751 F.Supp. 502 (D.N.J. 1990), Civ. A. 90-1953, Landano v. United States Dept. of Justice

Docket Nº:Civ. A. 90-1953
Citation:751 F.Supp. 502
Party Name:Landano v. United States Dept. of Justice
Case Date:November 29, 1990
Court:United States District Courts, 3th Circuit, District of New Jersey

Page 502

751 F.Supp. 502 (D.N.J. 1990)

Vincent James LANDANO, Plaintiff,


U.S. DEPT. OF JUSTICE, et al., Defendants.

Civ. A. No. 90-1953.

United States District Court, D. New Jersey.

Nov. 29, 1990

Neil Mullin, Smith, Mullin & Kiernan, West Orange, N.J., for plaintiff.

Susan C. Cassell, Office of the U.S. Atty., Newark, N.J., for defendants.


SAROKIN, District Judge.

Plaintiff, Vincent James Landano moves, pursuant to Fed.R.Civ.P. 56, for summary judgment in his action to compel the Federal Bureau of Investigation ("FBI") to release without redactions FBI information he requested pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The FBI cross-moves for summary judgment against plaintiff, claiming that its decision not to release certain information to

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plaintiff, and to release with redactions other requested information comports with certain statutory exceptions to FOIA. For the reasons given below, this court declares plaintiff's motion for summary judgment moot, partially grants defendant's cross-motion for summary judgment and partially denies defendant's cross-motion for summary judgment.


By promulgating the Freedom of Information Act ("FOIA"), Congress sought to "open agency action to the light of public scrutiny." Department of the Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1975). It did not intend to provide individual citizens with information about their fellow citizens for their own self-interested use. Yet the mere fact that an applicant possesses a substantial self-interest in the information does not disqualify him or her from requesting that information.

In this case, plaintiff claims that the FBI maintains in its files information which exculpates him from a murder for which he was convicted and may inculpate someone else; and that such information was systematically withheld from him and his counsel during his prosecution. Plaintiff's right to information that establishes his innocence and the public's interest in assuring that the innocent are not wrongfully convicted and confined furthers the policy concerns which engendered the statute. Where a person convicted of a serious crime can demonstrate, as petitioner has done here, that the prosecution possessed and concealed information which might have lead to petitioner's acquittal, such person and the public should be entitled to examine that information and the reasons and policies surrounding its concealment.

The court believes that the privacy interests and agency concerns expressed by the government can be protected by appropriate redactions, while petitioner and the public are afforded the opportunity for the scrutiny which the statute contemplates. The court does not mean to suggest that following every conviction a criminal defendant shall be entitled to review the entire investigative file. A substantial showing must be made, as has been made here, demonstrating a pattern of conduct which has severely prejudiced the plaintiff's rights, and thus the fairness and integrity of the criminal justice system itself.

The court rejects the government's offer for an in camera inspection by the court. Despite the court's familiarity with this matter and the contentions of plaintiff, the court is convinced that no impartial reviewer can examine these files with the same knowledge, intensity, and interest as plaintiff and his counsel. Matters of substantial significance could easily elude the court or anyone designated by the court to perform this task.

Finally, the court is concerned at the strident position taken by the United States Attorney in this matter, gratuitously disparaging the plaintiff's protestations of innocence. 1 The court makes no finding of wrongdoing on the part of the FBI in this matter, and the government is justified, and indeed required, to defend the agency and the integrity of its files. However, if there is evidence existing in those files which proves or tends to prove Mr. Landano's innocence, the government should be volunteering it rather than resisting its disclosure. Law enforcement agencies have as much of a duty to protect, and if necessary, free the innocent, as they do to convict and punish the guilty. The resistance to disclosure of information in this matter

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is not a testament to a system intent on seeking the truth and dispensing justice.


On August 13, 1976, two gunmen robbed the Hi-Way Check Cashing Service in Kearney, New Jersey. During the robbery, one of the gunmen shot and killed Newark Police Officer, John Snow. A Hudson County grand jury indicted plaintiff and three other men, Allen Roller, Victor Forni, and Bruce Reen, for felony murder and other crimes stemming from the robbery, and on May 17, 1977, plaintiff was convicted of felony murder and other crimes associated with the robbery.

During the thirteen years since his conviction, plaintiff has maintained that he is innocent of the charges, and that the Hudson County prosecutor withheld significant exculpatory evidence from him and his counsel in an effort to convict him for a crime which he did not commit. After Raymond Portas, a key witness for the prosecution, recanted his trial testimony in which he originally stated that he saw plaintiff driving the getaway car used in the robbery, plaintiff filed a petition for habeas corpus with this court, claiming that his due process rights to a fair trial were infringed by the admission of Portas' identification testimony. After conducting an evidentiary hearing, this court was convinced that Portas' recantation was believable. However, it reluctantly denied plaintiff's petition, recognizing that it was bound by the state trial court's prior finding that Portas' recantation was incredible. Landano v. Rafferty, 670 F.Supp. 570 (D.N.J.1987), aff'd, 856 F.2d 569 (3d Cir.1988), cert. den., 489 U.S. 1014, 109 S.Ct. 1127, 103 L.Ed.2d 189 (1989). On June 27, 1989, however, this court issued a conditional writ of habeas corpus in response to plaintiff's motion for relief from its prior judgment, pursuant to Fed.R.Civ.P. 60(b), basing the ruling on its finding that the state prosecutor had suppressed exculpatory information during plaintiff's criminal trial. Landano v. Rafferty, 126 F.R.D. 627 (D.N.J.1989). The Court of Appeals for the Third Circuit reversed this court's decision, holding that plaintiff had not exhausted his state law remedies with respect to that particular claim for post-conviction relief. Landano v. Rafferty, 897 F.2d 661 (3d Cir.1990), cert. den., 498 U.S. 811, 111 S.Ct. 46, 112 L.Ed.2d 23 (1990).

On September 30, 1988, plaintiff sent a letter to the FBI's Newark Field Office requesting all FBI information pertaining to the murder of Police Officer Snow (FOIA Request No. 310265, "Snow Request"). On May 8, 1990, 19 months later, the FBI responded by releasing to plaintiff redacted portions of its Snow investigative file. The FBI provided plaintiff with 324 pages of the 726 page...

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