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Reilly v. Department of Justice

United States District Court, D. Connecticut

March 30, 2018

THOMAS K. REILLY, Plaintiff,
v.
DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OF DECISION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [DKT NO. 66]

          Hon. Vanessa L. Bryant United States District Judge.

         I. Introduction

         Plaintiff Thomas K. Reilly brings this action seeking to compel the production of documents responsive to a Freedom of Information Act (“FOIA”) request first submitted to the Federal Bureau of Investigation (“FBI”) on February 23, 2016. The request sought records relating to the criminal investigation and trial of Joseph P. Ganim, the present and former mayor of Bridgeport, CT. Now pending before the Court is Defendant's Motion for Summary Judgment [Dkt. No. 66]. For the reasons that follow, Defendant's motion is GRANTED.

         II. Background

         A. The Record on Summary Judgment

         “A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). A party may also support their assertion by “showing that the materials cited do not establish the absence . . . of a genuine dispute.” Id. Cited documents must consist of either “(1) the affidavit of a witness competent to testify as to the facts at trial and/or (2) evidence that would be admissible at trial.” Local R. Civ. P. 56(a)3; see also Fed. R. Civ. P. 56(c)(4).

         If a party fails to properly support an assertion of fact, or fails to properly address another party's assertion of fact, the Court may “consider the fact undisputed for purposes of the motion [and] grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it.” Fed.R.Civ.P. 56(e); see also Local R. 56(a)3 (“[F]ailure to provide specific citations to evidence in the record as required by this Local Rule may result in the Court deeming certain facts that are supported by the evidence admitted in accordance with [Local] Rule 56(a)1 or in the Court imposing sanctions, including . . . an order granting the motion if the undisputed facts show that the movant is entitled to judgment as a matter of law.”).

         While Federal Rule of Civil Procedure 56(e) also permits the Court to give a party the “opportunity to properly support or address the fact, ” such a course of action is not warranted in this case. Defendant attached as an exhibit to its motion for summary judgment, the “Notice to Self-Represented Litigant Concerning Motion for Summary Judgment as Required by Local Rule of Civil Procedure 56(b), ” which the Court requires to be served on all pro se litigants along with motions for summary judgment, and which explains in detail the Court's requirements with respect to Rule 56(a) statements. Although he is pro se, Plaintiff's briefs display an unusually astute understanding of the legal issues involved in this case, as well as a facility with writing. It is therefore reasonable to believe that Plaintiff understood Local Rule 56(a)'s requirements, but nevertheless chose not to submit a Rule 56(a) statement. Consequently, the Court will deem admitted any facts in the Defendant's Rule 56(a)(1) statement that are supported by evidence.

         B. Procedural History

         By letter dated February 22, 2016, Plaintiff submitted a FOIA request to the FBI, seeking the production of documents relating to a criminal investigation and prosecution which led to the conviction thirteen years earlier of former Bridgeport Mayor Joseph Ganim. In particular, he requested:

Copies of all audio surveillance tapes derived from “bugs”, wiretaps or other means, whether in digital or other formats, (and written transcripts of such tapes developed during the FBI and IRS investigation of municipal corruption in Bridgeport, Connecticut which resulted in the March 19, 2003 conviction of Joseph P. Ganim (former and current Mayor of Bridgeport, CT, ) in the U.S. District Court for the District of Connecticut.

[Dkt. No. 1 at 5]. By letter dated February 29, 2016, the FBI Record/Information Dissemination Section (“RIDS”) Chief, David M. Hardy, acknowledged receipt of the FOIA request, and noted:

The FBI recognizes an important privacy interest in [records concerning one or more third party individuals]. You may receive greater access to these records if they exist by providing one of the following: (1) an authorization and consent from the individual(s) . . .; (2) proof of death . . .; or (3) a justification that the public interest in disclosure outweighs personal privacy.” Id. at 6. By letter dated March 9, 2018, Plaintiff revised his request to include both audio and video recordings.

Id. at 8. In the same letter, Plaintiff argued that there was a compelling public interest in the disclosure of the requested records, because Joseph P. Ganim was a public official convicted of racketeering, racketeering conspiracy, extortion, honest services mail fraud and bribery. Id. at 8-9. Plaintiff also identified instances in which the FBI released surveillance tapes in other public corruption cases. Id. at 9-10.

         By letter dated May 17, 2016, Hardy informed Plaintiff that he had determined “unusual circumstances” applied to Plaintiff's request, and stated that “unusual circumstances” included (1) “a need to search for an collect records from field offices and/or other offices that are separate from the FBI Record/Information Dissemination Section (RIDS)”; (2) “a need to search for, collect, and examine a voluminous amount of separate and distinct records”; or (3) “a need for consultation with another agency or two or more DOJ components.” Id. at 11. By letter dated July 6, 2016, Hardy stated, “Audio and video records were reviewed, and it was determined that they should be withheld in their entirety pursuant to exemption (b)(3) and in accordance with 18 U.S.C. 2518.” Id. at 15.

         Plaintiff filed an administrative appeal of the FBI's determination by letter dated August 15, 2018 and received August 18, 2016. [Dkt. No. 1 at 16-17; Dkt. No. 66-4, Exh. K]. Administrative Specialist Priscilla Jones acknowledged receipt of the appeal by letter dated August 24, 2016. [Dkt. No. 1 at 19]. After Plaintiff filed this civil action on December 12, 2016, the Office of Information Policy (“OIP”) advised Plaintiff that his administrative appeal was closed due to his pending lawsuit. [Dkt. No. 66-4, Exh. N].

         C. FBI Efforts to Locate ...


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