LEVICK v. KISER

Filing 16

ENTERED IN ERROR.....MEMORANDUM OPINION regarding the defendant's 10 Motion for Summary Judgment and Motion to Dismiss. Signed by Chief Judge Beryl A. Howell on September 15, 2016. (lcbah2) Modified on 9/15/2016 to enter in error as filed in incorrect case.(ztnr)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LOUIS MANNA,
Plaintiff,
Civil Action No. 15-794 (BAH)
v.
Chief Judge Beryl A. Howell
UNITED STATES DEPARTMENT OF
JUSTICE, et al.,
Defendants.
MEMORANDUM OPINION
The plaintiff, Louis Anthony Manna, who is proceeding pro se, brings this action against
the U.S. Department of Justice (“DOJ”) and the Federal Bureau of Investigation (“FBI”)
(collectively, the “defendant”), 1 under the Freedom of Information Act (“FOIA”), 5 U.S.C. §
552, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701, et seq. The plaintiff, a
former organized crime operative who has been incarcerated for nearly three decades, seeks the
release of information provided to the government by an informant, who was an associate of the
plaintiff prior to the latter’s arrest and prosecution. Pending before the Court is the defendant’s
motion to dismiss the plaintiff’s claim under the APA for failure to state a claim and for
summary judgment as to the plaintiff’s FOIA claim. Def.’s Mot. Summ. J. & Mot. Dismiss
(“Def.’s Mot.”), ECF No. 10. For the reasons set forth below, the defendant’s motion is granted.
I.

BACKGROUND
In moving for summary judgment, the defendant submitted a Statement of Material Facts

about Which There is No Genuine Dispute (“Def.’s SMF”), ECF No. 10-1, as required by D.C.

1

As explained in the Defendant’s Proposed Schedule for Filing Dispositive Motion at 1, ECF No. 4, the FBI
is “a component of the U.S. Department of Justice.” For this reason, and consistent with the parties’ pleadings, the
singular is used to refer collectively to the DOJ and FBI.

1

Local Civil Rule 7(h)(1). In responding to the defendant’s motion, the plaintiff failed to submit a
corresponding statement specifically identifying those facts as to which the plaintiff contends
“there exists a genuine issue necessary to be litigated,” D.C. Local Civil Rule 7(h)(1), choosing
instead to incorporate additional factual allegations into his opposition to the defendant’s motion.
See generally Pl.’s Mem. Opp’n Dismissal, or Alt., Summ. J. (“Pl.’s Opp’n), ECF No. 12. The
Court has carefully considered these submissions in evaluating the parties’ factual assertions and
arguments and the inferences that can be drawn in favor of the plaintiff as the non-moving party.
The facts pertinent to the plaintiff’s claims are summarized below, with any remaining factual
disputes noted.2
The plaintiff was a high-ranking member of the American mafia in New York and New
Jersey in the 1980s. Def.’s SMF at 1. Following an investigation by the FBI, the plaintiff was
convicted in 1989 of violating the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. §§ 1961 et seq., based on predicate offenses under the Hobbs Act, 18
U.S.C. § 1951, and the Taft–Hartley Act, 29 U.S.C. § 186, for organized gambling, and for three
separate convictions for conspiracy to commit murder. Id. The defendant was sentenced to
eighty years’ imprisonment and has been incarcerated for nearly three decades. Id.; Pl.’s Opp’n
at 25. While in prison, the plaintiff has submitted numerous FOIA requests to the defendant,
Decl. David M. Hardy (Oct. 10, 2015) (“Hardy Decl.”) ¶ 5, ECF No. 10-3, which have spurred at
least three prior cases in this jurisdiction and the District of New Jersey, see Manna v. U.S. Dep’t
of Justice, 106 F. Supp. 3d 16 (D.D.C. 2015); Manna v. U.S. Dep’t of Justice, No. CIV. A. 93-

2

As explained below, the defendant’s motion to dismiss the plaintiff’s claim under the APA is granted for
reasons unrelated to the facts supporting that claim. Accordingly, the factual summary that follows draws primarily
on the defendant’s statement of material facts submitted in support of the parallel motion for summary judgment as
to the plaintiff’s FOIA claim.

2

81, 1994 WL 808070 (D.N.J. Apr. 13, 1994); Manna v. U.S. Dep't of Justice, 832 F. Supp. 866,
869 (D.N.J. 1993), aff’d, 51 F.3d 1158 (3d Cir. 1995).
The present action arises out of testimony provided by Peter Caporino, an associate of the
plaintiff prior to his arrest and conviction, in the 2006 criminal trial of Michael Crincoli (the
“Crincoli trial”). In that trial, Caporino testified that he previously provided information to the
government about the plaintiff prior to the plaintiff’s prosecution. Def.’s SMF at 2. In light of
this testimony, the plaintiff submitted a FOIA request to the defendant in August 2014 seeking
“all information provided by Mr. Peter Caporino to any FBI agent, United States Attorney, or
any other agency that he provided information or material evidence to” regarding the
investigation and conviction of the plaintiff. Def.’s SMF at 2; Compl., Ex. 1 (Ltr. from Louis
Anthony Manna to FBI Records Management Division, dated Aug. 5, 2014) at 1, ECF No. 1.
This same letter also indicates that the request is for “any information provided by Peter
Caporino from the onset of his opening as an informant for the government up to and including
[August 5, 2014].” Def.’s SMF at 2; Compl., Ex. 1 at 9.
On October 23, 2014, the FBI acknowledged receipt of the plaintiff’s request and,
recognizing the “important privacy interest” implicated, invited the plaintiff to provide: (1) “an
authorization and consent from” Caporino; (2) “proof of [Caporino’s] death;” or (3) “a
justification that the public interest in disclosure outweighs [Caporino’s] personal privacy.”
Def.’s SMF at 2; Compl., Ex. 3 (Ltr. from David M. Hardy to Louis Anthony Manna, dated Oct.
23, 2014) at 1, ECF No. 1. Absent such additional information, the FBI informed the plaintiff,
the agency “can neither confirm nor deny the existence of any records responsive to [plaintiff’s]
request, which, if they were to exist, would be exempt from disclosure pursuant to FOIA
Exemptions (b)(6) and (b)(7)(C).” Compl., Ex. 3 at 1. The letter further advised the plaintiff of

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his right to appeal the agency’s initial determination to the DOJ Office of Information Policy
(“OIP”). Id.
Pursuant to the procedures set out in the FBI’s initial response, the plaintiff appealed this
initial determination on November 12, 2014. Def.’s SMF at 3; Compl., Ex. 4 (Ltr. from Louis
Anthony Manna to DOJ OIP, dated Nov. 12, 2014), ECF No. 1. In so doing, the plaintiff
contended that Caporino’s “open court declarations,” as well as concurrent media coverage of
Caporino’s testimony about his status as an informant, waived privacy concerns and amounted to
“if not express [then] implied consent” for the release of records responsive to the plaintiff’s
FOIA request. Compl. Ex. 4 at 2. On March 9, 2015, the OIP affirmed the FBI’s initial
determination, on partially modified grounds, and concluded that, because “any non-public
records responsive to [plaintiff’s] request would be categorically exempt from disclosure,” the
FBI properly asserted Exemption 7(C) and “was not required to conduct a search for requested
records.” Def.’s SMF at 3; Compl. Ex. 6 (Ltr. from Sean R. O’Neill to Louis A. Manna, dated
March 9, 2015) at 1, ECF No. 1. The OIP further advised the plaintiff of his right to appeal this
final decision. Compl. Ex. 6 at 1.
The plaintiff commenced the instant action on May 29, 2015. See Compl. Challenging
the defendant’s decision not to produce any records in response to his August 2014 request, the
plaintiff renews his argument that the release of records responsive to his request would not
constitute an “unwarranted invasion of personal privacy” because it “does not seek information
that can be considered personal or private in nature, as the information sought became public
with Caporino’s admission and [is] warranted as Caporino claimed involvement in the
investigation and conviction of” the plaintiff. Id. at 5–6. Additionally, the plaintiff argues that
the defendant’s refusal to process his FOIA request is “arbitrary, capricious and an abuse of

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discretion, not in accordance with law and without observance of procedure required by law,” in
violation of the APA. Id. at 6. With this in mind, the plaintiff seeks an order directing the
defendant to “immediately process the requested records” and to produce any responsive records
to the plaintiff. Id.
On October 16, 2015, the defendant moved to dismiss plaintiff’s claim under the APA,
pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim, and for
summary judgment as to the plaintiff’s FOIA claim. Def.’s Mem. P. & A. Supp. Mot. Summ. J.
& Mot. Dismiss (“Def.’s Mem.”) at 1, ECF No. 10-2. This motion is now ripe for consideration.
II.

LEGAL STANDARD
Congress enacted the FOIA as a means “to open agency action to the light of public

scrutiny,” Am. Civil Liberties Union v. U.S. Dep’t of Justice, 750 F.3d 927, 929 (D.C. Cir. 2014)
(quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)), and “to promote the ‘broad
disclosure of Government records’ by generally requiring federal agencies to make their records
available to the public on request,” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015)
(citing Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988)). As the Supreme Court has “consistently
recognized[,] . . . the basic objective of the Act is disclosure.” Chrysler Corp. v. Brown, 441
U.S. 281, 290 (1979). At the same time, the statute represents a “balance [of] the public’s
interest in governmental transparency against legitimate governmental and private interests that
could be harmed by release of certain types of information.” United Techs. Corp. v. U.S. Dep’t
of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (internal quotation marks and citations omitted).
Reflecting that balance, the FOIA contains nine exemptions set forth in 5 U.S.C. § 552(b), which
“are explicitly made exclusive and must be narrowly construed.” Milner v. U.S. Dep’t of Navy,
562 U.S. 562, 565 (2011) (internal quotation marks and citations omitted) (citing FBI v.

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Abramson, 456 U.S. 615, 630 (1982)); see Murphy v. Exec. Office for U.S. Attys., 789 F.3d 204,
206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice
(CREW), 746 F.3d 1082, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. & Budget,
598 F.3d 865, 869 (D.C. Cir. 2010). “[T]hese limited exemptions do not obscure the basic policy
that disclosure, not secrecy, is the dominant objective of the Act.” Rose, 425 U.S. at 361.
The agency invoking an exemption to the FOIA has the burden “to establish that the
requested information is exempt.” Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443
U.S. 340, 352 (1979); see U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489
U.S. 749, 755 (1989); DiBacco, 795 F.3d at 195; CREW, 746 F.3d at 1088; Elec. Frontier
Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014); Assassination Archives &
Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). In order to carry this burden, an agency
must submit sufficiently detailed affidavits or declarations, a Vaughn index of the withheld
documents, or both, to demonstrate that the government has analyzed carefully any material
withheld, to enable the court to fulfill its duty of ruling on the applicability of the exemption, and
to enable the adversary system to operate by giving the requester as much information as
possible, on the basis of which the requester’s case may be presented to the trial court. 3 See
Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (“The description and
explanation the agency offers should reveal as much detail as possible as to the nature of the
document, without actually disclosing information that deserves protection . . . . [which] serves
the purpose of providing the requestor with a realistic opportunity to challenge the agency’s
decision.” (citation omitted)); see also CREW, 746 F.3d at 1088 (“The agency may carry that
burden by submitting affidavits that ‘describe the justifications for nondisclosure with reasonably

3

“A Vaughn index describes the documents withheld or redacted and the FOIA exemptions invoked, and
explains why each exemption applies.” Prison Legal News v. Samuels, 787 F.3d 1142, 1145 n.1 (D.C. Cir. 2015).

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specific detail, demonstrate that the information withheld logically falls within the claimed
exemption, and are not controverted by either contrary evidence in the record nor by evidence of
agency bad faith.’” (quoting Larson v. U.S. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).
While “an agency’s task is not herculean[,]” it must “describe the justifications for nondisclosure
with reasonably specific detail and demonstrate that the information withheld logically falls
within the claimed exemption.” Murphy, 789 F.3d at 209 (internal quotation marks omitted)
(citing Larson, 565 F.3d at 862).
The FOIA provides federal courts with the power to “enjoin the agency from withholding
agency records and to order the production of any agency records improperly withheld from the
complainant,” 5 U.S.C. § 552(a)(4)(B), and “directs district courts to determine de novo whether
non-disclosure was permissible,” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777
F.3d 518, 522 (D.C. Cir. 2015). A district court must review the Vaughn index and any
supporting declarations “to verify the validity of each claimed exemption.” Summers v. U.S.
Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). Moreover, a district court has an
“affirmative duty” to consider whether the agency has produced all segregable, non-exempt
information. Elliott v. U.S. Dep’t of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (referring to
court’s “affirmative duty to consider the segregability issue sua sponte”) (quoting Morley v. CIA,
508 F.3d 1108, 1123 (D.C. Cir. 2007)); Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534
F.3d 728, 734 (D.C. Cir. 2008) (“[B]efore approving the application of a FOIA exemption, the
district court must make specific findings of segregability regarding the documents to be
withheld.”) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007));
Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999)
(“[W]e believe that the District Court had an affirmative duty to consider the segregability issue

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sua sponte . . . . even if the issue has not been specifically raised by the FOIA plaintiff.”); see
also 5 U.S.C. § 552(b) (“Any reasonably segregable portion of a record shall be provided to any
person requesting such record after deletion of the portions which are exempt under this
subsection.”).
Summary judgment is appropriate when “there is no genuine dispute as to any material
fact.” Fed. R. Civ. P. 56. “In FOIA cases, summary judgment may be granted on the basis of
agency affidavits if they contain reasonable specificity of detail rather than merely conclusory
statements, and if they are not called into question by contradictory evidence in the record or by
evidence of agency bad faith.” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C.
Cir. 2013) (internal quotation marks omitted) (quoting Consumer Fed’n of Am. v. U.S. Dep’t of
Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)). “Ultimately, an agency’s justification for invoking
a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Judicial Watch, Inc. v. U.S.
Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting Am. Civil Liberties Union v. U.S.
Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)); Larson, 565 F.3d at 862 (quoting Wolf v.
CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)).
III.

DISCUSSION
As noted above, the plaintiff asserts two claims under the APA and the FOIA, each of

which is addressed below.
A.

The Plaintiff Fails to State a Claim under the APA

Under the APA, “[a] person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to
judicial review thereof.” 5 U.S.C. § 702. Judicial review is available, however, only in the case
of “[a]gency action made reviewable by statute and final agency action for which there is no

8

other adequate remedy in a court.” Id. § 704 (emphasis added); see Bowen v. Massachusetts,
487 U.S. 879, 903 (1988) (explaining that the APA “does not provide additional judicial
remedies in situations where the Congress has provided special and adequate review procedures”
(internal quotation marks omitted)). The defendant argues for dismissal of the plaintiff’s APA
claim on the ground that the FOIA provides an adequate remedy for the final agency action
complained of, and therefore the plaintiff “is not entitled to adjudicate his same claims under the
APA.” Def.’s Mem. at 6.
To determine whether the plaintiff may bring an APA claim in addition to his FOIA
claim, the adequacy of the relief provided under the FOIA must be considered. As the D.C.
Circuit has clarified, an alternative remedy “need not provide relief identical to relief under the
APA, so long as it offers relief of the ‘same genre,’” and “relief will be deemed adequate [such
that APA review is precluded] ‘where a statute affords an opportunity for de novo district-court
review’ of the agency action.” Garcia v. Vilsak, 563 F.3d 519, 522–23 (D.C. Cir. 2009) (quoting
El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep’t of Health & Human Servs., 396
F.3d 1265, 1270 (D.C. Cir. 2005)); see El Rio, 396 F.3d at 1270 (“Congress did not intend to
permit a litigant challenging an administrative denial . . . to utilize simultaneously both the
[separate statutory] review provision and the APA.” (quoting Envtl. Def. Fund v. Reilly, 909 F.3d
1497, 1501 (D.C. Cir. 1990))). As explained supra Part II, the FOIA empowers district courts to
determine de novo whether an agency has withheld records improperly from a plaintiff and to
order production of any such records. See 5 U.S.C. § 552(a)(4)(B). For this reason, there exists
in the FOIA an adequate remedy for the complained-of agency action, and thus the plaintiff has
failed to state a claim for relief under the APA. See, e.g., Harvey v. Lynch, 123 F. Supp. 3d 3, 7
(D.D.C. 2015) (“[C]ourts in this Circuit have uniformly concluded that they lack jurisdiction

9

over APA claims that seek remedies available under FOIA.” (internal quotation marks omitted));
Elec. Privacy Info. Ctr. v. Nat’l Sec. Agency, 795 F. Supp. 2d 85, 95 (D.D.C. 2011) (“APA
claims arising out of an agency’s response to a FOIA request must be dismissed when they seek
relied that can be obtained through a FOIA claim itself.”); Feinman v. FBI, 713 F. Supp. 2d 70,
76 (D.D.C. 2010) (“This Court and others have uniformly declined jurisdiction over APA claims
that sought remedies made available by FOIA.”); Kenney v. U.S. Dep’t of Justice, 603 F. Supp.
2d 184, 190 (D.D.C. 2009) (noting “[p]laintiff’s claim that the [agency] improperly withheld
agency records . . . is . . . reviewable under the FOIA itself” and thus “plaintiff does not also have
access to judicial review under the APA”); People for the Am. Way Found. v. Nat’l Park Serv.,
503 F. Supp. 2d 284, 308 (D.D.C.2007) (explaining “[a] separate action under the APA is
unavailable in this case because FOIA provides an adequate remedy” for an agency’s failure to
release records); Edmonds Inst. v. U.S. Dep’t of Interior, 383 F. Supp. 2d 105, 111 (D.D.C.
2005) (noting “[t]he FOIA statute offers a clear and simple remedy for agency non-compliance
with the FOIA [disclosure] deadlines” and thus “a separate action is unavailable under the
APA”).
Accordingly, the defendant’s motion to dismiss the plaintiff’s APA claim is granted. 4
B.

Summary Judgment Is Granted to the Defendant with Respect to the
Plaintiff’s FOIA Claim

In its broadest terms, the plaintiff’s FOIA request seeks “any information provided by
Peter Caporino from the onset of his opening as an informant for the government up to and
including [August 5, 2014].” Def.’s SMF at 2; Compl., Ex. 1 at 9. Given the potentially

4

The plaintiff failed to address the defendant’s argument for dismissal of the APA claim in his opposition to
the defendant’s motion to dismiss and, thus, alternatively, that argument may be deemed conceded by the plaintiff.
See Texas v. United States, 798 F.3d 1108, 1110 (D.C. Cir. 2015) (“[I]f a party files an opposition to a motion and
therein addresses only some of the movant’s arguments, the court may treat the unaddressed arguments as
conceded.” (quoting Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014)).

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expansive universe of agency records responsive to the plaintiff’s request, the defendant’s
present request for summary judgment addresses three distinct categories of potentially
responsive records. Def.’s SMF at 3–4; Hardy Decl. ¶ 13. In so doing, the defendant
acknowledges that, by calling Caporino to testify against the defendant in the Crincoli trial, the
government publicly recognized Caporino’s role as a government informant in the “limited
context” of that case. Hardy Decl. ¶ 13. Likewise, the defendant concedes that Caporino himself
disclosed, in the course of his testimony in the Crincoli trial, that he previously provided
information to the government about the plaintiff.
Thus, the first category of potentially responsive records (“Category 1”) includes those
agency records, if any, that contain information about Caporino that has not been publicly
acknowledged by either the government or Caporino. Def.’s SMF at 3; Hardy Decl. ¶ 13. The
second category (“Category 2”) includes agency records, the existence of which the government
made public by calling Caporino to testify, addressing Caporino’s status as a government
informant in that case. Def.’s SMF at 3; Hardy Decl. ¶ 13. Finally, the third category
(“Category 3”) includes records containing information “provided by Caporino in the
investigation of” the plaintiff, the existence of which “was publicly acknowledged by Caporino,
during the Crincoli trial.” Def.’s SMF at 3; Hardy Decl. ¶ 13. The discussion that follows
addresses the sufficiency of the defendant’s basis for declining to produce any agency records
falling into these categories seriatim.
1.

Category 1

Category 1 “is comprised of any records about Mr. Caporino, if any exist, that have not
been revealed on the public record and do not otherwise fall into Category 2 or 3.” Def.’s Mem.
at 6; see Hardy Decl. ¶ 13. Thus, to fall within this category, a record must contain information

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about Caporino unrelated to his status as a government informant either in the Crincoli trial or in
the plaintiff’s case.
The defendant “did not perform a search for records in Category 1 because the mere
acknowledgment of the existence or nonexistence of any such records would trigger harm under
Exemptions 6 and 7(C) regarding Mr. Caporino.” Def.’s Mem. at 9. Thus, the defendant
employs a Glomar response, in which the “agency’s response [to the plaintiff’s request for
records] is neither to confirm nor deny the existence of responsive documents.” Id. at 10
(quoting Judicial Watch, Inc. v. U.S. Dep’t of Justice, 898 F. Supp. 2d 93, 101 (D.D.C. 2009)).
To issue a Glomar response, the agency “must demonstrate that acknowledging the mere
existence of responsive records would disclose exempt information.” Elec. Privacy Info. Ctr. v.
NSA, 678 F.3d 926, 931 (D.C. Cir. 2012).
In support of its withholding of the records requested in this case, the defendant invokes
Exemptions 6 and 7(C), which protect against “unwarranted invasion[s] of personal privacy.” 5
U.S.C. § 552(b)(6), (7)(C).5 Only Exemption 7(C) will be discussed here, as it “provides
broader privacy protection than Exemption 6 and thus ‘establishes a lower bar for withholding
material,’” CREW, 746 F.3d at 1091 n.2; see Hardy Decl. ¶ 29 n.6 (noting Exemption 7(C)’s
“lower standard” and that “the analysis and balancing required by both exemptions is sufficiently
similar to warrant a consolidated discussion”). Exemption 7(C) protects records “compiled for
law enforcement purposes, but only to the extent that the[ir] production . . . could reasonably be
expected to constitute an unwarranted invasion of personal privacy.” Id. § 552(b)(7)(C). In

5

The defendant also invokes Exemptions 7(D) and 7(F) “as additional grounds upon which the material is
being withheld.” Hardy Decl. ¶ 42. Since summary judgment is granted to the defendant on the basis of Exemption
7(C), consideration of whether the withheld material is also exempt under other FOIA provisions is not necessary.

12

evaluating whether Exemption 7(C) applies, a court’s task is “to balance the privacy interest
against the public interest in disclosure.” CREW, 746 F.3d at 1091.
Contending that mere acknowledgment of the existence of records falling within
Category 1 would constitute an unwarranted invasion of Caporino’s privacy interest, the
defendant avers that “members of the public are likely to draw adverse inferences merely from
the fact that an individual is mentioned in an FBI file” and further notes that the plaintiff “has not
put forth any evidence of a significant public interest to tip the balance in favor of disclosure.”
Hardy Decl. ¶¶ 30–31. In support of its position, the defendant emphasizes the privacy interest
at stake, Def.’s Mem. at 12, citing the D.C. Circuit’s assertion that its “decisions have
consistently supported nondisclosure of names or other information identifying individuals
appearing in law enforcement records, including investigators, suspects, witnesses, and
informants.” Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003); see
Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990) (“[P]ersons involved in FBI investigations
. . . ‘have a substantial interest in seeing that their participation remains secret.’ We have said
quite recently that ‘[E]xemption 7(C) takes particular note of the strong interest of individuals,
whether they be suspects, witnesses, or investigators, in not being associated unwarrantedly with
alleged criminal activity.’” (citations omitted) (quoting King v. U.S. Dep’t of Justice, 830 F.2d
210, 233 (D.C. Cir. 1987); then quoting Dunkelberger v. U.S. Dep’t of Justice, 906 F.2d 779, 781
(D.C. Cir. 1990))); Lesar v. U.S. Dep’t of Justice, 636 F.2d 472, 488 (D.C. Cir. 1980) (“Those
cooperating with law enforcement should not now pay the price of full disclosure of personal
detail. . . . [R]eferences to FBI informants properly could be deleted under [Exemption] 7(C) to
minimize the public exposure or possible harassment of these individuals.” (internal quotation
marks omitted)); see also Reporters Comm., 489 U.S. at 765 (“[P]ortions of the FOIA itself

13

bolster the conclusion that disclosure of records regarding private citizens, identifiable by name,
is not what the framers of the FOIA had in mind.”).
For his part, the plaintiff suggests that Caporino’s privacy interest in the requested
information is not protected by the FOIA, arguing that Caporino’s “open court admission
concerning his status as a long term informant waived any potential privacy claims concerning
his activity as an informant or any documentation generated as a result.” Compl. at 5. Although
it is true that the FOIA’s protection may be waived with respect to information that has been
“officially acknowledged,” the requested information must meet several criteria, including, inter
alia, that it be “as specific as the information previously released” and “match” that information.
Fitzgibbon, 911 F.2d at 765. In this case, Caporino’s disclosure consisted only of the fact that,
prior to 2002, he had served as a confidential informant to the FBI for a period of more than
fifteen years and assisted in the plaintiff’s prosecution. Compl., Ex. A of Ex. 1 at 26, Ex. B of
Ex. 1 at 46–47. Even assuming Caporino’s disclosure would otherwise qualify as “officially
acknowledged” information, the plaintiff’s request for “any information provided by Peter
Caporino from the onset of his opening as an informant for the government up to and including
[August 5, 2014]” far exceeds the scope of that disclosure. Def.’s SMF at 2; Compl., Ex. 1 at 9.
Consequently, the record does not support the conclusion that Caporino waived the FOIA’s
protection with respect to all the information targeted by the plaintiff’s request.
The plaintiff has also argued that balanced against any privacy interest that may exist, the
public interest favors disclosure. Specifically, he avers that the “questionable behavior” of the
defendant “since the onset of [its] investigation against [the plaintiff] definitively propels this
request into a public interest category.” Pl.’s Opp’n at 20. Specifically, he argues the defendant
“falsifie[d] documents, obstruct[ed] justice, and withh[e]ld[] information while an innocent man

14

languishes in prison,” id. at 19, and that the records he requests will “shed light on an agency’s
performance of its statutory duties . . . [and] behavior or performance,” id. (quoting Williams v.
FBI, 822 F. Supp. 808, 813 (D.D.C. 1993)). He further explains that he “is seeking the Caporino
material to prove his innocence and ultimately use the material to be fully exonerated.” Id. at
23–24. Thus, the plaintiff contends, disclosure of the requested records is consistent with the
purposes of the FOIA, which exists to protect “the citizens’ right to be informed about what their
government is up to.” Id. at 19 (quoting Reporters Comm., 489 U.S. at 773).
The plaintiff is correct that the public has a significant interest in information regarding
government misconduct, including “knowing whether the FBI is withholding information that
could potentially help [a criminal defendant] prove his innocence.” See Roth v. U.S. Dep’t of
Justice, 642 F.3d 1161, 1182 (D.C. Cir. 2011). Nevertheless, in such circumstances, “[t]he
public’s interest is in knowing whether the FBI’s files contain information that could corroborate
[a criminal defendant’s] claim of innocence, not in knowing all information the FBI may have
about [the private parties targeted by the FOIA request].” Id. at 1181–82. For this reason, the
Court “emphasize[d] that the FBI need not disclose whether it has information about [the
targeted private parties] unrelated to its investigation into the [crime of which the defendant was
convicted].” Id. at 1181.
In this case, the information in Category 1 by definition excludes information pertaining
to the plaintiff’s investigation, and the plaintiff has put forth no explanation as to how
information about Caporino’s participation or lack thereof in other government investigations
could “corroborate [the plaintiff’s] claim of innocence.” Id. at 1181–82. Thus, the plaintiff has
not proffered a significant public interest in the existence of any information falling within
Category 1. Accordingly, the defendant’s request for summary judgment is granted with respect

15

to its Glomar response to the plaintiff’s request, to the extent that request seeks records falling
within Category 1.
2.

Category 2

Category 2 is comprised of “information made public by the government,” Def.’s Mem.
at 6, regarding “[t]he fact that Mr. Caporino was indeed a government informant as to the
Michael Crincoli matter,” Hardy Decl. ¶ 13. The defendant explains that “no records search was
performed for records in Category 2 as such informant status records are exempt” under
Exemptions 6 and 7(C). Def.’s Mem. at 9. According to the defendant, as with the information
in Category 1, “[t]he public interest in Category 2 information is again nonexistent, since the
pertinent information is already in the public record, and any additional information would not
provide additional insight into the operations and activities of the FBI.” Hardy Decl. ¶ 32.
As discussed with respect to the information in Category 1, the plaintiff has asserted the
public’s interest in knowing “what [its] government is up to,” namely, whether the defendant has
withheld information relevant to the plaintiff’s claim of innocence. Pl.’s Opp’n at 19. Yet, the
plaintiff has not articulated how additional information related to Caporino’s status as a
government informant in the Crincoli trial, which involved a separate investigation and
proceeding, would further the public’s interest in knowing whether the defendant has engaged in
misconduct with respect to the plaintiff’s case. For this reason, summary judgment is granted to
the defendant as to its withholding of records falling within Category 2.
3.

Category 3

Category 3 is comprised of “information made public by Mr. Caporino,” Def.’s Mem. at
6, and includes “[a]ny information provided by Mr. Caporino in the investigation of [the
plaintiff],” Hardy Decl. ¶ 13. In contrast to Categories 1 and 2, the defendant did perform a

16

search for records falling into this category “given Mr. Caporino’s specific acknowledgment of
his informant status with respect to” the plaintiff, Hardy Decl. ¶ 21, but contends that “the
contents of any such records are categorically exempt from disclosure” pursuant to Exemptions 6
and 7(C). Id. ¶ 13. Specifically, the defendant argues that the plaintiff has again failed to state a
significant public interest to counter the privacy interests implicated by his request. While
acknowledging that, unlike Categories 1 and 2, the information in Category 3 does pertain to the
investigation of the plaintiff, and thus could be relevant to the proffered public interest in
knowing whether the government engaged in misconduct in the plaintiff’s case, the defendant
avers that the plaintiff “fails to present any evidence of actual wrongdoing or impropriety that
would constitute a significant public interest.” Hardy Decl. ¶ 34.
In cases where the asserted public interest is “the revealing of government misconduct,”
the Supreme Court has required “that the FOIA requester ‘establish more than a bare suspicion’
of misconduct.” Roth, 642 F.3d at 1178 (quoting Nat’l Archives & Recs. Admin. v. Favish, 541
U.S. 157, 174 (2004)). To satisfy this “threshold requirement,” id., the requester “must produce
evidence that would warrant a belief by a reasonable person that the alleged Government
impropriety might have occurred,” id. (quoting Favish, 541 U.S. at 174). This means that, in this
case, the plaintiff must produce evidence suggesting to a reasonable person that the FBI is
withholding information that would exonerate the plaintiff. See id. at 1180.
Although the plaintiff has asserted that his “case is replete with evidence that questions
an agency’s performance of its statutory and fiduciary duties as well as [its] behavior” and avers
that behavior is “criminal,” Pl.’s Opp’n at 19–20, he has failed to support these conclusory
statements with proof that would support a reasonable person’s belief that the alleged
government misconduct occurred. The plaintiff has put forth no evidence that the government

17

has previously failed to disclose information favorable to him, nor is it apparent, after liberally
construing the plaintiff’s pleadings, how information regarding Caporino’s informant status
would exonerate the plaintiff. Consequently, the plaintiff’s allegations of government
misconduct are insufficient to create a genuine dispute of material fact that could overcome the
defendant’s request for summary judgment as to its withholding of information falling within
Category 3. 6
*

*

*

In sum, the defendant’s motion to dismiss the plaintiff’s APA claim is granted. Likewise,
the defendant’s motion for summary judgment on the plaintiff’s FOIA claim is granted, and
judgment is entered as a matter of law in favor of the defendant.
IV.

CONCLUSION
For the foregoing reasons, the defendant’s Motion for Summary Judgment and Motion to
Digitally signed by Hon. Beryl A.
Howell
DN: cn=Hon. Beryl A. Howell,
o=U.S. District Court for the
District of Columbia, ou=Chief
Judge,
email=Howell_Chambers@dcd.
uscourts.gov, c=US
Date: 2016.09.15 09:35:38 -04'00'

Dismiss is granted.
Date: September 15, 2016

__________________________
BERYL A. HOWELL
Chief Judge

6

The plaintiff further argues that he has “established bad faith by [the defendant]” such that in camera
inspection of the requested documents is warranted, Pl.’s Opp’n at 21–22, and, in addition, that in camera review
would allow the Court to “assess the veracity” of the defendant’s assertion—entitled to a presumption of
correctness, Sussman, 494 F.3d at 1117—that it was not able reasonably to segregate any material from the exempt
records. Id. In view of the plaintiff’s failure to demonstrate misconduct or other bad faith on the part of the
defendant, this request is also denied.

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