBI will neither confirm nor deny the existence of records pertaining to a third party pursuant to 5 U.S.C. §§ 552(b)(6) and (b)(7)(C). Id. Such a response is necessary because members of the public are likely to draw adverse inferences from the mere fact that an individual is mentioned in the files of a criminal law enforcement agency such as the FBI, and cast them in an unfavorable or negative light. Id. Moreover, release of names and/or other personal information about these individuals could cause unsolicited and unnecessary attention to be focused on them. Id. Individuals – whether they are suspects, witnesses, law enforcement personnel, or in this case, a sitting U.S. District Judge – have a strong interest in not being associated unwarrantedly with alleged or actual criminal activity. See Hardy Decl. 2 at ¶ 11. The Plaintiff contends in his Complaint, “…since Judge Nugent’s secretly-recorded conversations and Paul Tomko’s prosecution have already been covered by the news media, there can be no expectation of privacy concerning the materials requested.” (See ECF, Complaint, Document 1, page 14, ¶ 47.) Id. The mere mention of an individual in news article in the context of unofficial information not publically acknowledged by an agency does not abolish the third party individuals’ privacy interests. Id. As detailed in the First Hardy Declaration, without an official acknowledgement by the FBI and or justification establishing the public interest in disclosure outweighs the substantial personal privacy interests of the third party individual, proof of death, or a signed Privacy Waiver, the FBI properly neither confirmed nor denied (Glomar response) the existence of records on these third parties individuals requested by Plaintiff. Id. Third party individuals maintain a strong privacy interest in not having their information disclosed. Id. In this particular case; however, and based on information publically available in Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 20 of 37 18 Docket No. 102, 11-cv-00437-SL, [filed under seal]), the Defendant Calabrese himself stated, the records came from an “unknown source,” but Judge Lioi agreed (See ECF, 11-cv- 00437-SL, Docket No. 104, page 6) the “production of the FBI interview summary demonstrates that Judge Nugent was aware at the time of the [case] transfer of both the interception of the calls, and of the fact that he had been interviewed in connection with the FBI’s investigation.” See Hardy Decl. 2 at ¶ 12. Judge Lioi agreed Defendant Calabrese was correct that Judge Nugent’s knowledge of these facts changes the analysis, but not for the reasons defendant has stated. Id. Judge Lioi concluded, “It is now clear that Judge Nugent – with full awareness that his calls had been captured and that he had been interviewed by the FBI – determined that he was not required to recuse, and elected to transfer the case as related.” Id. Based on this information establishing Judge Nugent’s knowledge of the taped conversations when making the decision of transferring the related case, and admitting to being interviewed by the FBI for that specific public corruption investigation, the FBI has determined piercing its original Glomar is warranted. Id. Consequently, the FBI searched for, and processed responsive records relating to Judge Nugent’s relationship to the specific public corruption investigation. Id. Defendant FBI Properly Withheld Entire Case File Under FOIA Exemption 7(A) FOIA Exemption 7 protects from disclosure “records or information compiled for law enforcement purposes,” but only to the extent that disclosure of such records would cause one of the six harms enumerated in § 552(b)(7). 5 U.S.C. § 552(b)(7); see Concepcion v. FBI, 606 F. Supp. 2d 14, 36 (D.D.C. 2009) (Under Exemption 7, “an agency must establish that the records in issue were compiled for law enforcement purposes, and that the material satisfies one of the Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 21 of 37 19 subparts of Exemption 7.”) (citing Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)). Before an agency can receive protection from disclosure by invoking a harm enumerated in Exemption 7, it must first demonstrate that the record or information at issue was compiled for law enforcement purposes. This Circuit has repeatedly held that in order to satisfy this threshold requirement, law enforcement agencies need only show that the records at issue are related to the enforcement of federal laws and that the enforcement activity is within the law enforcement duty of the agency. Keys v. Dep’t of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987) (“[A] criminal law enforcement agency’s invocation of ‘law enforcement purposes’ warrants greater deference than do like claims by other agencies.”) (citing Pratt, 673 F.2d at 420-21); Blackwell, 646 F.3d at 40 (only a “rational nexus” between criminal law enforcement agency’s duties and the withheld item need be shown). An agency need not link its collection of material to a specific or ongoing investigation. See, e.g., Tax Analysts v. IRS, 294 F.3d 71, 78 (D.C. Cir. 2002). The FBI has carefully examined all records responsive to Plaintiff’s request for specific records concerning Judge Donald Nugent as they relate to the FBI’s criminal investigation into allegations of public corruption in Cuyahoga County, Ohio. The FBI has determined that all information within the Evidentiary/Investigative category is exempt from disclosure pursuant to FOIA Exemption 7(A). Accordingly, the information readily meets the threshold requirement of Exemption (b)(7). See Hardy Decl. 2 at ¶ 38. 1. Exemption 7(A) FOIA Exemption 7(A) permits agencies to withhold “records or information compiled for law enforcement purposes [when disclosure] . . . could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). To justify the application of Exemption Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 22 of 37 20 7(A), the agency must demonstrate that (1) a law enforcement proceeding is pending or prospective; and (2) disclosure of the information could reasonably be expected to cause some articulable harm to the proceeding. Voinche v. FBI, 46 F.Supp.2d 26, 31 (D. D.C.1999); Mapother v. Dep’t of Justice, 3 F.3d 1533, 1540 (D.C. Cir. 1993). To satisfy this burden, “[t]he FBI need not submit declarations that reveal the exact nature and purpose of its investigations.” Blackwell, 680 F. Supp. 2d at 94-95. In fact, “Exemption 7(A) exists precisely to shield that sort of revelation.” Id. Congress enacted Exemption 7(A) because it “recognized that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it came time to present their cases” in court. John Doe Agency, 493 U.S. at 156 (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978)). Accordingly, documents are exempt under Exemption 7(A) where disclosure “could reveal much about the focus and scope of the [agency’s] investigation.” Swan v. S.E.C., 96 F.3d 498, 500 (D.C. Cir. 1996); Mendoza v. DEA, 465 F. Supp. 2d 5, 11 (D. D.C. 2006) (“Exemption 7(A) is properly applied to criminal investigative files of an ongoing criminal investigation.”). On April 28, 2017, upon completion of the review of the responsive records, the FBI advised Plaintiff the specific material requested on subject Judge Donald Nugent is located in an investigative file which is exempt from disclosure pursuant to 5 U.S.C. § 552(b)(7)(A). See Hardy Decl. 2 at ¶ 24. At this time, public disclosure of more detailed information on the application of exemptions would undermine the very interests the FBI seeks to protect through its assertion of Exemption (b)(7)(A). In addition, the tapes and transcripts are under court seal. See Hardy Decl. 2 at ¶ 38. The FBI asserted FOIA exemption (b)(7)(A) to categorically deny information from Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 23 of 37 21 records because of on-going appeal proceedings. See Hardy Decl. 2 at ¶ 30-37. The FBI has determined that some records pertaining to and/or referencing Plaintiff’s FOIA subject are exempt from disclosure pursuant to FOIA Exemption (b)(7)(A). Id. The FBI CVFO and RIDS has concluded that all such law enforcement records relate to several enforcement proceedings with outstanding appeals, and release of the information at this time could reasonably be expected to interfere with the enforcement proceeding. Id. Therefore, Exemption 7(A) was properly invoked by Defendants to withhold these responsive records to Plaintiff’s request. Defendants Properly Determined That Several Other FOIA Exemptions Apply. 1. FOIA Exemption 3 Exemption 3 of the FOIA provides that an agency need not disclose records that another statute exempts from disclosure: [The FOIA does not require the release of information] [s]pecifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters withheld. 5 U.S.C. §552(b)(3). If a court determines that a relevant statute exists and that the withheld information is within the statute’s coverage, the information cannot be released. Fund for Constitutional Gov’t v. National Archives & Records Serv., 656 F.2d 856, 868 n.29 (D.C. Cir. 1981) (court has no discretion to release information covered by a qualifying statute, no matter how unwise or self-protective the statute may be); Goland v. C.I.A., 607 F.2d 339, 350 n.65 (D.C. Cir. 1978) (sole issue is the existence of a relevant statute and the inclusion of information within the statute’s coverage). Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 24 of 37 22 In this matter, FBI applied Exemption (b)(3) in conjunction with 18 U.S.C. §§ 2510- 20. Hardy Decl. 2 ¶ 12. a. 18 U.S.C. §§ 2510-20 Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510- 2520), which provides the authority and limitations for law enforcement's obtaining and disclosing intercepted wiretap information 18 U.S.C. §§ 2510-20 Title III requires that “applications made and orders granted under this chapter shall be sealed by the judge.” 18 U.S.C. § 2518(8)(b). Thus, the statute is designed to protect not only the actual communications obtained pursuant to its authority, but also the paperwork applying for and granting such authority, which would necessarily include the number designation of the request and the targets involved. FBI has no discretion to disclose information that is under court seal, and Plaintiff has not established that this material has been subsequently unsealed by the Court. See Manchester v. PEA. 823 F.Supp. 1259, 1267 (E.D. Penn. 1993) affirmed 40 F.3d 1240 (3rd Cir. 1994) (Wiretap applications and derivative information fall within the purview of Title III; disclosure is barred in FOIA proceeding). Wiretap requests and the contents of any wire, oral, or electronic communication obtained through wiretaps falls under FOIA Exemption (b)(3) in conjunction with 18 U.S.C. §§ 2510-20. See Mendoza v. DEA, No. 07-5006, 2007 U.S. App. LEXIS 22175 (D.C. Cir. Sept. 14, 2007) (per curiam); Lam Lek Chong v. DEA, 929 F.2d 729, 733 (D.C. Cir. 1991); Payne v. DOJ, No. 96-30840, slip op. at 5-6 (5th Cir. July 11, 1997). Here, FBI applied 18 U.S.C. §§ 2510-20 in conjunction with Title III of the Omnibus Crime Control and Safe Streets Act to protect information specifically exempt pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (“Title III”), concerning the Court-ordered lawful interception and recording of telephone Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 25 of 37 23 communications and vocal communications recorded by electronic microphone surveillance by a federal law enforcement agency in criminal investigations. See Hardy Decl. 2 at ¶ 40. In this case, even the court sealing order is under seal. Id. As relevant to 5 U.S.C. § 552 (b)(3)(B), the Omnibus Crime Control and Safe Streets Act of 1968 is a statute enacted before the date of enactment of the OPEN FOIA Act of 2009. Id. The CVFO SA advised the FBI that the Title III wiretap recordings, and transcripts related to U.S. District Judge Donald Nugent are still under court seal. See Hardy Decl. 2 at ¶ 23 and 40. Finally, the CVFO SA advised even the sealing order is under seal. Id. To the extent that Plaintiff may assert that the material is not exempt because it is already in the public domain, he has failed to carry his legal burden. “[I]t is established that a plaintiff asserting a claim of prior disclosure must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.” Davis, 968 F.2d at 1279 (internal quotes omitted). Plaintiff has failed to make any assertions that the material is not exempt in his Complaint. Therefore, FBI has properly invoked Exemption 3 with 18 U.S.C. §§ 2510-20 in conjunction with Title III of the Omnibus Crime Control and Safe Streets Act in its withholding of the records located responsive to Plaintiff’s request. FOIA Exemption 6 and (b)(7)(C) Exemption 6 permits the withholding of “personnel and medical files and similar files when the disclosure of such information ‘would constitute a clearly unwarranted invasion of personal privacy.’” 5 U.S.C. § 552(b)(6). The term “similar files” is broadly construed and includes, “[g]overnment records on an individual which can be identified as applying to that individual.” U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982); Lepelletier v. Fed. Deposit Ins. Corp., 164 F.3d 37, 47 (D.C. Cir. 1999) (The Supreme Court has interpreted the phrase similar files to include all information that applies to a particular individual.) (internal Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 26 of 37 24 quotations omitted). The Supreme Court has found that “[i]ncorporated in the ‘clearly unwarranted’ language is the requirement for ... [a] ‘balancing of interests between the protection of an individual's private affairs from unnecessary public scrutiny, and the preservation of the public's right to governmental information.’” Lepelletier, 164 F.3d at 46 (internal citation omitted). In determining how to balance the private and public interests involved, the Supreme Court has sharply limited the notion of “public interest” under the FOIA: “[t]he only relevant public interest in the FOIA balancing analysis [is] the extent to which disclosure of the information sought would ‘she[d] light on an agency’s performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to.’” Lepelletier, 164 F.3d at 47 (quoting U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 497 (1994)) (alterations in original). Information that does not directly reveal the operation or activities of the federal government “falls outside the ambit of the public interest that the FOIA was enacted to serve.” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 775 (1989). Further, “something, even a modest privacy interest, outweighs nothing every time.” Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989); but see Lepelletier, 164 F.3d at 48 (in extraordinary circumstance where the individuals whose privacy the government seeks to protect have a “clear interest” in release of the requested information, the balancing under Exemption 6 must include consideration of that interest). Exemption 7(C) protects from disclosure “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information … could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 27 of 37 25 Under Exemption 7(C), the identities of suspects and other persons of investigatory interest who are identified in agency records in connection with law enforcement investigations are protected from mandatory disclosure. See Reporters Comm., 489 U.S. at 780. Indeed an agency in a FOIA case may categorically assert Exemption 7(C) to protect the identities of witnesses or other persons mentioned in law enforcement files, in such a way as to associate them with criminal activity. Id. The names of law enforcement officers who work on criminal investigations have also traditionally been protected against release by Exemption 7(C). Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992). Similarly, individuals who provide information to law enforcement authorities, like the law enforcement personnel themselves, have protectable privacy interests in their anonymity. Computer Prof’ls for Soc. Responsibility v. U.S. Secret Serv., 72 F.3d 897, 904 (D.C. Cir. 1996). Due to the lack of privacy waiver or proof of death, EOUSA denied that portion of his request dealing with information about third parties, in this case Judge Donald Nugent and Paul Tomko, because they have a strong privacy interest in the records that may not be released absent their waiver and consent. See Luczynski Decl. at ¶ 17. Plaintiff has failed to establish an overriding public interest in disclosure of such records. Id. Information pertaining to the third parties at issue here, and release of any such information would place these third party individuals in a position to suffer undue invasion of privacy and harassment. Id. Consequently, Judge Donald Nugent and Paul Tomko’s privacy interests in the requested law enforcement information outweigh the stated public interest in disclosure. Id. Therefore, release of any information about them could reasonably be expected to constitute a clearly unwarranted invasion of personal privacy. Id. FBI determined all the responsive FD-302 records subject to FOIA were Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 28 of 37 26 categorically denied pursuant to FOIA Exemption 7(A), 6 and 7(C), because they relate to a pending investigation. See Hardy Decl. 2 at ¶ 26. The FBI has carefully examined all records responsive to Plaintiff’s request for specific records concerning Judge Donald Nugent as they relate to the FBI’s criminal investigation into allegations of public corruption in Cuyahoga County, Ohio. See Hardy Decl. 2 at ¶ 38. The FBI has determined that all information within the Evidentiary/Investigative category is exempt from disclosure pursuant to exemptions 6 and 7(C). Id. As relevant here, the FBI asserted FOIA exemptions (b)(6) and b7(C) in two fashions: 1) to categorical deny the records, as they pertain to a third party whose privacy interest in the records outweighs the public interest in disclosure; and 2) as an underlying exemptions to protect third parties information of individuals mentioned in the records whose privacy interest also outweighs the public interest in disclosure. See Hardy Decl. 2 at ¶ 43-51. Because the heighted privacy interests afforded by exemption 6 and 7(C) outweigh any potential public interest, Defendants properly withheld documents, or portions of documents, under FOIA Exemptions 6 and 7(C). FOIA Exemption 7(D) Exemption 7(D) permits the withholding of records “compiled by criminal law enforcement authorit[ies] in the course of a criminal investigation” if producing the records “could reasonably be expected to disclose the identity of a confidential source” or “information furnished” by such a source. 5 U.S.C. § 552(b)(7)(D). “Exemption 7(D) has long been recognized as affording the most comprehensive protection of all FOIA’s law enforcement exemptions.” Billington v. DOJ, 301 F. Supp. 2d 15, 21 (D.D.C. 2004) (citing Voinche v. FBI, 940 F. Supp. 323, 331 (D. D.C. 1996)). Courts that have examined section 7(D)’s exemption emphasize that the exemption must remain “robust” to ensure that “confidential sources are not Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 29 of 37 27 lost because of retaliation against the sources for past disclosure or because of the sources’ fear of future disclosure.” Barkett v. Dep’t of Justice, No. CIV. A. 86-2029 (SS), 1989 WL 930993, at *4 (D. D.C. July 18, 1989) (quoting Brant Constr. Co. v. EPA, 778 F.2d 1258, 1262 (7th Cir.1985)); see Kele v. Dep’t of Justice, No. CIV.A.86-1795, 1988 WL 21705, at *3 (D. D.C. Feb. 29, 1988) (“The policy of 7(D) is to assure continued cooperation from confidential sources by eliminating the potential risk of embarrassment, harassment, and ridicule that exposure would entail.”) Significantly, Exemption 7(D) applies not only to information obviously identifying the source, such as name and address, but to all information that would tend to reveal the source’s identity. Pollard v. FBI, 705 F.2d 1151, 1155 (9th Cir. 1983); see Stone v. Defense Investigative Serv., 816 F. Supp. 782, 788 (D. D.C. 1993) (protecting “information so singular that to release it would likely identify the individual”). The exemption’s protections also extend to the “information furnished by a confidential source” to law enforcement authorities in the course of a criminal investigation. See Fischer v. Dep’t of Justice, 596 F. Supp. 2d 34, 48-49 (D. D.C. 2009) (emphasis added); Albuquerque Pub. Co. v. Dep’t of Justice, 726 F. Supp. 851, 857 (D. D.C. 1989) (holding that Exemption 7(D) “obviously” applied to protect from disclosure “two tape recordings, which consist entirely of information obtained from a confidential, wired informant.”); Parker v. Dep’t of Justice, 934 F.2d 375, 380 (D.C. Cir. 1991) (“[O]nce the agency receives information from a ‘confidential source’ during the course of a legitimate criminal investigation all such information obtained from the confidential source receives protection.’”) (emphasis in original). Moreover, Exemption 7(D) continues to apply even after an investigation has been closed, Ortiz v. HHS, 70 F.3d 729, 733 (2d Cir. 1995), and after the death of the source, Campbell v. Dep’t of Justice, 164 F.3d 20, 33 n.14 (D.C. Cir. 1998). Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 30 of 37 28 In determining the applicability of the exemption, “the question is . . . whether the particular source spoke with an understanding that the communication would remain confidential.” Dept. of Justice v. Landano, 508 U.S. 165, 172 (1993); see Miller v. U.S. Dep't of Justice, 872 F. Supp. 2d 12, 26 (D. D.C. 2012) (the focus should always be on whether the source of the information spoke with the understanding of confidentiality, not whether the document is generally thought to be confidential)(emphasis in original). Confidentiality exists, for the purpose of Exemption 7(D), when “the source furnished information with the understanding that the FBI would not divulge the communication except to the extent the Bureau thought necessary for law enforcement purposes.” Miller v. U.S. Dep't of Justice, 872 F. Supp. 2d 12, 26 (D. D.C. 2012) see Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 1184 (D.C. Cir. 2011). If the production of criminal investigative records, like the Recording, “could reasonably be expected to disclose the identity of a confidential source” or “information furnished by” such a source, that ends the matter, and the agency is entitled to withhold the records under Exemption 7(D). Parker, 934 F.2d at 380. Once an agency establishes confidentiality of a source, the FOIA requester faces a heavy burden in overcoming that promise. To meet this burden, a requester must come forward with “‘absolutely solid evidence showing that the source . . . in a law enforcement investigation has manifested complete disregard for confidentiality.’” Parker, 934 F.2d at 378 (quoting Dow Jones & Co. v. Dep’t of Justice, 908 F.2d 1006, 1011 (D.C. Cir. 1990)). Exemption (b)(7)(D), at times in conjunction with Exemptions (b)(6), and (b)(7)(C), have been asserted to protect the names, identifying information, and information provided by third party sources to the FBI under an implied assurance of confidentiality. See Hardy Decl. 2 at ¶ 55. These third party sources provided assistance and valuable and reliable information specific Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 31 of 37 29 in nature pertaining to the investigations of a multiple of individuals for public corruption in Cuyahoga County, Ohio. Id. The exempted information is detailed, and only known by a few individuals due to their proximity and/or direct or indirect association with investigative targets or targeted associates. Id. Disclosure of the identities of these individuals and the information provided could have disastrous consequences to them, or their families and associates. Id. These third party sources provided information of value to the FBI, and in doing so, have placed themselves in harm's way should the public, and the individuals who were under investigation, become aware of their cooperation with the FBI. See Hardy Decl. 2 at ¶ 56. All of the individuals could reasonably fear that disclosure of their identities would place them in danger of possible retaliation, harassment, and/or could reasonably be expected to cause them physical harm. Id. It is for this reason these third party individuals would expect that their identities and the information they provided not be released to the general public. Id. It is reasonable to infer that each of the third parties that provided information to the FBI did so under circumstances from which an assurance of confidentiality may be implied. Id. Interviews conducted under such assurances of confidentiality warrant the protection of the interviewee's name as well as the information the interviewee provided, but only to the extent that the information would identify the interviewee. Id. If the interviewees’ identities were released, it would likely subject them to harassment or reprisal. Id. The preservation of the confidentiality of these confidential sources, and the information provided is essential to effective law enforcement. Id. Disclosure could have a disastrous impact upon the ability to obtain this kind of information in the future, and would have a chilling effect upon the free flow of information essential to pursue and resolve criminal investigations. Id. The FBI is asserting Exemption 7(D), cited at times in conjunction with Exemptions 6 and 7(C), as an underlying exemption to Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 32 of 37 30 protect this type of information. Id. Accordingly, FBI properly withheld this information under exemption 7(D). FOIA Exemption 7(E) Exemption 7(E) permits withholding of “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information … would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E); Blackwell v. F.B.I., 646 F.3d 37, 42 (D.C. Cir. 2011) (noting the “relatively low bar for the agency to justify withholding” information under Exemption 7(E)). In this Circuit, “‘the exemption looks not just for circumvention of the law, but for a risk of circumvention; not just for an actual or certain risk of circumvention, but for an expected risk; not just for an undeniably or universally expected risk, but for a reasonably expected risk; and not just for certitude of a reasonably expected risk, but for the chance of a reasonably expected risk.’” Blackwell, 646 F.3d at 42 (quoting Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009)). In fact, “Exemption 7(E) sets a relatively low bar for the agency to justify withholding: ‘Rather than requiring a highly specific burden of showing how the law will be circumvented, exemption 7(E) only requires that the [agency] demonstrate logically how the release of the requested information might create a risk of circumvention of the law.’” Id. (quoting Mayer Brown, 562 F.3d at 1194) (internal quotation marks and alterations omitted). The FBI is asserting exemption (b)(7)(E) to protect information concerning surveillance operations in Cuyahoga County, Ohio; the targets of FBI pen registers/trap and trace devices; non-public information pertaining to FBI undercover operations; and internal e-mail addresses, Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 33 of 37 31 non-public intranet web addresses, and a secure internal e-mail tool. See Hardy Decl. 2 at ¶ 57- 61. Thus, FBI properly protected this information from disclosure pursuant to FOIA Exemption 7(E). Section (j)(2) of the Privacy Act Section (j)(2) of the Privacy Act exempts from mandatory disclosure systems of records “maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals ...” Under the regulations promulgated the Attorney General at 28 C.F.R. § 16.81(a)(1), the U.S. Attorney's Office criminal case files (known as Justice/USA-007 files) are exempt from the access provisions of the Privacy Act. See 5 U.S.C. § 552a(j)(2). Subsection (j)(2) exempts from mandatory disclosure all records maintained by an agency or component performing as its principal function any activity pertaining to the enforcement of criminal laws. EOUSA processes all requests by individuals for records pertaining to themselves under both the FOIA and PA in order to provide the requester with the maximum disclosure authorized by law. See Luczynski Decl. at ¶ 10. Criminal case files maintained by U.S. Attorney’s Offices are part of the DOJ Privacy Act System of Records. Id. The Attorney General has promulgated regulations at 28 C.F.R. §16.81(a)(1) which exempt U.S. Attorney’s Office criminal case files (known as Justice/USA-007 files) from the PA’s access provisions, as authorized by 5 U.S.C. §552a(j)(2). Id. Subsection (j)(2) exempts from mandatory disclosure all records maintained by an agency or component performing as its principal function any activity pertaining to the enforcement of criminal laws. Id. Since Plaintiff’s entire request pertains to criminal investigations, the materials were necessarily compiled for law enforcement purposes. Id. Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 34 of 37 32 Therefore, EOUSA determined that the responsive records withheld were not disclosable under the PA. Id. Thus, EOUSA properly identified records as exempt under Privacy Act Exemption (j)(2) and correctly withheld the documents that were responsive to Plaintiff’s request. VI. DEFENDANTS PRODUCED ALL REASONABLY SEGREGABLE MATERIALS Under FOIA, “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. §552(b). “It has long been a rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). Although the agency “must provide a ‘detailed justification’ for its non-segregability,” it “is not required to provide so much detail that the exempt material would be effectively disclosed.” Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (quoting Mead Data, 566 F.2d at 261). All that is required is that the government show “with reasonable specificity” why a document cannot be further segregated. Armstrong v. Exec. Office of the President, 97 F.3d 575, 578-79 (D.C. Cir.1996) (internal citations omitted); see Beltranena v. U.S. Dep’t of State, 821 F. Supp.2d 167 (2011) (upholding redactions under Exemption 3 where the declarant provides that the withheld information contained “no information that may be reasonably segregated and released, such as visa applications or other records that were previously in Plaintiff’s possession.”). Moreover, agencies are not required to “commit significant time and resources to the separation of disjointed words, phrases, or even sentences which taken separately or together have minimal or no information content.” Mead Data, 566 F.2d at 261, n.55. Here, EOUSA and FBI have declared that they each reviewed each record to identify information exempt from disclosure or for which a discretionary waiver of exemption could be Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 35 of 37 33 applied to ensure that all non-exempt information was released. However, all of the records responsive to Plaintiff’s request were exempt from disclosure pursuant to the various FOIA exemptions specified above, and could not be reasonably segregated. CONCLUSION For the foregoing reasons, Defendants, request entry of summary judgment on the claims in Defendants’ favor. Date: June 1, 2017 Respectfully submitted, CHANNING D. PHILLIPS, D.C. Bar No. 415793 United States Attorney DANIEL F. VAN HORN, D.C. Bar No. 924092 Chief, Civil Division /s/ By: TAMMY A. HOLLOWAY, MD Bar Special Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2633 / (202) 252-2599 (Facsimile) Tammy.Holloway2@usdoj.gov Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 36 of 37 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 1st day of June 2017, I served a true and correct copy of the foregoing Defendants’ Renewed Motion for Summary Judgment upon Plaintiff by first class United States mail, marked for delivery to: ANTHONY L. VIOLA R32238-160 McKean Federal Correctional Institution Inmate Mail/Parcels P.O. Box 8000 Bradford, PA 16701 Pro se Plaintiff CHANNING D. PHILLIPS, D.C. Bar No. 415793 United States Attorney DANIEL F. VAN HORN, D.C. Bar No. 924092 Chief, Civil Division /s/ TAMMY A. HOLLOWAY, MD Bar Special Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2633 / (202) 252-2599 (Facsimile) Tammy.Holloway2@usdoj.gov Counsels for Defendants Case 1:16-cv-01411-TSC Document 23 Filed 06/01/17 Page 37 of 37 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ANTHONY L. VIOLA, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-1411 (TSC) ) U.S. DEPARTMENT OF JUSTICE, et al., ) ) Defendants. ) ____________________________________) DEFENDANTS’ RENEWED STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE DISPUTE Pursuant to Local Civil Rule 7(h), Defendants the U.S. Department of Justice, (“Defendants”), by and through undersigned counsel, respectfully submits this Renewed Statement of Material Facts Not in Genuine Dispute in support of its Renewed Motion for Summary Judgment. In support of its Renewed Motion for Summary Judgment and this Renewed Statement of Material Facts, Defendants includes the Declarations of David Luczynski, Attorney Advisor with the Executive Office of United States Attorneys (EOUSA), (hereinafter, “Luczynski Decl.”) (Attachment 1 with Exhibits); and the Second Hardy Declaration of David Hardy, Section Chief of the Record/Information Dissemination Section ("RIDS"), Records Management Division ("RMD"), in Winchester, Virginia for the Federal Bureau of Investigation (“FBI”) (hereinafter, “Hardy Decl. 2”) (Attachment 2 with Exhibits), and the First Hardy Declaration (hereinafter, “Hardy Decl.”) (Attachment 3 with Exhibits). I. OVERVIEW OF PLAINTIFF’S FOIA REQUEST AND BACKGROUND FACTS EOUSA (1) By letter dated December 1,2015, plaintiff filed a FOIA request with the EOUSA asking Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 1 of 23 2 for: a) In 2012, the public became aware that U.S. District Judge Donald Nugent was recorded on wiretapped conversations with jailed political leaders James Dimora and Frank Russo. This request is for those conversations, both oral recordings and transcripts available. b) Any documents that reference Judge Donald Nugent is being requested, including emails or notes from interviews with the Judge. c) All documents concerning FBI informant Paul Tomko and all reports or documents provided by Mr. Tomko while he worked for the FBI and U.S. Attorney’s Office in Cleveland. Government Exhibit A. See Luczynski Decl. at ¶ 4. (2) By letter dated December 29, 2054, EOUSA notified plaintiff that his request was received and that it was assigned a FOIA reference number 2016-0821. Government Exhibit B. See Luczynski Decl. at ¶ 5. (3) On January 26, 2017, plaintiff was notified that processing of his request was completed and that all of the public records he requested are being released to him. Plaintiff was also informed that since he has requested records concerning third parties, records pertaining to a third party generally cannot be released absent express authorization and consent of the third party, proof that the subject of the request is deceased, or a clear demonstration that the public interest in disclosure outweighs the personal privacy interest and that significant public benefit would result from the disclosure of the requested records. Since Plaintiff did not furnished a release, death certificate, or public justification for release, the release of records concerning a third party was deemed to be result in an unwarranted invasion of personal privacy that would be in violation of the Privacy Act, 5 U.S.C.§ 552a. Any such records are also generally exempt from disclosure pursuant to sections (b)(6) and (b)(7)(C) of the Freedom of Information Act, 5 Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 2 of 23 3 U.S.C. § 552. Government Exhibit C. See Luczynski Decl. at ¶ 6. FBI (4) By letter dated November 30, 2015, Plaintiff submitted a FOIA request seeking access to records on two third party individuals stating the following: • “In 2012, the public became aware that U.S. District Judge Donald Nugent was recorded on wiretapped conversations with currently jailed political leaders James Dimora and Frank Russo. This request is for those conversations, both oral recordings and transcripts available.” And seeking the following records: • “Any FBI 302 that reference Judge Donald Nugent is being requested, including the agent’s original notes from those interviews.” • “All FBI 302s – and the agent’s original notes – from any and all interviews with ‘Paul Tomko’ along with any reports by Mr. Tomko that were presented to the FBI or the U.S. Attorney Office.” In addition, Plaintiff advised he was willing to pay any “reasonable copying or research charges pursuant to his request.” Finally, Plaintiff provided a Certificate of Identity for himself, and news articles entitled, “Feds record Dimora talking to U.S. Judge,” and “Former FBI informant indicted in ID theft case.” (See Exhibit A). See Hardy Decl. at ¶ 6. (5) By letter dated December 11, 2015, the FBI acknowledged receipt of Plaintiff's request and assigned FOIA Request Number 1340983-000. The FBI informed Plaintiff his request concerns one or more third party individuals, and the FBI recognized an important privacy interest in the information requested. In order to process responsive records on third parties, plaintiff was requested to provide either: 1) an express authorization and consent from Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 3 of 23 4 the third party individual, 2) proof of death, or 3) a justification that the public interest in disclosure outweighs personal privacy interests. Plaintiff was further advised that if he was seeking disclosure of any existing records based of the public interest, he must show the public interest in disclosure significantly outweighs the individual’s privacy interests, and the requested information is likely to advance that interest. In the absence of such information, the FBI neither confirms nor denies the existence of any records responsive to plaintiff’s request concerning any and all third party individuals involved. See Hardy Decl. at ¶ 7. (6) The FBI advised Plaintiff that if the requested information concerning the third parties was not provided within thirty (30) days from the date of the letter, his request would be closed. The FBI supplied plaintiff with a Certificate of Identity form to be signed by each of the third parties authorizing the FBI to release their information to the Plaintiff. Finally, the FBI advised Plaintiff he could appeal the FBI’s determination by filing an administrative appeal with the Office of Information Policy (“OIP”), within sixty (60) days from the date of the letter. (See Exhibit B). See Hardy Decl. at ¶ 8. (7) By letter dated December 24, 2015, Plaintiff responded to the FBI’s December 11, 2015 letter, alleging the public interest in disclosure of records pertaining to “information and taped conversations between U.S. District Judge Donald Nugent and Frank Russo and James Dimora should be released because the public release outweighs personal privacy interests” of the named individuals.1 Specifically, Plaintiff argued: • “All individuals on the tape are public officials, paid by taxpayers;” • “The existence of these tapes has already been made public, no doubt by a leak 1 Plaintiff failed to provide evidence in favor of the public interest discloser pertaining to subject Paul Tomko. Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 4 of 23 5 from an official at the Justice Department;”2 • “The Jimmy Dimora trial was widely covered in the news media;” • “These tapes are relevant to my criminal case, where the existence of secretly recorded conversations has been proven but that Judge Donald Nugent has refused to release tapes made at the same time that he’s been intercepted on tape – all of these tapes were made by the U.S. Attorney’s Office and FBI in Cleveland;” and • “If Judge Nugent was seeking favors or special treatment for his girlfriend, that information would confirm a crime was committed by the Judge and should be investigated.” Plaintiff again provided a copy of the news article titled, “Feds record Dimora talking to U.S. Judge.” (See Exhibit C). See Hardy Decl. at ¶ 9. (8) By letter dated February 19, 2016, the FBI advised Plaintiff he failed to sufficiently demonstrate the public’s interest in disclosure outweighs the substantial personal privacy interest of the third party individual Donald Nugent3; therefore, the request was denied. In addition, since Plaintiff did not provide proof of death or privacy waivers for any of the third party individuals Plaintiff’s request was being closed. The FBI advised that it will neither confirm nor deny the existence of any records without the requested documentation. In addition, if records were to exist, they would be exempt from disclosure pursuant to FOIA Exemptions (b)(6) and (b)(7)(C), 5 U.S.C. § 552 (b)(6) and (b)(7)(C). Finally, Plaintiff was advised he could appeal the FBI’s determination by filing an administrative appeal with OIP, within sixty (60) days from the date of the letter. (See Exhibit D). See Hardy Decl. at ¶ 10. 2 The FBI is unaware of any leak of information regarding the alleged tapes; nonetheless, unauthorized leaks of information it is not equivalent to an official acknowledgment by the agency of the existence of any such information. 3Judge Nugent presided over a criminal matter against the Plaintiff in Northern District of Ohio; USA v. Viola CR-08-506. On January 1, 2012, Judge Donald Nugent sentenced Anthony L. Viola to sixty months plus one hundred fifty months to run concurrent. In addition, the Court ordered Plaintiff to pay criminal monetary penalties of $3,500.00 and restitution of $1,256,528.49. Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 5 of 23 6 (9) By letter dated February 25, 2016, Plaintiff administratively appealed to OIP the FBI’s February 19, 2016, determination pertaining to the third party subject Judge Donald Nugent. (See Exhibit E). See Hardy Decl. at ¶ 11. (10) In a letter dated May 12, 2016, OIP advised Plaintiff it was closing his administrative appeal number DOJ-AP-2016-002167 for access to records concerning U.S. District Judge Donald Nugent and Mr. Paul Tomko.4 OIP advised Plaintiff it was affirming the FBI’s determination pertaining to subject Donald Nugent, because the FBI properly refused to confirm or deny the existence of records responsive to the request without consent authorization, proof of death, official acknowledgment of an investigation, or an overriding public interest. Confirming or denying the existence of such records, including law enforcement records, concerning the subject of his request would constitute a clearly unwarranted invasion of personal privacy, and could reasonably be expected to constitute an unwarranted invasion of personal privacy. See 5 U.S.C. § 552(b)(6), (7)(C). (See Exhibit G). See Hardy Decl. at ¶ 13. (11) Plaintiff filed this instant action on July 7, 2016 (See ECF, Document 1). See Hardy Decl. at ¶ 14. (12) By letter dated April 28, 2017, the FBI advised Plaintiff the material requested on subject Judge Donald Nugent as it relates to the specific items detailed in Plaintiff’s request, is located in an investigative file which is exempt from disclosure pursuant to 5 U.S.C. § 552(b)(7)(A). 5 U.S.C. § 552(b)(7)(A) exempts records or information compiled for law 4 OIP advised Plaintiff’s appeal concerned only that aspect of Plaintiff’s request seeking records on U.S. District Judge Donald Nugent, since Plaintiff did not appeal the determination pertaining to Paul Tomko. Therefore, Plaintiff failed to exhaust his administrative remedies in relation to subject Paul Tomko. Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 6 of 23 7 enforcement purposes, and the production of those records could reasonably be expected to interfere with pending or prospective law enforcement proceedings. Plaintiff was additionally informed, portions of those same records are also being withheld pursuant to underlying Exemptions (b)(3) [18 U.S.C. Section 2510-20], (b)(6), (b)(7)(C), (b)(7)(D), and (b)(7)(E). Finally, Plaintiff was advised the requested “tape recordings [both oral and transcripts] of Judge Nugent talking with political leaders James Dimora and Frank Russo” are under seal pursuant to a court order issued by the United States District Court for the Northern District of Ohio, and sealed court records are not eligible for release under the FOIA. (See Exhibit A.) See Hardy Decl. 2 at ¶ 13.5 II. DETAILS OF DEFENDANT’S SEARCHES AND PRODUCTIONS OF RECORDS EOUSA (13) EOUSA only performed the search for the portion of plaintiff’s FOIA request asking for public records. The other part of the request was categorically denied since it was seeking information about third parties.6 Plaintiff did not provide any information which would permit him to receive information concerning individuals other than himself. Since receipt of third party information was denied, the part of the search concerning third parties was omitted. After receiving plaintiff’s FOIA request, EOUSA undertook a search for documents responsive 5See First Hardy Declaration, Exhibits A-G, for administrative history of Plaintiff’s FOIA request number 1340983-00, and FBI’s original Exemptions 6 and 7(C) Glomar response pertaining to subjects Judge Donald Nugent and Paul Tomko. 6EOUSA initially intended to deny plaintiff’s request through the application of a Glomar exemption. However, additional information made it clear that plaintiff was already aware of the existence of records, an aspect which application of a Glomar exemption means to protect. While plaintiff has knowledge about records’ existence, he is not entitled to receive those records when all of the records in question concern third party individuals. This is the exact situation which favors an application of a Categorical Denial of the request that on its face is seeking clearly exempt material. Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 7 of 23 8 to plaintiff’s FOIA request. Each United States Attorney’s Office maintains the case files for criminal matters prosecuted by that office; thus, upon receiving plaintiff’s request for records relating to him in the Northern District of Ohio. EOUSA forwarded the request to EOUSA’s FOIA contact for the Northern District of Ohio (“the FOIA Contact”). The FOIA Contact began a systematic search for records using name “Anthony L. Viola” and search terms provided by the requester in his FOIA request to determine the location of any and all files responsive to his request. In connection with its search, the FOIA Contact used the computer tracking system for the United States Attorney Offices, the “LIONS” system. The “LIONS” system is the computer system used by United States Attorney’s offices to track cases and to retrieve files pertaining to cases and investigations. Through the ”LIONS” system, the user can access databases which can be used to retrieve the information based on a individual’s name, the USAO number (United States’ Attorney’s Office internal administrative number), and the district court case number for any court cases. In this case, the FOIA Contact used the LIONS system to locate records responsive to plaintiff’s FOIA request. All documents responsive to plaintiff’s FOIA request would have been located in the USAO/OHN. There are no other records systems or locations within EOUSA in which other files pertaining to plaintiff’s request were maintained. See Luczynski Decl. at ¶ 7. EOUSA’S DISCLOSURE DETERMINATION Identification of Responsive Records (14) All documents responsive to plaintiff’s FOIA request have been located through the United States Attorney’s Office for Northern District of Ohio, (“USAO/OHN”). The records responsive to plaintiff’s request are maintained in the USAO/OHN Criminal Case File System Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 8 of 23 9 (Justice/USA-007). See Luczynski Decl. at ¶ 8. (15) There are no other records systems or locations within the Northern District of Ohio in which other files pertaining to plaintiff were maintained. See Luczynski Decl. at ¶ 9. JUSTIFICATION FOR NON-DISCLOSURE UNDER THE PRIVACY ACT (16) EOUSA processes all requests by individuals for records pertaining to themselves under both the FOIA and PA in order to provide the requester with the maximum disclosure authorized by law. Criminal case files maintained by U.S. Attorney’s Offices are part of the DOJ Privacy Act System of Records. The Attorney General has promulgated regulations at 28 C.F.R. §16.81(a)(1) which exempt U.S. Attorney’s Office criminal case files (known as Justice/USA-007 files) from the PA’s access provisions, as authorized by 5 U.S.C. §552a(j)(2). Subsection (j)(2) exempts from mandatory disclosure all records maintained by an agency or component performing as its principal function any activity pertaining to the enforcement of criminal laws. Since Plaintiff’s entire request pertains to criminal investigations, the materials were necessarily compiled for law enforcement purposes. Therefore, EOUSA determined that the responsive records withheld were not disclosable under the PA. Accordingly, EOUSA next reviewed the records responsive to plaintiff’s request under the provisions of the FOIA. See Luczynski Decl. at ¶ 10. JUSTIFICATION FOR NON-DISCLOSURE UNDER THE FOIA EXEMPTION 5 U.S.C. '552(b)(6) (17) Exemption (b)(6) permits withholding personnel, medical, and similar files, which if disclosed would constitute a clearly unwarranted invasion of personal privacy. This exemption has been interpreted broadly to qualify all information pertaining to a particular individual. In Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 9 of 23 10 particular, this exemption was applied to prevent disclosure of such information as social security number, address, telephone number, and other highly personal material. See Luczynski Decl. at ¶ 11. (18) Where names and identifying information pertaining to persons whose right to personal privacy outweighs the public=s right to know, that information was either withheld in full or deleted from the document released. Release of this information was determined to constitute a clearly unwarranted invasion of personal privacy of other third party individuals in a manner that could subject these persons to harassment. See Luczynski Decl. at ¶ 12. (19) EOUSA applied this exemption in conjunction with exemption (b)(7)(C) to all records reviewed pertaining to third party individuals to protect their personal privacy interests. The application was appropriate because no consent or authorization to release this information was provided by the requester to EOUSA in connection with his request. See Luczynski Decl. at ¶ 13. EXEMPTION 5 U.S.C. §552(b)(7)(C) (20) The records withheld were also deemed to be exempt under FOIA Exemption (b)(7)(C), which protects from public disclosure information compiled for law enforcement purposes, if such disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy. All the information at issue was compiled for law enforcement purposes – namely, to facilitate the investigation and criminal prosecution of plaintiff. See Luczynski Decl. at ¶ 14. (21) Exemption (b)(7)(C) was applied to withhold the records in an effort to protect the identity of third-party individuals, such as potential witnesses and law enforcement Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 10 of 23 11 personnel, the release of which could subject such persons to an unwarranted invasion of their personal privacy. Release of such personal identifiers as social security numbers, ID numbers, birthdates, FBI numbers, and arrest dates, could result in unwarranted efforts to gain further access to such persons or to personal information about them– or subject them to harassment, harm, or exposure to unwanted and/or derogatory publicity and inferences– all to their detriment. See Luczynski Decl. at ¶ 15. (22) Pursuant to 5 U.S.C. § 552a(b), “No agency [may] disclose any record . . . contained in a system of records . . .. except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains” unless otherwise authorized by law. Plaintiff failed to provide any authorization from those third parties permitting EOUSA to release their records to plaintiff. Consequently, EOUSA determined that such information is exempt from disclosure under Exemption (b)(7)(C), and that there was no countervailing public interest in the release of this privacy-protected information, because its dissemination would not help explain government activities and operations nor did the public’s interest in the disclosure of this information outweigh the third-party individuals’ privacy rights in the information withheld under this exemption. See Luczynski Decl. at ¶ 16. (23) Due to the lack of privacy waiver or proof of death, EOUSA denied that portion of his request dealing with information about third parties, in this case Judge Donald Nugent and Paul Tomko, because they have a strong privacy interest in the records that may not be released absent their waiver and consent. Plaintiff has failed to establish an overriding public interest in disclosure of such records. Information pertaining to the third parties at issue here, and release of any such information would place these third party individuals in a position to suffer undue Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 11 of 23 12 invasion of privacy and harassment. Consequently, Judge Donald Nugent and Paul Tomko’s privacy interests in the requested law enforcement information outweigh the stated public interest in disclosure. Therefore, release of any information about them could reasonably be expected to constitute a clearly unwarranted invasion of personal privacy. See Luczynski Decl. at ¶ 17. FBI (24) The Second Hardy Declaration supplements, and hereby incorporates by reference the information previously provided in my declaration dated December 13, 2016 (“First Hardy Declaration”) (See ECF, Document No. 15-2). The First Hardy Declaration provided the Court the administrative history of the Plaintiff’s FOIA request number 1340983-000 (Exhibits A-G, First Hardy Declaration). In addition, the First Hardy Declaration provided the Court and Plaintiff an explanation for FBI’s Exemption 6 and 7(C) Glomar response pertaining to third party subjects Judge Donald Nugent, and Paul Tomko. As detailed in my First Hardy declaration the FBI will continue to reply on the FBI’s justification for an Exemption 6 and 7(C) Glomar response and failure to exhaust determination for third party subject Paul Tomko (See First Hardy Declaration, ¶¶ 15-18). In regard to Plaintiff’s request for FD-302s and agent’s interview notes referencing Judge Donald Nugent and tapes and transcripts of taped telephone conversations between Judge Nugent and third parties as it relates to a public corruption investigation in Cuyahoga County, Ohio, after further review, the FBI pierced the original Glomar response and is now categorically denying the records as exempt pursuant to FOIA exemptions 7(A), 6, and 7(C), and other underlying exemptions. In addition, the tapes and transcripts are under court seal. See Hardy Decl. 2 at ¶ 4. Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 12 of 23 13 (25) The Second Hardy declaration is being submitted in support of FBI’s renewed motion for summary judgment, and explains the new categorically 7(A), 6, and 7(C) withholding determination concerning FOIA subject Judge Donald Nugent as it relates to the specific items as detailed above and in Plaintiff’s request (See Exhibit A for FOIA request, First Hardy Declaration). In accordance with Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), this declaration provides a description of the FBI’s recordkeeping system; the procedures used to search for, review, and process responsive records subject to the FOIA concerning subject Judge Donald Nugent; and the FBI’s justification for categorically withholding records in full pursuant FOIA exemptions 7(A), 6, and 7(C). Finally, in light of the D.C. Circuit’s ruling in Maydak v. U.S. Department of Justice, 218 F.3d 760 (D.C. Cir. 2000), the FBI is also asserting Exemptions 3, 7(D), and 7(E) of the FOIA as additional grounds for withholding records and information from this pending investigation, and other related investigations and prosecutions. In addition, the tapes and transcripts are under court seal. See Hardy Decl. 2 at ¶ 5. PIERCING THE GLOMAR RESPONSE PERTAINING TO FOIA SUBJECT JUDGE DONALD NUGENT (26) Upon review of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgement (See ECF, Document No. 18, page 1, PART ONE) the FBI conducted a Public Access to Court Electronic Records (“PACER”) search of the case USA v. Anthony O. Calabrese, III, case No. 1:11-cr-437, N.D. Ohio, cited by Plaintiff as evidence the defense council in that case disclosed FOIA subject Judge Donald Nugent was intercepted in a telephone call in a larger public corruption investigation. The Plaintiff believes he met the Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 13 of 23 14 “prior disclosure … [of] specific information in the public domain that appears to duplicate that being withheld,” and the tapes and transcription of the tapes at issue in this FOIA request should be processed and released. See Hardy Decl. 2 at ¶ 6. (27) Judge Sara Lioi, in the matter before the United States District Court, Northern District of Ohio (See ECF, 11-cv-00437-SL, Docket No. 104) detailed the litigation issues relating to Defendant Calabrese. Judge Lioi explained that defendant Anthony Calabrese, III, asked for reconsideration of the Court’s April 27, 2012, Opinion and Order denying his motion to have the present case reassigned to a district judge by random draw (See ECF, 11-cv-00437-SL, Docket No. 102 [filed under seal]). There were a multiple of charges pending against Calabrese stemming from an extensive three-year federal investigation into allegations of public corruption in Cuyahoga County, Ohio. Calabrese was one of 50 individuals who have been charged in connection with the government’s investigation. The present case against Calabrese was originally randomly assigned to the docket of the Honorable Donald Nugent. As the case was related to other cases under Judge Lioi, Judge Nugent transferred the case to Judge Lioi as a related case under Local Criminal Rule 57.9(b)(3). See Hardy Decl. 2 at ¶ 7. (28) Following the reassignment, Calabrese moved to have the case returned to the random draw, alleging that the government withheld information from Judge Nugent that would have necessitated his recusal from this case. Calabrese produced a transcript of a brief telephone call involving Judge Nugent and one of Calabrese’s alleged co-conspirators that represented one of over 44,000 phone calls that were intercepted by the FBI during its investigation. Calabrese also referenced a second phone call involving Judge Nugent and Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 14 of 23 15 another alleged co-conspirator. The two calls had been the subject of a local newspaper article, and both alleged co-conspirators were Cuyahoga County public officials. After reviewing the record, including the materials attached to Calabrese’s motion to transfer, the Court determined that the case had been properly transferred to Judge Lioi as a related case, pursuant to the local criminal rules. See Hardy Decl. 2 at ¶ 8. (29) Calabrese represented that his counsel received from an “unknown source” – a portion of an FBI Form 302 summarizing a December 1, 2010 interview between Judge Nugent and FBI agents. During the course of the interview, it appears that the FBI agents advised Judge Nugent of the existence of the public corruption investigation, and Judge Nugent expressed his surprise at the breath of the alleged corruption in Cuyahoga County. Because this interview took place before the case was randomly assigned to Judge Nugent – a fact previously unknown to Calabrese and the present Court – Calabrese insists that Judge Nugent was required to recuse himself, and return the case to the random draw. The Plaintiff in this instant action, believes this is an “official acknowledgement” of the investigation where Judge Nugent is recorded and the “tapes and transcripts” should be processed and released. See Hardy Decl. 2 at ¶ 9. (30) The FBI’s long-standing policy has been to provide an Exemption 6 and 7(C) Glomar response, neither confirming nor denying the existence of records in those instances where an individual seeks access to information regarding a third party but fails to provide a Certificate of Identity (a.k.a. Privacy Waiver) from the third party, or proof of death of that third party. (See 28 C.F.R. § 16.3(a)). The third prong of the FBI’s third party Glomar policy is whether the requester is able to provide sufficient evidence of a significant public Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 15 of 23 16 interest in disclosure of the materials sought. Without receipt of a Privacy Waiver, proof of death, or a showing of significant public interest in the disclosure of the materials sought, the FBI will neither confirm nor deny the existence of records pertaining to a third party pursuant to 5 U.S.C. §§ 552(b)(6) and (b)(7)(C). Such a response is necessary because members of the public are likely to draw adverse inferences from the mere fact that an individual is mentioned in the files of a criminal law enforcement agency such as the FBI, and cast them in an unfavorable or negative light. Moreover, release of names and/or other personal information about these individuals could cause unsolicited and unnecessary attention to be focused on them. See Hardy Decl. 2 at ¶ 10. (31) Individuals – whether they are suspects, witnesses, law enforcement personnel, or in this case, a sitting U.S. District Judge – have a strong interest in not being associated unwarrantedly with alleged or actual criminal activity. The Plaintiff contends in his Complaint, “…since Judge Nugent’s secretly-recorded conversations and Paul Tomko’s prosecution have already been covered by the news media, there can be no expectation of privacy concerning the materials requested.” (See ECF, Complaint, Document 1, page 14, ¶ 47.) The mere mention of an individual in news article in the context of unofficial information not publically acknowledged by an agency does not abolish the third party individuals’ privacy interests. As detailed in my First Hardy Declaration, without an official acknowledgement by the FBI and or justification establishing the public interest in disclosure outweighs the substantial personal privacy interests of the third party individual, proof of death, or a signed Privacy Waiver, the FBI properly neither confirmed nor denied (Glomar response) the existence of records on these third parties individuals requested by Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 16 of 23 17 Plaintiff. Third party individuals maintain a strong privacy interest in not having their information disclosed. See Hardy Decl. 2 at ¶ 11. (32) In this particular case; however, and based on information publically available in Docket No. 102, 11-cv-00437-SL, [filed under seal]), the Defendant Calabrese himself stated, the records came from an “unknown source,” but Judge Lioi agreed (See ECF, 11-cv- 00437-SL, Docket No. 104, page 6) the “production of the FBI interview summary demonstrates that Judge Nugent was aware at the time of the [case] transfer of both the interception of the calls, and of the fact that he had been interviewed in connection with the FBI’s investigation.” Judge Lioi agreed Defendant Calabrese was correct that Judge Nugent’s knowledge of these facts changes the analysis, but not for the reasons defendant has stated. Judge Lioi concluded, “It is now clear that Judge Nugent – with full awareness that his calls had been captured and that he had been interviewed by the FBI – determined that he was not required to recuse, and elected to transfer the case as related.” Base on this information establishing Judge Nugent’s knowledge of the taped conversations when making the decision of transferring the related case, and admitting to being interviewed by the FBI for that specific public corruption investigation, the FBI has determined piercing its original Glomar is warranted. Consequently, the FBI searched for, and processed responsive records relating to Judge Nugent’s relationship to the specific public corruption investigation. The search for responsive records, and processing determination will be described below. See Hardy Decl. 2 at ¶ 12. ADEQUACY OF SEARCH (33) Upon the FBI’s determination to pierce the original Glomar response Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 17 of 23 18 concerning FOIA subject Judge Donald Nugent as it relates to the specific items detailed in Plaintiff’s request, the FBI conducted a CRS index search for responsive records employing the UNI application of ACS and a Sentinel index search. The FBI searched the following search terms: “Nugent, Donald,” “Nugent, D.” and “Nugent, Judge, Donald.” The FBI’s search included a three-way phonetic breakdown of “Nugent, Judge, Donald” and “Nugent, Donald” and an on-the nose search for “Judge Donald Nugent.” The FBI’s CRS search encompassed records maintained in FBIHQ as well as all FBI’s field offices. The FBI used information in Plaintiff’s request letters, and litigation filings, such the date the public became aware of the wiretap conversations in a federal probe of county corruption in Cuyahoga County, Ohio, to facilitate the identification of responsive records. As a result of this search effort, the FBI identified a cross-reference file number 194B-CV-73474 indexed to FOIA subject Donald Nugent pertaining to the county corruption investigation in Cuyahoga County, Ohio. See Hardy Decl. 2 at ¶ 22. (34) On or about March 10, 2017, RIDS contacted the FBI Cleveland Field Office Special Agent (“CVFO SA”) leading the investigation documented on file number 194B- CV-73474 referencing Donald Nugent, and inquired if the investigations were still pending. On or about March 13, 2017, the CVFO SA advised that several outstanding appeals remain pending, and release of the information at this time could reasonably be expected to interfere with the enforcement proceeding. In addition, the CVFO SA advised the Title III wiretap recordings, and transcripts are still under court seal. Finally, the CVFO SA advised even the sealing order is under seal. See Hardy Decl. 2 at ¶ 23. (35) On or about March 31, 2017, the CVFO SA provided RIDS with all the Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 18 of 23 19 responsive FD-302 records referencing Judge Donald Nugent in order for RIDS to review the material from the pending file in order to assert underlying exemptions. The responsive tapes and transcripts were under court seal; therefore, were not provided. On April 28, 2017, upon completion of the review of the responsive records, the FBI advised Plaintiff the specific material requested on subject Judge Donald Nugent is located in an investigative file which is exempt from disclosure pursuant to 5 U.S.C. § 552(b)(7)(A). The FBI also advised Plaintiff that portions of those same records are also exempt pursuant to underlying Exemptions (b)(3) [18 U.S.C. Section 2510-20], (b)(6), (b)(7)(C), (b)(7)(D), and (b)(7)(E). Finally, the FBI advised Plaintiff that “tape recordings [both oral and transcripts] of Judge Nugent talking with political leaders James Dimora and Frank Russo” are under seal pursuant to a court order issued by the United States District Court for the Northern District of Ohio, and sealed court records are not eligible for release under the FOIA. See Hardy Decl. 2 at ¶ 24. (36) Scope of Search. RIDS conducted a search reasonably calculated to locate all responsive records subject to FOIA. Given its comprehensive nature and scope, the CRS is the principal records system searched by RIDS, to locate information responsive to most FOIPA requests, because the CRS is where the FBI indexes information about individuals, organizations, events, and other subjects of investigative interest for future retrieval. The CRS is the FBI system where records responsive to this request would reasonably be found. Plaintiff’s request is for specific information about subject Judge Donald Nugent as detailed in his request concerns a federal probe of county corruption in Cuyahoga County, Ohio. Such information would reasonably be expected to be maintained and indexed in the CRS Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 19 of 23 20 and located using the ACS and Sentinel index search methodology and terms described above. The FBI concluded that these are the only records systems likely to maintain responsive records, and that no other records systems are likely to maintain responsive records. See Hardy Decl. 2 at ¶ 25. JUSTIFICATION FOR NONDISCLOUSRE UNDER THE FOIA (37) All responsive documents subject to the FOIA were reviewed under the access provisions of the FOIA to achieve maximum disclosure. Every effort was made to provide Plaintiff with all material in the public domain and with all reasonably segregable, non-exempt information in the responsive records; however, the FBI determined all the responsive FD-302 records subject to FOIA were categorically denied pursuant to FOIA Exemption 7(A), 6 and 7(C), because they relate to a pending investigation. In light of the D.C. Circuit’s ruling in Maydak v. U.S. Department of Justice, 218 F.3d 760 (D.C. Cir. 2000), the FBI is also asserting FOIA exemptions 3, 7(D), and 7(E) as additional grounds for withholding information from the records categorically denied pursuant to exemption 7(A), 6, and 7(C). Finally, the requested “tape recordings [both oral and transcripts] of Judge Nugent talking with political leaders James Dimora and Frank Russo” are under seal pursuant to a court order issued by the United States District Court for the Northern District of Ohio. Further description of the information withheld, beyond what is provided in this declaration could identify the actual exempt information that the FBI has protected. See Hardy Decl. 2 at ¶ 26. JUSTIFICATION FOR WITHHOLDING CERTAIN INFORMATION PURSUANT TO OTHER APPLICABLE FOIA EXEMPTIONS Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 20 of 23 21 (38) The FBI has carefully examined all records responsive to Plaintiff’s request for specific records concerning Judge Donald Nugent as they relate to the FBI’s criminal investigation into allegations of public corruption in Cuyahoga County, Ohio. The FBI has determined that all information within the Evidentiary/Investigative category is exempt from disclosure pursuant to FOIA Exemption 7(A). The FBI also determined that the same records are also categorically exempt pursuant to FOIA exemptions 6 and 7(C). In light of the D.C. Circuit’s ruling in Maydak v. U.S. Department of Justice, 218 F.3d 760 (D.C. Cir. 2000), the FBI is also asserting Exemptions 3, 7(D), and 7(E) of the FOIA as additional grounds for withholding records and information from this pending investigatory file. The decision in Maydak requires the simultaneous assertion of all applicable exemptions, in addition to Exemption 7(A), 6 and 7(C). In the following paragraphs, the FBI justifies its withholding of Investigative/Evidentiary records and information, not previously discussed above, to the extent that public disclosure and discussion of the additionally applicable exemptions will not adversely affect the active, ongoing pending appeals in this case by somehow revealing the nature, scope, focus, and conduct of the investigations, including the types and origins of sources upon which the FBI is relying. At this time, public disclosure of more detailed information on the application of exemptions would undermine the very interests the FBI seeks to protect through its assertion of Exemption (b)(7)(A). In addition, the tapes and transcripts are under court seal. See Hardy Decl. 2 at ¶ 38. WITHHOLDING OF DOCUMENTS UNDER A SEALED COURT ORDER (39) Within the categorically denied records for investigatory file 194B-CV- 73474, the FBI identified tapes and/or transcripts subject to a Court Sealing Order issued by Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 21 of 23 22 the United States District Court for the Northern District of Ohio. In addition, the responsive FD-302s include information citing information from these court sealed tapes and/or transcripts. On April 12, 2017, the FBI CVFO SA leading the investigation at issue here reviewed the Public Access to Court Electronic Records (“PACER”), and spoke to the prosecutor assigned to this case, and verified that the documents pertaining to phone requests for various techniques currently remain sealed. Consequently, the FBI is legally prohibited from disclosing these records. Due to the sealing order, these pages were not reviewed for applicable FOIA Exemptions. Should the court lift the sealing order, the FBI respectfully requests an opportunity to assert applicable FOIA Exemptions. See Hardy Decl. 2 at ¶ 62. CONCLUSION (40) Each step in the handling of plaintiff’s request has been entirely consistent with the EOUSA’s and the USAOs’ procedures, which were adopted to ensure an equitable response to all persons seeking responsive records under the FOIA/PA. See Luczynski Decl. at ¶ Conclusion. (41) As discussed previously, the FBI conducted a line-by-line review of the responsive records for segragability purpose. This review failed to identify any information that could reasonably be segregated for release without posing any harm to the asserted FOIA exemption 7(A) and other asserted underlining exemptions. See Hardy Decl. 2 at ¶ 63. (42) The FBI performed an adequate and reasonable searches for responsive records subject to the FOIA, ultimately lead to the identification of the specific records sought by Plaintiff. The FBI determined the responsive records pertain to a pending Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 22 of 23 23 enforcement proceedings subject to on-going appeal proceedings. The FBI determined these records are categorically exempt from disclosure pursuant to FOIA Exemption 7(A), 6 and 7(C) and underlying exemptions 3, 7(D), and 7(E), since disclosure of the information could reasonably be expected to interfere with the ongoing appeal proceedings; would reveal information specifically exempt pursuant a statute; would constitute a clearly unwarranted invasion of personal privacy and could reasonably be expected to constitute an unwarranted invasion of personal privacy; would reveal the identity of sources; and would reveal investigative techniques and procedures. The FBI was unable to reasonably segregable for release any information without causing foreseeable harm to the asserted exemptions. See Hardy Decl. 2 at ¶ 64. Dated: June 1, 2017 Respectfully submitted, CHANNING D. PHILLIPS, D.C. Bar No. 415793 United States Attorney DANIEL F. VAN HORN, D.C. Bar No. 924092 Chief, Civil Division _____________/s/________________________ TAMMY A. HOLLOWAY, MD Bar Special Assistant United States Attorney Counsels for Defendant Case 1:16-cv-01411-TSC Document 23-1 Filed 06/01/17 Page 23 of 23 Attachment 1 Case 1:16-cv-01411-TSC Document 23-2 Filed 06/01/17 Page 1 of 103 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ANTHONY L. VIOLA, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-1411 ) U.S. DEPARTMENT OF JUSTICE, ) et al., ) ) Defendant. ) ) DECLARATION OF DAVID LUCZYNSKI Pursuant to 28 U.S.C. § 1746, I, David Luczynski, declare the following to be a true and correct statement of facts: 1. I am an Attorney Advisor with the Executive Office for United States Attorneys ("EOUSA"), United States Department of Justice (“DOJ”). In that capacity, my responsibilities include acting as liaison with other divisions and offices of DOJ in responding to requests and litigation filed under both the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act of 1974, 5 U.S.C. § 552a (“PA”), reviewing FOIA/PA requests for access to records located in this office and the ninety-four United States Attorneys’ Offices (“USAOs”) and the case files arising therefrom, reviewing correspondence related to requests, reviewing searches conducted in response to requests, locating responsive records, and preparing EOUSA responses to ensure that determinations to withhold or release such responsive records are in accordance with FOIA, PA, and DOJ regulations, 28 C.F.R. §§ 16.3 et seq. and §§ 16.40 et seq. 2. As an Attorney Advisor of the FOIA/PA Unit, EOUSA, I have the authority to Case 1:16-cv-01411-TSC Document 23-2 Filed 06/01/17 Page 2 of 103 Page 2 of 8 release and withhold records requested under the FOIA/PA. The statements I make in this Declaratio are based upon my review of the official files and records of EOUSA, my own personal knowledge, and information acquired by me through the performance of my official duties. 3. Due to the nature of my official duties, I am familiar with the procedures followed by this office in responding to the FOIA request made to EOUSA by Plaintiff, Anthony Viola. I have reviewed the Complaint which this Declaration addresses. CHRONOLOGY 4. By letter dated December 1,2015, plaintiff filed a FOIA request with the EOUSA asking for: a) In 2012, the public became aware that U.S. District Judge Donald Nugent was recorded on wiretapped conversations with jailed political leaders James Dimora and Frank Russo. This request is for those conversations, both oral recordings and transcripts available. b) Any documents that reference Judge Donald Nugent is being requested, including emails or notes from interviews with the Judge. c) All documents concerning FBI informant Paul Tomko and all reports or documents provided by Mr. Tomko while he worked for the FBI and U.S. Attorney’s Office in Cleveland. Government Exhibit A. 5. By letter dated December 29, 2054, EOUSA notified plaintiff that his request was received and that it was assigned a FOIA reference number 2016-0821. Government Exhibit B. 6. On January 26, 2017, plaintiff was notified that processing of his request was Case 1:16-cv-01411-TSC Document 23-2 Filed 06/01/17 Page 3 of 103 Page 3 of 8 completed and that all of the public records he requested are being released to him, however, the portion of the request asking for information about third parties has been denied. Plaintiff was also informed that since he has requested records concerning third parties, records pertaining to a third party generally cannot be released absent express authorization and consent of the third party, proof that the subject of your request is deceased, or a clear demonstration that the public interest in disclosure outweighs the personal privacy interest and that significant public benefit would result from the disclosure of the requested records. Since the requester has not furnished a release, death certificate, or public justification for release, the release of records concerning a third party would result in an unwarranted invasion of personal privacy and would be in violation of the Privacy Act, 5 U.S.C.§ 552a. These records are also generally exempt from disclosure pursuant to sections (b)(6) and (b)(7)(C) of the Freedom of Information Act, 5 U.S.C. § 552. Government Exhibit C. ADEQUACY OF THE SEARCH 7. EOUSA only performed the search for the portion of plaintiff’s FOIA request asking for public records. The other part of the request was categorically denied since it was seeking information about third parties.1 Plaintiff did not provide any information which would permit him to receive information concerning individuals other than himself. Since receipt of third party information was denied, the part of the search concerning third parties was omitted. After 1 EOUSA initially intended to deny plaintiff’s request through the application of a Glomar exemption. However, additional information made it clear that plaintiff was already aware of the existence of records, an aspect which application of a Glomar exemption means to protect. While plaintiff has knowledge about records’ existence, he is not entitled to receive those records when all of the records in question concern third party individuals. This is the exact situation which favors an application of a Categorical Denial of the request that on its face is seeking clearly exempt material. Case 1:16-cv-01411-TSC Document 23-2 Filed 06/01/17 Page 4 of 103 Page 4 of 8 receiving plaintiff’s FOIA request, EOUSA undertook a search for documents responsive to plaintiff’s FOIA request. Each United States Attorney’s Office maintains the case files for criminal matters prosecuted by that office; thus, upon receiving plaintiff’s request for records relating to him in the Northern District of Ohio. EOUSA forwarded the request to EOUSA’s FOIA contact for the Northern District of Ohio (“the FOIA Contact”). The FOIA Contact began a systematic search for records using name “Anthony L. Viola” and search terms provided by the requester in his FOIA request to determine the location of any and all files responsive to his request. In connection with its search, the FOIA Contact used the computer tracking system for the United States Attorney Offices, the “LIONS” system. The “LIONS” system is the computer system used by United States Attorney’s offices to track cases and to retrieve files pertaining to cases and investigations. Through the ”LIONS” system, the user can access databases which can be used to retrieve the information based on a individual’s name, the USAO number (United States’ Attorney’s Office internal administrative number), and the district court case number for any court cases. In this case, the FOIA Contact used the LIONS system to locate records responsive to plaintiff’s FOIA request. All documents responsive to plaintiff’s FOIA request would have been located in the USAO/OHN. There are no other records systems or locations within EOUSA in which other files pertaining to plaintiff’s request were maintained. EOUSA’S DISCLOSURE DETERMINATION Identification of Responsive Records 8. All documents responsive to plaintiff’s FOIA request have been located through the United States Attorney’s Office for Northern District of Ohio, (“USAO/OHN”). The records Case 1:16-cv-01411-TSC Document 23-2 Filed 06/01/17 Page 5 of 103 Page 5 of 8 responsive to plaintiff’s request are maintained in the USAO/OHN Criminal Case File System (Justice/USA-007). 9. There are no other records systems or locations within the Northern District of Ohio in which other files pertaining to plaintiff were maintained. JUSTIFICATION FOR NON-DISCLOSURE UNDER THE PRIVACY ACT 10. EOUSA processes all requests by individuals for records pertaining to themselves under both the FOIA and PA in order to provide the requester with the maximum disclosure authorized by law. Criminal case files maintained by U.S. Attorney’s Offices are part of the DOJ Privacy Act System of Records. The Attorney General has promulgated regulations at 28 C.F.R. §16.81(a)(1) which exempt U.S. Attorney’s Office criminal case files (known as Justice/USA-007 files) from the PA’s access provisions, as authorized by 5 U.S.C. §552a(j)(2). Subsection (j)(2) exempts from mandatory disclosure all records maintained by an agency or component performing as its principal function any activity pertaining to the enforcement of criminal laws. Since Plaintiff’s entire request pertains to criminal investigations, the materials were necessarily compiled for law enforcement purposes. Therefore, EOUSA determined that the responsive records withheld were not disclosable under the PA. Accordingly, EOUSA next reviewed the records responsive to plaintiff’s request under the provisions of the FOIA. JUSTIFICATION FOR NON-DISCLOSURE UNDER THE FOIA EXEMPTION 5 U.S.C. '552(b)(6) 11. Exemption (b)(6) permits withholding personnel, medical, and similar files, which if Case 1:16-cv-01411-TSC Document 23-2 Filed 06/01/17 Page 6 of 103 Page 6 of 8 disclosed would constitute a clearly unwarranted invasion of personal privacy. This exemption has been interpreted broadly to qualify all information pertaining to a particular individual. In particular, this exemption was applied to prevent disclosure of such information as social security number, address, telephone number, and other highly personal material. 12. Where names and identifying information pertaining to persons whose right to personal privacy outweighs the public=s right to know, that information was either withheld in full or deleted from the document released. Release of this information was determined to constitute a clearly unwarranted invasion of personal privacy of other third party individuals in a manner that could subject these persons to harassment. 13. EOUSA applied this exemption in conjunction with exemption (b)(7)(C) to all records reviewed pertaining to third party individuals to protect their personal privacy interests. The application was appropriate because no consent or authorization to release this information was provided by the requester to EOUSA in connection with his request. EXEMPTION 5 U.S.C. §552(b)(7)(C) 14. The records withheld were also deemed to be exempt under FOIA Exemption (b)(7)(C), which protects from public disclosure information compiled for law enforcement purposes, if such disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy. All the information at issue was compiled for law enforcement purposes – namely, to facilitate the investigation and criminal prosecution of plaintiff. 15. Exemption (b)(7)(C) was applied to withhold the records in an effort to protect the identity of third-party individuals, such as potential witnesses and law enforcement personnel, Case 1:16-cv-01411-TSC Document 23-2 Filed 06/01/17 Page 7 of 103 Page 7 of 8 the release of which could subject such persons to an unwarranted invasion of their personal privacy. Release of such personal identifiers as social security numbers, ID numbers, birthdates, FBI numbers, and arrest dates, could result in unwarranted efforts to gain further access to such persons or to personal information about them– or subject them to harassment, harm, or exposure to unwanted and/or derogatory publicity and inferences– all to their detriment. 16. Pursuant to 5 U.S.C. § 552a(b), “No agency [may] disclose any record . . . contained in a system of records . . .. except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains” unless otherwise authorized by law. Plaintiff failed to provide any authorization from those third parties permitting EOUSA to release their records to plaintiff. Consequently, EOUSA determined that such information is exempt from disclosure under Exemption (b)(7)(C), and that there was no countervailing public interest in the release of this privacy-protected information, because its dissemination would not help explain government activities and operations nor did the public’s interest in the disclosure of this information outweigh the third-party individuals’ privacy rights in the information withheld under this exemption. 17. Due to the lack of privacy waiver or proof of death, EOUSA denied that portion of his request dealing with information about third parties, in this case Judge Donald Nugent and Paul Tomko, because they have a strong privacy interest in the records that may not be released absent their waiver and consent. Plaintiff has failed to establish an overriding public interest in disclosure of such records. Information pertaining to the third parties at issue here, and release of any such information would place these third party individuals in a position to suffer undue invasion of privacy and harassment. Consequently, Judge Donald Nugent and Paul Tomko’s Case 1:16-cv-01411-TSC Document 23-2 Filed 06/01/17 Page 8 of 103 Page 8 of 8 privacy interests in the requested law enforcement information outweigh the stated public interest in disclosure. Therefore, release of any information about them could reasonably be expected to constitute a clearly unwarranted invasion of personal privacy CONCLUSION Each step in the handling of plaintiff’s request has been entirely consistent with the EOUSA’s and the USAOs’ procedures, which were adopted to ensure an equitable response to all persons seeking responsive records under the FOIA/PA. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed on May _15 2017. 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103 Case 1:16-cv-01411-TSC Document 23-2 Filed 06/01/17 Page 98 of 103 Case 1:16-cv-01411-TSC Document 23-2 Filed 06/01/17 Page 99 of 103 Case 1:16-cv-01411-TSC Document 23-2 Filed 06/01/17 Page 100 of 103 Case 1:16-cv-01411-TSC Document 23-2 Filed 06/01/17 Page 101 of 103 Case 1:16-cv-01411-TSC Document 23-2 Filed 06/01/17 Page 102 of 103 Case 1:16-cv-01411-TSC Document 23-2 Filed 06/01/17 Page 103 of 103 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ANTHONY L. VIOLA, ) ) Plaintiff, ) ) v. ) Civil Action No.: 16-1411 (TSC) ) U.S. DEPARTMENT OF JUSTICE, et al., ) ) Defendants. ) ____________________________________) [PROPOSED] ORDER GRANTING DEFENDANTS’ RENEWED MOTION FOR SUMMARY JUDGMENT Upon consideration of Defendants’ Renewed Motion for Summary Judgment, and the existing record, it is hereby: ORDERED that Defendants’ Renewed Motion for Summary Judgment is GRANTED. ______________________ ________________________________ DATE HON. TANYA S. CHUTKAN United States District Court Judge Copies to: ANTHONY L. VIOLA R32238-160 McKean Federal Correctional Institution Inmate Mail/Parcels P.O. Box 8000 Bradford, PA 16701 Pro se Plaintiff Tammy Allison Holloway Defendant’s Counsel via ECF Case 1:16-cv-01411-TSC Document 23-3 Filed 06/01/17 Page 1 of 1
