Pickering v. U.S. Dep't of Justice

1

LESLIE JAMES PICKERING, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant.

No. 14-CV-330-A

United States District Court, W.D. New York

May 14, 2024

DECISION AND ORDER

RICHARD J. ARCARA UNITED STATES DISTRICT COURT

I. Background

Plaintiff Leslie James Pickering commenced this action pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C § 552 et seq., on May 1, 2014, seeking inter alia, the disclosure and release of agency records pertaining to Plaintiff and withheld by Defendant United States Department of Justice (“DOJ” or “Defendant”), and its components, the Federal Bureau of Investigation (“FBI”) and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). This Court referred the case to the Honorable Leslie G. Foschio, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1), for the performance of pretrial proceedings.

On April 27, 2018, Defendant filed motions for summary judgment. (ECF 23 and 27). Thereafter, on May 31, 2018, Plaintiff also filed a motion for summary judgment. (ECF 33). On March 17, 2023, Defendant filed supplemental motions for summary judgment (ECF 62 and 63), and on May 8, 2023, Plaintiff also filed a supplemental summary judgment motion. (ECF 67).

On September 29, 2023, Magistrate Judge Foschio issued a Report and Recommendation (“R&R”) (ECF 71) recommending: that Defendant ATF's Motion (ECF 23) should be granted in part and denied in part; that Defendant FBI's Motion (ECF 27) should be dismissed as moot; that Plaintiff's Motion (ECF 33) should be granted in part, and denied in part; that FBI's Supplemental Motion (ECF 62) should be granted in part, denied in part, and dismissed as moot, in part; that ATF's Supplemental Motion (ECF 63) should be dismissed as moot; and that Plaintiff's Supplemental Motion (ECF 67) should be granted in part, denied in part, and dismissed as moot in part.

On November 9, 2023, Defendant (ECF 74) and Plaintiff (ECF 75) each filed objections to the R&R. On December 12, 2023, Defendant filed a memorandum of law (ECF 77) in opposition to Plaintiff's objections to the R&R. On December 13, 2023, Plaintiff filed a response (ECF 78) to Defendants' objections. On January 2, 2024, Defendants filed a reply (ECF 79), as did Plaintiff (ECF 81) on January 3, 2024.

This Court assumes the parties' familiarity with the underlying facts and procedural history.

A. The Report and Recommendation:

Magistrate Judge Foschio issued a detailed, thorough, and comprehensive 86-page R&R. See, ECF 71. In it, Judge Foschio principally made the following sixteen (16) recommendations:

Recommendation 1: Summary judgment should be granted to Defendants FBI and ATF on Plaintiff's Privacy Act claim. See, ECF 71, p. 23.

Recommendation 2: Summary judgment should be granted to Defendants FBI and ATF on the adequacy of their respective searches. See, ECF 71, pp. 24-34.

Recommendation 3: Summary judgment should be granted to Defendants FBI and ATF on the issue of segregability, except with regard to certain audiotapes possessed by Defendant ATF. See, ECF 71, pp. 34-45, 36.

Recommendation 4: Summary judgment should be granted to Defendant FBI with respect to FOIA Exemption 1 (records containing classified information). See, ECF 71, pp. 47-48.

Recommendation 5: Summary judgment should be granted to Defendant FBI with respect to FOIA Exemption 3 (records containing material exempt from disclosure by statute). See, ECF 71, pp. 49-52.

Recommendation 6: With respect to FOIA Exemption 4 (records containing commercial or financial information obtained from a person and privileged or confidential), Defendant FBI's motion is moot. See, ECF 71, pp. 52-53.

Recommendation 7: Summary judgment should be denied to Defendant FBI as to 28 pages for which FOIA Exemption 5 (records containing involving attorneyclient privilege materials) was claimed but granted as to the remaining records for which such exemption was claimed. See, ECF 71, pp. 53-58.

Recommendation 8: Summary judgment should be denied to Defendant FBI as to 48 pages for which FOIA Exemption 5 (records containing deliberative process privilege material) was claimed. See, ECF 71, pp. 58-61.

Recommendation 9: Summary judgment should be granted to defendant FBI as to the FOIA Exemption 7 threshold (records containing information compiled for law enforcement purposes). See, ECF 71, pp. 61-62.

Recommendation 10: Summary judgment should be denied to Defendant FBI as to FOIA Exemption 7(A) - (law enforcement records which could interfere with enforcement proceedings). See, ECF 71, pp. 62-66.

Recommendation 11: Summary judgment should be granted to the FBI and the ATF as to FOIA Exemption 6 (records containing personnel and medical files resulting in an invasion of privacy) and 7(C) (law enforcement records which would disclose identity of confidential source). See, ECF 71, pp. 66-71.

Recommendation 12: Summary judgment should be granted to the FBI as to FOIA Exemption 7(D) (law enforcement records which would disclose identity of confidential source). See, ECF 71, pp. 71-74.

Recommendation 13: Summary judgment should be granted to the FBI and the ATF as to FOIA Exemption 7(E) (law enforcement records which disclose techniques and procedures used in law enforcement investigations or prosecutions). See, ECF 71, pp. 74-80.

Recommendation 14: Summary judgment should be denied to the ATF as to FOIA Exemption 7(F) (law enforcement records which disclose information that could endanger life or physical safety of an individual). See, ECF 71, pp. 80-82.

Recommendation 15: Summary judgment should be granted to the FBI as to its Glomar response. See, ECF 71, pp. 82-84.

Recommendation 16: The issue of attorney's fees should be deferred. See, ECF 71, pp. 84-85.

B. Defendant's Objections:

Defendant raises five (5) objections to the R&R.

First, Defendant objects to so much of Recommendation 3, above, as requires the ATF fully to explain why certain voices on contained on certain audiotapes cannot be segregated either: (a) by transferring the audiotapes to another medium that would permit such segregation; or (b) by providing a transcript of the tapes on which the exempt portions are redacted. See, ECF 74, pp. 14-16.

Second, Defendant objects to so much of Recommendation 7, above, as determined that the FOIA Exemption 5 and the attorney-client privilege did not exempt from disclosure 28 pages for which the FBI sought to invoke such privilege. See, ECF 74, pp. 16-19.

Third, Defendant objects to so much of Recommendation 8, above, as determined that FOIA Exemption 5 and the deliberative process privilege did not exempt from disclosure 48 pages for which the FBI sought to invoke such privilege. See, ECF 74, pp. 19-21.

Four, Defendant objects to so much of Recommendation 10, above, as determined that FOIA Exemption 7(A), which exempts from disclosure certain law enforcement records which could interfere with enforcement proceedings, did not exempt from disclosure certain pages^[1]for which the FBI sought to invoke such privilege because the FBI failed to establish that any prospective law enforcement proceeding was pending or reasonably anticipated. See, ECF 74, pp. 21-23).

Finally, Defendant objects to so much of Recommendation 14, above, as determined that FOIA Exemption 7(F), which exempts from disclosure the identity of any individual from whom the disclosure of information could reasonably endanger such individual's life or physical safety, did not exempt from disclosure certain pages contained law enforcement records which disclose the identity of individuals who the ATF claims could be endangered. See, ECF 74, pp. 23-24.

C. Plaintiff's Objections:

Plaintiff raises four (4) objections to the R&R.

First, Plaintiff objects to so much of Recommendation 12, above, as determined that FOIA Exemption 7(D), which exempts from disclosure the identities of and information provided by certain individuals were exempt from disclosure on the grounds that disclosure of such information would disclose the identity of the FBI's confidential source(s), provided an appropriate basis for the FBI to redact the names and information regarding two individuals whom Plaintiff maintains were confidential sources. See, ECF 75, pp. 2-3.

Second, Plaintiff objects to so much of Recommendation 13, above, as determined that FOIA Exemption 7(E), which exempts from disclosure records and information complied for law enforcement purposes that would disclose techniques and procedures for law enforcement investigations or would disclose guidelines for investigation if such disclosure risks circumvention of the law, provided an appropriate basis for the FBI to withhold from disclosure information regarding monetary amounts requested by FBI personnel and/or paid by the FBI to implement particular investigative techniques. See, ECF 75, pp. 3-4.

Third, Plaintiff objects to so much of Recommendation 15, above, as determined that the Defendant did not waive its ability to assert a so-called Glomar response-whereby a party neither acknowledges the existence or non-existence of certain categories of responsive records so as to avoid admitting certain responsive records exist-on the grounds that: (a) a Glomar response was not included in Defendant's answer or initial summary judgment motion papers and because Defendant's attorney stated, in court, that there were tens of thousands of documents pertaining to Plaintiff. See, ECF 75, pp. 4-5.

Fourth, Plaintiff to so much of Recommendation 16, above, as determined that any determination regarding the award of attorney's fees should be deferred at this time. See, ECF 75, pp. 5-6.

Notably neither party has filed any objections to Recommendations 1, 2, 4, 5, 6, 9, or 11 of...