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

• Decision Date: 07 December 2021
• Docket Number: 19-CV-001F (consent)
• Parties: LESLIE JAMES PICKERING, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — Western District of New York

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

No. 19-CV-001F (consent)

United States District Court, W.D. New York

December 7, 2021

MICHAEL KUZMA, ESQ., Attorney for Plaintiff.

TRINI E. ROSS, Attorney for Defendant.

MICHAEL S. CERRONE, Assistant United States Attorney, of Counsel.

DECISION AND ORDER

LESLIE G. FOSCHIO, UNITED STATES MAGISTRATE JUDGE.

JURISDICTION

On August 16, 2019, the parties to this action consented pursuant to 28 U.S.C. § 636(c) to proceed before the undersigned. The matter is presently before the court on Defendant's motion for summary judgment filed April 30, 2021 (Dkt. 23).

BACKGROUND

Plaintiff Leslie James Pickering (“Plaintiff” or “Pickering”), commenced this action pursuant to the Freedom of Information Act (“FOIA” or “the Act”), 5 U.S.C. § 552 et seq., on January 1, 2019, seeking an injunction and other relief, including the disclosure and

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release of agency records withheld by Defendant United States Department of Justice (“DOJ”), and its component Federal Bureau of Investigation (“FBI”), responsive to a FOIA request made by Plaintiff. The information Plaintiff seeks pertains to suspected investigations of one Leonard Peltier. Defendant filed its answer on April 11, 2019 (Dkt. 7). In the July 31, 2019 Scheduling Order (Dkt. 17) (“SO”), Defendant was directed to release non-exempt documents responsive to Plaintiff's FOIA Request by November 30, 2020, SO ¶ 3, and Plaintiff was directed to identify by December 15, 2020, his specific challenges to Defendants' FOIA determinations. SO ¶ 4. Between October 31, 2019 and November 30, 2020, the FBI made 12 interim releases in response to Plaintiff's FOIA Request (“FOIA Responses”). In accordance with the SO, on December 14, 2020, Plaintiff filed the affidavit of his attorney, Michael Kuzma, Esq. (Dkt. 19) (“First Kuzma Affidavit”), detailing Plaintiff's challenges to the various FOIA Responses.

On April 30, 2021, Defendant filed a motion for summary judgment (Dkt. 23) (“Defendant's Motion”), attaching the Declaration of Michael G. Seidel (Dkt. 23-1) (“Seidel Declaration”), with exhibits A through N (Dkt. 23 at 50-130) (“Defendant's Exh(s). ”), a Statement of Undisputed Facts (Dkt. 23-2) (“Defendant's Statement of Facts”), and a Memorandum of Law (Dkt. 23-3) (“Defendant's Memorandum”). Filed as Defendant's Exh. N (Dkt. 23-1 at 118-130) is the so-called “Vaughn Index” the requested government agency is required to furnish in responding to a FOIA request for records, purporting to identify each piece of information responsive to a FOIA request, as well as whether each responsive piece was released in full or in part, or withheld in

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full as well as the asserted reason why any information was withheld either in full or in part.^[1]

On June 2, 2021, Plaintiff filed the Memorandum in Opposition to Defendant's Motion for Summary Judgment (Dkt. 25) (“Plaintiff's Response”), attaching the Affidavit of Michael Kuzma, Esq. (Dkt. 25-1) (“Second Kuzma Affidavit”), with exhibits A through E (Dkt. 25-1 at 6-37) (“Plaintiff's Exh(s). ”), and Plaintiff's Statement of Undisputed Facts and Response to Defendant's Statement of Undisputed Facts (Dkt. 25-2) (“Plaintiff's Statement of Facts”). On August 13, 2021, Defendant filed in further support of summary judgment Defendant's Reply Memorandum of Law (Dkt. 28) (“Defendant's Reply”), attaching the Second Declaration of Michael G. Seidel (Dkt. 28-1) (“Second Seidel Declaration”). Oral argument was deemed unnecessary.

Based on the following, Defendant's Motion is GRANTED.

FACTS^[2]

Plaintiff is a proprietor of Burning Books (“Burning Books”), an independent book store located in Buffalo, New York (“Buffalo”), which Plaintiff describes as “specializing in social justice struggles and state repression.” Complaint ¶ 3. Plaintiff is also a Political Science and Sociology Lecturer at Niagara University. Id. By letter dated February 17, 2018, Plaintiff, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requested from the FBI all records related to Leonard Peltier (“Peltier”)

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that were prepared, received, transmitted, collected or maintained by the FBI, the Terrorist Screening Center, the National Joint Terrorism Task Force, or any Joint Terrorism Task Force (“FOIA Request”). Plaintiff's FOIA Request was accompanied by the required DOJ Certificate of Identity, Form DOJ-361 (“Certificate of Identity forms”), completed with Peltier's information and signature.

In particular, the records Plaintiff seeks pertain to Peltier who, on June 26, 1975, was involved in a shootout with FBI Special Agents Jack R. Coler (“Coler”) and Ronald A. Williams (“Williams”) (“the Agents”) on the Pine Ridge Reservation (“the reservation”) in South Dakota (“the Pine Ridge shootout”). The Agents were on the reservation investigating a robbery when Peltier, a member of the American Indian Movement (“AIM”), and other AIM members, ambushed the Agents, both of whom were shot dead. Peltier was convicted of the Agents' murders but, although Peltier admitted firing at the Agents, he denied killing them and asserted someone else is responsible for the murders, yet refused to name such individual. Peltier's conviction was upheld on appeal to the Eighth Circuit Court of Appeals, United States v. Peltier, 800 F.2d 772 (8^thCir. 1986), with the appellate opinion written by United States Circuit Judge Gerald W. Heaney (“Judge Heaney”), who also found that although the Government withheld favorable evidence from Peltier, the withheld evidence would not have created a reasonable probability of acquittal had it been disclosed and thus was insufficient to warrant vacating Peltier's conviction. Second Kuzma Affidavit ¶¶ 15-16 (citing Plaintiff's Exh. D (Dkt. 25-1 at 15-17)). Peltier, who was sentenced to two consecutive life sentences for the murders of the FBI Agents, remains incarcerated for the murders of the Agents at the United States Penitentiary in Coleman, Florida.

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In 2002, Kuzma became aware that certain records maintained by the FBI pertaining to Peltier were being destroyed, prompting Kuzma to request their preservation by the National Archives and Records Administration (“NARA”). By letters dated February 20, 2003, and December 15, 2009, NARA advised Kuzma that certain records at FBI Headquarters were turned over to NARA for permanent preservation and the FBI field offices were instructed to identify and preserve case files and case file numbers pertaining to Peltier and the Pine Ridge shootout. According to Plaintiff, because “[t]here remains a great deal of public interest in the Peltier case, ” Plaintiff's Response at 7, Plaintiff intends to make records responsive to the FOIA Request available online for researchers, writers, and others interested in the case, and Plaintiff intends to continue speaking about the case which demonstrates how the FBI targeted members of AIM, the Black Panther Party, and other groups under the FBI's “now discredited Counterintelligence Program (COINTELLPRO).” Id.

With regard to Plaintiff's FOIA Request, on July 5, 2018, the FBI advised Plaintiff that approximately 6, 020 pages of records responsive to the FOIA Request were located and reviewed, and discussed the fees associating with releasing the documents to Plaintiff. By letter dated July 18, 2018, Plaintiff's counsel, Michael Kuzma, Esq. (“Kuzma”), advised the FBI that Plaintiff agreed to pay for the release of the records, and inquired when the 6, 020 pages would be released. By letter dated July 31, 2018, the FBI advised Plaintiff that FOIA requests are processed in the order received through a multi-track system, consisting of simple tracks (fewer than 50 pages of potentially responsive documents) and complex tracks (more than 50 pages of potentially responsive documents), with complex track requests further divided into medium, large,

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and extra-large subtracts based upon their size. The FBI further advised Plaintiff his FOIA Request was in the large track requiring more time to process and requested Plaintiff contact the FBI if Plaintiff desired to narrow his FOIA Request, which could result in shorter response processing time. On January 2, 2019, Plaintiff commenced the instant action.

On March 6, 2019, the FBI modified its estimate of fees associated with the FOIA Request, advising Plaintiff the FBI located approximately 4, 760 pages of records and audio and video files that the FBI determined were potentially responsive to Plaintiff's FOIA Request for which the anticipated fees could exceed $ 25.00. By letter to the FBI dated May 30, 2019, Plaintiff narrowed the scope of the FOIA Request, stating that with the exception of “Subfile N”^[3] Plaintiff was not requesting the FBI reprocess records that were the subject of prior FOIA litigation brought in the United States District Courts for the District of Minnesota and the Western District of New York, and further narrowed the FOIA Request to records generated after such FOIA litigation.^[4] Between October 31, 2019 and November 30, 2020, the FBI made 12 interim releases in response to Plaintiff's FOIA Request (“FOIA Responses”), totaling 5, 253 pages of responsive records from which the parties, on January 22, 2021, agreed the FBI would randomly select 500 processed records containing withheld information, providing Plaintiff with justifications for exempting the withheld information from released documents. The

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Vaughn Index of the 500 randomly selected pages shows 342 pages were released in part (“RIP”), and 158 pages were withheld in full (“WIF”) based on FOIA exemptions.

In connection with Defendant's pending motion, an explanation as to how Plaintiff's FOIA Request was processed is provided by Michael G. Seidel (“Seidel”), Section Chief of the Record/Information Dissemination Section (“RIDS”), Information Management Division (“IMD”). According to Seidel, in fulfilling its...