IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ... · Therefore, OIP conducted searches...

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) CITIZENS FOR RESPONSIBILITY ) AND ETHICS IN WASHINGTON ) ) Plaintiff, ) ) Civil Action No. 11-0374 (RLW) v. ) ) UNITED STATES DEPARTMENT OF ) JUSTICE, et al., ) ) Defendant. ) )

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Pursuant to Fed. R. Civ. P. 56, the United States Department of Justice and its

components, the Criminal Division (CRM), the Executive Office for the United States Attorneys

(EOUSA), and the Office of Information Policy (OIP) (referred to globally as “DOJ”),

respectfully move for summary judgment. This action was filed under the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552, and the Declaratory Judgment Act, 28 U.S.C. §§

2201 & 2201. See Complaint.

Plaintiff has requested, pursuant to the FOIA, the release of criminal records concerning

the investigation and prosecution of Paul J. Magliocchetti, a private citizen. Mr. Magliocchetti

was the founder and owner of PMA Group, Inc., a lobbyist group, and through a plea agreement

was eventually convicted of making false statements to the Federal Election Commision (FEC),

making illegal conduit campaign contributions, and making illegal corporate campaign

contributions.

Case 1:11-cv-00374-RLW Document 13 Filed 09/16/11 of 30

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As grounds for this motion, DOJ asserts that there are no genuine issues of material fact

and that it is entitled to judgment as a matter of law. A Memorandum of Points and Authorities

and a Statement of Material Facts As To Which There Is No Genuine Issues are attached hereto.

Dated: September 16, 2011 Respectfully submitted,

RONALD C. MACHEN JR. DC BAR #447-889 United States Attorney For the District of Columbia RUDOLPH CONTRERAS, D.C. BAR # 434122 Chief, Civil Division

/s/ By: ________________________________ HEATHER GRAHAM-OLIVER Assistant United States Attorney Judiciary Center Building 555 4th St., N.W. Washington, D.C. 20530 (202) 305-1334



) CITIZENS FOR RESPONSIBILITY ) AND ETHICS IN WASHINGTON ) ) ) Plaintiff, ) ) Civil Action No. 11-0374 (RLW) v. ) ) UNITED STATES DEPARTMENT OF ) JUSTICE, et al., ) ) Defendant. ) )

STATEMENT OF MATERIAL FACTS AS

TO WHICH THERE IS NO GENUINE ISSUE

Pursuant to Local Rule 7.1(h), Defendant, United States Department of Justice (DOJ),

submits this statement of material facts as to which there is no genuine issue.

Office of Information Policy

1. By letter dated September 27, 2010, Anne L. Weismann, on behalf of Plaintiff Citizens

for Responsibility and Ethics in Washington (CREW), submitted a FOIA request to the Office of

Information Policy (OIP) for records pertaining to the investigation and prosecution of Paul J.

Magliocchetti. See Declaration of Vanessa R. Brinkmann, Counsel to the Initial Request Staff of

OIP, United States Department of Justice, ¶ 1, 3 (Brinkmann Decl.). (A copy of Plaintiff’s initial

request letter is attached to the declaration as Exhibit A.)

2. By letter dated October 7, 2010, OIP acknowledged receipt of plaintiff’s FOIA request on

behalf of the Offices of the Attorney General (OAG), Deputy Attorney General (DAG), and

Associate Attorney General (OASG). Brinkmann Decl. at 4. (A copy of OIP’s October 7, 2010

acknowledgment letter to Plaintiff is attached to the declaration as Exhibit B.)


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3. In its request letter, Plaintiff specifically sought records from OAG, ODAG, and OASG.

Therefore, OIP conducted searches for records responsive to plaintiff’s request in those Offices.

All files likely to contain responsive records were searched. Brinkmann Decl. at 5.

4. By letter dated February 24, 2011, OIP provided a final response to plaintiff on behalf of

OAG, ODAG, and OASG. OIP informed Plaintiff that records searches had been completed in

the Departmental Executive Secretariat, OAG, and OASG, and that no records responsive to

Plaintiff’s request were located. OIP’s February 24, 2011 final response letter also informed

Plaintiff that records searches were conducted in ODAG and, pursuant to the February 14, 2011

conversation between the FOIA Specialist assigned to Plaintiff’s request and Ms. Weismann, no

records responsive to plaintiff’s request were located in that Office. Brinkmann Decl. at 19 (A

copy of OIP’s February 24, 2011 letter is attached to the declaration as Exhibit C.)

The Criminal Division

5. Plaintiff submitted a FOIA request to the Criminal Division (CRM), dated September 27,

2010. Plaintiff requested:

[A]ll records of the Criminal Division including, but not limited to, records of the Public Integrity Section, pertaining to the investigation and prosecution of Paul J. Magliocchetti, the founder and owner of PMA Group, Inc., for false statements, making illegal conduit campaign contributions, making illegal corporate campaign contributions, and any other charges at issue in United States of America v. Paul J. Magliocchetti, Crim. No. 1:10-cr-287 (E.D. Va.)

See Declaration of Kristin L. Ellis, Deputy Chief in the Freedom of Information Act/Privacy Act

Unit of the U.S. Department of Justice, Criminal Division. (Ellis Decl.,) (A true and accurate

copy of Plaintiff’s request is attached to the Ellis declaration as Exhibit 1.)

6. Plaintiff asked for expedited processing of its request based on DOJ FOIA regulation 28

C.F.R. § 16.5(d)(ii), which provides that requests will be taken out of order and given expedited

treatment when there is “[a]n urgency to inform the public about an actual or alleged federal


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government activity, if made by a person primarily engaged in disseminating information.” Ellis

Decl. at 7 and Exhibit 1 attached to the Ellis declaration at p. 4.

7. CRM acknowledged receipt of plaintiff’s request and granted its request for expedited

processing in a letter dated September 30, 2010. Ellis Decl. at 8. (A true and accurate copy of

CRM’s letter is attached to the Ellis declaration as Exhibit 2.)

8. In a letter dated October 15, 2010, CRM notified plaintiff that it had located records

responsive to its request and was withholding them in full pursuant to FOIA Exemption 7(A) due

to an on-going enforcement proceeding. Ellis Decl. at 9. (A true and accurate copy of CRM’s

letter is attached to the Ellis declaration as Exhibit 3.)

9. In a letter dated October 28, 2010, plaintiff appealed CRM’s decision to OIP. Ellis Decl.

at 10. (A true and accurate copy of Plaintiff’s letter is attached to the Ellis declaration as Exhibit

4.)

10. OIP acknowledged receipt of plaintiff’s appeal in a letter dated November 4, 2010. Ellis

Decl. at 11. (A true and accurate copy of OIP’s letter is attached to the Ellis declaration as

Exhibit 5.)

11. On February 14, 2011, Plaintiff filed the present lawsuit in the United States District

Court for the District of Columbia. See Docket (“Dkt.”) No. 1.

12. On March 18, 2011, OIP remanded the request to CRM for further processing to

determine whether any records were not subject to withholding under Exemption 7(A). Ellis

Decl. at 13. (A true and accurate copy of OIP’s letter is attached to the Ellis declaration as

Exhibit 6.)


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13. Following initiation of this lawsuit, Plaintiff advised Government counsel that it was

willing to narrow its request to exclude publicly available information as well as grand jury

materials subject to FED. R. CRIM. P. 6(e). Ellis Decl. at 14.

Executive Office for U.S. Attorneys

14. By letter dated September 27, 2010, Plaintiff submitted a FOIA/PA request to EOUSA.

EOUSA responds to requests under the Freedom of Information Act and Privacy Act on behalf

of the Offices of the United States Attorneys. Plaintiff’s request sought access to records

pertaining to the investigation and prosecution of Paul Magliocchetti. See Declaration of Vinay

J. Jolly, an Attorney-Advisor with EOUSA, United States Department of Justice (Jolly Decl.), at

¶ 1, 5. (A true and accurate copy of Plaintiff’s letter is attached to the Jolly declaration as

Exhibit Exhibit A-1.)

15. By letter dated October 5, 2010, EOUSA advised Plaintiff that it had received its

FOIA/PA request, and EOUSA assigned it a number 10-3477. EOUSA also advised that the

requested material could not be released absent express authorization and consent from the

named third party (Paul Magliocchetti), proof that the third party was deceased, or a clear

demonstration that the public interest in disclosure outweighs the personal privacy interest of the

third party. Jolly Decl at 6. (A true and accurate copy of EOUSA’s letter is attached to the Jolly

declaration as Exhibit B-1.)

16. In the same letter, EOUSA advised Plaintiff that to release the material without an

authorization would result in an unwarranted invasion of personal privacy and would be in

violation of the Privacy Act and is generally exempt under FOIA. Accordingly, EOUSA

categorically denied Plaintiff’s request pursuant to 5 U.S.C. §§ 552(b)(6) and (b)(7)(C), and the


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Privacy Act, 5 U.S.C. § 552a(b).1 EOUSA further informed Plaintiff that, if requested, any

responsive public records would be released without express authorization or public justification

for release. Finally, Plaintiff was notified of its appeal rights and provided contact information

for the Office of Information Policy (“OIP”), and was informed that after the appeal has been

decided, Plaintiff may have judicial review by filing a complaint.2 Jolly Decl at 7. (A true and

accurate copy of EOUSA’s letter is attached to the Jolly declaration as Exhibit Exhibit B-1.)

17. By letter dated October 12, 2010, Plaintiff filed an administrative appeal with OIP. Jolly

Decl at 8. (A true and accurate copy of Plaintiff’s appeal letter is attached to the Jolly

declaration as Exhibit C-1.)

18. OIP acknowledged receipt of Plaintiff’s administrative appeal by letter dated October 25,

2010, and notified Plaintiff that the appeal will be expedited. Jolly Decl at 9. (A true and

accurate copy of OIP’s letter is attached to the Jolly declaration as Exhibit D-1.)

19. By letter dated November 30, 2010, OIP affirmed EOUSA’s action in withholding the

requested information in its entirety because it is protected under FOIA relating to third-party

privacy. OIP advised Plaintiff that if it was dissatisfied with this appellate action, Plaintiff could

file a lawsuit. Jolly Decl at 10. (A true and accurate copy of OIP’s letter is attached to the Jolly

declaration as Exhibit E-1.)

1 EOUSA’s response in this case is a categorical denial and is typically asserted to deny access to a third party’s law enforcement records in the absence of a receipt of a privacy waiver or proof of death pursuant to FOIA exemptions (b)(6) and (b)(7)(C), 5 U.S.C. §§ 552(b)(6) and (b)(7)(C), and the Privacy Act of 1974, 5 U.S.C. § 552a(b). See also 28 C.F.R. § 16.3. The categorical withholding of third-party records response differs from a response that neither confirms or denies the existence of responsive records, i.e., a “Glomar” response. See Jolly Decl., at 7 n. 1.

2 EOUSA has no record of receiving third-party authorization from Plaintiff. In addition, EOUSA has no record of receiving a response from Plaintiff regarding whether it was interested in obtaining copies of any responsive public records that may exist in the United States Attorney Office’s (USAO) files. See Jolly Decl., at 7 n. 2.


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20. As stated above, the Plaintiff explicitly requested only information which is exempt from

disclosure pursuant to Exemptions 6 and 7(C); therefore, EOUSA did not conduct a search and

denied the request. Jolly Decl at 11.



/s/ By: ________________________________ HEATHER D. GRAHAM-OLIVER Assistant United States Attorney Judiciary Center Building 555 4th St., N.W. Washington, D.C. 20530 (202) 305-1334 [email protected]



) CITIZENS FOR RESPONSIBILITY ) AND ETHICS IN WASHINGTON ) ) ) Plaintiff, ) ) Civil Action No. 11-0374 (RLW) v. ) ) UNITED STATES DEPARTMENT OF ) JUSTICE, et al., ) ) Defendant. ) )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

The FOIA “represents a balance struck by Congress between the public’s right to know

and the government’s legitimate interest in keeping certain information confidential.” Ctr. For

Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003). Relevant to this

action are Exemption 6, which excepts “personnel and medical files and similar files the

disclosure of which would constitute a clearly unwarranted invasion of personal privacy and

Exemption 7(C), which protects from disclosure ‘records or information compiled for law

enforcement purposes” to the extent that disclosure “could reasonably be expected to constitute

an unwarranted invasion of personal privacy. 5 U.S.C. §552(b)(6) and (b)(7). It is pursuant to

these Exemptions that third-party criminal records were withheld in the absence of a showing of


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a public interest sufficient to outweigh existing significant privacy rights, proof of death or a

privacy waiver.1

The Defendant, United States Department of Justice (DOJ) and its components, the

Office of Information Policy (OIP), the Criminal Division (CRM) and the Executive Office for

the United States Attorney (EOUSA) (collectively referred to as DOJ) submit this memorandum

of points and authorities in support of their Motion for Summary Judgment concerning the

Plaintiff’s request for criminal investigatory records pertaining to Paul J. Magliocchetti, a private

citizen. Plaintiff explicitly desires only the criminal investigatory and prosecution files of Mr.

Magliocchetti.2

In order to protect the privacy interests of third parties, DOJ has developed policies when

responding to and processing requests for third-party criminal investigatory and prosecutorial

information pursuant to the FOIA. Specifically, unless the requester demonstrates an overriding

public interest in disclosure of the third-party law enforcement records, or submits a privacy

waiver or proof of death, DOJ will categorically deny access to those records pursuant to

Exemption (b)(7)(C) because disclosure could reasonably be expected to constitute an

1 The Attorney General has promulgated regulations that prescribe rules for DOJ components, such as CRM and EOUSA to follow when handling requests for records under the FOIA, 28 C.F.R. § 16.1, et seq. Although the regulations do not prescribe specific rules regarding requests for records pertaining to third-parties, they emphasize the importance of third-party privacy rights by stressing that: (1) if a requester is “making a request for records about another individual, either a written authorization signed by that individual permitting disclosure of those records to [the requester] or proof that the individual is deceased . . . will help the processing of [the] request, id., at § 16.3; and (2) the rules be read in conjunction with the Privacy Act of 1974, 5 U.S.C. § 552a(b), which prohibits an agency from disclosing information about a living third-party without a written privacy waiver, unless the FOIA requires disclosure. 28 C.F.R. §§ 16.1, 16.40. 2 OIP maintains only public records and weekly component reports that relate to Mr. Magliocchetti. The Plaintiff was informed of such and has indicated that it has no interest in this material. See Declaration of Vanessa R. Brinkmann, Counsel to the Initial Request (IR) Staff of the Office of Information Policy (OIP), United States Department of Justice, ¶ 17.


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unwarranted invasion of the individual’s privacy. DOJ has also invoked Exemption (b)(6) in

conjunction with Exemption (b)(7)(C), to deny access to third-party law enforcement records.

II. BACKGROUND

DOJ respectfully refers the Court to its statement of material facts as to which there is no

genuine issue, which is attached to this motion and fully incorporated herein.

III. DOJ POLICIES REGARDING THIRD PARTY LAW ENFORCEMENT INFORMATION

A. EOUSA’s Practice Regarding FOIA Requests for Third-Party Law

Enforcement Information.

In response to third-party requests for access to criminal investigatory records, EOUSA

requires a third-party to provide an authorization to release his or her law enforcement

information to the requestor, proof that the subject third party is deceased, or a meaningful

evidentiary showing that the public interest in disclosure outweighs the substantial privacy

interest in non-disclosure.1 If the requestor identifies a public interest in disclosure of third-

party records, EOUSA will balance the private and asserted public interests for the type of law

enforcement records and make determinations on a case-by-case basis. The decision to conduct

a document-by-document search and review of the responsive material is not made until after

balancing the privacy and public interests and determining whether there is an overriding public

interest. Jolly Decl. at 4. In this case, Plaintiff failed to establish an overriding public interest

sufficient to outweigh Mr. Maggliochetti’s privacy interest and as such, the request was

categorically denied and no search was conducted. Jolly Decl. at 15.

1 EOUSA will release any public records upon request without express authorization or public justification for release. In the present case, the Plaintiff explicitly requested only law enforcement investigatory records which are exempt from disclosure pursuant to Exemptions 6 and 7(C). See Jolly Decl., at 15 n. 1.


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B. CRM’s Practice Regarding FOIA Requests for Third-Party Law Enforcement Information.

It is also CRM’s current practice to deny access to law enforcement records about a third

party in the absence of written consent by the third party to disclose his records or proof of his

death, unless plaintiff establishes a public interest that would override the individual’s privacy

interests. CRM predicates this response on the Privacy Act in conjunction with FOIA

Exemptions 6 and 7(C). Ellis Decl., at 15.

The Privacy Act prohibits disclosure of any record contained in a system of records

absent a written request by, or written consent of, the individual about whom the record pertains,

unless disclosure is required by the FOIA, 5 U.S.C. § 552a(b)(2), or is permitted by any of the

other eleven exceptions listed in the Act. 5 U.S.C. § 552a(b)(1), (3) – (12). Id., at 16.

Criminal case files maintained by the Criminal Division are part of a DOJ Privacy Act

System of Records. Plaintiff has not provided written consent from Mr. Magliocchetti for access

to his records, nor has it established that Mr. Magliocchetti is deceased. Under such

circumstances, CRM will analyze the request to determine whether disclosure is required under

the FOIA, see 5 U.S.C. § 552a (b)(2), and in particular, whether the records are exempt under

FOIA Exemptions 6 and 7(C). Id., at 17

Under current practice in response to a request for third party law enforcement records

where written consent or proof of death is lacking, CRM will normally issue a so-called

“Glomar” response in conjunction with FOIA Exemptions 6 and 7(C). The Glomar response

neither confirms nor denies the existence of responsive records because to do so would itself

undermine the third party’s privacy interests, contrary to FOIA Exemptions 6 and 7(C).

However, when an investigation has been publicly acknowledged by the Criminal Division in

some fashion (e.g., through a public indictment or a press release as is the case with Mr.


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Magliocchetti), CRM will not rely on the “Glomar” response, but rather will categorically deny

access to the records based on FOIA Exemptions 6 and 7(C). Id., at 18.

Accordingly, it is DOJ’s position that “whether [they] actually searched for records . . . is

immaterial . . .because that refusal deprive[s] [plaintiff] of nothing to which [it] is entitled.”

Lewis v. U.S. Department of Justice, 609 F.Supp.2d 80 (D.D.C. 2009).

IV. LEGAL STANDARDS

A. Standard of Review

Summary judgment is the procedure by which courts resolve nearly all FOIA actions.

See Reliant Energy Power Generation, Inc. v. FERC, 520 F. Supp. 2d 194, 200 (D.D.C. 2007).

As with non-FOIA cases, summary judgment is appropriate when there is no genuine issue as to

any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56 (c); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995).

In order to obtain summary judgment, an agency bears the burden of justifying its

decision to withhold records pursuant to FOIA's statutory exemptions. See 5 U.S.C. §

552(a)(4)(B). An agency may satisfy its burden solely on the basis of reasonably specific

affidavits or declarations that demonstrate that the information at issue falls within the claimed

exemption(s), and are not controverted by either contrary evidence or by evidence of bad faith.

See Strunk v. us. Dep't of Interior, 752 F. Supp. 2d 39, 42-43 (D.D.C. 2010); Butler v. Drug

Enforcement Admin., No, 05-1798, 2006 WL 398653, at *2 (D.D.C. Feb. 16, 2006) (quoting

Military Audit Project v. Casey, 656 F.2d 724,738 (D.C. Cir. 1981)).

Agency affidavits or declarations are accorded "a presumption of good faith, which

cannot be rebutted by 'purely speculative claims about the existence and discoverability of other

documents.'" SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting


6

Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)); see also Strunk, 752 F.

Supp. 2d at 43. "Ultimately, an agency's justification for invoking a FOIA exemption is

sufficient if it appears logical or plausible." Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)

(internal quotation marks and citations omitted).

V. ARGUMENT

A. DOJ’s Categorical Denial of Plaintiff’s Request For Third Party Law Enforcement Records Is Proper Where Plaintiff Provided No Privacy Waiver or Proof of Death and Failed to Identify a Cognizable Public Interest. I. The Privacy Act. The Privacy Act, 5 U.S.C § 552a(b), states as follows:

No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior consent of, the individual to whom the record pertains ... Criminal case files maintained by CRM and the U.S. Attorney’s Office are part of the DOJ

Privacy Act System of Records. Ellis Decl., ¶ 17; Jolly Decl. ¶ 13. Plaintiff has requested

records pertaining to Paul Magliochetti, a third party but did not provide proof of consent by Mr.

Magliochetti or proof of death. Id. Accordingly, the Privacy Act prohibits disclosure of third-

party records unless required under the provisions of the FOIA. See 5 U.S.C. § 552a(b)(2).

II. Justification for Non-Disclosure under the FOIA.

A. Exemption 5 U.S.C. § 552(b)(7)(C)

The Records were Compiled for Law Enforcement Purposes.

Exemption 7 of the Freedom of Information Act protects from disclosure “records or

information compiled for law enforcement purposes, but only to the extent that the production of


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such law enforcement records or information . . . (C) could reasonably be expected to constitute

an unwarranted invasion of personal privacy . . .” 5 U.S.C. § 552(b)(7).

Federal agencies must meet the threshold requirements of Exemption 7 before they may

withhold requested documents on the basis of any of its subparts. Pratt v. Webster, 673 F.2d

408, 416 (D.C. Cir. 1982). That threshold requires the records or information to be “compiled

for law enforcement purposes.” 5 U.S.C. § 552(b)(7). “In assessing whether records are

compiled for law enforcement purposes . . . the focus is on how and under what circumstances

the requested files were compiled, . . . and whether the files sought relate to anything that can

fairly be characterized as an enforcement proceeding.” Banks v. Department of Justice, No. 06-

1950, WL 701211 (D.D.C. Mar. 16, 2008) at * 9; Tax Analysts v. Internal Revenue Services,

294 F.3d 71, 76-79 (D.C. Cir. 2002); Jefferson v. Department of Justice, 284 F.3d 172, 176-77

(D.C. Cir. 2002); Campbell v. Department of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998); Pratt,

673 F.2d at 419.

In Tax Analysts, the Court recognized that there were two types of investigatory files that

government agencies compile: (1) files in connection with government oversight of the

performance of duties by its employees, and (2) files in connection with investigations that focus

directly on specific alleged illegal acts which could result in civil or criminal sanctions. 294 F.3d

at 78 (citing Rural Housing Alliance v. Dep’t of Agriculture, 498 F.2d 73, 81 (D.C. Cir. 1974)).

The Court reaffirmed that if the investigation is for a possible violation of law, then the inquiry is

for law enforcement purposes. Id. See Baez v. FBI, 443 F.Supp. 2d 717, 724 (E.D. Pa. 2006)

(declaring that “there is no question” that documents pertaining to “investigation of crimes,”

were compiled for law enforcement purposes); Thomas v. DOJ, 531 F. Supp. 2d 102, 107

(D.D.C. 2008) (finding records pertaining to investigation and prosecution of assault and


8

kidnapping satisfy law enforcement threshold); Long v. DOJ, No. 00-0211, 2006 WL 2578755,

at *77 n. 20 (D.D.C. 2006) (accepting agency’s uncontested assertion that records are compiled

for law enforcement purposes when government is in role of prosecutor or plaintiff); Boyd v.

ATF, No. 05-1096, 2006 U.S. Dist. LEXIS 71857, at *1, *22 (D.D.C. 2006).

There is little, if any, doubt that the Plaintiff’s request, in the instant case, pertains to law

enforcement records held by the U.S. Attorney’s Office for the Eastern District of Virginia and

the Criminal Division. Indeed, the Plaintiff’s own FOIA request contemplates that the records at

issue were created for law enforcement purposes insofar as it seeks all records “pertaining to the

investigation and prosecution of Paul J. Magliocchetti, the founder and owner of PMA Group,

Inc., for false statements, making illegal conduit campaign contributions, and any other charges

at issue in United States of America v. Paul J. Magliocchetti, Crim. No. 1:10-cr-287 (E.D. Va).”

See Ellis Declaration, Exhibit 1. It is undisputed that the records the Plaintiff seeks are contained

in a criminal file and pertain to the investigation of crimes.

Plaintiff’s Failure to Articulate a Public Interest Cognizable Under Exemption 7( C).

Plaintiff’s challenge to DOJ’s invocation of Exemption 7(C) is but a thinly veiled variation of

a FOIA requester’s unsupported suspicions that the withheld records may contain exculpatory

material entitling the requester to obtain law enforcement records about himself and about third

parties. That argument fails. See Lewis, supra. The public interest has to be more specific than

having the information for its own sake. Brown v. DOJ, 742 F. Supp. 2d 126, 132 (D.D.C.

2010).

DOJ withheld Mr. Magliocchetti’s criminal records because their disclosure “could

reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. §

552(b)(7)(C); Ellis Decl., at 21; Jolly Decl., at 18. Exemption 7(C) protects the privacy of third


9

parties named in the challenged records and can only be overcome by a showing that a

significant public interest would be served by disclosure. Nat’l Archives and Records Admin. v.

Favish, 541 U.S. 157, 166 (2003). The privacy interests Exemption 7(C) protects “are

particularly difficult to overcome when law enforcement information regarding third parties is

implicated.” Martin v. Dep’t of Justice, 488 F.3d 446, 457 (D.C. Cir. 2007) (citing U.S. Dep’t of

Justice v. Reporters Comm. For Freedom of the Press, 489 U.S. 749, 780 (1989)). To make this

particularly difficult showing, Favish requires Plaintiff (1) to assert a cognizable public interest;

(2) that he supports with competent evidence; and then (3) show that the information sought is

likely to advance the interest asserted. See Favish, 541 U.S. at 172. If a public interest exists,

the Court may consider it as “a counterweight on the FOIA scale. . .to balance against the

cognizable private interests in the requested records.” Favish, 541 U.S. at 174. If, however,

there is no cognizable public interest at stake, the Court’s inquiry ends because there is nothing

“to put the balance into play.” Id., at 175. Here the only relevant public interest for purposes of

Exemption 7(C) – what the Supreme Court has aphoristically described as “let[ting] citizens

know what their government is up to” - does not encompass requests for information about a

single criminal investigation or prosecution. Consumers’ Checkbook Ctr. for the Study of Servs.

v. U.S. Dep’t of Health & Human Servs., 554 F.3d 1046, 1059 (D.C. Cir. 2009) (quoting

Reporters Comm., 489 U.S. at 773). Rarely does a public interest outweigh an individual’s

privacy interest when law enforcement information pertaining to an individual is sought.

Fitzgibbon v. CIA, 911 F.2d 755, 768; Brown v. DOJ, 742 F. Supp. 2d 126 (D.D.C. 2010).

Because Plaintiff falls short of even the threshold requirement, the Favish inquiry ends and

DOJ’s categorical denial under Exemption 7(C) should be upheld.


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Categorical exemptions which do not require a search are available under FOIA in some

circumstances. See e.g., Reporters Comm., 489 U.S. at 779. The D.C. Circuit recently

reaffirmed its approval of the categorical treatment of 7(C) protected information without the

necessity of conducting a search. Blackwell v. FBI, 2011 U.S. App. LEXIS 13387 *11 (D.C.

Cir. 2011). “[T]here are limits, though, to when categorical rules may be employed. Only when

the range of circumstances included in the category “characteristically support[s] an inference”

that the statutory requirements for exemption are satisfied is such a rule appropriate.” United

States v. Landano, 508 U.S. 165, (1993). Here, Plaintiff has failed to identify a public interest.

Plaintiff Has Proffered No Competent Evidence in Support of the Allegations of Government Misconduct It Raises.

Under Favish the relevant question is whether the requester has shown government

misconduct sufficient to overcome Exemption 7(C)’s protection for personal privacy. 541 U.S.

at 174. To obtain private information under the Favish test, the requester must at a minimum

“produce evidence that would warrant a belief by a reasonable person that the alleged

Government impropriety might have occurred.” 3 Id.

Plaintiff avers that “the records are likely to contribute to greater public awareness of the

extent to which the Criminal Division and DOJ have taken any steps to prevent Mr.

Magliocchetti and the public from learning about any aspect of the United States’ investigation

3 In Roth v. U.S. DOJ, 2011 U.S. App. LEXIS 13124 (D.C. Cir., June 28, 2011), the Plaintiff produced concrete evidence rather than speculative assertions in order to establish a public interest. Plaintiff produced two sworn witness statements that implicated three men in the murder that Plaintiff had previously been convicted of and placed upon death row. The Court held that with this information, the public has an interest in knowing whether the federal government is withholding information that could corroborate a death-row inmate’s claim of innocence, and that this interest outweighs the three men’s privacy interest in having the FBI not disclose whether it possesses any information linking them to the murders. Similarly in Blackwell, the D.C. Circuit found that Plaintiff had not established government misconduct because he failed to provided concrete evidence such as reference to testimony, supporting photographs and expert documentation. Supra., at *8.


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and prosecution of Mr. Magliocchetti including, but not limited to, preventing any inquiry into or

public airing of Mr. Magliocchetti’s relationship with members of Congress.” It claims that

provisions in the government’s written plea agreement with Mr. Magliocchetti waiving all FOIA

and Privacy Act rights Mr. Magliocchetti has in this information and the failure of the plea

agreement to require Mr. Magliocchetti’s continued cooperation are “unprecedented” and

suggest the government seeks to prevent the public from learning whether any members of

Congress knew or should have known of Mr. Magliocchetti’s illegal activities. It then avers that

the requested documents would shed light on this issue and how the Department of Justice is

fulfilling its responsibilities to investigate and prosecute crimes. Ellis Decl. at 23 and Exhibit 1,

p. 2-3; and Jolly Decl. at 16 and Exhibit A-1.

Plaintiff continues by suggesting that “there is a particular urgency to inform the

public about the extent to which DOJ has attempted to suppress information pertaining to

members of Congress and their relationship with Mr. Magliocchetti and PMA Group,

Inc, and the exact nature of that information in light of the upcoming congressional

elections.” Ellis Decl. at 23 and Exhibit 1, p. 4-5; and Jolly Decl. at 16 and Exhibit A-1,

p. 4-5. (Emphasis added).

Under Favish, Plaintiff must provide enough evidence that “would warrant a

belief by a reasonable person” that government misconduct was afoot in the investigation

and prosecution of Magliocchetti. 541 U.S. at 174. Blackwell v. FBI, 2011 U.S. App.

LEXIS 13387 *6-7. (D.C. Cir. 2011). The evidence must “point[] with credibility to

some actual misfeasance.” Favish at 173 (emphasis added). “Unsupported assertions of

government wrongdoing. . .do not establish ‘[the] meaningful evidentiary showing” that

Favish requires. Boyd v. Criminal Division of the U.S. Dep’t of Justice, 475 F.3d 381,


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388 (D.C. Cir. 2006) (quoting Favish, 541 U.S. at 175); see Oguaju, 378 F.3d at 1117

(“[M] ere assertions are not evidence of government impropriety. . . .”); see also id. (“[I]n

the absence of clear evidence to the contrary, courts presume that [government officers]

have properly discharged their official duties.”) (quoting United States v. Armstrong, 517

U.S. 456, 464 (1996)). Without adducing the clear evidence of wrongdoing that Favish

demands, a FOIA requester cannot rebut the “presumption of legitimacy accorded to the

Government’s official conduct.” Favish, 541 U.S. at 174.

Plaintiff falls well short of satisfying Favish’s reasonable-person standard. While the

information sought by Plaintiff might show something about particular individuals (Mr.

Magliocchetti or anyone else who may be mentioned in his law enforcement records), that

information would not necessarily shed any light on DOJ or the prosecutors’ activities.

Moreover, Plaintiff has not made any meaningful evidentiary showing of misconduct by DOJ or

the prosecutors handling the case. Its supposition that the Criminal Division and U.S. Attorneys

are attempting to conceal information about Mr. Magliocchetti and his dealings with

Congresspersons from the public, without more, is entirely speculative and so falls far short of

the “meaningful evidentiary showing” required by Favish. Plaintiff’s speculation is not enough

to “warrant a belief by a reasonable person that the alleged Government impropriety might have

occurred.” Favish, 541 U.S. at 174.

Also, despite Plaintiff’s characterization of the FOIA/Privacy Act waiver in Mr.

Magliocchetti’s plea agreement as “unprecedented,” there are numerous instances where such a

provision was included in a plea agreement. See, e.g., Ebling v. Department of Justice, 2011 WL

2678935 (D.D.C. Jul. 11, 2011) (slip copy) (FOIA case where request was precluded by

FOIA/Privacy Act waiver in criminal plea agreement); Boyce v. United States, 2010 WL


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2691609 (W.D.N.C. Jul. 6, 2010) (unpub.) (same); Caston v. Executive Office for United States

Attorneys, 572 F.Supp.2d 125 (D.D.C. 2008) (same); Patterson v. Federal Bureau of

Investigation, 2008 WL 2597656 (E.D. Va. Jun. 27, 2008) (unpub.) (same); United States v.

Scott, 2006 WL 3327624 (W.D. Va. Nov. 16, 2006) (unpub.) (criminal case where the court

recited terms of defendant’s plea agreement). See Ellis Decl., at 24 and Plea Agreement,

attached thereto as Exhibit 11, p. 5; Jolly Decl. at 16. Plaintiff offers no evidence to support its

claim that use of a garden-variety prosecutorial tool like the waiver of Appeal, FOIA and Privacy

Rights provision in the Plea Agreement is even suggestive of government wrongdoing.

Moreover, such a provision only prevents Magliocchetti from seeking the records

concerning his prosecution (in order to conserve government resources). It says nothing of the

public’s ability to seek that information with Magliochetti’s consent, after his death, or with an

evidentiary showing of actual government misconduct.

Favish’s Balancing Test Weighs Decisively In Favor of Maggliochetti’s Interests in Personal Privacy.

Because Plaintiff has failed to offer any cognizable public interest, the Court need not

balance the public and private interests at stake. Were it to do so, however – and assuming that

the showing Plaintiff has made supports this hypothetical public interest – the privacy interest

still wins out.

Whereas Plaintiff has, at best, adduced a purely speculative public interest in the withheld

documents, this Court has observed that “third parties…mentioned in investigatory files” and

“witnesses and informants who provide information during the course of an investigation” enjoy

an “obvious” and “substantial” privacy interest in their information. Martin, 488 F.3d at 458

(quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 894 (D.C. Cir. 1995)). In fact,

because Plaintiff seeks to obtain law enforcement information regarding a third party, the privacy


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interest protected by Exemption 7(C) is “at its apex” whereas the FOIA-based public interest in

disclosure is “at its nadir.” Id. (quoting Reporters Comm., 489 U.S. at 780). Accordingly,

Magliochetti and all third parties mentioned in the withheld records have a robust privacy

interest in continued withholding.

Furthermore, in Favish, the Supreme Court held that a third-party privacy interest is not

diminished merely because the individual’s name may have already become a matter of public

record or because information identifying him had been published. See 541 U.S. at 171. This

Circuit has also held that the mere naming of an individual in public records – judicial opinions

or public police records, for example – does not diminish the individual’s interest in personal

privacy. See Martin, 488 F.3d at 458 (“[A] person’s privacy interest in law enforcement records

that name him is not diminished by the fact that the events they describe were once a matter of

public record.”) (citing Reporters Comm., 489 U.S. at 779-80); see also Reporters Comm., 489

U.S. at 764.

Mr. Magliocchetti has significant privacy interests in criminal law enforcement records

about him. The fact that he was indicted and pled guilty does not alter the conclusion that he

retains privacy interests under the FOIA. By pleading guilty, Mr. Magliocchetti prevented

further public exposure and disclosure of personal information that would have occurred during a

criminal trial.4 Cf. The Times Picayne Publishing Corp. v. U.S. Dep’t of Justice, 37 F.Supp. 2d

4 Mr. Magliocchetti’s indictment, plea agreement and accompanying statement of facts,

and related press releases describe in general terms activities by Mr. Magliocchetti that led to his indictment and guilty plea, but contain very little personal information about him. True and accurate copies of DOJ’s press releases about Mr. Magliocchetti’s indictment and guilty plea are attached hereto as Exhibits 7-9. True and accurate copies of the Indictment (United States v. Magliocchetti, 1:10-cr-0286-TSE (D.D.C.), Docket (“Dkt.”) No. 1), the Plea Agreement (United States v. Magliocchetti, 1:10-cr-0286-TSE (D.D.C.) Dkt. No. 22), and the Statement of Facts (United States v. Magliocchetti, 1:10-cr-0286-TSE (D.D.C.) Dkt. No. 23) are attached hereto as Exhibits 10-12.


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472 (E.D. La. 1999). Ellis Decl. at 22. Jolly Decl. at 15. The individuals, including Mr.

Maggliochetti, whose names and personal information are contained in the prosecutors’

investigatory files therefore enjoy a privacy interest at the “apex” of the privacy protection

Exemption 7(C) confers.

In contrast, the public interest Plaintiff asserts is unsupported. As described, supra,

Plaintiff proffers no competent evidence of governmental wrongdoing affecting Mr.

Magliocchetti’s investigation or prosecution. Plaintiff’s abstract appeals to a public interest in

ensuring prosecutorial integrity are rhetoric, not evidence.

In short, Plaintiff is asking this Court to balance a personal privacy interest that is “at its

apex” with a hypothetical public interest that is “at its nadir.” The privacy interest

unquestionably prevails. See generally Nat’l Ass’n of Retired Fed. Employees v. Horner, 879

F.2d 873, 879 (D.C. Cir. 1989) (“[S]omething …outweighs nothing every time.”).

B. Exemption 5 U.S.C. § 552 (b)(6)

Exemption (b)(6) permits the withholding of information contained in personnel, medical,

and similar files, which if disclosed would constitute a clearly unwarranted invasion of personal

privacy. 5 U.S.C. § 552(b)(6). This exemption protects from disclosure information that applies

to a particular, identifiable individual. U.S. Dep’t of State v. Washington Post Co., 456 U.S.

595, 599-600 (1982) (“[T]he primary concern of Congress in drafting Exemption 6 was to

provided for the confidentiality of personal matters.”). For this Exemption to apply, the

information at issue must be maintained in a government file and apply to a particular individual.

Id., at 602.

Once this threshold requirement is met, Exemption 6 requires the agency to balance the

individual’s right to privacy against the public’s interest in disclosure. See Dep’t of Air Force v.


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rose, 425 U.S. 352, 372 (1976); Reedy v. NLRB, 927 F.2d 1249, 1251 (D.C. Cir. 1991). “The

privacy interest protected by Exemption 6, ‘encompass[es] the individual’s control of

information concerning his or her person.’” U.S. Dep't of Defense v. FLRA, 510 U.S. 487, 500

(1994) (quoting U.S. Dep't of Justice v. Reporters Comm., 489 U.S. 749, 763 (1989)). In

contrast, “the only relevant public interest in the [Exemption 6] balancing analysis [is] the extent

to which disclosure of the information sought would ‘she[d] light on an agency's performance of

its statutory duties' or otherwise let citizens know 'what their government is up to.’” Id. at 497

(quoting Reporters Comm., 489 U.S. at 773). It is the requester's obligation to identify a

cognizable public interest. Absent the requester's identification of a public interest, “the

balancing requirement does not come into play.” Griffin v. Exec. Office for US. Attorneys, 774

F. Supp. 2d 322, 327 (D.D.C. 2011) (citing Nat'l Archives & Records Admin. v. Favish, 541

U.S. 157, 175 (2004)). Thus, “[i]n the absence of any public interest in disclosure, any

countervailing interest in privacy defeats a FOIA request.” Oguaju v. United States, 288 F.3d at

451 (citing Nat'l Ass'n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989)

(“[S]omething ... outweighs nothing every time”)).

DOJ’s balancing of the privacy and public interest in determining whether to withhold third-

party information under Exemption (b)(7)(C), supra., applies equally to the balancing of interests

under Exemption 6.

C. OIP Performed An Adequate Search.

OIP has conducted a reasonable search of its Program Offices and has found no criminal

investigatory records. See Oglesby v. U.S. Department of Army, 920 F.2d 57, 68 (D.C. Cir.

1990); Schoenman v. Federal Bureau of Investigation, 2009 WL 763065, at *10 (D.D.C. 2009);


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Bonaparte v. Department of Justice, 531 F. Supp. 2d 118, 122 (D.D.C. 2008); and SafeCard

Services, Inc. v. Securities and Exchange Commission, 926 F.2d 1197, 1201.

The established reasonableness standard by which FOIA searches are judged “does not

require absolute exhaustion of the files; instead it requires a search reasonably calculated to

uncover the sought materials.” Miller v. Dept. of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985).

Thus, “the issue in a FOIA case is not whether the agencies’ searches uncovered responsive

documents, but rather whether the searches were reasonable.” Moore v. Aspin, 916 F. Supp. 32,

35 (D.D.C. 1996); see also Fitzgibon v. U.S. Secret Service, 747 F. Supp. 51, 54 (D.D.C. 1990);

Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986).

The search standards established under the FOIA do not require an agency to search

every record system, but rather, the agency need only search those systems in which it believes

responsive records are likely to be located. Oglesby, 920 F.2d at 68. Even when a requested

document indisputably exists or once existed, summary judgment will not be defeated by an

unsuccessful search for the document so long as the search was diligent. Nation Magazine,

Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 892 n.7 (D.C. Cir. 1995).

On September 27, 2010, Anne L. Weismann, on behalf of Plaintiff Citizens for

Responsibility and Ethics in Washington (CREW), submitted a FOIA request to OIP for records

pertaining to the investigation and prosecution of Paul J. Magliocchetti.5 Declaration of Vanessa

Brinkmann, (Brinkmann Decl.),¶ 3. In its request letter, Plaintiff specifically sought records

from OAG, ODAG and OASG.6 Therefore, OIP conducted searches for responsive records in

those offices. Id., at 5. All files likely to contain responsive records were searched. Id.

5 OIP handles initial requests for records of the Offices of the Attorney General (OAG), Deputy Attorney General (DAG) and Associate Attorney General (OASG). 6 These are considered to be senior leadership offices.


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Because of the nature of these senior leadership offices, they may maintain records that

are not exempt under Exemption 6 or 7(C). Unlike CRM and the U.S. Attorneys Offices, OAG,

OADG and OASG are not considered to be law enforcement components of DOJ.

On October 6, 2010, the OIP FOIA Specialist assigned to plaintiff’s request conducted a

records search of the electronic database of the Departmental Executive Secretariat, which is the

official records repository for OAG, ODAG, and OASG. The Departmental Executive

Secretariat uses a central database to control and track certain incoming and outgoing

correspondence for the Department’s senior management offices. This Intranet Quorum (IQ)

database maintains records from January 1, 2001 through the present. Records received by the

designated senior management offices are entered in IQ by trained Executive Secretariat

analysts. The data elements entered into the system include such items as the date of the

document, the date of receipt, the sender, the recipient, as well as a detailed description of the

subject of the record. In addition, entries are made that, among other things, reflect what action

is to be taken on the records, which component has responsibility for that action, and when that

action should be completed. Keyword searches of the electronic database may then be

conducted by utilizing a single search parameter or combinations of search parameters. Search

parameters may include the subject, organization, date, name, or other keywords. Id., at 6.

The FOIA Specialist assigned to plaintiff’s request conducted a keyword search of the

Executive Secretariat’s IQ database using the term “Magliocchetti.” The search was conducted

without a date restriction and, accordingly, it would have encompassed all records from January

1, 2001 to October 6, 2010. No records pertaining to plaintiff’s FOIA request were located as a

result of the search of the Departmental Executive Secretariat’s IQ database. Id., at 7.


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With respect to searches conducted in individual offices, OIP initiates such searches by

sending a memorandum to each Office which notifies the Office of the receipt of the request and

the need to conduct a search. The general practice for all of these Offices, upon receipt of a

search memorandum, is to notify each individual staff member in that Office of the receipt of

OIP’s memorandum requesting that a search be conducted, and each staff member’s files, both

paper and electronic, are then searched as necessary for records responsive to the request. A

search of an official’s computer files usually includes a search of the e-mail system of that

official, and can include a hard drive search if the official indicates that one is called for. Id., at

8.

By memoranda dated October 13, 2010, searches were initiated in OAG and OASG for

records responsive to plaintiff’s FOIA request. Id., at 9. By memorandum dated October 14,

2010, a search was initiated in ODAG for records responsive to plaintiff’s FOIA request. Id., at

11. Pursuant to a telephone conversation, OAG advised OIP that its initial records search was

partially complete. OAG asked that OIP search the electronic files of one former OAG official

for responsive records. Id., at 11.

Pursuant to OAG’s request, on November 17, 2010, the FOIA Specialist assigned to

plaintiff’s request conducted a search of the OAG official’s electronic files using the search term

“Magliocchetti.” The FOIA Specialist also conducted a search of the official’s e-mails in the

Enterprise (EV) Vault. The EV Vault maintains the e-mails of current and former Department of

Justice staff. The search term used was “Magliocchetti.” OIP located no responsive records.

Id., at 12.

By memorandum dated November 19, 2010, OAG advised OIP that it had located no

records responsive to plaintiff’s request. Id., at 13. By memorandum dated January 13, 2011,


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OASG advised OIP that it had completed its records search and located no records responsive to

plaintiff’s request. Id., at 14. By memorandum dated February 3, 2011, ODAG advised OIP that

its initial records search was complete, and asked that OIP search the electronic files of two

former ODAG officials. Because ODAG’s memorandum indicated that the two officials would

only maintain potentially responsive e-mails, and not other electronic files, OIP determined that

only an e-mail search was required for these individuals. Id., at 15.

On February 14, 2011, the FOIA Specialist assigned to plaintiff’s request conducted a

search of each identified ODAG official’s e-mails in the EV Vault. The search term used was

“Magliocchetti.” All material located in the e-mail searches was reviewed for responsiveness to

plaintiff’s FOIA request. Id.,at 16.

Pursuant to a telephone conversation on February 14, 2011, the FOIA Specialist assigned

to plaintiff’s request advised Ms. Weismann of CREW that the records located in ODAG

consisted of press releases, court filings, and weekly component reports provided to ODAG by

the Criminal Division. The FOIA Specialist further advised that these weekly component reports

are routinely provided to the Department’s senior leadership offices and contain short summaries

of the work components are performing on various topics and, as such, that none of the

documents located in ODAG, including the weekly reports, contain the opinions, directives,

analysis, or any other response of any member of the ODAG staff regarding Paul J.

Magliocchetti. In response, Ms. Weismann indicated that she was not interested in this material.

Therefore, no records responsive to plaintiff’s request were located in ODAG. Id., at 17.

Because plaintiff did not specify a date range in the request letter, and the record searches

described above would encompass only the records of current administration employees, the

FOIA Specialist assigned to Plaintiff’s request conducted a search of former OAG, ODAG and


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OASG employees’ records indices, which list file folder titles maintained by these individuals,

arranged according to subject. Any subject file titles of the former officials that appeared to

contain potentially responsive records would then need to be retrieved and reviewed from retired

records storage facilities, including Federal Records Centers. Because OIP’s background

research concerning Mr. Magliocchetti indicated that federal involvement in his case dated back

to 2008, a search of the records indices of the administration of former attorney General Michael

Mukasey (November 9, 2007 to January 20, 2009) was conducted. On February 15, 2011, the

FOIA Specialist assigned to plaintiff’s request conducted a search of the records indices of all

former OAG, ODAG and OASG staff from the Mukasey Administration using the term

“Magliocchetti.” OIP located no records as a result of this search. Id., at 18.

In sum, the evidence demonstrates that the search conducted by the OIP was reasonable

and done in good faith. The files of each office likely to have records responsive to the request

were searched. See Brinkmann Declaration. Because OIP has established that the search was

reasonable, summary judgment should be granted and OIP dismissed.

VI. CONCLUSION

Plaintiff has failed to meet its burden of establishing that there is any public interest in

disclosure that outweighs the privacy interest of the named third-party individual. Accordingly,

“whether defendants actually searched for records ... is ‘immaterial ... because that refusal

deprived [plaintiff] of nothing to which he is entitled.’” Lewis v. U.S. Department of Justice, 609

F.Supp.2d 80 (D.D.C.) (2009); Blackwell v. FBI, supra at *11 (Because a search for records

“pertaining to” specific individuals, . . . would have added only information that we have

concluded is protected by Exemption 7(C), it follows that the FBI was correct in declining to


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search for such documents.) Moreover, OIP should be dismissed because their search was

reasonable and they have no investigatory files.

WHEREFORE, for all the reasons set forth above, the Defendant DOJ respectfully requests

the Court to grant its motion and enter judgment in its favor.



/s/ By: ________________________________ HEATHER D. GRAHAM-OLIVER Assistant United States Attorney Judiciary Center Building 555 4th St., N.W. Washington, D.C. 20530 (202) 305-1334 [email protected]


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