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Joseph P. Frankenberry v. Federal Bureau of Investigation and U.S.

March 21, 2012

JOSEPH P. FRANKENBERRY PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION AND U.S. DEPARTMENT OF JUSTICE, DEFENDANTS.



The opinion of the court was delivered by: (judge Caputo)

(MAGISTRATE JUDGE MANNION)

MEMORANDUM

Presently before the Court are Magistrate Judge Mannion's Report and Recommendation ("R & R") of September 10, 2010 (Doc. 71), Plaintiff Joseph P. Frankenberry's Objections to the Magistrate Judge's R & R (Doc. 76), Defendants' Objections to the Magistrate Judge's R & R (Doc. 81), Plaintiff's Renewed Motion for Order Compelling Answer to Interrogatories (Doc. 72), and Plaintiff's Motion to Strike Defendants' Brief in Opposition to the Magistrate Judge's Report and Recommendation (Doc. 80.) Magistrate Judge Mannion recommended that Plaintiff's Motion for Summary Judgment be denied and that Defendants' Motion for Summary Judgment be granted with the exception of the documents withheld pursuant to 5 U.S.C.A. § 555(b)(7)(E)-2. Because Defendants adequately searched for records pertinent to Plaintiff's Freedom of Information Act ("FOIA") request, the Court will adopt Magistrate Judge Mannion's recommendation to deny Plaintiff summary judgment. Defendants, however, will be denied summary judgment as to documents withheld pursuant to FOIA exemptions (b)(2), (b)(7)(C), (b)(7)(D)-1, and (b)(7)(E)-2 because Defendants fail to establish a proper basis for withholding this information. Thus, the Court will adopt in part and reject in part Magistrate Judge Mannion's recommendation and will recommit the case to the Magistrate Judge.

I. Background

1. Factual History

As detailed in the Court's April 7, 2010 Memorandum and Order (Doc. 56), Plaintiff sent a Freedom of Information Act ("FOIA")/ Privacy Act request to FBI Headquarters on November 16, 2009. (Doc. 31, Ex. A.) Plaintiff's request sought all records pertaining to his previous criminal trial, as well as statements, interviews, photographs, and taped conversations pertaining to "all defendants who plead guilty to the Armed-Robbery of Platinum cobalt (sic) Alloy, valued [at] $260,000 from Lancaster Metal Science Corp . . . on January 7, 1980." (Doc. 31, Ex. A.) Plaintiff similarly sought records in the FBI's possession relating to his criminal proceedings in state court. (Doc. 31, Ex. A.)

On December 16, 2006, the FBI acknowledged receipt of Plaintiff's FOIA request and assigned him a Freedom of Information-Privacy Acts request number ("FOIPA number"). (Doc. 31, Ex. B.) On May 10, 2007, Plaintiff was informed that the FBI had performed a search for the documents he had requested. The search produced 321 documents, only 267 of which were to be released; the remaining documents were deleted "to protect information which is exempt from disclosure, with the appropriate exemptions noted on the page next to the excision." (Doc. 31, Ex. C.) Plaintiff administratively appealed the FBI's release and deletion of the documents on May 21, 2007. (Doc. 1.) The FBI never responded to the appeal, and Plaintiff filed the Complaint in the instant action on August 21, 2008, alleging violations of the FOIA, 5 U.S.C.A. §§ 552, 552a. (Doc. 1.)

On May 23, 2009, Plaintiff filed a Motion for Summary Judgment. (Doc. 20.) Defendants later filed a Motion for Summary Judgment on October 8, 2009. Included with Defendants' Motion for Summary Judgment was a Vaughn index prepared by David M. Hardy, Section Chief of Record/Information Dissemination Section. (Doc. 31.) The Hardy Declaration explained the FBI's Central Records System and a summary of the "justification categories" for the exclusions, deletions, and excisions made in the records. (Doc. 31.) For each exemption claimed under the FOIA, the Hardy Declaration contained a brief one or two paragraph explanation of the exemption, made broad claims that the exemption applied to the documents sought by Plaintiff, and then referenced the pages where the exemption was claimed. (Doc. 31.) The Hardy Declaration was accompanied by the documents Plaintiff requested with the exempted portions deleted and corresponding references to the exemption cited for that deletion. (Doc. 31, Ex. C.)

2. The January 2010 Report and Recommendation

On January 29, 2010, Magistrate Judge Mannion issued a R & R recommending that Plaintiff's Motion for Summary Judgment be dismissed as premature, that Defendants' Motion for Summary Judgment be granted, that Plaintiff's Motion for a Temporary Restraining Order/Preliminary Injunction be denied, and that Plaintiff's Motion for Appointment of Counsel be denied as moot. (Doc. 49). After Plaintiff filed Objections to the 2010 R & R (Doc. 52) and Defendants filed their Brief in Opposition to the Objections (Doc. 55), the Court rejected in part and adopted in part the Magistrate Judge's R & R. (Doc. 56.) In particular, the Court rejected the Magistrate Judge's January 2010 recommendation that Plaintiff's Motion for Summary Judgment be denied and that Defendants' Motion for Summary Judgment be granted. (Doc. 56.) The Court rejected the Magistrate Judge's recommendation to grant Defendants' Motion for Summary Judgment because, in applying the Third Circuit's decision in Davin v. United States Dept. of Justice, 60 F.3d 1043 (3d Cir. 1995), Defendants failed to provide a "specific contextual link . . . between the redacted material and the exemption claimed." (Doc. 56.) As such, the Court concluded that, "[w]ithout more, it [was] impossible . . . to engage in a proper de novo review of the exemptions that Defendants [used] as justification for withholding documents from Plaintiff." (Doc. 56.)

The Court also rejected the Magistrate Judge's recommendation that Plaintiff's Motion for Summary Judgment and Motion for Appointment of Counsel be denied. (Doc. 56.) Instead, the Court recommitted both motions to the Magistrate Judge for further consideration. (Doc. 56.) However, the Court did adopt the Magistrate Judge's recommendation that Plaintiff's Motion for a Temporary Restraining Order/Preliminary Injunction be denied. (Doc. 56.)

3. Defendants' Supplemental Vaughn Filings

In light of the Court's rejection of the January 2010 R & R, Magistrate Judge Mannion ordered Defendants to supplement their summary judgment motion and their Vaughn filings in accordance with the Court's April 7, 2010 Memorandum and Order. (Doc. 60.) On July 20, 2010, Defendants filed their supplemental Vaughn declaration. (Doc. 63.) Whereas Defendants' original Vaughn declaration consisted of thirty-two (32) pages, the supplemental Vaughn declaration, again prepared by David M. Hardy (the "Supplemental Hardy Declaration") is 239 pages in length. (Doc. 63.) The Supplemental Hardy Declaration sets forth the history of Plaintiff's FOIA/Privacy Act request, provides an explanation of the FBI's records system, describes the searches conducted for records responsive to Plaintiff's request, and details the FBI's policy relating to routine automated searches of the FBI's records system. (Doc. 63.) Additionally, unlike the first declaration, the Supplemental Hardy Declaration contains narrative descriptions of each page of every document responsive to Plaintiff's request with the FBI's justification for withholding each particular category of information under the applicable statutory exemption. (Doc. 63.) Moreover, for each document, Defendants also identify the file number of the document, the document number, the Bates page number, the date of the document, the number of pages of the document, the number of pages withheld from the document, the number of pages with deletions of information from the document, and the total number of duplicate pages. (Doc. 63.) And, Defendants also provide a general description of the information redacted, the FOIA exemption under which the redacted information falls, and the reasons for Defendants' withholding the information. (Doc. 63.)

4. The September 2010 Report and Recommendation

On September 10, 2010, Magistrate Judge Mannion issued the Report and Recommendation presently before the Court. (Doc. 71.) The R & R recommends that Plaintiff's Motion for Summary Judgment be denied and that Defendants' Motion for Summary Judgment be granted with the exception of the documents claimed pursuant to 5 U.S.C.A. § 555(b)(7)(E)-2. (Doc. 71). The Magistrate Judge's recommendation to deny Plaintiff's motion is predicated on a finding that Defendants conducted an adequate search for records responsive to Plaintiff's request. (Doc. 71.) In recommending summary judgment for Defendants, in part, Magistrate Judge Mannion found Defendants adequately searched for the requested documents and did not improperly withhold any relevant, non-exempt information. (Doc. 71.)

5. Objections to the September 2010 Report and Recommendation

On September 27, 2010, Plaintiff filed his Objections to the R & R. Plaintiff objects on the grounds that: (1) the Magistrate Judge failed to make a determination as to whether "the claimed (b)(6) and (b)(7)(C) exemptions were granted confidentiality and/or whether the persons was (sic) deceased or living"; (2) the Magistrate Judge failed to properly weigh the public and private interests; and (3) the Magistrate Judge improperly disregarded Plaintiff's supporting affidavits in his summary judgment motion. (Doc. 76). On October 12, 2010, Defendants filed their Brief in Opposition to Plaintiff's Objections (Doc. 79)*fn1 and on October 20, 2010, Defendants filed their Objections to the R & R. (Doc. 81). Defendants' only objection is to the Magistrate Judge's conclusion that Bates page number 54 improperly invoked FOIA exemption (b)(7)(E)-2. (Doc. 82). In particular, Defendants' claim that Frankenberry-54 was properly redacted because the redacted information "divulges the precise placement of recording devices used by the FBI to monitor conversations of criminal value in its investigations." (Doc. 82). Defendants, however, do not object to Magistrate Judge Mannion's findings regarding the (b)(7)(E)-2 exemption on the other twelve (12) pages it is claimed. The matter is now fully briefed and ripe for disposition.

II. Discussion

1. Applicable Legal Standards

A. Review of a Magistrate Judge's Report and Recommendation

Where objections to the Magistrate Judge's report are filed, the court must conduct a de novo review of the contested portions of the report, see Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir.1989) (citing 28 U.S.C.A. § 636(b)(1)(c)), provided the objections are both timely and specific. See Goney v. Clark, 749 F.2d 5, 6--7 (3d Cir.1984). In making its de novo review, the court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C.A. § 636(b)(1); Owens v. Beard, 829 F.Supp. 736, 738 (M.D.Pa.1993). Although the review is de novo, the statute permits the court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675--76, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F.Supp. 328, 330 (M.D.Pa.1994). Uncontested portions of thereport may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Goney, 749 F.2d at 7. At the very least, the court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F.Supp. 375, 376--77 (M.D.Pa.1998).

B. The Freedom of Information Act

The FOIA was enacted by Congress "to facilitate public access to Government documents." United States Dep't of State v. Ray, 502 U.S. 164, 173, 112 S. Ct. 541, 116 L. Ed. 2d 526 (1991). As such, FOIA "requires the government and its agencies to disclose information to the public upon request." Cozen O'Connor v. United States Dep't of Treasury, 570 F. Supp. 2d 749, 764 (E.D. Pa. 2008) (citing 5 U.S.C.A. § 552(a)(3)(A)(2007)). The government need not disclose all information, however, as the public's right to know may be outweighed by the government's legitimate needs to keep certain information confidential. See id. Congress therefore created nine exemptions for when government information need not be disclosed. See 5 U.S.C.A. § 552(b)(1)-(9). But, in the absence of an enumerated exemption, the agency must disclose the requested information, see Cozen O'Connor, 570 F. Supp. 2d at 764, because the FOIA "creates a strong presumption in favor of disclosure." Davin v. United States Dep't of Justice, 60 F.3d 1043, 1049 (3d Cir. 1995). When requested information is withheld, "the district court must conduct a de novo review of the record . . . and the agency resisting disclosure bears the burden of persuasion in defending its action." Milton v. United States Dep't of Justice, 783 F. Supp. 2d 55, 57 (D. D.C. 2011) (citing 5 U.S.C.A. § 552(a)(4)(B)) (emphasis added).

To properly invoke a FOIA disclosure exemption, "the agency must provide reasonably specific information that explains how the exemption applies." Cozen O'Connor, 570 F. Supp. 2d at 765 (citing Am. Friends Serv. Comm. V. Dep't of Defense, 831 F.2d 441, 444 (3d Cir. 1987); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). An agency fulfills this duty when it "provide[s] 'a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.'" Davin, 60 F.3d at 1050 (quoting McDonnell v. United States, 4 F.3d 1227, 1241 (3d Cir. 1993)). If an exemption is claimed only to part of the requested record, the agency is obligated to produce any reasonably segregable portion of the document. See id. at 1049 (citing 5 U.S.C.A. § 552(b)).

Agencies frequently submit Vaughn indexes when identifying withheld information. See Cozen O'Connor, 570 F. Supp. 2d at 765. A Vaughn index "is a detailed affidavit correlating the withheld documents with the claimed exemptions. To pass muster, a Vaughn index must consist of one comprehensive document, adequately describe each withheld document or redaction, state the exemption claimed, and explain why each exemption applies." Id (citing Ashfar v. Dep't of State, 702 F.2d 1125, 1144-45 (D.C. Cir. 1983)). According to the Third Circuit, while there is no set form for a Vaughn index, "the hallmark test is 'that the requester and the trial judge be able to derive from the index a clear explanation of why each document or portion of a document withheld is putatively exempt from disclosure.'" Davin, 60 F.3d at 1050 (citing Hinton v. Dep't of Justice, 844 F.2d 126, 129 (3d Cir. 1988)). Thus, an agency cannot satisfy its burden by merely citing categorical codes and providing a general description of what the codes signify. See id. at 1051. Instead, "an agency using justification codes must also include specific factual information concerning the documents withheld and correlate the claimed exemptions to the withheld documents." Id.

C. Summary Judgment Standards

Once the relevant documents subject to a FOIA request are identified, FOIA cases are typically resolved on summary judgment. See Panton v. Bureau of Prisons, No. 4:07-CV-1835, 2008 WL 4820655, at *2 (M.D. Pa. 2008) (citing Wickwire Gavin, P.C. v. USPS, 356 F.3d 588, 591 (4th Cir. 2004)).

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c) (2). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c)(2). Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. See Anderson, 477 U.S. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id. Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2D § 2727 (2d ed.1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing on an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. See White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir.1988). Once the moving party has satisfied its initial burden, the burden shifts to the non-moving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256--57. The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.

In the specific context of a FOIA action, the Court of Appeals for the District of Columbia has articulated the following standard for an agency to obtain summary judgment:

[T]he agency must show, viewing the facts in the light most favorable to the requester, that there is no genuine issue of material fact. To meet this burden, 'the agency must demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents.' The question is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate. The adequacy of the search, in turn, is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case. In demonstrating the adequacy of the search, the agency may rely upon reasonably detailed, nonconclusory affidavits submitted in good faith.

Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (citing Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)) (internal citations omitted) (emphasis added).

2. Plaintiff's Motion for Summary Judgment

On May 13, 2009, Plaintiff filed his Motion for Summary Judgment. (Doc. 20.) Magistrate Judge Mannion rejected Plaintiff's sole argument that Defendants' records search was unreasonable and recommended that Plaintiff's summary judgment motion be denied. (Doc. 71.) In reaching this conclusion, Magistrate Judge Mannion refused to consider affidavits offered in support of Plaintiff's Motion for Summary Judgment prepared by Marshall Woodley and Erik V. Huey because the affidavits failed to comply with Federal Rule of Civil Procedure 56(e). (Doc. 71.) Plaintiff objects to the recommendation as to both the Magistrate Judge's refusal to consider the Woodley and Huey Affidavits and to the finding that Defendants' search was reasonable. (Doc. 76.) The Court addresses each of these arguments in turn.

A. Plaintiff's Summary Judgment Affidavits

In support of Plaintiff's Motion for Summary Judgment, Plaintiff provided affidavits prepared by Marshall Woodley and Erik V. Huey. (Doc. 21.) According to Plaintiff, the affidavits establish the following materials exist and are in Defendant's possession despite Defendants' failure to produce them:

(a) photographs identified in the complaint taken by defendants on or about January 24, 1981 as set forth in the complaint;

(b) various investigative reports from the FBI and taped conversations on or about/before January 24, 1981;

(c) taped conversations between informant and F.B.I. Agent, Ralph Huey, Plaintiff and Ted Slagel and James Huey via telephone and/or in person on or before January 24, 1981. (Doc. 20.) The affidavits, however, are not based on the personal knowledge of the afffiants; instead, the affiants rely on information provided by a third-party- Plaintiff's appellate attorney, and now Judge for the United States Court of Appeals for the Third Circuit, the Honorable Thomas I. Vanaskie, who represented Plaintiff in his direct appeals in the 1980s. (Doc. 21.)

Magistrate Judge Mannion refused to consider the Woodley and Huey Affidavits in passing on Plaintiff's summary judgment motion. According to Magistrate Judge Mannion, "the plaintiff's supporting affidavits should not be considered as they do not comply with the requirements of Federal Rule of Civil Procedure 56(e). Specifically, the affidavits contain inadmissible hearsay." (Doc. 71.)

Rule 56(c)(4), which contains provisions of former Rule 56(e), provides that "[a]n affidavit or declaration used to support a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). As such, a court should not credit statements in affidavits that amount to "unsupported assertions made in the absence of personal knowledge," Reynolds v. Dep't of Army, 439 Fed. Appx. 150, 152 (3d Cir. 2011), and "hearsay statements that would be inadmissible at trial may not be considered for purposes of summary judgment." Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir. 2009). Nevertheless, courts in the Third Circuit may consider "hearsay evidence produced in an affidavit opposing summary judgment . . . if the out-of-court declarant could later present the evidence through direct testimony, i.e., in a form 'that would be admissible at trial.'" J.F. Feeser, Inc. V. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990) (quoting Williams v. Borough of West Chester, 891 F. 2d 458, 465-66 n.12 (3d Cir. 1989)); see also Petruzzi's IGA Supermarkets, Inc. V. Darling-Delaware Co., 998 F.2d 1224, 1235 n.9 (3d Cir. 1993) (inadmissible hearsay statement can be considered on a motion for summary judgment when ...


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