TACCETTA v. THE FEDERAL BUREAU OF INVESTIGATION et al

Filing 43

OPINION filed. Signed by Judge Anne E. Thompson on 6/29/2012. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARTIN R. TACCETTA,
Plaintiff,
v.
Civil Action No. 10-6194 (AET)
FEDERAL BUREAU OF INVESTIGATION,
et al.,

OPINION

Defendants.

APPEARANCES:
Martin R. Taccetta, Pro Se
# 256379/165492-A
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Colette R. Buchanan
Assistant U.S. Attorney
970 Broad Street, Suite 700
Newark, NJ 07102
Attorney for Defendants
THOMPSON, District Judge
This matter comes before the Court upon Defendants’ motion for summary judgment, see
Docket Entry No. 11, and Plaintiff=s cross-motion for summary judgment, see Docket Entry No.
28. For the reasons set forth below, Defendants' motion will be granted, and Plaintiff=s motion
will be denied.

BACKGROUND
1.

Procedural Background

Plaintiff submitted his complaint on November 22, 2010. See Docket Entry No. 1.
Summonses were issued, and defendants filed the instant summary judgment motion on April 8,
2011. See Docket Entry No. 11.

On September 6, 2011, Plaintiff filed a cross-motion for

summary judgment or for in camera inspection. See Docket Entry No. 28. Defendants filed a
reply brief in opposition to the cross-motion on February 13, 2012. See Docket Entry No. 41.
2.

Factual Background

Plaintiff is currently serving a state sentence in the New Jersey State Prison of life plus ten
years, stemming from a 1993 conviction of first degree racketeering. (Complt., & 2). Plaintiff
states that on November 4, 2009, through his attorney, he submitted a FOIA request to the FBI,
asking for Aa copy of >an unredacted 302'@.1 (Complt., & 5). His request was acknowledged on
November 12, and 18, 2009. (Complt., && 6, 7).
Plaintiff received a letter from the agency that the requested information could not be
located. The agency requested any further information or file numbers that Plaintiff could
provide. Plaintiff provided numerous file numbers and another letter requesting the document.
(Complt., && 8-10). Plaintiff=s letter was acknowledged, and on June 3, 2010, Plaintiff sent an
additional request for Aany new and additional [FOIA & Privacy Act] material,@ in addition to the
unredacted 302. (Complt., & 12).

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According to the Declaration of David M. Hardy (AHardy Declaration@), submitted by
Defendants, AAn FD-302 Interview Form is an internal FBI form on which the FBI records interviews
of individuals. Such interview information may later be used as evidence in Federal Grand Jury
proceedings or at criminal trials. Additionally, these interview forms are often incorporated into FBI
Investigative Reports. The contents of these forms may also be incorporated into an Electronic
Communication (AEC@) for purposes of following up on a lead.@ Hardy Decl., & 24.

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On July 15, 2010, a one-page document was released, which contained many redactions.
Plaintiff appealed, and his appeal was denied. (Complt., && 14-15).
Plaintiff asserts that the unredacted version of 302 Aclearly show[s] that the FBI was aware,
well before Taccetta=s trial, that he was not involved in the Craporatta murder,@ (Complt., & 16),
and that the report contains exculpatory evidence, (Complt., & 17).
Plaintiff attaches as exhibits to the complaint his requests, Defendants= responses, and his
appeals.
Defendants= Motion for Summary Judgment notes that Plaintiff is a member of the
Lucchese La Cosa Nostra (ALCN@) family. While he was convicted of racketeering, he was
acquitted of the charge of murder of Vincent Craporatta. Defendants argue that Plaintiff=s FOIA
request was properly responded to due to various exemptions. In support of their arguments, they
attach to their motion the Declaration of David M. Hardy (AHardy Declaration), with exhibits and
the Statement of Undisputed Material Facts.
DISCUSSION
A.

Standard of Review of Motion for Summary Judgment
Summary judgment is appropriate if the record shows Athat 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding a motion for summary
judgment, a district court considers the facts drawn from Athe pleadings, the discovery and
disclosure materials, and any affidavits@ and must Aview the inferences to be drawn from the
underlying facts in the light most favorable to the party opposing the motion.@ Fed. R. Civ. P.
56(c); Curley v. Klem, 298 F.3d 271, 276B77 (3d Cir. 2002) (internal quotations omitted). In
resolving a motion for summary judgment, the Court must determine Awhether the evidence ... is

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so one-sided that one party must prevail as a matter of law.@ Anderson v. Liberty Lobby, 477 U.S.
242, 251B52 (1986).
The non-moving party must Ago beyond the pleadings and by [its] own affidavits, or by the
>depositions, answers to interrogatories, and admissions on file,= designate >specific facts showing
that there is a genuine issue for trial.@ Celotex, 477 U.S. at 324. To survive a motion for
summary judgment, a plaintiff cannot rely merely on the unsupported allegations of the complaint,
and must present more than the Amere existence of a scintilla of evidence@ in his favor. Anderson,
477 U.S. at 252.
B.

The FOIA
Under the Freedom of Information Act (Athe FOIA@), 5 U.S.C. ' 552, an agency is required

to disclose records to any member of the public who requests them unless one of nine statutory
exemptions applies. See 5 U.S.C. ' 552(b). There is a presumption in favor of disclosure. See
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 220 (1978) (noting that the FOIA's Abasic
policy is in favor of disclosure@) (internal citation and quotations omitted); Davin v. United States
Dep't. of Justice, 60 F.3d 1043, 1049 (3d Cir. 1995), modified on other grounds, Abdelfattah v.
United States Dep't of Homeland Sec., No. 06-4106, 2007 U.S. App. LEXIS 12442 (3d Cir. May
30, 2007). The agency bears the burden of proving that its withholding of documents is justified,
OSHA Data/CIH, Inc. v. United States Dep't. of Labor, 220 F.3d 153, 160 (3d Cir. 2000), and may
do so by Afiling affidavits describing the material withheld and detailing why it fits within the
claimed exemption.@ McDonnell v. United States, 4 F.3d 1227, 1241 (3d Cir. 1993).
A court reviews an agency's claims of exemption de novo. See id. Summary judgment for
the agency is warranted Awhen the agency's affidavits describe the withheld information and the
justification for withholding with reasonable specificity, demonstrating a logical connection

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between the information and the claimed exemption ..., and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.@ Davin, 60 F.3d at 1050.
The agency must disclose A[a]ny reasonably segregable portion of a record ... after deletion
of the portions which are exempt under this subsection.@ 5 U.S.C. ' 552(b). In order to justify
withholding an entire document, the agency must Aprovide a factual recitation of why certain
materials are not reasonably segregable.@ Davin, 60 F.3d at 1052.
FOIA does not provide for money damages as a remedy for failure to comply with a
request under the Act. See Sterling v. United States, 798 F. Supp. 47, 48 (D.D.C. 1992);
Thompson v. Walbran, 990 F.2d 403, 405 (8th Cir. 1993). The remedy under the FOIA is an
injunction against or an order to an agency to produce records. See 5 U.S.C. ' 552(a)(4)(B).
C.

Defendants Properly Withheld Information
Defendants claim that the following exemptions applied to Plaintiff=s FOIA request: 5

U.S.C. '' 552(b)(6)(personnel and medical files- invasion of personal privacy); (b)(7)(C)(law
enforcement records- protect the identities of witnesses); (b)(7)(D)(confidential source); (b)(7)(F)
(law enforcement records that release could endanger life or safety of individual); and the Privacy
Act 5 U.S.C. ' 552a(j)(2) (records compiled by agency to investigate possible violation of criminal
laws).
1.

Exemptions (b)(6) and (b)(7)(C)

Exemption (b)(6) exempts from disclosure Apersonnel and medical files and similar files
when the disclosure of such information would constitute a clearly unwarranted invasion of
personal privacy.@ 5 U.S.C. ' 552(b)(6). This exemption requires a balancing test examining the
individual=s right to privacy against the public=s interest in disclosure. See Department of the Air
Force v. Rose, 425 U.S. 352, 372 (1976).

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Exemption (b)(7)(C) requires a de novo balancing of the privacy interests against public
interests. See Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S.
749, 762 (1939); Landano v. Department of Justice, 956 F.2d 422, 425B26 (3d Cir. 1992). The
Third Circuit has held that Aindividuals who are associated with a criminal investigation have a
privacy interest under Exemption 7(C) of the FOIA such that the government may be justified in
refusing to disclose their names.@ Landano, 956 F.2d at 427. Suspects, witnesses, interviewees,
and investigators have been held to possess privacy interests under Exemption 7(C). See id. at
426. The Third Circuit has noted that suspects in an investigation have the most obvious privacy
interest in not having their identities revealed. See id. In addition, disclosure of interviewees
and witnesses may result in embarrassment and harassment. See id. ACriminal investigations
turn up a myriad of details about the personal lives of witnesses and interviewees and for some,
disclosure of the fact of cooperation.@ See id. Even law enforcement personnel possess a
privacy interest under Exemption 7(C) in not having their identities disclosed. See id. AWhile
the privacy interests of those involved in a criminal investigation may become diluted by the
passage of time, several courts have recognized that the potential for embarrassment and
harassment may endure for many years.@ Id. at 427.
In this case, Defendants note that the FBI asserted these exemptions to protect names and
identifying information of FBI Special Agents, and FBI support personnel, who conducted the
activities described in the documents. This Court agrees that there is no doubt that the documents
from the FOIA release, the Form 302 papers at issue were obtained within the law enforcement
duties of the FBI. Due to the nature of the work of the FBI Special Agents and personnel, this
Court agrees that the substantial privacy interests of the Special Agents, personnel, (and another

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third-party mentioned in the criminal investigation) fell under the exemptions, as disclosure would
constitute and unwarranted invasion of privacy.
2.

Exemption (b)(7)(D)

Under section (b)(7)(D), records or information are properly exempted from disclosure
when such disclosure:
. . . could reasonably be expected to disclose the identity of a confidential source, . .
. and, in the case of a record or information complied by a criminal law enforcement
authority in the course of a criminal investigation or by an agency conducting a
lawful national security intelligence investigation, information furnished by a
confidential source . . .
5 U.S.C. ' 552(b)(7)(D). The exemption applies if the agency establishes that a source has
provided information under a promise of confidentiality. See Department of Justice v. Landano,
508 U.S. 165, 172 (1993).
In this case, Defendants note that this exemption was invoked to protect the name and
identifying information of a third party who was interviewed during the FBI investigation under a
grant of confidentiality. See Hardy Declaration, & 50. This clearly falls within the exemption.
3.

Exemption (b)(7)(F)

Under exemption (b)(7)(F), an agency may redact or withhold records assembled for the
purposes of law enforcement if disclosure of such records Acould reasonably be expected to
endanger the life or physical safety of any individual.@ See 5 U.S.C. ' 552(b)(7)(F).
In this case, Defendants argue that this exemption was invoked to protect information, the
release of which could endanger an individual who provided information to authorities regarding
Plaintiff=s activities, or the activities of Plaintiff=s associates.

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This Court agrees that as Plaintiff has been convicted in connection with his activities
concerning a noted crime family, the protection of the individuals who aided authorities should be
protected.
4.

Privacy Act, Section (j)(2)

The Privacy Act Agoverns the government's collection and dissemination of information
and maintenance of its records [and] generally allows individuals to gain access to government
records pertaining to them and to request correction of inaccurate records.@ Gowan v. U.S. Air
Force, 148 F.3d 1182, 1187 (10th Cir. 1998). Specifically, the Privacy Act provides that A[e]ach
agency that maintains a system of records shall ... (1) upon request by any individual to gain access
to his record or to any information pertaining to him which is contained in the system, permit him
and upon his request, a person of his own choosing to accompany him, to review the record and
have a copy made of all or any portion thereof ...@ 5 U.S.C. ' 552a(d).
In much the same way that FOIA limits disclosure of certain documents, the Privacy Act
limits the circumstances under which government agencies may disclose certain information
contained in an individual's records. In support of its refusal to release the record at issue,
Defendants rely upon subsection (j)(2) of the Privacy Act, which permits Aan agency to promulgate
rules . . . to exempt any system of records within the agency . . . from any part of this section . . . if
the system records is:
(2) maintained by an agency or component thereof which performs as its principal
function any activity pertaining to the enforcement of criminal laws, including
police efforts to prevent, control, or reduce crime or to apprehend criminals, and the
activities of prosecutors, courts, correctional, probation, pardon, or parole
authorities, and which consists of (A) information compiled for the purpose of
identifying individual criminal offenders and alleged offenders and consisting only
of identifying data and notations of arrests, the nature and disposition of criminal
charges, sentencing, confinement, release, and parole and probation status; (B)
information compiled for the purpose of a criminal investigation, including reports
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of informants and investigators, and associated with an identifiable individual; or
(C) reports identifiable to an individual compiled at any stage of the process of
enforcement of the criminal laws from arrest or indictment through release from
supervision.
5 U.S.C. ' 552a(j)(2).
As Defendants note, Form 302 was created by the FBI as a result of a joint FBI- New
Jersey criminal investigation of insurance fraud. All records created by the FBI in its
investigation of violation of criminal law are exempt from disclosure under the Privacy Act.
Therefore, it is clear that the denial to disclose under the Privacy Act was properly applied.
D.

Plaintiff=s Cross-Motion
Plaintiff has requested in his cross-motion that this Court consider conducting an in camera

inspection for the release of the 302 report at issue.
AIn considering whether in camera review is required, . . . >a district court need not
conduct its own in camera search for segregable non-exempt information unless the agency
response is vague, its claims too sweeping, or there is reason to suspect bad faith.=@ Amro v. U.S.
Customs Service, 128 F. Supp.2d 776, 789 (E.D. Pa. 2001)(quoting Mead Data Central, Inc. v.
United States Dep't of Air Force, 566 F.2d 242, 262 (D.C. Cir. 1977). AThe decision to conduct an
in camera review is within the broad discretion of the court.@ Id. (citing Lam Lek Chong v. Drug
Enforcement Admin., 929 F.2d 729, 735 (D.C. Cir. 1991).
In this case, Plaintiff has not demonstrated that the FBI has acted in bad faith in processing
his FOIA requests. The agency remained in contact with Plaintiff, explaining the difficulty that it
had in obtaining information, and eventually supplying the documentation Plaintiff requested,
albeit, in its redacted form. Therefore, this Court denies Plaintiff=s cross-motion for in camera
inspection and to strike the Hardy Declaration.
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CONCLUSION
For the foregoing reasons, Defendants' Motion for Summary Judgment is granted.
Plaintiff=s Cross-Motion is denied. An appropriate Order follows.

/s/ Anne E. Thompson
ANNE E. THOMPSON
United States District Judge
Dated: June 29, 2012

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