Kuzma v. DOJ, No. 16-347, 2022 WL 4345441 (W.D.N.Y. Sept. 19, 2022) (Arcara, J.)

Kuzma v. DOJ, No. 16-347, 2022 WL 4345441 (W.D.N.Y. Sept. 19, 2022) (Arcara, J.)

Re:  Request for records concerning alleged FBI informant

Disposition:  Adopting in part magistrate judge’s report and recommendation; granting defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s cross-motion for summary judgment; remanding case to magistrate judge for consideration of attorney fee issue

• Litigation Considerations, Adequacy of Search; Litigation Considerations, Reasonably Segregable Requirements, Exemption 7(D); Exemption 7(E):  “[T]he Court adopts the conclusions of the [report and recommendation] that Defendant is entitled to summary judgment on the issues of (1) the adequacy of its search, (2) segregability, and (3) the applicability of asserted FOIA exemptions (b)(7)(D) and (b)(7)(E).”
   
• Exemption 6 & Exemption 7(C):  “The Court rejects the [report and recommendation] insofar as it finds that Defendant is not entitled to summary judgment on the issue of the applicability of asserted FOIA exemptions (b)(6) and (b)(7)(C).”  “In light of Defendant’s supplemental filing and facts presented at oral argument, it is clear that the Defendant took additional steps to ascertain the life status of the individuals in question after the R&R was issued.”  “[Defendant’s] Declaration states:  ‘. . . the FBI first conducted a page-by-page review of the records and gathered a list of all the names of withheld individuals. It then gathered their personal identifying information, where available within the records.’”  “‘With this information, the FBI painstakingly conducted research within an online, open-source database to verify whether or not the individuals protected are still living.’”  “‘In all instances where the FBI had withheld a name of an individual, there were insufficient personal identifiers (SSN, DOB, etc.) to verify whether the individuals were deceased . . . .’”  “Moreover, the parties have not identified statutory or precedential case law that requires Defendant to utilize the Social Security Death Index or any other specific database for the purpose of ascertaining life status.”  “Therefore, the Court finds that Defendant made a reasonable effort to ascertain the life status of the individuals.”
   
• Attorney Fees:  “[T]he Court modifies the conclusion of the [report and recommendation] that Plaintiff is limited to seeking attorney’s fees for the period from May 4, 2016 to January 25, 2017.”  “It is undisputed that Plaintiff has substantially prevailed, and the Defendant has cited no authority for its [position that plaintiff only receive fees for certain period of the litigation], which was adopted in the [report and recommendation].”  “Furthermore, as set forth in [defendant’s] Declaration and reiterated during oral argument, Defendant released additional information to Plaintiff in December 2019, after it conducted additional review of the previously disclosed documents for purposes of researching the life status of various individuals mentioned therein.”  “As such, the Court finds that Plaintiff is entitled to the “lodestar” amount for the duration of this case, in keeping with the caselaw.”