Pro se plaintiff Anthony Donato is an inmate who is incarcerated at the Federal Correctional Institution in Danbury, Connecticut. Between 2011 and 2014, Donato submitted a series of document requests to various components of the Department of Justice under the Freedom of Information Act,
Before this Court at present is Defendants' collective motion for summary judgment. (See Defs.' Mot. for Summ. J. ("Defs.' Mot."), ECF No. 18.) The motion argues that each of the defendant agencies, including BOP, conducted an adequate search for records and properly invoked any applicable FOIA exemptions. (Id. at 8-13.) Defendants further maintain that EOUSA properly denied Donato's request for a public interest fee waiver because he failed to demonstrate the requisite ability to disseminate information to the public (see Defs.' Reply in Support of Mot. for Summ. J., ECF No. 25, at 3-4), and the FBI properly refused to confirm or deny the existence of records responsive to Donato's murder-conspiracy plot request (see Def.'s Mot. at 13-25). Donato disputes these contentions. (See Opp'n to Defs.' Mot. for Summ. J., ECF No. 23; Opp'n to Defs.' Reply in Support of Mot. for Summ. J., ECF No. 27.)
On March 31, 2018, this Court issued an order GRANTING IN PART and DENYING IN PART Defendants' motion for summary judgment. The instant Memorandum Opinion explains the reasons for that order. In short, with respect to Donato's claim against EOUSA, this Court finds that EOUSA properly denied Donato's request for a fee waiver, but that EOUSA is nonetheless obliged to produce 100 pages of responsive records to Donato at no charge, and summary judgment cannot be entered in that agency's favor because it is not clear from the instant record that EOUSA has done so. The Court further finds that the FBI properly declined to confirm or deny the existence of records pertaining to the alleged murder-conspiracy plot, and is thus entitled to summary judgment, but BOP's declarations do not provide sufficient details regarding the searches that that agency conducted, or its invocation of FOIA exemptions, to warrant summary judgment at this time.
I. BACKGROUND
A. The Alleged MCC Murder-Conspiracy Plot
"Dominick Cicale is a former captain in the Bonanno organized crime family[,]" who began cooperating with the government in 2006 with respect to its investigation and prosecution of members of the Bonanno and other organized crime families. United States v. Cicale , No. 05-CR-60-2,
Instead of carrying out Cicale's nefarious request, Medina allegedly reported the plot to BOP Correctional Counselor Gloria Black, who prepared a memorandum regarding Cicale's alleged murder-conspiracy scheme. (See Wade-Jones Aff. ¶ 6.) Approximately two months later, Black provided a copy of the memorandum to a BOP Special Investigative Supervisor (see id. ¶¶ 2, 6-7), who then purportedly referred the matter only to BOP's internal affairs office, and did not "refer the allegations regarding a possible murder plot to any other law enforcement agency such as the FBI[.]" (Id. ¶ 13.)
B. Donato's FOIA Requests And Defendants' Pre-Litigation Responses
As mentioned, at issue in this opinion are FOIA requests that Donato made regarding two types of records: records concerning the murder-conspiracy scheme that Cicale allegedly orchestrated inside MCC New York, and separately, records documenting the factors that BOP took into account when it transferred Donato to various prisons within the federal system. Although Donato is a member of the same organized crime family as Cicale, see Donato v. United States , No. 09cv5617,
1. Donato's Requests For Information Regarding The Murder-Conspiracy Plot
Between 2011 and 2014, Donato submitted five substantively identical FOIA requests to agencies within DOJ: one to EOUSA, three to the FBI, and one to BOP. Each request sought records relating to Cicale's alleged scheme to frame Basciano and BOP Officer Santomaggio for conspiracy to commit murder. Specifically, Donato sought
all documents, e-mails, inter-office memos, including the Carlos Medina 7-page letter to BOP Counselor Gloria Black from the U.S. Attorney's Offices in the Southern District of NY and the Eastern District of NY pertaining to the Dominick Cicale plot to frame Vincent Basciano and BOP officer Santomaggio with the help of Carlos Medina in a phony murder conspiracy in the WitSec Unit at MCC Manhattan on or about June, 2007.
(Ex. 1 to Compl., ECF No. 1-1 at 5 ("EOUSA Murder-Conspiracy Plot Request"); see also Ex. 10 to Compl., ECF No. 1-1 at 20 ("First FBI Request"); Ex. 12 to Compl., ECF
*302No. 1-1 at 22-24 ("Suppl. FBI Requests"); Ex. Ex. 18 to Compl., ECF No. 1-1 at 37 ("BOP Murder-Conspiracy Plot Request").)
a. Request Nos. 11-3389 and 11-2390 (The EOUSA Murder-Conspiracy Plot Request)
Donato submitted his request for records pertaining to the murder-conspiracy plot to EOUSA on May 31, 2011. (See Compl. ¶ 10). In subsequent correspondence, Donato clarified that he was seeking records from the United States Attorney's Offices in both the Southern District and the Eastern District of New York (see id. ¶¶ 11-12), and thus, EOUSA separated his request into Request No. 11-2389 for the Southern District inquiry, and No. 11-2390 for the Eastern District request (see id. ¶ 13). EOUSA found no responsive documents in the Southern District of New York (id. ¶ 14), but advised Donato that it had located 55 "unindexed boxes of documents from this multi-defendant case [i.e., the Basciano case] that are potentially responsive" to his request in the Eastern District of New York, each of which might contain 2,000 to 4,000 pages of records. (Id. , Ex. 2.) EOUSA further informed Donato that completing its search for responsive records would take an additional 55 hours beyond the two free hours that the FOIA allots to each FOIA requester, and would therefore cost $1,540. (Id. ¶ 15.) Donato requested a waiver of those fees, but EOUSA denied this request. (See id. ¶¶ 16-17.)
Donato then administratively appealed this denial to DOJ's Office of Information Policy ("OIP"), which concluded that EOUSA's denial of the fee waiver request was proper. (See id. ¶¶ 19, 21.) OIP remanded the matter to EOUSA with instructions for EOUSA to provide Donato with his "statutory entitlement of 2 hours of search time and up to 100 pages of duplication without cost[.]" (Id. ¶ 21.) At the time Donato filed his complaint, he had not received any documents in response to the EOUSA Murder-Conspiracy Plot Request. (See id. ¶ 24.)
b. Request Nos. 1175243-000 and 1286073-000 (The FBI Murder-Conspiracy Plot Requests)
Donato submitted his first FOIA request to the FBI ("the First FBI Request") on May 25, 2011, and the FBI assigned it Request No. 11752443-000. (See id. ¶¶ 25-27.) As of the filing of the complaint in the instant case, Donato had not received any response to this request. (See id. ¶ 28.) Thereafter, on July 23, 2014, Donato submitted additional, substantively identical FOIA requests to two different FBI field offices ("the Supplemental FBI Requests"): one to the FBI Field Office in Albany, New York, and one to an FBI office in Manhattan. (See id. ¶ 29.) The FBI assigned Request No. 1286073-000 to both of the Supplemental FBI Requests, and it informed Donato that, because his requests pertained to third parties (Gloria Black, Carlos Medina, Dominick Cicale, Vincent Basciano, and Marco Santomaggio), *303it would not process the request until Donato had submitted either "(1) an authorization and consent from [each] individual; (2) proof of death; or (3) a justification that the public interest in disclosure outweighs personal privacy[.]" (Compl. ¶ 30.) The FBI further informed Donato that, in the absence of any of these items, it could neither confirm nor deny the existence of responsive records. (See id. )
In response, Donato asserted that the privacy interests of those third parties "were nullified because the names of those involved in the Cicale plot are public knowledge[,]" given that Cicale and Media had testified in open court and the relevant events had been reported in newspapers and in published court opinions. (Compl. ¶ 31.) Donato also insisted that "[t]he public has an interest to know which of the government's informants perjured himself at trial ..., and why the government allowed this to take place without any ramifications to either informant." (Ex. 14 to Compl., ECF No. 1-1, at 28.) Donato further maintained that there is a public interest in knowing "how the FBI and DOJ carried out their respective statutory duties to investigate and prosecute criminal conduct, i.e.[,] murder conspiracy and perjury." (Id. )
The FBI stood firm, refusing to confirm or deny whether it had any responsive records, on the grounds that Donato had " 'not sufficiently demonstrated that the public's interest in disclosure outweighs [the] personal privacy interests of the subject.' " (Compl. ¶ 32 (quoting Ex. 15 to Compl., ECF No. 1-1, at 29).) During the subsequent administrative appeal, OIP upheld the FBI's decision. (Id. ¶ 34.)
c. Request No. 2011-08565 (BOP Murder-Conspiracy Plot Request)
On May 31, 2011, Donato submitted a document request to BOP, seeking records related to the alleged murder-conspiracy plot, and BOP designated Donato's letter as Request No. 2011-08565. (See id. ¶¶ 35-36.) BOP located 225 pages of responsive records, and on September 28, 2011, it advised Donato that it was withholding all of the records in their entirety under Exemptions 2, 5, 6, 7(C), 7(D), 7(E), and 7(F). (See id. ¶ 36.) OIP affirmed BOP's withholding determination on appeal. (See id. ¶ 39.)
2. Donato's Request For Information Regarding BOP's Placement Decisions
On March 2, 2014, Donato submitted a FOIA request to BOP seeking the worksheets that "detail the BOP's assessment of the 5 factors of
Donato appealed BOP's determination that no responsive records exist, and OIP affirmed the decision in part and remanded it in part. (See
C. Procedural History
This Court granted Donato's motion for leave to proceed in forma pauperis on March 30, 2016, and docketed the instant complaint on April 4, 2016. Donato's four-count pleading challenges EOUSA's denial of his fee waiver and its consequent failure *304to produce any records in response to Donato's murder-conspiracy plot document request (Claim 1); the FBI's refusal to confirm or deny the existence of any records regarding Donato's murder-conspiracy plot document request (Claim 2); and BOP's search for, and withholding of, documents in response to Donato's two different requests to that agency (Claims 3 and 4). (See generally Compl.)
Defendants answered Donato's complaint on August 22, 2016 (see Answer, ECF No. 11), and filed the instant motion for summary judgment on March 3, 2017. In support of their motion, Defendants offer four declarations that detail how each agency processed and responded to Donato's FOIA requests. (See Defs.' Mot.; Decl. of David M. Hardy ("Hardy Decl."), ECF No. 18-2 (pertaining to FBI First and Supplemental Requests); Decl. of David Luczynski ("Luczynski Decl."), ECF No. 18-4 (pertaining to EOUSA Murder-Conspiracy Plot Request); Decl. of BOP Attorney John E. Wallace ("Wallace Decl."), ECF No. 18-6 (pertaining to BOP Murder-Conspiracy Plot Request); Decl. of Gov't Info. Specialist Sandra Raymond ("Raymond Decl."), ECF No. 18-8 (pertaining to BOP Placement Request).)
II. LEGAL STANDARDS
A. FOIA Searches And Exemptions
The FOIA "was enacted to facilitate public access to Government documents" in order to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." U.S. Dep't of State v. Ray ,
*305When a plaintiff challenges the adequacy of an agency's search for records responsive to a FOIA request, the court applies a reasonableness test, and it may grant summary judgment to the agency based on information provided in "[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched." Valencia-Lucena v. U.S. Coast Guard ,
Likewise, "[a]n agency withholding responsive documents from a FOIA release bears the burden of proving the applicability of [the] claimed exemptions[,]" and such a showing is typically made in agency affidavits. ACLU v. U.S. Dep't of Def. ,
B. "Glomar" Responses Based On Privacy Interests
In addition to producing requested records or withholding requested records under an established FOIA exemption, an agency can also issue what has come to be known as a "Glomar response" when a requester seeks identifiable records from the agency. See, e.g., Wolf v. CIA ,
*306"To the extent the circumstances justify a Glomar response, the agency need not conduct any search for responsive documents or perform any analysis to identify segregable portions of such documents." Lindsey v. FBI ,
It is the FBI's standard policy to issue a Glomar response whenever a FOIA request seeks records pertaining to a third party, unless the requester submits a privacy waiver or proof of death, or demonstrates an overriding public interest in disclosure, on the grounds that confirming that the agency has records tends to associate third parties with criminal activity, thus constituting an unwarranted invasion of their privacy. (See Hardy Decl. ¶ 22.) See also Mount v. Nielson , No. 16cv2532,
C. FOIA Fee Waivers
If an agency locates responsive records and intends to produce them, the FOIA permits the agency to bill a FOIA requester for the direct costs of that production under specified circumstances. If the requester has sought the records "for commercial use[,]" the agency can bill for the cost of "document search, duplication, and review,"
In FOIA lawsuits that claim improper denial of a fee-waiver request, the court reviews the agency's determinations de novo and must limit its review to the record before the agency. See
DOJ's regulations provide specific instructions about the proper considerations when evaluating a request for a public interest fee waiver, including whether or not the disclosure furthers "the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester[,]" and also the "requester's expertise in the subject area as well as the requester's ability and intention to effectively convey information to the public[.]"
D. Summary Judgment In FOIA Cases
As a procedural matter, "FOIA cases typically and appropriately are decided on motions for summary judgment." Judicial Watch, Inc. v. Dep't of the Navy ,
III. ANALYSIS
The DOJ agencies that received Donato's various FOIA requests have responded to them in different ways; thus, this Court has had to address a variety of issues in order to resolve Defendants' motion for summary judgment. As explained fully below, the Court has found that the FBI's response to Donato's FOIA request was appropriate under the circumstances presented here, and as a result, the FBI is entitled to summary judgment at this time. But Defendants' motion for summary judgment must be denied without prejudice as to EOUSA, because Defendants have not established that EOUSA performed the search and review function for at least two hours in response to Donato's FOIA request, or that it provided Donato with at least 100 pages of non-exempt records at no charge, despite EOUSA's proper denial of Donato's fee waiver request. Nor can BOP claim entitlement to summary judgment now, because the declarations that Defendants have submitted are manifestly insufficient to establish either that BOP's searches were adequate or that its withholdings are well-founded. Accordingly, Defendants' motion for summary judgment has been granted in part and denied in part, and the Order that accompanies this Memorandum Opinion provides a deadline *308for the parties' submission of a proposed schedule for further proceedings.
A. The FBI Is Entitled To Summary Judgment, Because Its Glomar Response To Donato's Records Request Did Not Violate The FOIA
As explained above, in response to Donato's request for records regarding the murder-conspiracy plot that Dominic Cicale allegedly devised, the FBI issued a "Glomar" response, refusing to confirm or deny the existence of responsive records on the grounds that even acknowledging the existence of records would impinge on the privacy interests of third parties named in the records, thus implicating FOIA Exemptions 6 and 7(C). (See Hardy Decl. ¶ 22.) Because there is no dispute here that the requested records are law enforcement records (see id. ¶ 20), this Court need only evaluate whether disclosure of the records "could reasonably be expected to constitute an unwarranted invasion of personal privacy" under FOIA Exemption 7(C). See
For the purpose of Exemption 7(C), a reviewing court must "balance the privacy interests that would be compromised by disclosure against the public interest in release of the requested information." Davis v. DOJ ,
Turning to the other side of the balancing test, the D.C. Circuit has recognized that in "instances where a third party asks if an agency has information regarding a named individual in its law enforcement files, the cognizable public interest in that information will be negligible [because] the requester will be seeking records about a private citizen, not agency conduct." Nation Magazine ,
*309U.S. Dep't of Def. v. Fed. Labor Relations Auth. ,
Donato attempts to tie in alleged government misconduct by asserting that the public also has an interest in understanding "how the FBI, USAO, and the BOP carried out their respective duties to investigate and prosecute criminal conduct-murder conspiracy to frame a federal officer and informant[.]" (Id. ) Donato thus suggests that BOP may have acted improperly in conducting its investigation, but the law is clear that where "the asserted public interest is the revealing of government misconduct ... the FOIA requester [must] 'establish more than a bare suspicion' of misconduct." Roth , 642 F.3d at 1178 (quoting Nat'l Archives & Records Admin. v. Favish ,
Donato also attempts to invoke the public domain doctrine (see Pl.'s Opp'n at 41-45), pursuant to which information otherwise exempt from disclosure "lose[s its] protective cloak once disclosed and preserved in a permanent public record." Cottone v. Reno,
*310Donato has come nowhere close to satisfying this exacting burden. His argument about the public nature of the requested information focuses entirely on what others have said about the murder-conspiracy plot-e.g., Cicale's and Medina's testimony in open court about the alleged plot (see Pl.'s Opp'n at 41), media coverage of the alleged plot and associated trial proceedings (see id. at 41-42), and the discussion of the plot in court filings (see id. at 42-43)-and Donato does not reference any statements from the FBI. To be sure, Donato points to documents that indicate that BOP or the "Government" generally investigated the alleged murder-conspiracy plot. (See id. at 45; Wade-Jones Aff. ¶ 5.) But to prevail under the public domain doctrine, Donato must show that the FBI has acknowledged that it investigated Cicale's alleged scheme, and thus would be likely to have records about that plot, and Donato has done nothing to demonstrate any such acknowledgement by the FBI. See Leopold ,
So it is here. Donato has sought records about an investigation that the FBI has not previously acknowledged concerning private individuals whose interests could be harmed if the FBI confirms that it possesses records pertaining to any such investigation. Thus, this Court concludes that the FBI properly refused to confirm or deny the existence of records responsive to Donato's FOIA request.
B. EOUSA Properly Denied Donato's Request For A Fee Waiver, But It Nonetheless Has To Provide Donato With 100 Pages Of Records
Donato challenges two different aspects of EOUSA's response to his FOIA request. He maintains that he was entitled to a public interest fee waiver for the requested records, that EOUSA improperly denied him (see Compl. ¶¶ 57-65), and, regardless, he suggests that EOUSA failed to fulfill its statutory obligation to search for 2 hours and provide him with up to 100 pages of records for free (see id. ¶¶ 21-24). This Court rejects Donato's claim that EOUSA responded improperly regarding the fee waiver request, but the record herein is muddled as to whether or not EOUSA satisfied its obligation to provide Donato with 100 pages of records, and until the agency provides the necessary clarification, an award of summary judgment must be withheld.
1. Donato Has Not Demonstrated That He Is Able To Disseminate The Requested Records To The Public
In order to be entitled to a public interest fee waiver for records requested under the FOIA, the requester must establish, first, that he does "not have a commercial interest in the disclosure of the information sought[,]" Larson v. CIA ,
Notably, to carry this burden, a FOIA requester must "describe[ ] in reasonably specific and non-conclusory terms his ability to disseminate the requested information." Perkins v. U.S. Dep't of Veterans Affairs ,
Here, the parties do not dispute that Donato has no commercial interest in the disclosure of the records that he seeks, and thus satisfies the first prong of the public interest fee waiver test. (See Pl.'s Opp'n at 26; Defs.' Reply at 3-4.) But the parties disagree about Donato's ability to disseminate information to a sufficiently broad audience, and this Court concludes that Donato falls well short. "[T]his is not a case where [Donato] operates his own means of information dissemination such as a newsletter or a website[,]" Perkins ,
Donato's additional contention that he will commit to "posting all pertinent information I receive" on the website of a group called "Access Legal Aide," which he describes as a company that "publishes inmate information and letters on Facebook, Google, and [its] Blog" (Fee Waiver Appeal at 12), fares no better. "In assessing whether a public interest fee waiver request should be granted, the Court ... must look to the scope of the requester's proposed dissemination-whether to a large segment of the public or a limited subset of persons."
*312Prison Legal News v. Lappin ,
All things considered, then, this Court agrees with EOUSA's determination that Donato has not made the requisite showing that he is entitled to a public interest fee waiver under the FOIA. Therefore, the Court finds that EOUSA's denial of Donato's public interest fee waiver request was proper.
2. EOUSA Is Required By Law To Provide 100 Pages Of Records To Donato Regarding The Alleged Murder-Conspiracy Plot
Nevertheless, EOUSA must still proceed to address Donato's FOIA request, because Donato is unquestionably entitled to two hours of search time and up to 100 pages of duplication at no charge. See
Importantly, careful scrutiny of the response letter that EOUSA sent to Donato following the administrative remand (which Donato claims not to have received), reveals that the agency's letter states that the subject matter of the request was "Self-Anthony Donato[,]" rather than records pertaining to Cicale's alleged murder-conspiracy scheme. (Ex. N to Luczynski Decl., ECF 18-5 at 38.) This suggests that the agency's free search time may have been misdirected. And the Luczynski Declaration adds to the confusion about EOUSA's purported search, because it states both that EOUSA searched for records regarding Donato himself and that it "searched for records from the case files related to the criminal prosecution case [that] the plaintiff identified." (Luczynski Decl. ¶ 18.) Given the uncertainty in the current record regarding whether or not EOUSA has properly responded to the records request that Donato actually submitted, by providing him with two hours of search time and up to 100 pages of records responsive to his request for documents related to Cicale's alleged murder-conspiracy plot, this Court has no other option but to conclude that summary judgment is inappropriate at this juncture.
C. BOP's Declaration Does Not Establish That BOP Conducted An Adequate Search, Nor Does It Support The Agency's Invocation Of FOIA Exemptions
This Court reaches the same conclusion with respect to the part of Defendants' summary judgment motion that pertains to BOP. Donato maintains that BOP conducted inadequate searches for records in response to his two FOIA requests *313to that agency, and that BOP also improperly invoked FOIA Exemptions 2, 5, 6, 7(C), 7(D), 7(E), and 7(F) to withhold certain documents related to the alleged murder-conspiracy plot. (See Compl. ¶¶ 35-52.) To be entitled to summary judgment with respect to the adequacy of its search, BOP must show that it made "a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of Army ,
Neither of these declarations is sufficient to support an award of summary judgment in BOP's favor. To begin with, each declaration is utterly silent as to the scope or method of the search that BOP staff conducted, nor do the declarants reveal the search terms used. Moreover, there is also no indication of the agency's reasons for believing that responsive records would likely be found in the places where it searched. (See Wallace Decl. ¶ 5 (stating that the declaration "will provide the Court and Mr. Donato with an explanation of ... the procedures used to review and process the responsive records," but not actually providing any such explanation); Raymond Decl. ¶ 6 (noting that staff at FCI Sandstone "detailed their search of Mr. Donato's Inmate Central File" in an email, without describing the contents of that email or attaching it to the declaration). Thus, the statements that BOP has submitted themselves provide no basis whatsoever for any determination that BOP's searches for records were reasonable. See Weisberg v. DOJ ,
The withholding justifications that BOP lays out in its declarations are similarly deficient. Certain portions of the Wallace Declaration refer simply to "pages" that BOP has produced or withheld-pages that are identified solely by Bates number. (See, e.g. , Wallace Decl. ¶¶ 13, 24, 35.) The declaration provides little, if any, explanation about "what types of documents these pages belong to, who created the documents and for what purpose, and how the exemptions relate to the nature of the documents themselves." Sciacca v. FBI ,
Given the clearly manifest deficiencies in the supporting statements that BOP has provided, Defendants have failed to establish that BOP is entitled to summary judgment. See Nation Magazine ,
IV. CONCLUSION
The agencies' different responses to Donato's substantively similar FOIA requests have demanded different legal analyses that, not surprisingly, lead to different results. Defendants have established that they are entitled to summary judgment on the claims that Donato asserts against the FBI, because that agency appropriately issued a Glomar response with respect to Donato's requests for materials pertaining to Cicale's alleged murder plot. Defendants have also established that EOUSA properly denied Donato's fee waiver request, but Defendants have not shown that EOUSA spent at least two hours searching for records regarding the alleged murder-conspiracy plot, or that it produced 100 pages of records to Donato at no cost, nor have they demonstrated that BOP conducted a reasonable search for records, or made proper withholdings, regarding either FOIA request that Donato submitted to that agency. Accordingly, as reflected in the prior Order, Defendants' motion for summary judgment has been GRANTED IN PART and DENIED IN PART . An Order setting a deadline for Defendants to submit a proposed schedule for further proceedings will issue separately.
Page number cited herein refer to those that the Court's electronic case filing system automatically assigns.
Donato's interest in the subject appears to relate to his own conviction for murder in aid of racketeering, which resulted from the same organized-crime prosecution that had landed Vincent Basciano in prison. See United States v. Basciano ,
Donato presumably requested records from BOP because BOP officials investigated Cicale's alleged plot and had generated at least one memorandum on the subject, as mentioned above. Furthermore, it was reasonable to assume that EOUSA had documents regarding the events at issue, because after his racketeering conviction, Basciano had unsuccessfully moved for a new trial on the grounds that the U.S. Attorney's Office had withheld material information about Cicale's prison plot that Basciano could have used to attack Cicale's credibility during trial. See United States v. Basciano , No. 03-CR-929,
Although Donato's complaint does not expressly challenge the adequacy of BOP's search for records responsive to his request for information about Cicale's alleged scheme, he makes such a challenge in his opposition (see Pl.'s Opp'n at 20-21), and because he is proceeding pro se, this Court will consider the merits of that claim. Cf. Crawford v. Duke ,
In the FBI's declaration, Hardy admits that the FBI mistakenly construed Donato's first request for records as one seeking records about Donato himself . (See Hardy Decl. ¶ 5 n.2.) And while the parties have engaged in a vigorous debate over whether or not the agency actually released any records to Donato in response to this first request so construed (see, e.g. , Def.'s Mot. at 11-12; Pl.'s Opp'n at 35-36), that dispute is of no moment, because Donato subsequently filed a second request that was substantially identical to the first letter requesting records regarding Cicale's alleged murder-conspiracy scheme, and the agency issued a Glomar letter in response. (See Compl. ¶¶ 29-30.) Donato's complaint expressly challenges the FBI's Glomar response as "inappropriate" (id. ¶ 67), and thus, that agency action is the only FBI-related claim that is properly before the Court.
"Glomar" responses are "named for the Hughes Glomar Explorer, a ship used in a classified Central Intelligence Agency project 'to raise a sunken Soviet submarine from the floor of the Pacific Ocean to recover the missiles, codes, and communications equipment onboard for analysis by United States military and intelligence experts.' " Roth v. DOJ ,
