Ramaci v. Fed. Bureau of Investigation
| Decision Date | 20 October 2021 |
| Docket Number | 17-CV-10084 (RA) |
| Parties | Lisa RAMACI, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Michael Jacob Radine, Osen LLC, Hackensack, NJ, for Plaintiff.
Natasha Waglow Teleanu, United States Attorney's Office, New York, NY, for Defendant.
Plaintiff Lisa Ramaci filed this action against the Federal Bureau of Investigation (the "FBI") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking access to government records related to the August 2, 2005 kidnapping and murder of her husband, Steven Vincent, in Basra, Iraq. Through a series of rolling productions, the FBI produced documents responsive to Plaintiff's request, and withheld and/or redacted others based on several FOIA exemptions. Now before the Court is the FBI's motion for summary judgment and Plaintiff's cross-motion for summary judgment. The parties’ dispute centers on the propriety of the FBI's withholding of information pursuant to 5 U.S.C. 552(b)(7)(D) —which exempts from disclosure certain law enforcement records containing information provided by "confidential source[s]"—and in particular on the FBI's determination that the sources who provided information in connection with the Vincent murder investigation did so with an implicit expectation of confidentiality. Having reviewed the parties’ submissions, as well as the Government's ex parte filing that provides greater detail about its sources, the Court agrees that the FBI properly withheld exempted records. Accordingly, for the reasons discussed below, the FBI's motion for summary judgment is granted, and Plaintiff's cross-motion for summary judgment is denied.
On August 2, 2005, Plaintiff's husband, the journalist Steven Vincent, and his Iraqi interpreter, Nour al-Khal,2 were kidnapped from a public street in Basra, Iraq by a group of men in police uniforms. See Declaration of William A. Friedman ("Friedman Decl."), Dkt. 35, Ex. 3 at 4-5; Friedman Decl. Ex. 12 at 2. Vincent and al-Khal were then driven "to the outskirts of town," where they were "gagged," "beaten," and interrogated. See Friedman Decl. Ex. 3 at 4. After approximately six hours, at around midnight, they were driven to a different location in Basra, thrown out of the car, told to run, and shot at multiple times. See id. ; Pl. Mot. at 1. Although Vincent died, al-Khal was shot three times but survived. Friedman Decl. Ex. 3 at 4; Friedman Decl. Ex. 8 at 2; Friedman Decl. Ex. 11 at 1. The FBI was subsequently notified of the death of an American citizen in Iraq, and the FBI's field office in Baghdad was charged with investigating the kidnapping and murder. See Pl. Mot. at 1. In 2008, the FBI closed its investigation. See id. ; Friedman Decl. Ex. 1.
On September 9, 2016, Plaintiff, through her attorneys, submitted a FOIA request to the FBI, seeking "copies of all FBI holdings, including, without limitation, all documents, photographs and laboratory analyses related to the investigation into [Vincent's] abduction and murder." Hardy Decl. ¶ 6; Compl. Ex. A. On September 23, 2016, the FBI advised Plaintiff that "unusual circumstances" applied to the processing of her request, and offered her the opportunity to reduce the scope of the request. Hardy Decl. ¶ 8; Compl. Ex. C. In a separate letter dated September 23, 2016, the FBI also informed Plaintiff that it had located approximately 3,362 pages of records potentially responsive to her request. Hardy Decl. ¶ 9; Compl. Ex. D.
On February 7, 2017, in response to a request for a status update, the FBI informed Plaintiff that reducing the scope of her request "may accelerate the processing and allow for a more timely receipt of the information" she sought. Id. ¶ 12. On February 13, 2017, Plaintiff's counsel and an FBI representative had a telephone conversation, during which Plaintiff agreed to align her FOIA request with that of another FOIA requester who submitted an earlier request for "the closing memorandum of the murder investigation of Steven Vincent" and "a specific serial describing the investigation." Id. ¶ 13; Compl. Ex. H. As the FBI explained, this agreement reduced the volume of potentially responsive records from approximately 3,362 pages to approximately 116 pages, which would reduce the request's processing time. Id. Between April and December 2017, however, the FBI's estimates of how long it would take to process Plaintiff's request continued to grow. See Hardy Decl. ¶¶ 14-20.
Plaintiff filed this action on December 26, 2017. Dkt. 1. An amended complaint—the operative complaint—was filed the next day. Dkt. 5. On February 28, 2018, the FBI made an "interim release of records" to Plaintiff, whereby it reviewed 114 pages of responsive records, released 89 pages in full or in part, and withheld 25 pages in full under certain FOIA exemptions. Hardy Decl. ¶ 22. Pursuant to the parties’ agreement for the FBI to review, process, and release documents on a rolling basis, the FBI made nine further productions of documents to Plaintiff between April 2018 and December 2018. See Hardy Decl. ¶¶ 23-32. On December 28, 2018, the FBI advised Plaintiff that it had "completed processing all the outstanding consultations." Hardy Decl. ¶ 32. In total, the FBI produced 2,571 pages of responsive records to Plaintiff, as well as one video. Hardy Decl. ¶ 4.
The FBI moved for summary judgment, Dkt. 28, arguing in relevant part that the agency properly withheld information provided by its sources under an implied assurance of confidentiality—that is, "with an understanding that the communication[s] would remain confidential," Dkt. 29 at 6 (quoting U.S. Dep't of Justice v. Landano , 508 U.S. 165, 172, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993) ). The FBI's principal contention is that, given the violent nature of the crime it was investigating and its sources’ unique perspectives on that crime, the FBI reasonably inferred that the sources would not have provided information to the investigators absent an implied assurance that their identities and information would be kept secret. Plaintiff filed an opposition and cross-motion for summary judgment, Dkt. 33, arguing that the FBI failed to establish that the sources in question provided their statements with an implied guarantee of confidentiality, Dkt 34. The FBI filed an opposition to Plaintiff's cross-motion and a reply in further support of its motion, Dkt. 38, and Plaintiff filed a reply in further support of her cross-motion, Dkt. 39.
The Court held oral argument on the parties’ motions. See Oral Argument Transcript, Dkt. 45 ("Oral Arg. Tr."). At the conclusion of argument, the Court requested an additional submission from the FBI, including an ex parte or classified submission if necessary, that provides "the specific details explaining the FBI's reasoning as to the expectation of confidentiality for [its] particular sources." Oral Arg. Tr. at 29. The Court also suggested that Plaintiff make an additional attempt to reach al-Khal to see if she has "indicated a willingness to waive confidentiality with respect to any information she may have provided the FBI." Id. The Court stayed the action pending receipt of the supplemental submissions and its ruling on the pending motions. Dkt. 42. The FBI subsequently submitted an ex parte declaration to provide further support for its position that it properly withheld information provided by individuals pursuant to an implied assurance of confidentiality, and a classified exhibit to that declaration containing the underlying documents at issue. See Dkts. 52, 53. The parties also submitted supplemental briefs, see Dkts. 54, 55, and Plaintiff submitted declarations attesting that she was unsuccessful in reestablishing contact with al-Khal.
Under FOIA, federal agencies are required to make records available to the public upon request. See 5 U.S.C. § 552(a). The statute is "broadly intended to permit citizens access to information in the possession of the federal government that is unnecessarily sheltered from public view," and "emphasizes a preference for the fullest possible agency disclosure of such information consistent with a responsible balancing of competing concerns included in nine categories of documents exempted from the Act's disclosure requirements." Halpern v. FBI , 181 F.3d 279, 284 (2d Cir. 1999) (citing U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press , 489 U.S. 749, 754-55, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) ); see also Ortiz v. U.S. Dep't of Health & Human Servs. , 70 F.3d 729, 732 (2d Cir. 1995) () (citing Dep't of the Air Force v. Rose , 425 U.S. 352, 360-62, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ). As the Second Circuit has explained, the statute "is to be construed broadly to provide information to the public in accordance with its purposes," while "the exemptions from production are to be construed narrowly." Grand Cent. P'ship, Inc. v. Cuomo , 166 F.3d 473, 478 (2d Cir. 1999) (citation omitted); see also Ortiz , 70 F.3d at 732 () (citing John Doe Agency v. John Doe Corp. , 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) ); Florez v. CIA , 829 F.3d 178, 182 (2d Cir. 2016) ().
"FOIA cases are generally resolved on motions for summary judgment." New York Times Co. v. United States Secret Serv. , No. 17 CIV. 1885 (PAC), 2018 WL 722420, at *3 (S.D.N.Y. Feb. 5, 2018). "In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and that...
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