UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) ANTHONY DONATO, ) ) Plaintiff, ) ) v. ) No. 16–cv-0632 (KBJ) ) EXECUTIVE OFFICE FOR UNITED ) STATES ATTORNEYS, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

Pro se plaintiff Anthony Donato is an inmate who is incarcerated at the Federal

Correctional Institution in Danbury, Connecticut. Between 2011 and 2014, Donato

submitted a series of document requests to various components of the Department of

Justice under the Freedom of Information Act,

(“the FOIA”), seeking

records related to an alleged plot by an inmate housed at the Metropolitan Correction

Center in New York (“MCC New York”) to frame another inmate and a staff member of

the Bureau of Prisons (“BOP”) for conspiracy to commit murder. (See Compl., ECF

No. 1, ¶¶ 10, 25, 29, 35.) Donato’s document-request letters were addressed to the

Executive Office for United States Attorneys (“EOUSA”), the Federal Bureau of

Investigation (“FBI”), and BOP (collectively, “Defendants”), and by separate

correspondence addressed only to BOP, Donato also sought records related to BOP’s

consideration of various statutory factors “when making designation placement

determinations for all [Donato’s] prison transfers.” (See

).

Donato has filed the instant four-count complaint to challenge (1) EOUSA’s denial of his request for a fee waiver (Claim 1), (2) the FBI’s refusal to confirm or deny the

existence of any records regarding the alleged murder-conspiracy plot (Claim 2), and

(3) the adequacy of BOP’s search for records in response to Donato’s requests, and also

that agency’s invocation of certain FOIA exemptions to withhold records about the

alleged murder-conspiracy plot (Claims 3 and 4). (See Compl. at 10–16.) 1

Before this Court at present is Defendants’ collective motion for summary

judgment. (See Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. 18.) The motion

argues that each of the defendant agencies, including BOP, conducted an adequate

search for records and properly invoked any applicable FOIA exemptions. (Id. at 8–

13.) Defendants further maintain that EOUSA properly denied Donato’s request for a

public interest fee waiver because he failed to demonstrate the requisite ability to

disseminate information to the public (see Defs.’ Reply in Support of Mot. for Summ.

J., ECF No. 25, at 3–4), and the FBI properly refused to confirm or deny the existence

of records responsive to Donato’s murder-conspiracy plot request (see Def.’s Mot. at

13–25). Donato disputes these contentions. (See Opp’n to Defs.’ Mot. for Summ. J.,

ECF No. 23; Opp’n to Defs.’ Reply in Support of Mot. for Summ. J., ECF No. 27.)

On March 31, 2018, this Court issued an order GRANTING IN PART and

DENYING IN PART Defendants’ motion for summary judgment. The instant

Memorandum Opinion explains the reasons for that order. In short, with respect to

Donato’s claim against EOUSA, this Court finds that EOUSA properly denied Donato’s

request for a fee waiver, but that EOUSA is nonetheless obliged to produce 100 pages

1 Page number cited herein refer to those that the Court’s electronic case filing system automatically assigns.

2 of responsive records to Donato at no charge, and summary judgment cannot be entered

in that agency’s favor because it is not clear from the instant record that EOUSA has

done so. The Court further finds that the FBI properly declined to confirm or deny the

existence of records pertaining to the alleged murder-conspiracy plot, and is thus

entitled to summary judgment, but BOP’s declarations do not provide sufficient details

regarding the searches that that agency conducted, or its invocation of FOIA

exemptions, to warrant summary judgment at this time.

I. BACKGROUND

The Alleged MCC Murder-Conspiracy Plot

“Dominick Cicale is a former captain in the Bonanno organized crime family[,]”

who began cooperating with the government in 2006 with respect to its investigation

and prosecution of members of the Bonanno and other organized crime families. United

States v. Cicale, No. 05-CR-60-2,

, at *1 (E.D.N.Y. Jan. 11, 2018).

Cicale was incarcerated at MCC New York, and was a participant in BOP’s Witness

Security program (“WitSec”), during the cooperation period. While at MCC New York,

Cicale purportedly ordered “other WitSec inmates to create mischief in the unit” by, for

instance, spilling coffee on the floor prior to an inspection. United States v. Basciano,

No. 03cr929,

, at *2 (E.D.N.Y. Mar. 24, 2008). In addition, and

significantly for present purposes, in June of 2007, Cicale allegedly attempted to frame

Vincent Basciano (another member of the Bonanno crime family) and a BOP

Correctional Officer (Marco Santomaggio) by asking another inmate at MCC New York

(Carlos Medina) to tell government attorneys that Santomaggio had hired him to kill

Cicale on behalf of Basciano. (See Aff. of Mary Wade-Jones (“Wade-Jones Aff.”), Ex.

3 2 to Pl.’s Opp’n, ECF No. 23-1 at 4–7, ¶¶ 5–6; see also Ex. 11 to Pl.’s Opp’n, ECF No.

23-1, at 36.)

Instead of carrying out Cicale’s nefarious request, Medina allegedly reported the

plot to BOP Correctional Counselor Gloria Black, who prepared a memorandum

regarding Cicale’s alleged murder-conspiracy scheme. (See Wade-Jones Aff. ¶ 6.)

Approximately two months later, Black provided a copy of the memorandum to a BOP

Special Investigative Supervisor (see

, 6–7), who then purportedly referred the

matter only to BOP’s internal affairs office, and did not “refer the allegations regarding

a possible murder plot to any other law enforcement agency such as the FBI[.]” (Id.

¶ 13.)

Donato’s FOIA Requests And Defendants’ Pre-Litigation Responses

As mentioned, at issue in this opinion are FOIA requests that Donato made

regarding two types of records: records concerning the murder-conspiracy scheme that

Cicale allegedly orchestrated inside MCC New York, and separately, records

documenting the factors that BOP took into account when it transferred Donato to

various prisons within the federal system. Although Donato is a member of the same

organized crime family as Cicale, see Donato v. United States, No. 09cv5617,

, at *1 (E.D.N.Y. Sept. 20, 2012), he does not allege anywhere in the instant

complaint or other filings that he was involved in any way in Cicale’s alleged murder-

conspiracy plot or BOP’s investigation of it; rather, it appears that Donato was engaged

in the process of gathering information about the purported plot for other reasons. 2

2 Donato’s interest in the subject appears to relate to his own conviction for murder in aid of racketeering, which resulted from the same organized-crime prosecution that had landed Vincent Basciano in prison. See United States v. Basciano,

, 194–95 (2d Cir. 2010) (noting that superseding indictment named Basciano and Donato, among others, as co-defendants). The instant

4 Donato sought these categories of records from different components of DOJ, as

follows.

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

Between 2011 and 2014, Donato submitted five substantively identical FOIA

requests to agencies within DOJ: one to EOUSA, three to the FBI, and one to BOP.

Each request sought records relating to Cicale’s alleged scheme to frame Basciano and

BOP Officer Santomaggio for conspiracy to commit murder. Specifically, Donato

sought

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

(Ex. 1 to Compl., ECF No. 1-1 at 5 (“EOUSA Murder-Conspiracy Plot Request”); see

also Ex. 10 to Compl., ECF No. 1-1 at 20 (“First FBI Request”); Ex. 12 to Compl., ECF

No. 1-1 at 22–24 (“Suppl. FBI Requests”); Ex. Ex. 18 to Compl., ECF No. 1-1 at 37

(“BOP Murder-Conspiracy Plot Request”).) 3 Each agency’s response to Donato’s FOIA

request (or requests) is detailed below.

records requests seem to be part of Donato’s effort to get his conviction overturned by unearthing damaging information about the ‘snitch’ who had given him up to the government (Cicale), as evidenced by various other court filings and proceedings. That is, during the same time that Donato was using the FOIA to gather records about Cicale’s alleged murder-conspiracy scheme, he was also litigating a habeas petition that alleged, among other things, that his guilty plea “was obtained involuntarily” because “the government failed to disclose” records about Cicale’s plot in the context of the plea negotiations—records that Donato claimed he could have used such to impeach Cicale’s credibility if he had gone to trial. Donato,

, at *1. 3 Donato presumably requested records from BOP because BOP officials investigated Cicale’s alleged plot and had generated at least one memorandum on the subject, as mentioned above. Furthermore, it was reasonable to assume that EOUSA had documents regarding the events at issue, because after his

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

Donato submitted his request for records pertaining to the murder-conspiracy

plot to EOUSA on May 31, 2011. (See Compl. ¶ 10). In subsequent correspondence,

Donato clarified that he was seeking records from the United States Attorney’s Offices

in both the Southern District and the Eastern District of New York (see

¶¶ 11–12),

and thus, EOUSA separated his request into Request No. 11-2389 for the Southern

District inquiry, and No. 11-2390 for the Eastern District request (see

).

EOUSA found no responsive documents in the Southern District of New York (id.

¶ 14), but advised Donato that it had located 55 “unindexed boxes of documents from

this multi-defendant case [i.e., the Basciano case] that are potentially responsive” to his

request in the Eastern District of New York, each of which might contain 2,000 to 4,000

pages of records. (Id., Ex. 2.) EOUSA further informed Donato that completing its

search for responsive records would take an additional 55 hours beyond the two free

hours that the FOIA allots to each FOIA requester, and would therefore cost $1,540.

(Id. ¶ 15.) Donato requested a waiver of those fees, but EOUSA denied this request.

(See

¶¶ 16–17.)

Donato then administratively appealed this denial to DOJ’s Office of Information

Policy (“OIP”), which concluded that EOUSA’s denial of the fee waiver request was

proper. (See

.) OIP remanded the matter to EOUSA with instructions for

EOUSA to provide Donato with his “statutory entitlement of 2 hours of search time and

racketeering conviction, Basciano had unsuccessfully moved for a new trial on the grounds that the U.S. Attorney’s Office had withheld material information about Cicale’s prison plot that Basciano could have used to attack Cicale’s credibility during trial. See United States v. Basciano, No. 03-CR- 929,

, at *2 (E.D.N.Y. Aug. 19, 2010).

6 up to 100 pages of duplication without cost[.]” (Id. ¶ 21.) At the time Donato filed his

complaint, he had not received any documents in response to the EOUSA Murder-

Conspiracy Plot Request. (See

.)

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

Donato submitted his first FOIA request to the FBI (“the First FBI Request”) on

May 25, 2011, and the FBI assigned it Request No. 11752443-000. (See

¶¶ 25–27.)

As of the filing of the complaint in the instant case, Donato had not received any

response to this request. (See

.) Thereafter, on July 23, 2014, Donato submitted

additional, substantively identical FOIA requests to two different FBI field offices (“the

Supplemental FBI Requests”): one to the FBI Field Office in Albany, New York, and

one to an FBI office in Manhattan. (See

.) The FBI assigned Request No.

1286073-000 to both of the Supplemental FBI Requests, and it informed Donato that,

because his requests pertained to third parties (Gloria Black, Carlos Medina, Dominick

Cicale, Vincent Basciano, and Marco Santomaggio), it would not process the request

until Donato had submitted either “(1) an authorization and consent from [each]

individual; (2) proof of death; or (3) a justification that the public interest in disclosure

outweighs personal privacy[.]” (Compl. ¶ 30.) The FBI further informed Donato that,

in the absence of any of these items, it could neither confirm nor deny the existence of

responsive records. (See id.)

In response, Donato asserted that the privacy interests of those third parties

“were nullified because the names of those involved in the Cicale plot are public

knowledge[,]” given that Cicale and Media had testified in open court and the relevant

events had been reported in newspapers and in published court opinions. (Compl. ¶ 31.)

7 Donato also insisted that “[t]he public has an interest to know which of the

government’s informants perjured himself at trial . . . , and why the government allowed

this to take place without any ramifications to either informant.” (Ex. 14 to Compl.,

ECF No. 1-1, at 28.) Donato further maintained that there is a public interest in

knowing “how the FBI and DOJ carried out their respective statutory duties to

investigate and prosecute criminal conduct, i.e.[,] murder conspiracy and perjury.” (Id.)

The FBI stood firm, refusing to confirm or deny whether it had any responsive

records, on the grounds that Donato had “‘not sufficiently demonstrated that the

public’s interest in disclosure outweighs [the] personal privacy interests of the

subject.’” (Compl. ¶ 32 (quoting Ex. 15 to Compl., ECF No. 1-1, at 29).) During the

subsequent administrative appeal, OIP upheld the FBI’s decision. (Id. ¶ 34.)

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

On May 31, 2011, Donato submitted a document request to BOP, seeking records

related to the alleged murder-conspiracy plot, and BOP designated Donato’s letter as

Request No. 2011-08565. (See

¶¶ 35–36.) BOP located 225 pages of responsive

records, and on September 28, 2011, it advised Donato that it was withholding all of the

records in their entirety under Exemptions 2, 5, 6, 7(C), 7(D), 7(E), and 7(F). (See

.) OIP affirmed BOP’s withholding determination on appeal. (See

.)

2. Donato’s Request For Information Regarding BOP’s Placement Decisions

On March 2, 2014, Donato submitted a FOIA request to BOP seeking the

worksheets that “detail the BOP’s assessment of the 5 factors of

(b)

that the BOP must consider when making designation placement determinations for all

his prison transfers” (“BOP Placement Request”). (Id. ¶ 40 (citation omitted); see also

8

(requesting the prison placement “Worksheets” that he says “8 court cases in

different federal courts” have referenced).) BOP searched for records responsive to this

request, but did not locate any. (See

¶¶ 43–44.)

Donato appealed BOP’s determination that no responsive records exist, and OIP

affirmed the decision in part and remanded it in part. (See

.) On remand,

BOP conducted an additional search and produced two pages of records; there is no

dispute that neither document is the type of worksheet that Donato requested. (See

.) Donato again appealed, and this time, OIP affirmed BOP’s determination. (See

.)

Procedural History

This Court granted Donato’s motion for leave to proceed in forma pauperis on

March 30, 2016, and docketed the instant complaint on April 4, 2016. Donato’s four-

count pleading challenges EOUSA’s denial of his fee waiver and its consequent failure

to produce any records in response to Donato’s murder-conspiracy plot document

request (Claim 1); the FBI’s refusal to confirm or deny the existence of any records

regarding Donato’s murder-conspiracy plot document request (Claim 2); and BOP’s

search for, and withholding of, documents in response to Donato’s two different

requests to that agency (Claims 3 and 4). (See generally Compl.) 4

4 Although Donato’s complaint does not expressly challenge the adequacy of BOP’s search for records responsive to his request for information about Cicale’s alleged scheme, he makes such a challenge in his opposition (see Pl.’s Opp’n at 20–21), and because he is proceeding pro se, this Court will consider the merits of that claim. Cf. Crawford v. Duke,

(D.C. Cir. 2017). Similarly, the Court will consider the complaint’s representation that “EOUSA has failed to respond” to Donato’s request for two hours of search time and 100 pages (Compl. ¶ 24), and will evaluate that allegation separate and apart from the complaint’s challenge to that agency’s fee-waiver determination, even though Donato has omitted the two-free-search-hours allegation from the count that assigns error to EOUSA’s fee-waiver decision (see

¶¶ 57–65).

9 Defendants answered Donato’s complaint on August 22, 2016 (see Answer, ECF

No. 11), and filed the instant motion for summary judgment on March 3, 2017. In

support of their motion, Defendants offer four declarations that detail how each agency

processed and responded to Donato’s FOIA requests. (See Defs.’ Mot.; Decl. of David

M. Hardy (“Hardy Decl.”), ECF No. 18-2 (pertaining to FBI First and Supplemental

Requests); Decl. of David Luczynski (“Luczynski Decl.”), ECF No. 18-4 (pertaining to

EOUSA Murder-Conspiracy Plot Request); Decl. of BOP Attorney John E. Wallace

(“Wallace Decl.”), ECF No. 18-6 (pertaining to BOP Murder-Conspiracy Plot Request);

Decl. of Gov’t Info. Specialist Sandra Raymond (“Raymond Decl.”), ECF No. 18-8

(pertaining to BOP Placement Request).) 5 Donato filed his opposition and cross-motion

for summary judgment on June 5, 2017, and the parties’ motions are now ripe for this

Court’s review.

II. LEGAL STANDARDS

FOIA Searches And Exemptions

The FOIA “was enacted to facilitate public access to Government documents” in

order to “pierce the veil of administrative secrecy and to open agency action to the light

of public scrutiny.” U.S. Dep’t of State v. Ray,

(1991) (internal

quotation marks and citation omitted). Thus, under the FOIA, an agency is required to

5 In the FBI’s declaration, Hardy admits that the FBI mistakenly construed Donato’s first request for records as one seeking records about Donato himself. (See Hardy Decl. ¶ 5 n.2.) And while the parties have engaged in a vigorous debate over whether or not the agency actually released any records to Donato in response to this first request so construed (see, e.g., Def.’s Mot. at 11–12; Pl.’s Opp’n at 35– 36), that dispute is of no moment, because Donato subsequently filed a second request that was substantially identical to the first letter requesting records regarding Cicale’s alleged murder- conspiracy scheme, and the agency issued a Glomar letter in response. (See Compl. ¶¶ 29–30.) Donato’s complaint expressly challenges the FBI’s Glomar response as “inappropriate” (id. ¶ 67), and thus, that agency action is the only FBI-related claim that is properly before the Court.

10 conduct a reasonable search for records, see Muckrock, LLC v. CIA, No. 14cv997,

, at *6 (D.D.C. Feb. 28, 2018), and it must produce all responsive

documents to the requester, unless the agency is entitled to withhold the records

pursuant to any of the nine exemptions that are specified in the FOIA and that allow

agencies to withhold records from disclosure, see

(b); see also Judicial

Watch, Inc. v. U.S. Dep’t of the Treasury,

(D.D.C. 2011).

When a plaintiff challenges the adequacy of an agency’s search for records

responsive to a FOIA request, the court applies a reasonableness test, and it may grant

summary judgment to the agency based on information provided in “[a] reasonably

detailed affidavit, setting forth the search terms and the type of search performed, and

averring that all files likely to contain responsive materials (if such records exist) were

searched.” Valencia-Lucena v. U.S. Coast Guard,

(D.C. Cir. 1999)

(internal quotation marks and citation omitted); see also Campbell v. DOJ,

(D.C. Cir. 1998) (highlighting the “reasonableness” standard). Such agency

affidavits attesting to a reasonable search “are afforded a presumption of good faith[,]”

and “can be rebutted only ‘with evidence that the agency’s search was not made in good

faith.’” Defs. of Wildlife v. U.S. Dep’t of Interior,

(D.D.C. 2004)

(quoting Trans. Union LLC v. FTC,

(D.D.C. 2001)).

Likewise, “[a]n agency withholding responsive documents from a FOIA release

bears the burden of proving the applicability of [the] claimed exemptions[,]” and such a

showing is typically made in agency affidavits. ACLU v. U.S. Dep’t of Def.,

(D.C. Cir 2011). Entry of summary judgment regarding an agency’s

invocation of FOIA exemptions is appropriate when the agency’s affidavit “describes

11 the justifications for withholding the information with specific detail, demonstrates that

the information withheld logically falls within the claimed exemption, and is not

contradicted by contrary evidence in the record or by evidence of the agency’s bad

faith[.]”

But a declaration that does “little more than parrot established legal

standards” when explaining withholdings falls well short of meeting the government’s

obligations under the FOIA. Am. Immigration Council v. U.S. Dep’t of Homeland Sec.,

(D.D.C. 2013) (finding that an agency fails to meet its burden

under the FOIA if the agency’s “declarations and briefs [] are laden with generalized,

categorical descriptions of the contents”); see also Oglesby v. U.S. Dep’t of Army,

(D.C. Cir. 1996) (concluding that “affidavits [that] offer no functional

description of the documents” and that “contain only sweeping and conclusory

assertions that the agency withheld the documents because they contained material

which could reasonably be expected to cause damage to national security” are

inadequate).

“Glomar” Responses Based On Privacy Interests

In addition to producing requested records or withholding requested records

under an established FOIA exemption, an agency can also issue what has come to be

known as a “Glomar response” when a requester seeks identifiable records from the

agency. See, e.g., Wolf v. CIA,

(D.C. Cir. 2007); see also ACLU v.

CIA,

(D.C. Cir. 2013) (noting that the court reviews an agency’s

decision to provide a Glomar response de novo). “A Glomar response permits an

agency to ‘refuse to confirm the existence of records where to answer the FOIA inquiry

would cause harm cognizable under a[] FOIA exemption.’” Casey v. FBI, No. 17cv009,

, at * 2 (D.D.C. Mar. 23, 2018) (alteration in original) (quoting Wolf,

12

). 6 “To the extent the circumstances justify a Glomar response, the

agency need not conduct any search for responsive documents or perform any analysis

to identify segregable portions of such documents.” Lindsey v. FBI,

(D.D.C. 2017) (alteration, internal quotation marks, and citation omitted). A plaintiff

“can overcome a Glomar response by showing that the agency has already disclosed the

fact of the existence (or nonexistence) of responsive records, since that is the

purportedly exempt information that a Glomar response is designed to protect.” ACLU,

.

It is the FBI’s standard policy to issue a Glomar response whenever a FOIA

request seeks records pertaining to a third party, unless the requester submits a privacy

waiver or proof of death, or demonstrates an overriding public interest in disclosure, on

the grounds that confirming that the agency has records tends to associate third parties

with criminal activity, thus constituting an unwarranted invasion of their privacy. (See

Hardy Decl. ¶ 22.) See also Mount v. Neilson, No. 16cv2532,

, at *2

(D.D.C. Feb. 5, 2018) (finding that an agency appropriately issued a Glomar response

to a request for records regarding a law enforcement officer allegedly losing his official

credentials to a prostitute because acknowledging the existence of responsive records

“would constitute an unwarranted invasion of [the officer’s] personal privacy”); Smith

v. FBI,

, 4–5 (D.D.C. 2009) (holding that the FBI’s Glomar response

was proper where confirming the existence of disciplinary records would impinge on an

6 “Glomar” responses are “named for the Hughes Glomar Explorer, a ship used in a classified Central Intelligence Agency project ‘to raise a sunken Soviet submarine from the floor of the Pacific Ocean to recover the missiles, codes, and communications equipment onboard for analysis by United States military and intelligence experts.’” Roth v. DOJ,

(D.C. Cir. 2011) (quoting Phillippi v. CIA,

(D.C. Cir. 1981)).

13 agent’s interest in protecting the privacy of his employment records). The FBI’s

practice in this regard relies upon FOIA Exemption 7(C), which exempts from

mandatory disclosure law enforcement records that, if released, “could reasonably be

expected to constitute an unwarranted invasion of personal privacy,”

(b)(7)(C), and also FOIA Exemption 6, which applies to “personnel and medical

files and similar files[,] the disclosure of which would constitute a clearly unwarranted

invasion of personal privacy[,]”

§ 552(b)(6).

FOIA Fee Waivers

If an agency locates responsive records and intends to produce them, the FOIA

permits the agency to bill a FOIA requester for the direct costs of that production under

specified circumstances. If the requester has sought the records “for commercial use[,]”

the agency can bill for the cost of “document search, duplication, and review,” id.

§ 552(a)(4)(A)(ii)(I); see also Yanofsky v. U.S. Dep’t of Commerce, No. 16cv951,

, at *4 (D.D.C. Mar. 30, 2018); Liberman v. U.S. Dep’t of Transp.,

(D.D.C. 2016). However, if the request “is not primarily in the

commercial interest of the requester[,]” and the disclosure “is likely to contribute

significantly to public understanding of the operations or activities of the

government[,]” the agency must furnish documents to a requester at either a reduced

charge or no charge at all.

(a)(4)(A)(iii).

In FOIA lawsuits that claim improper denial of a fee-waiver request, the court

reviews the agency’s determinations de novo and must limit its review to the record

before the agency. See

§ 552(a)(4)(A)(vii); see also Judicial Watch, Inc. v. Rossotti,

(D.C. Cir. 2003). It is the requester’s burden to show that she is

entitled to a fee waiver. See Citizens for Responsibility & Ethics in Washington v. DOJ,

14

(D.D.C. 2009). Moreover, courts owe no deference to agency

regulations interpreting the FOIA, see Cause of Action, 799 F.3d at 1115, but such

regulations may be consulted if they are helpful and not inconsistent with the statutory

text, see, e.g., id. at 1124; Nat’l Sec. Archive v. U.S. Dep’t of Def.,

,

1387–88 (D.C. Cir. 1989).

DOJ’s regulations provide specific instructions about the proper considerations

when evaluating a request for a public interest fee waiver, including whether or not the

disclosure furthers “the understanding of a reasonably broad audience of persons

interested in the subject, as opposed to the individual understanding of the requester[,]”

and also the “requester’s expertise in the subject area as well as the requester’s ability

and intention to effectively convey information to the public[.]”

(k)(2)(ii)(B).

Summary Judgment In FOIA Cases

As a procedural matter, “FOIA cases typically and appropriately are decided on

motions for summary judgment.” Judicial Watch, Inc. v. Dep’t of the Navy,

(D.D.C. 2014) (quoting Defs. of Wildlife v. U.S. Border Patrol,

(D.D.C. 2009)). Under Rule 56 of the Federal Rules of Civil

Procedure, a court must grant summary judgment if the pleadings, disclosure materials

on file, and affidavits “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); see

also Judicial Watch,

(citing Anderson v. Liberty Lobby, Inc.,

(1986)). The district court conducts a de novo review of the record, and

the responding federal agency bears the burden of proving that it has complied with its

obligations under the FOIA. See

(a)(4)(B); see also In Def. of Animals v.

15 Nat’l Insts. of Health,

, 92–93 (D.D.C. 2008). And because courts

must analyze all underlying facts and inferences in the light most favorable to the FOIA

requester, see Willis v. DOJ,

(D.D.C. 2008), it is appropriate to

enter summary judgment for an agency only if the agency proves that it has “fully

discharged its [FOIA] obligations[,]” Moore v. Aspin,

(D.D.C.

1996).

III. ANALYSIS

The DOJ agencies that received Donato’s various FOIA requests have responded

to them in different ways; thus, this Court has had to address a variety of issues in order

to resolve Defendants’ motion for summary judgment. As explained fully below, the

Court has found that the FBI’s response to Donato’s FOIA request was appropriate

under the circumstances presented here, and as a result, the FBI is entitled to summary

judgment at this time. But Defendants’ motion for summary judgment must be denied

without prejudice as to EOUSA, because Defendants have not established that EOUSA

performed the search and review function for at least two hours in response to Donato’s

FOIA request, or that it provided Donato with at least 100 pages of non-exempt records

at no charge, despite EOUSA’s proper denial of Donato’s fee waiver request. Nor can

BOP claim entitlement to summary judgment now, because the declarations that

Defendants have submitted are manifestly insufficient to establish either that BOP’s

searches were adequate or that its withholdings are well-founded. Accordingly,

Defendants’ motion for summary judgment has been granted in part and denied in part,

and the Order that accompanies this Memorandum Opinion provides a deadline for the

parties’ submission of a proposed schedule for further proceedings.

16 The FBI Is Entitled To Summary Judgment, Because Its Glomar Response To Donato’s Records Request Did Not Violate The FOIA

As explained above, in response to Donato’s request for records regarding the

murder-conspiracy plot that Dominic Cicale allegedly devised, the FBI issued a

“Glomar” response, refusing to confirm or deny the existence of responsive records on

the grounds that even acknowledging the existence of records would impinge on the

privacy interests of third parties named in the records, thus implicating FOIA

Exemptions 6 and 7(C). (See Hardy Decl. ¶ 22.) Because there is no dispute here that

the requested records are law enforcement records (see id. ¶ 20), this Court need only

evaluate whether disclosure of the records “could reasonably be expected to constitute

an unwarranted invasion of personal privacy” under FOIA Exemption 7(C). See

(b)(7)(C); see also Wolf,

(noting that the relevant Glomar

question is whether confirming or denying the existence of responsive records “‘would

cause harm cognizable under a[] FOIA exception’” (quoting Gardels v. CIA,

(D.C. Cir. 1982))); cf. Roth,

(noting that because

Exemption 7(C) is broader than Exemption 6, there is no need to consider Exemption 6

if the records at issue are law enforcement records).

For the purpose of Exemption 7(C), a reviewing court must “balance the privacy

interests that would be compromised by disclosure against the public interest in release

of the requested information.” Davis v. DOJ,

(D.C. Cir. 1992). It

is well-established that invocation of this exemption is permissible where “the privacy

interest at stake outweighs the public’s interest in disclosure[,]” Nation Magazine, 71

F.3d at 893 (citation omitted), and it is also clear that the mere “mention of an

individual’s name in a law enforcement file will engender comment and speculation and

17 carries a stigmatizing connotation[,]” Schrecker v. DOJ,

(D.C. Cir.

2003) (internal quotation marks and citation omitted). Thus, a broad range of people,

including “witnesses, informants, and investigating agents have a substantial interest in

ensuring that their relationship to the investigations remains secret[,]” Roth,

(alteration, internal quotation marks, and citation omitted). And this Court readily

concludes that all of the third parties mentioned in Donato’s FOIA request have

sufficient privacy interests at stake. See Pugh v. FBI,

, 232–33

(D.D.C. 2011) (finding that two FBI confidential informants had significant privacy

interests and affirming the agency’s Glomar response to an inmate’s request seeking

records that would reveal the informants’ identities).

Turning to the other side of the balancing test, the D.C. Circuit has recognized

that in “instances where a third party asks if an agency has information regarding a

named individual in its law enforcement files, the cognizable public interest in that

information will be negligible [because] the requester will be seeking records about a

private citizen, not agency conduct.” Nation Magazine, 71 F.3d at 895. Indeed, “the

only relevant public interest in disclosure to be weighed . . . is the extent to which

disclosure would serve the core purpose of the FOIA, which is contributing

significantly to public understanding of the operations or activities of the government.”

U.S. Dep’t of Def. v. Fed. Labor Relations Auth.,

(1994) (alterations,

internal quotation marks, and citation omitted). Donato attempts to satisfy this

requirement by asserting that “[t]he public has an interest to know which of the

government’s key informants perjured himself at trial and committed related crimes,

i.e.[,] making false statements and obstruction of justice[.]” (Pl.’s Opp’n at 16.) But

18 this argument merely underscores the point, since Donato admits that the public’s

alleged interest in the misconduct of inmates and informants, who are private citizens,

not government personnel.

Donato attempts to tie in alleged government misconduct by asserting that the

public also has an interest in understanding “how the FBI, USAO, and the BOP carried

out their respective duties to investigate and prosecute criminal conduct-murder

conspiracy to frame a federal officer and informant[.]” (Id.) Donato thus suggests that

BOP may have acted improperly in conducting its investigation, but the law is clear that

where “the asserted public interest is the revealing of government misconduct . . . the

FOIA requester [must] ‘establish more than a bare suspicion’ of misconduct.” Roth,

(quoting Nat’l Archives & Records Admin. v. Favish,

(2004)). Indeed, to support the contention that there is a public interest that trumps

the third parties’ privacy interests in such circumstances, “the requester must produce

evidence that would warrant a belief by a reasonable person that the alleged

[g]overnment impropriety might have occurred.” Favish,

(emphasis

added). Donato does not proffer any evidence; in fact, he even fails to provide any

basis for his bald suggestion that the FBI, USAO, and BOP might have acted

improperly. Therefore, his contention falls well short of the applicable standard.

Donato also attempts to invoke the public domain doctrine (see Pl.’s Opp’n at

41–45), pursuant to which information otherwise exempt from disclosure “lose[s its]

protective cloak once disclosed and preserved in a permanent public record.” Cottone

v. Reno,

(D.C. Cir. 1999). But this argument also misses the mark.

“[I]n the context of a Glomar response, the public domain exception is triggered when

19 ‘the prior disclosure establishes the existence (or not) of records responsive to the FOIA

request,’ regardless [of] whether the contents of the records have [previously] been

disclosed[.]” Marino v. DEA,

(D.C. Cir. 2012) (emphasis in

original) (quoting Wolf v. CIA,

(D.C. Cir. 2007). Moreover, the

requester bears the burden of establishing that there was an official, prior disclosure

regarding the precise matter at issue, see Wolf,

(citation omitted)—i.e.,

a prior disclosure that the requested records exist. Thus, the relevant question is

whether Donato can show that the FBI has previously acknowledged its involvement in

investigating the alleged murder-conspiracy plot such that the records that Donato seeks

regarding that investigation are likely to exist in the FBI’s files. See Leopold v. DOJ,

No. 16cv1827,

, at *10 (D.D.C. Mar. 19, 2018); see also James

Madison Project v. OJ, No. 17cv00144,

, at *12–13 (D.D.C. Jan. 4,

2018) (holding that the FBI’s Glomar response was proper where confirming or denying

the existence of responsive records would require the FBI to confirm or deny whether it

was currently investigating or had previously investigated particular matters, which

would cause harms that fall within the scope of Exemption 7(A)).

Donato has come nowhere close to satisfying this exacting burden. His argument

about the public nature of the requested information focuses entirely on what others

have said about the murder-conspiracy plot—e.g., Cicale’s and Medina’s testimony in

open court about the alleged plot (see Pl.’s Opp’n at 41), media coverage of the alleged

plot and associated trial proceedings (see

at 41–42), and the discussion of the plot in

court filings (see

at 42–43)—and Donato does not reference any statements from the

FBI. To be sure, Donato points to documents that indicate that BOP or the

20 “Government” generally investigated the alleged murder-conspiracy plot. (See

; Wade-Jones Aff. ¶5.) But to prevail under the public domain doctrine, Donato must

show that the FBI has acknowledged that it investigated Cicale’s alleged scheme, and

thus would be likely to have records about that plot, and Donato has done nothing to

demonstrate any such acknowledgement by the FBI. See Leopold,

,

at *10 (finding that the FBI properly issued a Glomar response to a request seeking

records regarding a widely-reported statement made by a then-presidential candidate

where the FBI had not publicly acknowledged any investigation of the statement).

What is more, it is by now well established that, under Exemption 7(C), “a Glomar

response may be issued in place of a statement acknowledging the existence of

responsive records but withholding them, if confirming or denying the existence of the

records would associate the individual named in the request with criminal activity.”

Nation Magazine, 71 F.3d at 893.

So it is here. Donato has sought records about an investigation that the FBI has

not previously acknowledged concerning private individuals whose interests could be

harmed if the FBI confirms that it possesses records pertaining to any such

investigation. Thus, this Court concludes that the FBI properly refused to confirm or

deny the existence of records responsive to Donato’s FOIA request.

EOUSA Properly Denied Donato’s Request For A Fee Waiver, But It Nonetheless Has To Provide Donato With 100 Pages Of Records

Donato challenges two different aspects of EOUSA’s response to his FOIA

request. He maintains that he was entitled to a public interest fee waiver for the

requested records, that EOUSA improperly denied him (see Compl. ¶¶ 57–65), and,

regardless, he suggests that EOUSA failed to fulfill its statutory obligation to search for

21 2 hours and provide him with up to 100 pages of records for free (see id. ¶¶ 21–24).

This Court rejects Donato’s claim that EOUSA responded improperly regarding the fee

waiver request, but the record herein is muddled as to whether or not EOUSA satisfied

its obligation to provide Donato with 100 pages of records, and until the agency

provides the necessary clarification, an award of summary judgment must be withheld.

1. Donato Has Not Demonstrated That He Is Able To Disseminate The Requested Records To The Public

In order to be entitled to a public interest fee waiver for records requested under

the FOIA, the requester must establish, first, that he does “not have a commercial

interest in the disclosure of the information sought[,]” Larson v. CIA,

(D.C. Cir. 1988) (citation omitted), and second, “that the disclosure of the

information [is] likely to contribute significantly to public understanding of the

operations or activities of the government[,]”

(internal quotation marks and citation

omitted). For the purpose of assessing whether or not a disclosure of information will

contribute to the public understanding, one consideration is whether the requester has

the “‘ability and intention to effectively convey’ or disseminate the requested

information to the public.” Judicial Watch, Inc. v. DOJ,

(D.D.C. 2002); see also

(k)(2)(ii)(B) (requiring DOJ to consider,

when evaluating a request for a public interest fee waiver, whether the disclosure will

“contribute to the understanding of a reasonably broad audience of persons interested in

the subject, as opposed to the individual understanding of the requester”).

Notably, to carry this burden, a FOIA requester must “describe[] in reasonably

specific and non-conclusory terms his ability to disseminate the requested information.”

Perkins v. U.S. Dep’t of Veterans Affairs,

(D.D.C. 2010).

22 Furthermore, it is clear beyond cavil that “[m]erely stating one’s intention to

disseminate information does not satisfy this factor; instead, there must be some

showing of one’s ability to actually disseminate the information.” Id.; see also

Rossotti,

(holding that a requester had provided sufficient information

regarding the nine ways it communicated information obtained via FOIA requests,

including its press releases, newsletter with monthly circulation of over 300,000,

website, email list serve, congressional testimony, nationally syndicated television

show, weekly radio program, and conferences); Cmty. Legal Servs., Inc. v. U.S. Dep’t of

Hous. & Urban Dev.,

(E.D. Pa. 2005) (finding that the

requester had established its ability to disseminate information where it is “a respected

source of information in its field” with “multiple mechanisms for disseminating the

requested information in addition to its legal practice,” such as leaflets, brochures,

communications with the media and public officials, yearly training provided to judges,

attorneys, and social workers, and also its own website).

Here, the parties do not dispute that Donato has no commercial interest in the

disclosure of the records that he seeks, and thus satisfies the first prong of the public

interest fee waiver test. (See Pl.’s Opp’n at 26; Defs.’ Reply at 3–4.) But the parties

disagree about Donato’s ability to disseminate information to a sufficiently broad

audience, and this Court concludes that Donato falls well short. “[T]his is not a case

where [Donato] operates his own means of information dissemination such as a

newsletter or a website[,]” Perkins,

; therefore he is entirely

dependent on external entities to distribute material to the public. Donato points to

letters he sent to newspaper reporters with USA Today and the New York Post, who he

23 believes would have an interest in publishing records regarding the alleged murder plot.

(See Fee Waiver Appeal, Ex. 6 to Compl., ECF No. 1-1, at 12.) However, Donato

provides no evidence that either newspaper has responded to his correspondence, let

alone expressed any interest in actually publishing any records Donato may forward.

See Perkins,

. Thus, Donato cannot rely upon these letters as

sufficient to demonstrate that he can disseminate the requested records.

Donato’s additional contention that he will commit to “posting all pertinent

information I receive” on the website of a group called “Access Legal Aide,” which he

describes as a company that “publishes inmate information and letters on Facebook,

Google, and [its] Blog” (Fee Waiver Appeal at 12), fares no better. “In assessing

whether a public interest fee waiver request should be granted, the Court . . . must look

to the scope of the requester’s proposed dissemination—whether to a large segment of

the public or a limited subset of persons.” Prison Legal News v. Lappin,

, 26–27 (D.D.C. 2006) (finding that a requester which published a journal with

“3,400 reported subscribers and an estimated readership population of 18,000” had

“demonstrated its ability to distribute the printed journal to the public”). And Donato

has not provided any details about the reach of the Access Legal Aide website; indeed,

the sole detail that Donato has offered is a link to Access Legal Aide’s purported

website (see Letters From Inside Email, Ex. C to Pl.’s Surreply, ECF No. 27, at 21), yet

as far as this Court can tell, the listed webpage either does not exist or is not actually

publicly available. Consequently, whatever this publication might be, it is plainly not a

sufficient means for Donato to disseminate any of the requested records.

24 All things considered, then, this Court agrees with EOUSA’s determination that

Donato has not made the requisite showing that he is entitled to a public interest fee

waiver under the FOIA. Therefore, the Court finds that EOUSA’s denial of Donato’s

public interest fee waiver request was proper.

2. EOUSA Is Required By Law To Provide 100 Pages Of Records To Donato Regarding The Alleged Murder-Conspiracy Plot

Nevertheless, EOUSA must still proceed to address Donato’s FOIA request,

because Donato is unquestionably entitled to two hours of search time and up to 100

pages of duplication at no charge. See

(d)(3)(ii). (See also Fee

Waiver Appeal Denial, Ex. J to Luczynski Decl., ECF No. 18-5 at 28 (denying Donato’s

appeal of “the fee waiver determination made by [EOUSA] on your request for access

to records concerning the Basciano case” and remanding matter to agency with

instructions for it to provide Donato with his free hours of search time and one hundred

pages of free duplication). EOUSA’s declarant indicates that the agency fulfilled this

obligation and provided Donato with the records he requested (see Luczynski Decl.

¶ 17); however, Donato maintains that he has received no such records (see Pl.’s Opp’n

at 32–33).

Importantly, careful scrutiny of the response letter that EOUSA sent to Donato

following the administrative remand (which Donato claims not to have received),

reveals that the agency’s letter states that the subject matter of the request was “Self—

Anthony Donato[,]” rather than records pertaining to Cicale’s alleged murder-

conspiracy scheme. (Ex. N to Luczynski Decl., ECF 18-5 at 38.) This suggests that the

agency’s free search time may have been misdirected. And the Luczynski Declaration

adds to the confusion about EOUSA’s purported search, because it states both that

25 EOUSA searched for records regarding Donato himself and that it “searched for records

from the case files related to the criminal prosecution case [that] the plaintiff

identified.” (Luczynski Decl. ¶ 18.) Given the uncertainty in the current record

regarding whether or not EOUSA has properly responded to the records request that

Donato actually submitted, by providing him with two hours of search time and up to

100 pages of records responsive to his request for documents related to Cicale’s alleged

murder-conspiracy plot, this Court has no other option but to conclude that summary

judgment is inappropriate at this juncture.

BOP’s Declaration Does Not Establish That BOP Conducted An Adequate Search, Nor Does It Support The Agency’s Invocation Of FOIA Exemptions

This Court reaches the same conclusion with respect to the part of Defendants’

summary judgment motion that pertains to BOP. Donato maintains that BOP conducted

inadequate searches for records in response to his two FOIA requests to that agency,

and that BOP also improperly invoked FOIA Exemptions 2, 5, 6, 7(C), 7(D), 7(E), and

7(F) to withhold certain documents related to the alleged murder-conspiracy plot. (See

Compl. ¶¶ 35–52.) To be entitled to summary judgment with respect to the adequacy of

its search, BOP must show that it made “a good faith effort to conduct a search for the

requested records, using methods which can be reasonably expected to produce the

information requested.” Oglesby v. U.S. Dep’t of Army,

(D.C. Cir.

1990) (citation omitted); see also Nation Magazine, 71 F.3d at 890. And in this regard,

BOP has submitted a declaration from John Wallace, a Senior Attorney with BOP,

detailing the agency’s response to Donato’s request for records concerning the alleged

murder conspiracy (see Wallace Decl.), and another declaration from Sandra Raymond,

a Government Information Specialist in BOP’s General Counsel’s FOIA/Privacy Act

26 Section, explaining the agency’s response to Donato’s request for his placement records

(see Raymond Decl.).

Neither of these declarations is sufficient to support an award of summary

judgment in BOP’s favor. To begin with, each declaration is utterly silent as to the

scope or method of the search that BOP staff conducted, nor do the declarants reveal the

search terms used. Moreover, there is also no indication of the agency’s reasons for

believing that responsive records would likely be found in the places where it searched.

(See Wallace Decl. ¶ 5 (stating that the declaration “will provide the Court and Mr.

Donato with an explanation of . . . the procedures used to review and process the

responsive records,” but not actually providing any such explanation); Raymond Decl.

¶ 6 (noting that staff at FCI Sandstone “detailed their search of Mr. Donato’s Inmate

Central File” in an email, without describing the contents of that email or attaching it to

the declaration). Thus, the statements that BOP has submitted themselves provide no

basis whatsoever for any determination that BOP’s searches for records were

reasonable. See Weisberg v. DOJ,

(D.C. Cir. 1980) (holding that an

affidavit that stated that an agency official “ha[s] conducted a review of [agency] files

which would contain [responsive] information” and did not provide further details was

insufficient to support entry of summary judgment (internal quotations omitted)).

The withholding justifications that BOP lays out in its declarations are similarly

deficient. Certain portions of the Wallace Declaration refer simply to “pages” that BOP

has produced or withheld—pages that are identified solely by Bates number. (See, e.g.,

Wallace Decl. ¶¶ 13, 24, 35.) The declaration provides little, if any, explanation about

“what types of documents these pages belong to, who created the documents and for

27 what purpose, and how the exemptions relate to the nature of the documents

themselves.” Sciacca v. FBI,

(D.D.C. 2014). The statement also

lacks any discussion of “whether the ‘pages’ are part of stand-alone, single-page

documents, or comprise parts of various multi-page documents that Defendants

identified as responsive to [Donato’s] document request.”

This Court has held on at

least four prior occasions that, without such information, it cannot “conduct a

meaningful review of the [BOP’] invocation[s]” of FOIA exemptions in this matter.

Brick v. DOJ, No. 15cv1246,

, at *1 (D.D.C. Nov. 9, 2017); see also

Poitras v. Dep’t of Homeland Sec., No. 15cv1091, slip op. at 3–6 (D.D.C. March 31,

2017); Elec. Privacy Info. Ctr. v. DOJ, No. 13cv1961,

, at *3–4

(D.D.C. Feb. 4, 2016); Sciacca, 23 F. Supp. 3d at 30–31. And the Court has no better

insight into the records at issue in this case, given that the only statements that BOP has

provided also lack this necessary information.

Given the clearly manifest deficiencies in the supporting statements that BOP

has provided, Defendants have failed to establish that BOP is entitled to summary

judgment. See Nation Magazine, 71 F.3d at 890 (holding that an agency’s declaration

in a FOIA case must “set[] forth the search terms and the type of search performed, and

aver[] that all files likely to contain responsive materials (if such records exist) were

searched”); see also Conservation Force v. Ashe,

(D.D.C. 2013)

(noting that an agency must submit a “reasonably detailed affidavit” when seeking

summary judgment regarding the reasonableness of its search for records (internal

quotation marks and citation omitted)). Therefore, this Court must deny Defendants’

28 motion for summary judgment without prejudice to its filing updated declarations that

are sufficient to explain the agency’s search efforts and withholdings.

IV. CONCLUSION

The agencies’ different responses to Donato’s substantively similar FOIA

requests have demanded different legal analyses that, not surprisingly, lead to different

results. Defendants have established that they are entitled to summary judgment on the

claims that Donato asserts against the FBI, because that agency appropriately issued a

Glomar response with respect to Donato’s requests for materials pertaining to Cicale’s

alleged murder plot. Defendants have also established that EOUSA properly denied

Donato’s fee waiver request, but Defendants have not shown that EOUSA spent at least

two hours searching for records regarding the alleged murder-conspiracy plot, or that it

produced 100 pages of records to Donato at no cost, nor have they demonstrated that

BOP conducted a reasonable search for records, or made proper withholdings, regarding

either FOIA request that Donato submitted to that agency. Accordingly, as reflected in

the prior Order, Defendants’ motion for summary judgment has been GRANTED IN

PART and DENIED IN PART. An Order setting a deadline for Defendants to submit

a proposed schedule for further proceedings will issue separately.

DATE: April 16, 2018 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge

29