Frankenberry v. Fed. Bureau of Investigation

JOSEPH P. FRANKENBERRY Plaintiff,

v. FEDERAL BUREAU OF INVESTIGATIONAND U.S. DEPARTMENT OF JUSTICE, Defendants.

CIVIL ACTION NO. 3:08-1565

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Dated: March 21, 2012

(JUDGE CAPUTO)

(MAGISTRATE JUDGE MANNION)

MEMORANDUM

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

I. Background

1. Factual History

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

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

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

2. The January 2010 Report and Recommendation

On January 29, 2010, Magistrate Judge Mannion issued a R & R recommending that Plaintiff's Motion for Summary Judgment be dismissed as premature, that Defendants' Motion for Summary Judgment be granted, that Plaintiff's Motion for a Temporary Restraining Order/Preliminary Injunction be denied, and that Plaintiff's Motion for Appointment of Counsel be denied as moot. (Doc. 49). After Plaintiff filed Objections to the 2010 R & R (Doc. 52) and Defendants filed their Brief in Opposition to the Objections (Doc. 55), the Court rejected in part and adopted in part the Magistrate Judge's R & R. (Doc. 56.)

In particular, the Court rejected the Magistrate Judge's January 2010 recommendation that Plaintiff's Motion for Summary Judgment be denied and that Defendants' Motion for Summary Judgment be granted. (Doc. 56.) The Court rejected the Magistrate Judge's recommendation to grant Defendants' Motion for Summary Judgment because, in applying the Third Circuit's decision in Davin v. United States Dep't. of Justice, 60 F.3d 1043 (3d Cir. 1995), Defendants failed to provide a "specific contextual link . . . between the redacted material and the exemption claimed." (Doc. 56.) As such, the Court concluded that, "[w]ithout more, it [was] impossible . . . to engage in a proper de novo review of the exemptions that Defendants [used] as justification for withholding documents from Plaintiff." (Doc. 56.)

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

3. Defendants' Supplemental Vaughn Filings

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

4. The September 2010 Report and Recommendation

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

5. Objections to the September 2010 Report and Recommendation

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