Wednesday, October 16, 2013
Re: Plaintiff's request for records concerning the government's decision not to prosecute his business associate and former co-defendant Disposition: Denying plaintiff's motion for reconsideration
- Motion for reconsideration/Waiver/Public Domain: The court rejects plaintiff's contention that the court erred when it affirmed EOUSA's withholding of a nolle prosequi agreement between a third party and the government that plaintiff alleges was officially acknowledged. "Prior acknowledgment of the existence of a document is not the same as prior disclosure of the information contained within the document and that narrow acknowledgment is insufficient to compel disclosure of the document under Fitzgibbon." Furthermore, "[p]laintiff did not previously argue that the information contained within the document had been released, and thus he fell short of his burden to show that the information being withheld matches that which was previously released, under Afshar." The court notes that even now plaintiff "does not fully describe the information that was previously disclosed." The court observes that "[p]laintiff's assertion that the government waives protection of a document's contents by acknowledging its existence would turn FOIA upon its head; for example, every document listed in a Vaughn index is 'acknowledged to exist' but does not become disclosable if a FOIA exemption applies."
- Motion for reconsideration: The court also denies plaintiff's claim that he is entitled to reconsideration of the court's ruling that EOUSA conducted an adequate search. Although plaintiff expected the document to bear a certain date, the court states that it "previously addressed this apparent confusion." As EOUSA's declarant explained, "'although the date of the document, an offer contained in a letter, is January 12, 2007, the date of the acceptance of the offer is not until June 2007.'" Noting "that agency affidavits are entitled to a presumption of good faith," the court declines to reconsider its prior ruling on this basis. Finally, the court declines to reconsider its assessment of privacy interests of an individual who was indicted but not prosecuted. The court states that "[j]ust because Plaintiff, as a self-interested party, may have weighed the interests differently does not mean that the Court committed a clear error of law."
Motion for Reconsideration
Updated August 6, 2014