Clemente v. Federal Bureau of Investigation
2017 U.S. App. LEXIS 14886
| D.C. Cir. | 2017Background
- Angela Clemente submitted a FOIA request (Apr–Jul 2008) seeking the unredacted FBI file of informant Gregory Scarpa Sr.; her counsel sent a July 9, 2008 letter that clarified the request: any informant (including TE) file limited to the first 500 pages in three specified categories, and asked how many additional responsive pages existed.
- The FBI located an informant file, charged duplication fees, and released ~1,153 pages (500 then additional 653) after payment; Clemente later filed suit when she alleged nonresponsive or withheld material.
- Over several years the FBI produced multiple Vaughn-style declarations explaining withholdings and the scope of searches; the district court granted summary judgment to the FBI as to adequacy of search and exemption 7 withholding, and denied Clemente interim attorney-fee motions twice.
- The district court gave deadlines for Clemente to object to the FBI’s latest Vaughn index; she missed the deadline and the court dismissed remaining claims for failure to prosecute/waiver; Clemente appealed.
- The D.C. Circuit affirmed: (1) scope of request properly construed to the first July 9 letter; (2) FBI search was adequate for that scope; (3) withheld records met FOIA exemption 7 (law-enforcement); (4) district court did not abuse discretion denying interim fees or dismissing for failure to prosecute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper scope of FOIA request | Clemente says a second July 9 letter (broader: “all records on or pertaining to Scarpa”) governed the request | FBI says only the first July 9 letter (limited to informant file and three categories) was received and relied upon | Court: request limited to first July 9 letter; no evidence FBI received second letter; scope properly construed to informant file categories |
| Adequacy of FBI search | Search was inadequate; FBI should have searched cross-references, field offices, electronic systems, and tickler files | FBI searched Central Records System for informant file responsive to the clarified request; further searches would be duplicative or outside the request/scope | Court: FBI made good-faith, reasonable search for the defined scope; no obligation to search field-office indices or conduct full-text/electronic searches for this request |
| Applicability of FOIA Exemption 7 (law-enforcement) | Records reflect misuse by informant/handler and administrative oversight, not law-enforcement compilation | FBI: records compiled to collect/monitor informant activity and further RICO and other criminal investigations; thus compiled for law enforcement | Court: withheld records were compiled for law-enforcement purposes and exemption 7 applies |
| Interim attorney fees and dismissal for failure to prosecute | Clemente sought interim fees citing hardship and argued dismissal was improper | Government did not contest authority; district court emphasized lack of particularized hardship, case delay (partly plaintiff-caused), and warned that objections to Vaughn would be waived | Court: district court did not abuse discretion denying interim fees and properly dismissed remaining claims after plaintiff waived objections and failed to comply with deadlines |
Key Cases Cited
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.) (establishing use of agency declarations/Vaughn indices)
- Nation Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885 (D.C. Cir. 1995) (rule to first ascertain FOIA request scope)
- Oglesby v. U.S. Dep’t of Army, 920 F.2d 57 (D.C. Cir. 1990) (agency must show good-faith, reasonable search)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (presumption of good faith for agency affidavits)
- Mobley v. CIA, 806 F.3d 568 (D.C. Cir. 2015) (search need not produce all materials; must be reasonable)
- DiBacco v. U.S. Army, 795 F.3d 178 (D.C. Cir. 2015) (FOIA requires reasonable search for records the agency actually has)
- Campbell v. U.S. Dep’t of Justice, 164 F.3d 20 (D.C. Cir. 1998) (special deference to FBI; context for searching national vs. field indices)
- Jefferson v. Dep’t of Justice, Office of Prof’l Responsibility, 284 F.3d 172 (D.C. Cir. 2002) (standard for exemption 7: focus on how and under what circumstances files were compiled)
- Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521 (D.C. Cir. 2011) (standard of review for fee-award denials)
- Nat’l Ass’n of Criminal Defense Lawyers v. U.S. Dep’t of Justice, 182 F.3d 981 (D.C. Cir. 1999) (discussing interim fee considerations and hardship)
- Peterson v. Archstone Communities LLC, 637 F.3d 416 (D.C. Cir. 2011) (district courts’ inherent power to dismiss for failure to prosecute/review standard)
- Gardner v. United States, 211 F.3d 1305 (D.C. Cir. 2000) (dismissal justified where counsel consciously fails to comply with orders)