Pickering v. DOJ, No. 14-330, 2025 WL 368673 (W.D.N.Y. Feb. 3, 2025) (Arcara, J.)

Pickering v. DOJ, No. 14-330, 2025 WL 368673 (W.D.N.Y. Feb. 3, 2025) (Arcara, J.)

Re: Request for records concerning plaintiff

Disposition:  Adopting in part and deferring in part pending in camera inspection magistrate judge’s report and recommendation; granting in part, denying in part, dismissing as moot in part defendant’s motion for summary judgment; granting in part, denying in part, dismissing as moot in part plaintiff’s motion for summary judgment

• Litigation Considerations, In Camera Inspection:  The court relates that “the only objection filed with respect to [the last report and recommendation] pertains exclusively to [the magistrate judge’s] determination that the FBI failed to establish that it had properly withheld two pages . . . pursuant to FOIA Exemption 5.”  “At the outset, this Court notes that it finds no clear error with respect to those portions of [the report and recommendation] to which the parties have not objected.”  “Accordingly, this Court accepts and adopts the unobjected to recommendations in their entirety.”  “With respect to those portions to which objections have been filed . . . this court will defer its determination of whether to adopt such recommendations until it has the opportunity to conduct an in camera review of the 2 pages at issue.”  “Here, the FBI’s Vaughn Index lists more than 14,000 pages of information responsive to Plaintiff’s FBI FOIA request.”  “Previously, [the] Court provided Defendant’s agencies with the opportunity demonstrate, by means of declarations from representatives of the ATF and FBI, why certain disputed document[s] were exempt from disclosure.”  “Given that opportunity, the Defendant carried its burden with respect to all but 2 withheld pages that the FBI’s declaration failed even to address.”      “Yet, with regard to those 2 pages, there is nothing in the record currently before this Court that would allow it to determine whether such disputed pages were properly withheld.”      “‘Only if the government’s affidavits make it effectively impossible for the court to conduct de novo review of the applicability of FOIA exemptions is in camera review necessary.’”  “For that reason, and considering not only the fact that this case has been pending for over a decade but also that the number of records in dispute are extremely limited, this Court determines that the most efficient way to resolve the matter is for the 2 disputed pages to be provided to it for in camera review.”