United States District Court, D. Connecticut
NAVIGATORS INSURANCE COMPANY, NAVIGATORS MANAGEMENT (UK) LTD, and CERTAIN INTERESTED UNDERWRITERS AT LLOYD'S OF LONDON, Plaintiffs,
DEPARTMENT OF JUSTICE, Defendant.
RULING ON MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE
JANET BOND ARTERTON, U.S.D.J.
Plaintiffs Navigators Insurance Company, Navigators Management (UK) Ltd., and Certain Interested Underwriters at Lloyd's of London (collectively, "Navigators") allege that Defendant the Department of Justice ("DOJ") violated the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, by failing to release records responsive to Plaintiffs' request (Count One), and by failing to make a reasonable effort to search for responsive records (Count Two). Plaintiffs now move [Doc. # 22] for summary judgment and to strike [Doc. # 28] portions of an affidavit submitted by Defendant in its opposition to Plaintiffs' motion for summary judgment. Defendant, without cross-moving for summary judgment, seeks, in its opposition to Plaintiffs' motion, summary judgment in its favor. The Court granted Plaintiffs additional time to supplement their briefing in light of Defendant's argument. For the following reasons. Plaintiffs' Motion for Summary Judgment is denied, their Motion to Strike is denied as moot in part and denied in part, and judgment is entered in Defendant's favor on Count One but not on Count Two.
On July 15, 2013, Navigators submitted a request to the DO J for "copies of all documents and information of any kind or nature obtained by the government in connection with the . . . criminal investigations and guilty pleas" in four criminal cases. (Ex. A to DOJ's Opp'n [Doc. # 25] at 1.) On September 13, 2013, the Executive Office for the United States Attorneys ("EOUSA"), a subunit of the DOJ, denied Navigators' request on the grounds that the requested records concerned third parties and their release would violate the Privacy Act ("PA"), 5 U.S.C. § 552a, and were exempt under 5 U.S.C. §§ 552(b)(6) and (b)(7)(C). (Ex. B to DOJ's Opp'n at 1.) The DOJ did, however, notify Navigators that they could file a request for any public records maintained in its files. (Id.) Navigators did not appeal the DOJ's decision. (Pis.' Mem. Supp. Mot. Summ. J. [Doc. # 23] at 3.)
A. First Request
By later dated September 25, 2013 (but received by the EOUSA's FOIA/PA Staff on October 18, 2013 (Francis Decl, Ex. 2 to DOJ's Opp'n f 9)), Navigators sought "the release of any and all public records and documents maintained by the [DOJ] which touch upon, concern or relate to the subject of [Navigators' previous request]" (Ex. C to DOJ's Opp'n). The DOJ responded by letter dated October 25, 2013, in which it notified Navigators' of their request number and stated that it "makes every effort to process most requests within ... 20 working days" but that "very large request[s]" "usually take approximately nine months to process." (Ex. D to DOJ's Opp'n.) The DOJ then forwarded the request to the FOIA point of contact in the District of Connecticut so that a search for the requested files could be conducted. (Francis Decl. f 11.) On December 13, 2013, "the FOIA point of contact for the District of Connecticut provided EOUSA's FOIA/PA Staff with the result of her search." (Id. J 12.)
On April 8, 2015, in connection with a motion for extension of time in this action, the DOJ represented that:
The subject documents consist of approximately 3, 000 to 5, 000 pages (as a rough estimate) that are being actively reviewed and prioritized. The documents are currently in the first level of review, by an EOUSA paralegal, who is expected to complete her review in May. The documents will undergo a second level of review, by an EOUSA attorney, immediately thereafter. No documents can be released before the second level of review is complete. It is anticipated that the entire EOUSA review will be completed in another 4-6 weeks.
(Mot. for Ext. of Time [Doc. # 9] at 1-2.)
On July 30, 2015, the DOJ sent a packet of documents to Navigators, which the DOJ represented, constituted "a full release." (Ex. 5 to Pis.' Loc. R. 56(a) 1 Stmt. [Doc. # 24] at 2.) According to Navigators, the DOJ released 538 pages of records to them (Pis.' Mem. Supp. at 5); the DOJ alleges that it released 624 pages of records (Francis Decl. ¶ 21).
B. Second Request
On October 25, 2013, Navigators filed a second FOIA request with the DOJ (received by EOUSA's FOIA/PA Staff on October 30, 2013 (Francis Decl. ¶ 16)) seeking "copies of all documents and information obtained by the government in connection with investigations into New England Cash Dispensing Systems, Inc. ["NECD"] . . . and Integrated Merchant Systems ["IMS"] . . ." (Ex. F to DOJ's Opp'n). The DOJ responded by letter dated November 25, 2013, seeking more details about Navigators' request (Ex. G to DOJ's Opp'n), which Navigators provided on December 2, 2013 (Ex. H to DOJ's Opp'n). On February 7, 2014, EOUSA submitted Navigators' request to the District of Connecticut for a search to be conducted. (Francis Decl. ¶ 19.)
The DOJ sent Navigators an acknowledgement letter on February 18, 2014, in which it reiterated that it "makes every effort to process most requests within ... 20 working days" but "very large request[s]" "usually take approximately nine months to process." (Ex. G to Compl. [Doc. # 1].) The FOIA point of contact at the District of Connecticut provided EOUSA with the results of her search for records on July 24, 2014. (Francis Decl. ¶ 20.)
As noted above, on April 8, 2015, in connection with a motion for extension of time in this action, the DOJ represented that "[t]he subject documents consist of approximately 3, 000 to 5, 000 pages (as a rough estimate) that are being actively reviewed and prioritized, " and that the review would be completed by the end of May. (Mot. for Ext. of Time at 1-2.)
By letter dated July 15, 2015, the DOJ notified Navigators that it had approved a partial release of records. (Ex. 1 to Pis.' Loc. R. 56(a) 1 Stmt, at 2.) Enclosed with the letter were 175 pages released in full, one page released in part, and 270 pages withheld in full. (Id.) In addition, the DOJ notified Navigators that it had located records that originated with the FBI and that would be referred to the FBI for direct response to Navigators. (Id. at 3.) On August 28, 2015, the DOJ produced a Vaughn index, containing a description of the documents it was withholding in full and the applicable FOIA exemptions claimed for each document. (Francis Decl. ¶ 24; see Ex. J to DOJ's Opp'n.)
C. The Lawsuit
Navigators initiated this lawsuit on March 5, 2015, several months before they had received any documents in response to their two requests. Navigators seek "declaratory relief that the [DO J] and its sub unit, [EOSUA], have failed to comply with FOIA by improperly withholding documents, and . . . injunctive relief to compel the production of agency records improperly withheld from Plaintiffs by Defendant DOJ." (Compl. ¶ 10.) Their Complaint includes two counts, alleging: (1) that "DOJ's failure to release responsive records violated Plaintiffs' right to those records under 5 U.S.C. § 552(a)(3)(A), " and (2) that "DOJ's failure to make a reasonable effort to search for responsive records violated Plaintiffs' rights under 5 U.S.C. § 552(a)(3)(C)." (Id. ¶ 32.)
A. Motion to Strike
Plaintiffs move for a court order striking parts of the affidavit of Tricia Francis, an Attorney-Advisor with the EOUSA, as well as certain paragraphs of Defendant's Local Rule 56(a)2 Statement,  on the grounds that they are "conclusory, self-serving and unsupported by the facts." (Mem. Supp. Mot. to Strike [Doc. # 29] at 1.) Specifically, Plaintiffs object to paragraphs 1-3 of the 56(a)2 Statement, in ...