Micolo v. O'Neill

Filing 51

MEMORANDUM & ORDER granting 42 Motion for Summary Judgment; For the foregoing reasons, Defendant's motion for summary judgment (Docket Entry 42) is GRANTED, and Plaintiff's Complaint is DISMISSED WITH PREJUDICE. The Clerk of the Court i s directed to enter judgment accordingly and mark the case CLOSED. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 9/27/2018. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
MARCUS ANTHONY MICOLO,
Plaintiff,
-against-

MEMORANDUM & ORDER
16-CV-5635(JS)(AKT)

DEPARTMENT OF JUSTICE,

Defendant.
--------------------------------------X
APPEARANCES
For Plaintiff:
Marcus Anthony Micolo, pro se
03A3985
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929
For Defendant:

Megan Jeanette Freismuth, Esq.
U.S. Attorney’s Office
610 Federal Plaza
Central Islip, NY 11722

SEYBERT, District Judge:
Marcus

Anthony

Micolo

(“Plaintiff”)

commenced

this

action pursuant to the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552 et seq., against Defendant Department of Justice
(“Defendant” or the “Department”) on October 3, 2016.1

(Compl.,

Docket Entry 1.) Currently pending before the Court is Defendant’s

Initially, Plaintiff named Sean O’Neill, the Chief of the
Administrative Staff of the Department of Justice, Office of
Information Policy, as the only defendant. Because the relevant
federal agency is the appropriate defendant in a FOIA action,
the Court dismissed the Complaint against O’Neill and directed
that the Department be substituted as the proper defendant.
(See Feb. 2017 Order, Docket Entry 12, at 2.)
1

motion for summary judgment.

(Def.’s Mot., Docket Entry 42.)

For

the reasons that follow, Defendant’s motion is GRANTED.
BACKGROUND
I.

Factual Background2
In

July

2003,

Plaintiff

was

convicted

of

robbing

Greenpoint Savings Bank (“Greenpoint”) in Rocky Point, New York on
November 6, 2001 (the “Robbery”).

(Compl. at 1-2, ¶ 1.)

This

matter involves Plaintiff’s attempts to obtain certain information
related to the Robbery investigation from the Department and the

The following material facts are drawn from Defendant’s Local
Civil Rule 56.1 Statement (Def.’s 56.1 Stmt., Docket Entry 44),
Plaintiff’s Local Civil Rule 56.1 Response (Pl.’s 56.1 Resp.,
Docket Entry 36), and the exhibits referred to therein. Any
relevant factual disputes are noted. All internal quotation
marks and citations have been omitted.
2

Local Civil Rule 56.1 requires that the party opposing a motion
for summary judgment file a response which includes
“correspondingly numbered paragraphs responding to each numbered
paragraph in the statement of the moving party” and that each
statement be supported by a citation to admissible evidence.
Local Civil Rule 56.1(b), (d). Further, statements by the
moving party “will be deemed admitted for purposes of the motion
unless specifically controverted by a correspondingly numbered
paragraph” in the opposing party’s 56.1 response. Local Civil
Rule 56.1(c). Most of the paragraphs in Plaintiff’s 56.1
Response do not correspond to the paragraphs in Defendant’s 56.1
Statement. Additionally, Plaintiff does not specifically
controvert many of the facts in Defendant’s 56.1 Statement.
However, Plaintiff’s Response does contain factual assertions,
arguments, and citations to evidence. Therefore, the Court will
overlook these deficiencies and consider Plaintiff’s 56.1
Response, but deem admitted any statements in Defendant’s 56.1
Statement that are supported by evidence and not controverted by
other evidence in the record. See Kennedy v. Arias, No. 12-CV4166, 2017 WL 2895901, at *4 (S.D.N.Y. July 5, 2017).
2

Federal Bureau of Investigation (“FBI”), including communications
between local law enforcement and the FBI and photographs allegedly
taken by cameras inside the bank.
Generally, Plaintiff questions the FBI’s involvement in
the Robbery investigation and alleges that while it is unclear who
contacted the FBI, he believes the FBI was notified of the Robbery
“pursuant to protocol.”3

(Pl.’s 56.1 Resp. ¶¶ 4-5.)

Plaintiff

maintains, without citing admissible evidence, that after the
Robbery, “F&O Security Company . . . took two (2) rolls of .35mm
film from the interior camera within the bank,” which was “brought
to the[ir] lab to be processed and developed.”
¶ 6 (second alteration in original).)

(Pl.’s 56.1 Resp.

He refers to a receipt

entered into evidence at his criminal trial, which he contends
shows that the film was processed, developed, and mailed to
Greenpoint.

(Pl.’s 56.1 Resp. ¶ 6.)

He states--again without

citations to evidence--that “it is . . . believed that on or about
the same date, . . . F&O Security Company sent identical pictures
to the F.B.I. Regional Office in NYC and/or Melville.”

(Pl.’s

Attached to Plaintiff’s Complaint is a letter to the Federal
Deposit Insurance Commission (“FDIC”) from the FBI dated June
19, 2003 stating that the FBI and Suffolk County Police
Department “[were] conducting a joint investigation” in
connection with the Robbery. (June 19, 2003 Letter, Compl.
Ex. 11, Docket Entry 1-3, at ECF p. 14-15.) While Plaintiff did
not submit the letter in opposition to the pending motion, given
his pro se status, the Court will consider it as evidence that
the FBI was involved in the investigation.
3

3

56.1 Resp. ¶ 6.) He reiterates that he “believe[s] that the F.B.I.
did obtain the pictures from the alleged Nov. 6, 2001 [Greenpoint]
robbery.”

(Pl.’s 56.1 Resp. ¶ 7.)

A. FBI Records Systems
FBI records are stored in the Central Records System
(“CRS”), which contains “applicant, investigative, intelligence,
personnel, administrative, and general files” maintained by the
FBI across all offices--FBI Headquarters, FBI Field Offices, and
FBI Legal Attaché Offices.

(Def.’s 56.1 Stmt. ¶ A.1.)

When a

case file is opened, it is assigned a Universal Case File Number
(“UCFN”), and within each case file, documents are assigned a
document number--or “serialized”--when they are added to the case
file.

(Def.’s 56.1 Stmt. ¶¶ A.2-3.)

FBI records are also

contained in an “electronic, integrated case management system”
called

Automated

Case

Support

(“ACS”),

approximately 105 million CRS records.

which

consists

of

(Def.’s 56.1 Stmt. ¶ A.7.)

The Universal Index (“UNI”), an automated index of the CRS,
provides FBI offices with a “centralized, electronic means of
indexing pertinent investigative information to FBI files for
future retrieval via index searching.”

(Def.’s 56.1 Stmt. ¶ A.8.)

Conducting a search using the UNI could locate (1) paper and
electronic records from before 1995, which were imported from prior
systems, and (2) paper and electronic records from 1995 to present.
(Def.’s 56.1 Stmt. ¶ A.9.)

As of July 1, 2012, the FBI began using
4

Sentinel, a new case management system (“Sentinel”).
Stmt. ¶¶ A.10-11.)

(Def.’s 56.1

Records and information indexed into Sentinel

are “replicated or backfilled into ACS,” and “Sentinel provides
another portal to locate information within the vast CRS for FBI
records generated on or after July 1, 2012.”

(Def.’s 56.1 Stmt.

¶¶ A.12-13.)
B.

Plaintiff’s Requests
1.

First Request and July 2015 Release

In a letter to the FBI’s New York Field Office dated
January 19, 2015, Plaintiff requested: “any and all information in
your mechanical and/or computer file records, including copies of
photographs, with regard to the alleged robbery and investigation
of the: Nov. 6, 2001 at approx. 1:50 p.m. alleged robbery of:
Greenpoint Savings Bank, 75 Rt. 25A, Rocky Point, L.I.N.Y. (Suffolk
County)” (the “First Request”).

(Pl.’s 56.1 Resp. ¶ 1; Def.’s

56.1 Stmt. ¶ 1; First Request, Hardy Decl., Ex. A, Docket Entry
45-1, at ECF p. 2.)

He specified that this request included

“copies of receipts and records of notes of communications from
any FBI Investigator to Suffolk County Robbery Squad Detectives
and/or Prosecutors.”

(First Request at ECF p. 2-3.)

The FBI responded on February 4, 2015, acknowledging
receipt

of

information

his

request

because

the

and

requesting

request

“did

not

additional
contain

personal
sufficient

information to conduct an accurate search” of the CRS.
5

(Def.’s

56.1 Stmt. ¶ B.2; Identity Form, Hardy Decl., Ex. B, Docket Entry
45-2, at ECF p. 2.)

Additionally, the response indicated that

Plaintiff should complete and return the Certification of Identity
form to assist in the FBI’s search efforts.

(Def.’s 56.1 Stmt.

¶ B.2.)
Plaintiff returned the Certification of Identity form
with his signature, dated February 10, 2015, and an attached letter
of the same date.

(Def.’s 56.1 Stmt. ¶ B.3; Identity Form and

Letter, Hardy Decl., Ex. C, Docket Entry 45-3.)

While Plaintiff

maintains that he “provided the U.S.D.O.J. with all the personal
information it needed,” most of the fields on the Certification of
Identity form were left blank.

(Pl.’s 56.1 Resp. ¶ 3; Identity

Form and Letter at ECF p. 2.) The letter attached to the incomplete
form (the “February 2015 Letter”) stated that Plaintiff was writing
to follow-up on his request and that the photographs he previously
requested “were processed and developed by the F+O Security Company
in NYC and may have been sent to the NYC FBI Field Office via UPS
on 11/7-8/01.”

(Def.’s 56.1 Stmt. ¶ B.4; Pl.’s 56.1 Resp. ¶ 8;

Identity Form and Letter at ECF p. 4.)

The FBI responded by letter

dated February 25, 2015 and indicated that Plaintiff’s request was
in process.

(Def.’s 56.1 Stmt. ¶ B.5; Feb. 2015 FBI Resp., Hardy

Decl., Ex. D, Docket Entry 45-4, at ECF p. 2.)
Thereafter, the FBI searched for the requested records
by conducting a CRS index search for “Green Point Savings Bank”
6

and “Green Point Bank” in records maintained at FBI Headquarters
and field offices.

(Def.’s 56.1 Stmt. ¶¶ B.6-8.)

records were located. (Def.’s 56.1 Stmt. ¶ B.9.)

However, no
Next, the FBI

conducted CRS searches for a “three-way phonetic breakdown” of
“Marcus

A.

Micolo,”

and

“on-the-nose

searche[s]”

for

“Marcus

Anthony Micolo,” “Marcus A. Micola,” “Christopher Webster,” “James
Wendel,” and “James Werdel,”4 and located a set of potentially
responsive records--file number 91A-NY-281456, which was closed on
August 29, 2003.

(Def.’s 56.1 Stmt. ¶¶ B.11-12.)

As a result,

the request was treated as a Freedom of Information/Privacy Acts
(“FOIPA”) request regarding “Marcus A. Micolo.” (Def.’s 56.1 Stmt.
¶ B.13.)

The FBI obtained the paper file for 91A-NY-281456, which

consisted of ninety-two pages, and it released forty-one pages to
Plaintiff on July 30, 2015 (the “July 2015 Release”).5

(Def.’s

These names appear to be Plaintiff’s aliases. (See Hardy
Decl., Docket Entry 45, ¶ 51 (“The FBI used information in
Plaintiff’s request letter to facilitate the identification of
responsive records by searching the requester’s name and aliases
found during the search.”).)
4

On July 25, 2015--several days prior to the July 2015 Release-Plaintiff sent a letter to the FBI “to narrow the search for
records sought.” (Def.’s 56.1 Stmt. ¶ B.26; July 2015 Letter,
Hardy Decl., Ex. M, Docket Entry 45-13, at ECF p. 2.) He
explained that he was specifically interested in two things: (1)
whether photographs taken by F+O Security Company were sent to
the FBI’s New York field office, and (2) whether the FBI was
contacted about the alleged robbery and if so, whether the FBI
worked with Suffolk County law enforcement during the
investigation. (July 2015 Letter at ECF p. 2.)
5

7

56.1 Stmt. ¶¶ B.15-16, B.20; July 2015 Release, Hardy Decl., Ex.
H, Docket Entry 45-8.)

Eight pages were referred to the FDIC to

determine whether release was appropriate, and forty-three pages
were withheld.

(Def.’s 56.1 Stmt. ¶¶ B.16.)

Twelve of the forty-

three pages were duplicates, and the remaining thirty-one pages
were

withheld

because

Plaintiff

Certification of Identity Form.

failed

to

complete

the

(Def.’s 56.1 Stmt. ¶¶ B.17-18.)

The FBI did not locate any photographs in file number 91A-NY281456.

(Def.’s 56.1 Stmt. ¶ B.19.)
By letter dated August 7, 2015, Plaintiff filed an

administrative appeal stating that the “photographs requested . .
. weren’t provided” and “asking that they [ ] be provided.”
(Def.’s 56.1 Stmt. ¶ B.22; Aug. 2017 Appeal, Hardy Decl., Ex. I,
Docket Entry 45-9, at ECF p. 2-3.) Additionally, Plaintiff pointed
out that the July 2015 Release did not include documents or
communications between Suffolk County law enforcement and the FBI.6
(Aug. 2017 Appeal at ECF p. 3.)

Plaintiff sent a second letter

regarding the appeal on August 10, 2015, indicating that he noticed
another file number--188B-NY-266547--and believed the FBI should
review that file for the photographs.

(Def.’s 56.1 Stmt. ¶ B.24;

August 2017 Appeal Letter, Hardy Decl., Ex. J, Docket Entry 45-

Plaintiff continues to maintain that the July 2015 Release did
not contain all of the relevant documents. (See, e.g., Pl.’s
56.1 Resp. ¶ 15.)
6

8

10.)

On September 14, 2015, Plaintiff’s appeal was denied and the

FBI’s action was affirmed.

(Def.’s 56.1 Stmt. ¶ B.25; Sept. 2015

Denial, Hardy Decl., Ex. L, Docket Entry 45-12.)
2.

Second Request

By letter dated August 7, 2015, Plaintiff sent a request
to the FBI’s Long Island office requesting “the .35mm photographs
in this office’s file in conjunction with the alleged robbery” and
“copies of all correspondence done to [and] from this field office
to the Suff. Co. robbery squad; the Suff. Co. Dist. Attorney’s
Office; the Green Point Savings Bank and the F+O Security Company
between November 6, 2001 to February 28, 2002” (the “Second
Request”). (Def.’s 56.1 Stmt. ¶ B.27; Second Request, Hardy Decl.,
Ex. N, Docket Entry 45-14, at ECF pp. 2-3.)

In the August 2015

Request, Plaintiff refers to an FD-430 form (the “FD-430 Form”)
that was provided to him in the July 2015 Release, which he asserts
indicates that the “[Long Island] office is in possession of
surveillance photos of fair quality.”
2-3.)

(Second Request at ECF pp.

On this form, under “Surveillance Photos Available” the

individual completing it marked “Yes,” and under “Quality of
Photos,” the individual marked “Fair.”
5-7, Docket Entry 1-3, at ECF p. 6.)

(FD-430 Form, Compl., Ex.

The FBI acknowledged receipt

of that request on August 21, 2015 and indicated that a search was
in process.

(Def.’s 56.1 Stmt. ¶ B.28; Aug. 2015 Resp., Hardy

Decl., Ex. P, Docket Entry 45-16.)
9

To

attempt

to

locate

the

requested

records

and

photographs, the FBI re-reviewed the electronic scanned copy and
the paper copy of file number 91A-NY-281456 in an FBI storage
facility.

(Def.’s 56.1 Stmt. ¶¶ B.30-31.)

No photographs or

additional responsive records were located.

(Def.’s 56.1 Stmt.

¶¶ B.32, B.34.) The FBI maintains that, based on its review, there
is no indication that the photographs would be located or stored
in a different location. (Def.’s 56.1 Stmt. ¶ B.33.)
In letters dated September 15, 2015 and October 22, 2015,
the FBI informed Plaintiff that it was unable to locate any
responsive records or photographs.

(Def.’s 56.1 Stmt. ¶ B.34;

Sept. 2015 Resp., Hardy Decl., Ex. Q, Docket Entry 45-17; Oct.
2015 Resp., Hardy Decl., Ex. R, Docket Entry 45-18.) These letters
also stated that “[t]he FD-430 indicated in your request indicates
a submission must be uploaded within 15 workdays of the offense;
it does not guarantee that photos were included within the file.”
(Sept. 2015 Resp. at ECF p. 2; Oct. 2015 Resp. at ECF p. 2.)
Plaintiff filed an appeal on December 4, 2015, and the
appeal was denied on January 11, 2016. (Def.’s 56.1 Stmt. ¶¶ B.3537; Dec. 2015 Appeal, Hardy Decl., Ex. S, Docket Entry 45-19; Jan.
2016 Denial, Hardy Decl., Ex. U, Docket Entry 45-21.)

In the

letter denying the appeal, the FBI informed Plaintiff that “it
could locate no responsive records subject to the FOIA in its

10

files” and that the FBI “conducted an adequate, reasonable search
for such records.”
3.

(Jan. 2016 Denial at ECF p. 2.)

Third Request

In two separate letters dated August 10, 2015, Plaintiff
submitted requests seeking photographs and documents contained in
file

“188B-NY-266547-A

serial

1

(together, the “Third Request”).7

through

188B-NY-266547-C-89”

(Def.’s 56.1 Stmt. ¶¶ B.38-39;

Third Request, Hardy Decl., Ex. V, Docket Entry 45-22, at ECF p.
2; Third Request Letter, Hardy Decl., Ex. W, Docket Entry 45-23,
at ECF p. 2.) While Plaintiff requested documents and photographs,
the letters made clear that he was “particularly interested in
copies of the photographs of the alleged Nov. 6, 2001 Greenpoint
Savings Bank Robbery.”

(Third Request Letter at ECF p. 2.)

The FBI acknowledged receipt of the request by letter
dated September 1, 2015.

(Def.’s 56.1 Stmt. ¶ B.40; Sept. 2015

Acknowledgment, Hardy Decl., Ex. X, Docket Entry 45-24.)

Because

the Third Request referred to a specific file number, the FBI
retrieved and reviewed the paper copy of the file; however, no
responsive records were located.

(Def.’s 56.1 Stmt. ¶¶ B.41-44.)

Specifically, the file did not contain any documents or photographs
related to the Robbery.

(Def.’s 56.1 Stmt. ¶ B.44.)

The FBI

informed Plaintiff of the results of the search on April 4, 2016,

Plaintiff noticed this file number on several documents in the
July 2015 Release. (See Aug. 2017 Appeal Letter at ECF p. 2.)
7

11

advising him that the responsive records were previously released
to him and that no further records were located.

(Def.’s 56.1

Stmt. ¶ B.45; April 2016 Resp., Hardy Decl., Ex. AA, Docket Entry
45-27, at ECF p. 2.)
Plaintiff filed an appeal on May 4, 2016.

(Def.’s 56.1

Stmt. ¶ B.46; May 2016 Appeal, Hardy Decl., Ex. BB, Docket Entry
45-28.)

The

appeal

was

subsequently

closed

after

Plaintiff

submitted an additional request related to file number 188B-NY266547, discussed below.

(Def.’s 56.1 Stmt. ¶ B.49; Closure

Letter, Hardy Decl., Ex. DD, Docket Entry 45-30.)
4.

Fourth Request

By

letter

seventy-four

dated

documents

in

April
file

8,

2016,

number

Plaintiff

188B-NY-266547

requested
that

he

maintained “were not in the 91B-NY-_____ release” (the “Fourth
Request”). (Def.’s 56.1 Stmt. ¶ B.50; Fourth Request, Hardy Decl.,
Ex. EE, Docket Entry 45-31, at ECF p. 2.)

This request stated

“[t]he evidence shows that the documents overlap in the 188B# and
the 91B#.
188B#.

[i].e., document #15 in the 91B# is document #89 in the

Thus, if #1 of the 91B# corresponds to #75 in the 188B# .

. . there are 74 documents in this request that I ask you [again]
to release.”

(Fourth Request at ECF p. 3 (third alteration in

original).)
The FBI acknowledged receipt of the request by letter
dated May 2, 2016.

(Def.’s 56.1 Stmt. ¶ B.51; May 2016 Resp.,
12

Hardy Decl., Ex. FF, Docket Entry 45-32.)

Because the FBI had

searched “the entirety of the 188B-NY-266547 file” in connection
with Plaintiff’s Third Request, it concluded that no additional
searching was necessary.

(Def.’s 56.1 Stmt. ¶¶ B.52-54.)

In a

letter dated June 7, 2016, the FBI advised Plaintiff that the
records were released to him in July 2015 and that no additional
action would be taken. (Def.’s 56.1 Stmt. ¶ B.55; June 2016 Resp.,
Hardy Decl., Ex. GG, Docket Entry 45-33, at ECF p. 2.)
Plaintiff filed an appeal on July 1, 2016 which was
denied by letter dated September 16, 2016.

(Def.’s 56.1 Stmt.

¶¶ B.56, 58; July 2016 Appeal, Hardy Decl., Ex. HH, Docket Entry
45-34; Sept. 2016 Denial, Hardy Decl., Ex. KK, Docket Entry 4537.)

The FBI advised Plaintiff that in addition to the fact that

the responsive records were already provided, the FBI conducted
another search of file number 188B-NY-266547 upon receipt of the
Fourth Request and did not locate any responsive records.

(Sept.

2016 Denial.)
5.

June 2017 Release

After Plaintiff commenced this action, the FBI conducted
an additional search of the 188B-NY-266547 file.
Stmt. ¶ B.59.)

(Def.’s 56.1

A search of the electronic version of the file

yielded no responsive records; however, when the FBI searched in
its Sentinel system, potentially responsive records were located.
(Def.’s 56.1 Stmt. ¶¶ B.60-61.) It appears that Sentinel contained
13

additional records that were not present in the file, and because
the FBI began using Sentinel in 2012 and the records requested
were from 2001, the FBI had not searched Sentinel when processing
Plaintiff’s requests.

(Def.’s 56.1 Stmt. ¶¶ B.62, B.64.)

As a

result, the FBI reviewed the contents of the 188B-NY-266547 file
in

the

Sentinel

notification
requests.
located.

system

documents

and
that

identified
were

five

pages

responsive

(Def.’s 56.1 Stmt. ¶¶ B.65-68.)

to

of

victim

Plaintiff’s

No photographs were

(Def.’s 56.1 Stmt. ¶ B.67.)
Additionally,

Plaintiff’s

requests

the

related

FBI
to

reviewed
file

the

number

processing

of

91A-NY-281456--

specifically, the thirty-one pages previously withheld because
Plaintiff failed to complete the Certification of Identification
Form.

(Def.’s 56.1 Stmt. ¶¶ B.17-18, B.69, B.71.)

determined

that

Plaintiff’s

Complaint

in

this

The FBI

action

was

sufficient to establish his identity, and as a result, released
those pages and the five pages from file number 188B-NY-266547
discussed above on June 6, 2017 (the “June 2017 Release”). (Def.’s
56.1 Stmt. ¶¶ B.68, B.70, B.72; June 2017 Release, Hardy Decl.,
Ex. LL, Docket Entry 45-38.)
II.

Procedural Background
As

discussed,

Plaintiff

commenced

this

action

on

October 3, 2016.

Plaintiff challenges the following actions: (1)

the

of

withholding

forty-three
14

documents,

including

twelve

duplicates, from the July 2015 Release of records in file number
91A-NY-281456 (“Count One”); (2) the FBI’s failure to locate at
least seventy-four documents in file number 188B-NY-266547 that
were the subject of his Fourth Request (“Count Two”); (3) the
withholding of “at least one document within the FBI case File”
related to the Robbery “which was wrongfully withheld from the
plaintiff” (“Count Three”); and (4) the FBI’s failure to locate
the photographs of the Robbery (“Count Four”).
Defendant filed its Answer on May 24, 2017.

(Compl. at 11.)

(Answer, Docket Entry

21.)
On November 17, 2017, Defendant filed its motion for
summary

judgment.

(See

Def.’s

opposition on November 29, 2017.

Mot.)

Plaintiff

filed

his

(Pl.’s Opp., Docket Entry 47.)

Defendant did not file a reply brief.

(See Letter, Docket Entry

48.)
DISCUSSION
I.

Legal Standard
Summary

judgment

will

be

granted

where

the

movant

demonstrates that there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a).

A genuine factual issue exists where “the

evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed 2d 202 (1986).
15

In

determining whether an award of summary judgment is appropriate,
the Court considers the “pleadings, deposition testimony, answers
to interrogatories and admissions on file, together with any other
firsthand information including but not limited to affidavits.”
Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).
The movant bears the burden of establishing that there
are no genuine issues of material fact.

Gallo v. Prudential

Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).

Once

the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”

Giglio

v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
omitted).

Conclusory allegations or denials will not defeat

summary judgment.

Id.

However, in reviewing the summary judgment

record, “‘the court is required to resolve all ambiguities and
draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.’”

Sheet Metal Workers’

Nat’l Pension Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL
6449420, at *2 (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997)).

Additionally, on a

motion for summary judgment, the Court must liberally construe a
pro

se

litigant’s

supporting

papers

complaint
liberally,

and

“read

a

interpreting

strongest arguments that they suggest.”
16

pro

se

litigant’s

them

to

raise

the

Adeyi v. U.S., No. 06-

CV-3842, 2010 WL 520544, at *3 (E.D.N.Y. Feb. 8, 2010) (internal
quotation marks and citation omitted).
II.

FOIA
FOIA’s

purpose

is

to

“‘ensure

an

informed

citizenry . . . [which is] needed to check against corruption and
to hold the governors accountable to the governed.”

Dennis v.

Alcohol, Tobacco, Firearms and Explosives, Nos. 12-CV-3795, 12CV-4560, 2013 WL 6579581, at *3 (E.D.N.Y. Dec. 13, 2013) (quoting
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S. Ct.
2311, 2327, 57 L. Ed. 2d 159 (1978)) (alterations in original).
FOIA provides that “‘any member of the public is entitled to have
access to any record maintained by a federal agency, unless that
record is exempt from disclosure under one of the Act’s nine
exemptions.’”

Roman v. C.I.A., No. 11-CV-5944, 2013 WL 210224, at

*3 (E.D.N.Y. Jan. 18, 2013) (quoting A. Michael’s Piano, Inc. v.
FTC, 18 F.3d 138, 143 (2d Cir. 1994)).

While FOIA empowers

district courts to enjoin an agency from improperly withholding
agency records and to order the production of agency records,
“‘jurisdiction is dependent on a showing that an agency has (1)
improperly (2) withheld (3) agency records.’”

Id. (quoting U.S.

Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S. Ct.
2841, 2846, 106 L. Ed. 2d 112 (1989)); see also 5 U.S.C. §
552(a)(4)(B).

17

When a plaintiff maintains that an agency “improperly
withheld documents through its failure to locate them, the agency’s
burden is to establish that it conducted an adequate search that
failed to produce the requested records.”

Taggart v. Office of

the Inspector General, No. 10-CV-5447, 2011 WL 13128214, at *8
(S.D.N.Y. Sept. 22, 2011), aff’d, 530 F. App’x 17 (2d Cir. 2013)
(internal quotation marks omitted).

A search is adequate when it

is “‘designed to identify and locate responsive documents.’”

Wen

Dong Zhao v. U.S. Dep’t of State, --- F. Supp. 3d ----, 2018 WL
3546177, at *3 (E.D.N.Y. July 23, 2018), appeal filed, No. 18-2541
(quoting Davis v. U.S. Dep’t of Homeland Sec., No. 11-CV-203, 2013
WL 3288418, at *6 (E.D.N.Y. June 27, 2013)).

Additionally, the

agency’s search is not required to be perfect, nor is it necessary
for the agency to take extraordinary measures to locate responsive
records; it is sufficient that the search was reasonable.

See

id.; Taggart, 2011 WL 13128214, at *8.
When the agency moves for summary judgment, it has the
burden of demonstrating that it complied with FOIA and that the
search was reasonable and adequate.

Labella v. F.B.I., No. 11-

CV-0023, 2012 WL 948567, at *6 (E.D.N.Y. Mar. 19, 2012).

The

agency can sustain its burden by submitting “‘[a]ffidavits or
declarations

supplying

facts

conducted a thorough search.’”

indicating

that

the

agency

has

Taggart, 2011 WL 13128214, at *9

(quoting Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d
18

Cir. 1994)).

The affidavits or declarations must describe in

“reasonable detail the scope and method by which the search was
conducted,” Labella, 2012 WL 948567, at *7 (internal quotation
marks

and

citation

omitted),

and

should

be

“detailed,

nonconclusory and submitted in good faith,” Taggart, 2011 WL
13128214,

at

*9

(internal

quotation

marks

omitted).

Agency

affidavits in FOIA actions are “presumed to be submitted in good
faith.”

Zhao, 2018 WL 3546177, at *3.
If the agency satisfies its burden, “the plaintiff may

avoid summary judgment . . . if he ‘make[s] a showing of bad faith
on the part of the agency sufficient to impugn the agency’s
affidavits or declarations or provide[s] some tangible evidence
that . . . summary judgment is inappropriate.’”

Labella, 2012 WL

948567, at *7 (quoting Carney, 19 F.3d at 812).

The presumption

of

good

faith

by

the

agency

“‘cannot

be

rebutted

by

purely

speculative claims about the existence and discoverability of
other documents.’”

Dennis, 2013 WL 6579581, at *4 (quoting Grand

Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999));
see also Zhao, 2018 WL 3546177, at *3 (“Bare allegations and
speculation of bad faith cannot rebut the good faith presumption.”)
(citation omitted).
III.

Count One
In Count One, Plaintiff contends that the FBI wrongfully

withheld forty-three documents--including twelve duplicates--from
19

the July 2015 Release.

(Compl. at 11.)

However, the thirty-one

unique documents previously withheld were released to him in June
2017 after the FBI determined that his Complaint in this action
established his identity.

(See Def.’s 56.1 Stmt. ¶¶ B.68, B.70,

B.72; June 2017 Release at ECF p. 2.)

In other words, Plaintiff

has received all of the documents previously withheld from the
July 2015 Release.
DISMISSED.

Accordingly, Count One of the Complaint is

See Flores v. U.S. Dep’t of Justice, No. 15-CV-2627,

2016 WL 7856423, at *10 (E.D.N.Y. Oct. 4, 2016), R&R adopted, 2017
WL 238425 (E.D.N.Y. Jan. 18, 2017), aff’d, 712 F. App’x 107 (2d
Cir. Feb. 28, 2018).
IV.

Counts Two, Three, and Four
Counts Two, Three, and Four concern the FBI’s failure to

locate seventy-four documents allegedly contained in file number
188B-NY-266547, unspecified documents in the original FBI file,
and the photographs of the Robbery.

(Compl. at 11.)

Defendant

argues that Plaintiff’s claims should be dismissed because (1) the
searches conducted were adequate and reasonable, and (2) Plaintiff
has not submitted sufficient evidence to rebut the presumption of
good faith.8

(Def.’s Br. at 7-11.)

The Court does not agree with Defendant’s argument that the
entire action should be dismissed for lack of subject matter
jurisdiction. (See Def.’s Br., Docket Entry 43, at 6-7.) For
example, in Lane v. Department of Justice, No. 02-CV-6555, 2006
WL 1455459, at *7-9 (E.D.N.Y. May 22, 2006), the court dismissed
several of the plaintiff’s claims for lack of subject matter
8

20

In

support

of

its

motion,

Defendant

submitted

the

declaration of David M. Hardy (“Hardy”), the Section Chief of the
Record/Information

Dissemination

Section,

Records

Division, of the FBI (the “Hardy Declaration”).
1.)

Management

(Hardy Decl. ¶

As Section Chief, Mr. Hardy manages the employees responsible

for processing and responding to FOIA requests for FBI records and
is

familiar

with

Plaintiff’s

FOIA

performed, and the agency’s responses.

requests,

the

searches

(Hardy Decl. ¶¶ 2-3.)

The

Hardy Declaration describes the FBI databases and records systems
that were searched, (Hardy Decl. ¶¶ 42-48), and the specific steps
taken by the FBI in response to each of Plaintiff’s requests,
(Hardy Decl. ¶¶ 51-60).

Specifically, for each request, the

declaration outlines the electronic database(s) and/or paper files
searched, the search types and terms, and the reasons for each of
the steps taken by the bureau.

(Hardy Decl. ¶¶ 51-60.)

The Hardy

Declaration also details the additional searches conducted after
the commencement of this action and explains how and why an

jurisdiction based on the plaintiff’s failure to make proper
requests or exhaust administrative remedies. Here, there is no
dispute that Plaintiff made several proper FOIA requests and
pursued appeals before filing this action. Additionally, in
Haji v. Bureau of Alcohol, Tobacco, Firearms and Explosives, No.
03-CV-8479, 2004 WL 1783625, at *2-3 (S.D.N.Y. Aug. 10, 2004),
the court dismissed a FOIA action on mootness grounds after the
FBI submitted a declaration indicating that any responsive
records were destroyed in the attacks on September 11, 2001. In
this case, the FBI is not arguing that the records sought have
been destroyed, but rather, that it conducted reasonable
searches and released all responsive records to Plaintiff.
21

additional five documents were located at that time.

(Hardy Decl.

¶¶ 61-63.)
Plaintiff

contends

that

the

Hardy

Declaration

is

a

“second-hand-type of thing that is questionable” because “[Hardy]
wasn’t present when the files [related to the Robbery] were
compiled.” (Pl.’s 56.1 Resp. ¶ 13.)

Further, Plaintiff points out

that Defendant has not submitted a declaration from any of the
agents who were involved in the Robbery investigation.
56.1 Resp. ¶¶ 13, 15.)

(Pl.’s

However, an agency’s burden on summary

judgment is to demonstrate, through affidavits or declarations
detailing its efforts, that it conducted an adequate search for
the requested records.

See Taggart, 2011 WL 13128214, at *8-9,

Labella, 2007 WL 948567, at *7.

Accordingly, Defendant is not

required to submit affidavits or declarations from the agents who
participated in the investigation or from agents who were present
when the file was compiled.
Based on the facts contained in the Hardy Declaration,
the Court finds that the searches were adequate and reasonable and
that Defendant has sustained its burden to show that it complied
with FOIA.

In light of this finding, Plaintiff must show evidence

of bad faith in order to prevent summary judgment in Defendant’s
favor.

See Labella, 2012 WL 948567, at *7.

22

Plaintiff argues that

the FBI exhibited bad faith in several ways.9
First, Plaintiff maintains that the FBI acted in bad
faith because after he commenced this action, the FBI conducted
additional searches and located additional records.
Resp. ¶ 14.)

The Court disagrees.

(Pl.’s 56.1

The release of additional

documents after the filing of a FOIA action demonstrates the
agency’s

continued

good

faith

efforts

to

locate

responsive

documents and “suggest[s] a stronger, rather than weaker, basis
for accepting the integrity of the search.”

Conti v. U.S. Dep’t

of Homeland Sec., No. 12-CV-5827, 2014 WL 1274517, at *15 (S.D.N.Y.
Mar. 24, 2014) (internal quotation marks omitted); see also Flores,
2016 WL 7856423, at *9.

Moreover, the fact that the initial

searches did not locate these documents does not support a finding
of bad faith, as the FBI is not required to locate every responsive
document in order for the search to be reasonable.

See Conti,

2014 WL 1274517, at * 15 (“[M]any courts have rejected the argument
that the discovery of additional documents or later discovery of
missing files renders a search unreasonable or conducted in bad
faith.”); Taggart, 2011 WL 13128214, at *8 (“[A] reviewing court
must consider ‘whether the search was reasonably calculated to

The Court finds Plaintiff’s contention that Defendant acted in
bad faith by “construing [his] requests as they wanted while
nit-picking about other things (i.e., [him] spelling Green Point
vs. GreenPoint, etc.)” to be unconvincing. (Pl.’s 56.1 Resp. at
8.)
9

23

discover

the

requested

documents,

not

whether

it

actually

uncovered every document extant.’”) (quoting Grand Cent. P’Ship,
166 F.3d at 489).
Second, Plaintiff contends that the FD-430 Form, which
was released to him in July 2015, “clearly shows that the FBI had
surveillance [p]hotos of [f]air [q]uality available to them.”
(Pl.’s Opp. ¶ 8.)

As discussed, the individual completing the FD-

430 Form--which appears to have been completed in the course of
the

Robbery

investigation--marked

“Yes,”

under

“Surveillance

Photos Available” and marked “Fair” under “Quality of Photos.”
(FD-430 Form at ECF p. 6.)

Plaintiff reasons that “the FBI would

not discard the pictures that were available to them and these
photos are somewhere in the FBI’s files.” (Pl.’s Opp. at 4, ¶ 11.)
In a response to one of Plaintiff’s requests, Defendant advised
him that the FD-430 Form “indicates a submission must be uploaded
within 15 workdays of the offense; it does not guarantee that
photos were included within the file.”

(Sept. 2015 Response at

ECF p. 2; Oct. 2015 Resp. at ECF p. 2.)

The Court finds that the

information noted on the FD-430 Form is insufficient to establish
bad faith.

The fact that photographs were “available” does not

demonstrate that the photographs were in the FBI’s possession at
that time or when Plaintiff made his first request in January 2015.
Third, Plaintiff emphasizes that he believes that the
FBI is in possession of the photographs but is concealing them.
24

(Pl.’s Opp. ¶¶ 15, 17; Pl.’s 56.1 Resp. ¶ 12.)

For example, he

cites discrepancies between the 91A-NY-281456 and 188B-NY-266547A files as “sufficient reason to believe that the U.S.D.O.J. is
concealing the pictures to aid someone.”

(Pl.’s 56.1 Resp. ¶ 11.)

However, “[t]he presumption of good faith cannot be rebutted by
purely speculative claims about the existence and discoverability
of other documents.”

Taggart, 2011 WL 13128214, at *9 (internal

quotation marks and citations omitted); see also Conti, 2014 WL
1274517, at *11 (“Speculation that other documents exist, without
more, does not undermine the finding that the agency conducted a
reasonable

search.”)

(internal

quotation

marks

and

citation

omitted).

Thus, these allegations are insufficient to prevent

summary judgment in Defendant’s favor.
For the reasons discussed above, the Court finds that
Defendant is entitled to summary judgment on Counts Two, Three,
and Four of the Complaint.
conducted

reasonable

and

Defendant has demonstrated that it
adequate

searches

in

response

to

Plaintiff’s FOIA requests, and Plaintiff has failed to present
sufficient evidence to rebut the presumption of good faith.
CONCLUSION
For

the

foregoing

reasons,

Defendant’s

motion

for

summary judgment (Docket Entry 42) is GRANTED, and Plaintiff’s
Complaint is DISMISSED WITH PREJUDICE.

The Clerk of the Court is

directed to enter judgment accordingly and mark the case CLOSED.
25

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for the purpose
of any appeal.

See Coppedge v. United States, 369 U.S. 438, 444-

45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mail a copy of
this Memorandum and Order to the pro se Plaintiff.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

September
27 , 2018
Central Islip, New York

26