Viola v. DOJ, No. 16-1411, 2019 WL 2437692 (D.D.C. June 11, 2019) (Chutkan, J.)

Viola v. DOJ, No. 16-1411, 2019 WL 2437692 (D.D.C. June 11, 2019) (Chutkan, J.)

Re:  Request for records concerning third parties prosecuted for public corruption in Cuyahoga County, Ohio

Disposition:  Denying in part and granting in part plaintiff's motion for reconsideration of court's prior granting in part and denying in part of defendant's motion for summary judgment

• Procedural Requirements, Entities Subject to the FOIA & Procedural Requirements, Searching for responsive Records:  The court holds that "to obtain records from the [federal mortgage fraud task force ("MFTF")], [plaintiff] must seek relief through a state FOIA mechanism, to the extent one is available in Ohio."  Although plaintiff attempts to argue the opposite, the court finds that "[plaintiff's] evidence . . . contradicts his argument."  "[Plaintiff] submitted an affidavit from [a member] of the Ohio Bureau of Criminal Investigations, who was at various times Director and Assistant Director of the MFTF, and who also participated in the investigation of [plaintiff's] fraud charges."  "[The member] explained that certain 'cooperating' federal entities shared information with the MFTF, but they were not 'signatory participating members' to the Memorandum of Understanding . . . establishing the task force."  "[T]he court is persuaded by the testimony of [plaintiff's] declarant . . . that the MFTF records are not subject to control by the EOUSA or any other federal entity."  "While federal agencies subject to FOIA may have been able to access and review the records, [the member's] statement provides no evidence that the federal government or the Ohio Bureau of investigation intended or permitted federal entities to control MFTF records."  "Likewise, there is no evidence that federal entities actually controlled the records or had the ability to dispose of the records as they saw fit."
   
• Procedural Requirements:  "[T]he court will deny [plaintiff's] motion with respect to the FBI's withholding of the tapes and transcripts" which are sealed.  The court finds that "[plaintiff] cannot point to a judicial proceeding where the tapes and/or transcripts were disclosed without a protective order; he merely speculates there was no protective order – despite evidence from [one] docket to the contrary."
   
• Exemption 7(A):  "[T]he court finds that the FBI has not met its burden of establishing that it was entitled to withhold records pursuant to exemption 7[(A)]."  "This is not a situation where the agency is being asked to prove a negative."  "Rather, [defendant] declared that 'a few' appeals were pending at the time of the summary judgment submission."  "It is not burdensome to require the FBI to list those cases that are or were still on appeal in order to substantiate the FBI's reliance on exemption 7[(A)]."  "Further, even if there were ongoing appeals at the time the FBI filed its summary judgment declaration, the court is not certain whether the FBI may legally continue relying on that exemption if the appeals have now been resolved."  "To the extent exemption 7 is no longer a viable basis for withholding the records, the FBI must establish – not just simply assert in its brief – that the withheld records all fall within the other exemptions or that there are no segregable records."