Spartaro v. DOJ, No. 14-198, 2017 WL 4355911 (D.D.C. Sept. 29, 2017) (Moss, J.)

Spartaro v. DOJ, No. 14-198, 2017 WL 4355911 (D.D.C. Sept. 29, 2017) (Moss, J.)

Re:  Request for records concerning plaintiff

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

• Exemption 3:  "[T]he Court cannot grant summary judgment in favor of the FBI on this question without further clarification of what exactly was withheld."  At this time, "[t]he Court considers . . . only the FBI's withholding of 'the identities of the individuals targeted for interception through wiretap[ ] and information obtained via the Title III wiretap.'"  The court relates that at issue is Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510–2520.  The court finds that "[n]either type of information need be disclosed."  "Under D.C. Circuit precedent, '"intercepted communications" obtained pursuant to a Title III wiretap fall "squarely within the scope" of Exemption 3.'"  "The same is true of the wiretap application (along with all supporting material) and the court's orders authorizing the wiretap[.]"  "Moreover, because a court's order authorizing a wiretap is protected, the same is also true of the identity of the person 'targeted' for interception[.]"
   
• Exemptions 6 & 7(C):  "The Court . . . holds that the FBI properly relied on Exemption 7(C)."  The court relates that defendant withheld "'names of FBI or other federal government personnel[,]'" information which "'identif[ies] private citizens[,]'" "'local law enforcement personnel[,]'" and, in particular, '"investigating agents[.]'"  The court finds that "[a]ll of the individuals within these groups 'have a "substantial interest" in ensuring that their relationship to the investigations "remains secret."'"  Against this privacy interest, the court rejects plaintiff's argued public interests and finds that "unsupported allegations alone do not, without more, 'warrant a belief by a reasonable person' that the misconduct occurred[,]" and [plaintiff], in turn, has failed to identify any specific information that was disclosed at trial or otherwise, triggering a diminished privacy interest."
   
• Exemption 7(D):  Regarding defendant's withholdings based on express confidentiality, the court finds that "if the Department wishes to invoke 7(D), it must provide additional detail . . . to carry its burden."  However, regarding defendant's withholding based on implied confidentiality, "the Court is satisfied that the violence and risk of retaliation attendant to the activities of the Colombo La Cosa Nostra Family were sufficient to infer that the sources 'cooperated with the FBI only with the expectation of confidentiality.'"
   
• Litigation Considerations, Vaughn Index/Declaration:  The court holds that "The two . . . declarations, along with the annotations within the documents produced, are sufficient to satisfy the Department's burden[.]"  "The first declaration describes the FBI's system for coding documents to explain withholdings."  "Each redaction on a produced document is marked with the relevant code, and pages withheld in their entirety are explained through a 'Deleted Page Information Sheet' that gives the Bates number of the withheld page along with the relied-upon exemption(s)."  "The first . . . declaration, moreover, describes the codes used by the FBI . . . and then breaks them down into subcategories that explain with additional particularity the justifications for removing information."
   
• Procedural Requirements, Searching for Responsive Records:  While, "the Court has no reason to doubt [defendant's] assessment that the queries that [it] described identified 'all files likely to contain responsive records[,]" "[t]he Court will . . . deny summary judgment as to records that might exist in the thirteen damaged files."  The court finds that "[t]he Department has drawn the wrong conclusion from the fact that the files are still 'awaiting remediation.'"  "If the FBI reasonably concludes, after the remediation effort is complete, that the files are so severely damaged that they are inaccessible, so be it; the FBI will have made all reasonable efforts, and it cannot be faulted for failing to release records that were, in effect, destroyed."  "But, on the other hand, if the remediation process yields records that are both responsive to [plaintiff's] request and non-exempt under FOIA, the FBI should release those records."  "The fact that the process has been a prolonged one, and the fact that the FBI does not yet know whether it will bear fruit, does not permit the Court to conclude that the FBI has reasonably exhausted its efforts to locate responsive records."