Petrucelli v. DOJ, No. 11-1780, 2015 WL 3372345 (D.D.C. May 26, 2015) (Walton, J.)

Petrucelli v. DOJ, No. 11-1780, 2015 WL 3372345 (D.D.C. May 26, 2015) (Walton, J.)

Re: Request for records concerning plaintiff's arrest and eligibility for death penalty

Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Litigation Considerations:  In response to "plaintiff['s] claim[] [of] an entitlement to the release of all the records he has requested under the FOIA . . . because the withholding of information pertaining to these witnesses amounts to a violation of the Confrontation Clause," the court finds that "[a] FOIA case simply is not a process a person can use to raise a constitutional challenge to his criminal conviction."  "[P]laintiff fails to recognize that the government's obligations in a FOIA case are not the same as its obligations in the underlying criminal case."
   
• Exemption 7(D):  The court holds that "[t]he FBI has adequately demonstrated that the sources whose information it seeks to withhold [are] under an implied assurance of confidentiality, and, therefore, its reliance on FOIA Exemption 7(D) is proper."  The court relates that "[t]he FBI has withheld 'the names, identifying information, and investigative information concerning [the] plaintiff's violent criminal activities provided by third parties under an implied assurance of confidentiality.'"  "According to the FBI's declarant, the sources 'were interviewed under circumstances from which an assurance of confidentiality may be implied,' based in large part on plaintiff's association 'with . . . well know[n] violent criminal organizations.'"  The court also finds that "plaintiff offers nothing more than speculation as to both the identities of the FBI's sources and content of the information withheld by the FBI under FOIA Exemption 7(D)."  "His unsupported assertions neither demonstrate his entitlement to summary judgment nor defeat the defendant's representations."
   
• Procedural Requirements, Searching for Responsive Records:  The court holds that "none of the plaintiff's FOIA requests seeks records pertaining to third parties" and "[t]he FBI is not obligated to search for or to release records other than those specifically requested by the plaintiff."
   
• Exemption 7(C):  The court holds that it is "preclude[d] . . . from granting the defendant summary judgment on the request made to the EOUSA."  The court explains that "it is unclear whether the EOUSA relies solely on FOIA Exemption 7(C), or whether it continues to maintain that FOIA Exemptions 7(D) and 7(F) apply with respect to the same information."  "And if, for example, the EOUSA continues to withhold information regarding the identities of confidential sources and the information these sources provided, it has failed to demonstrate that or explain why FOIA Exemption 7(C) . . . protects not only confidential sources themselves but also 'information furnished by ... confidential source[s].'"
   
• Exemption 7(E):  The court holds that "[t]he FBI adequately has demonstrated that the ratings column of FBI Form FD–515 has been properly withheld under FOIA Exemption 7(E)."  The court explains that the ratings column contains "'a numerical rating from 1 to 4 to rate each technique/assistance' employed" and that the FBI stated that "plaintiff and others involved in criminal activity 'could change their activities and modus operandi in order to circumvent and avoid detection and/or surveillance in the future.'"  The court finds that the FBI "also has demonstrated, and the plaintiff has not rebutted, that release of a form detailing 'the case being investigated, contemplated actions[,] potential techniques to be used, personnel needed, coordinating efforts, etc.,' . . . and that the release of information 'obtained from non-public databases utilized by the FBI in law enforcement investigations,' . . . likely would cause the harm FOIA Exemption 7(E) is designed to prevent."  The court finds that "[r]elease of the techniques themselves and the ways the FBI deploys them 'would nullify their effectiveness, especially [for] investigating organized crime families'" and "'[w]ith prior knowledge' of the FBI's strategies and techniques, 'criminals could predict the FBI's investigative approach, structure their activities in a manner that avoids detection and disruption by the FBI and deprive the FBI of the utility of these techniques.'"