UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

ANGELA CLEMENTE, ::

Plaintiff, ::

v. :: C. A. No. 08-1252 (PLF)

FEDERAL BUREAU OF INVESTI- :GATION, et al. :

:Defendants :

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S RENEWED CROSS-MOTION

FOR SUMMARY JUDGMENT AND IN OPPOSITION TO FBI’S RENEWED MOTION FOR SUMMARY JUDGMENT

Preliminary Statement

Pending before the Court are the motion of plaintiff Angela Clemente

(“Clemente”) for Reconsideration (“MRECON”) of this Court’s September

28, 2010 Memorandum Opinion and Order (“Mem. Op.”) and Defendant’s

Renewed Motion for Summary Judgment (“RMSJ”). Plaintiff now files her

Renewed Cross-Motion for Summary Judgment (“RCMSJ”) against the

background of a new Vaughn index which makes abundantly clear the need

for a reprocessing of all the records at issue. Also clear is the need to locate

and process all of the records sought by Clemente’s requests, not just those

which the FBI initially identified as responsive records.

For the reasons set forth below, plaintiff’s motion for reconsideration

and renewed cross-motion for summary judgment must be granted, and the

motion of the Federal Bureau of Investigation (“FBI”) for summary

judgment should be denied.

STATEMENT OF THE CASE

Plaintiff Angela Clemente (“Clemente”) seeks records related to

Gregory Scarpa (“Scarpa”) a member of La Cosa Nostra (“LCN”) who

worked for the FBI undercover as a symbol number informant, NY 3461-

TE. Scarpa’s handler was Lindley DeVecchio (“DeVecchio”), formerly an

FBI Supervisory Special Agent. For a period of time now, Clemente has

been investigating a series of crimes committed or abetted by Scarpa, a

Mafia hit man known as “The Grim Reaper” for the more than 50 murders

he is said to have committed. Her probes have led to official investigations

and prosecutions of DeVecchio for, among other things, having known or

had reason to know of crimes Scarpa committed or assisted in while on the

FBI’s payroll as a secret informant.

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A brief summary of some of these cases will help illustrate the strong

public interest in the full disclosure of the records which remain withheld in

this case. Scarpa and DeVecchio are directly involved in each case.

Two such cases are Michael Sessa v. United States of America,

District Court Docket Nos. 92-cr-351 (ARR), and 97-cv-2079 (ARR). The

first of these is a criminal case, the second a civil case. These cases were

filed in the United States District Court for the Eastern District of New

York. Sessa also has two cases in the U.S. Court of Appeals for the Second

Circuit, 2d Cir. Docket Nos. 11-611 and 11-1136. Fourth Declaration of

Angela Clemente (“4th Clemente Decl.”), ¶ 3.

Sessa was one of the first to go to trial during the alleged “Colombo

family war” trials. In October 1992, Agent DeVecchio testified against

Sessa as the government’s first witness. He testified that he was the head of

the FBI’s investigation of Sessa, that everything in Sessa’s case went

through him, and that every FBI agent on the case worked for him. Id., ¶ 4.

The FBI brought a murder and racketeering case against Sessa based

on information provided by Scarpa. However, Scarpa did not testify at

Sessa’s trial; rather, DeVecchio’s testimony concerned information

furnished him by Scarpa. Scarpa-based information which DeVecchio

testified to not only turned out to be false, but circumstances suggest that

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Scarpa himself may have committed these crimes while on the FBI payroll.

These facts obviously raise a question as to whether DeVecchio himself

knew or had reason to know that Scarpa was involved in murders and

attempted murders that he accused others of committing. Id., ¶ 5.

A veteran attorney, David Schoen, adds even greater detail to the

picture of criminal collusion between DeVecchio and Scarpa in the Sessa

case. Schoen has been practicing law for over 25 years. He formerly

represented Michael Sessa in two cases filed in the United States District

Court for the Eastern District of New York. He represented him in

connection with a motion under Rule 33 of the Federal Rules of Criminal

Procedure and a motion under 28 U.S.C. § 2255. He ceased representing

Sessa because of a scheduling conflict. He regretted having to do so, “as I

found the issues in his case, especially insofar as they related to outrageous

government misconduct of the first order, to be as compelling as any I have

encountered in my over 25 years practicing law.” Declaration of David

Schoen (“Schoen Decl.”), ¶ 3.

Schoen states that in advance of his original criminal trial on charges

of murder and attempted murder, United States v. Sessa, 92 cr. 351 (ARR),

Sessa’s trial attorney attempted to subpoena the New York Police Depart-

ment (“NYPD”) investigative file on the murder with which Sessa was

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charged. However, the Government convinced the Court to quash the

subpoena. In doing so, it represented that there was no exculpatory evidence

in the file. The NYPD file was obtained in part after the trial. “It reflected,

among other exculpatory evidence, a list of suspects in the murder, none of

whom was Michael Sessa and one of who was Gregory Scarpa. It also

reflected interviews with witnesses who saw the victim well after the

government ‘proved’ Mr. Sessa had killed him and in a completely different

location from where the government had alleged the victim to be on the

night in question.” Id., ¶ 4.

At Sessa’s trial, DeVecchio testified that he had never intervened for

leniency on behalf of any informant. “At the time he gave that testimony he

knew full well that he had met secretly with Judge Glasser to ask for

leniency on behalf of Scarpa.” Id., ¶ 5. “We now know,” says Schoen, “that

DeVecchio and other agents and prosecutors from the Eastern District of

New York intervened on Scar[]pa’s behalf many times to extricate him from

problems he had from engaging in criminal conduct while also working as a

government informant.” Id.

Sessa’s defense suspected that Scarpa was the confidential source of

information listed anonymously on FBI documents in the case and asked for

disclosure of that source of information. The request was denied. Id., ¶ 6.

5

In summation at Sessa’s trial, the government emphasized

DeVecchio’s credibility as a witness, urging the jury to acquit if they

actually believed anything he told them was not true. Id., ¶ 7.

According to Schoen, this pattern of conduct and withholding

evidence concerning Scarpa and his role as an informant fomenting trouble,

killing other members of organized crime, and engaging in other illegal

conduct while on the government’s payroll as an informant continued for

years. “When it finally was uncovered, in those cases in which the jury was

made aware of the corrupt relationship between Scarpa and De[V]ecchio,

they acquitted the defendants. The government, however, engaged in a

horrible, unethical campaign of deception and cover-up and secured many

convictions through such means.” Id., ¶ 8.

On May 22, 2011, 60 Minutes ran a program regarding DeVecchio. It

dealt largely with his newly published book, We’re Going to Win this Thing.

During an interview by Anderson Cooper, DeVecchio stated that he knew

that Scarpa had committed a murder in Brooklyn because Scarpa had let him

know that with a smile, but that he did not report this to the FBI. This is

contrary to what DeVecchio testified in Sessa’s case, where he stated that he

would report any criminal activity by any informant. Id., ¶ 6.

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This episode graphically demonstrates the public interest in releasing

all of the information which Scarpa provided DeVecchio. This information

concerning the murder in Brooklyn has not been provided to Clemente

through the documents released in this case. The provision or failure to

provide such information necessarily bears on the issue of whether

DeVecchio was violating standard law enforcement policies and procedures

by (1) not reporting such information or (2) keeping a person who was

committing violent crimes on the informant payroll. Id., ¶ 7.

These violations had serious consequences. At his trial, DeVecchio

was charged with four counts of second degree murder involving Mary Bari,

Larry Lampesi, Patrick Porco, and Joe DeDomenico. The Brooklyn District

Attorney charged they had been murdered with the help of DeVecchio. A

former member of Scarpa’s “crew,” Larry Mazza, testified at DeVecchio’s

trial that he stopped counting after Scarpa had committed 50 murders. The

full extent of DeVecchio’s knowledge of and participation in such crimes

while Scarpa was on the FBI payroll remains unknown because in this and

other cases the FBI is still withholding information furnished to DeVecchio

by Scarpa. Id., ¶ 8.

Victor Orena was initially charged along with Michael Sessa, but his

case was subsequently severed. In an evidentiary hearing held in Orena’s

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case in 1997, DeVecchio, testifying under a grant of immunity, admitted that

he lied when he testified that he did not know that Scarpa had committed

crimes. Id., ¶ 9.

U.S. v. Anthony Russo, Joseph Russo, and Joseph Monteleone, Case

No. 92-cr-351, presented circumstances similar to those which took place in

Sessa’s case. The attempted murder charges against these defendants were

based on information which Scarpa furnished and introduced in

documentary form by the U.S. Attorney’s office. Although initially

convicted, they were ultimately cleared of these charges (although not of

others), when other FBI informants testified that Scarpa had committed

those murders and attempted murder. Id., ¶ 10.

In 2003, Clemente reopened a case related to highly decorated Orga-

nized Crime Investigation Division (“OCID”) Detective Joe Simone

(“Simone”), who worked as part of a joint task force with FBI. Detective

Simone was indicted for crimes related to attempted bribery. He was

acquitted of all charges; however, when Clemente was reviewing the case

she became concerned he was also involved in other crimes. But her

investigation led her to conclude otherwise, and she “ultimately cleared

Simone, finding him to have been a ‘fall guy’ for Agent DeVecchio and

others while they were trying to protect Scarpa.” In 2010, with the

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assistance of several law enforcement officials, former Detective Simone’s

case was officially reopened. Clemente states that “[i]n a dramatic turn of

events separate from our investigation, in his new book DeVecchio agreed in

part with my findings,” saying that Simone had been set up by his deputy,

Special Agent Christopher Favo (“Favo”), and Valerie Caproni (“Caproni”).

Long before this, Clemente had concluded that Simone had been set up by

Favo, DeVecchio and Caproni to protect Scarpa from his wrongdoings.

However, in his book, DeVecchio blames others instead, one of whom was

his subordinate, Favo. The need for an official investigation into the

framing of Detective Simone was identified through Clemente’s

participation in Judge Leslie Crocker Snyder’s decision to investigate

whether Scarpa’s mistress, Linda Schiro, had committed perjury at

DeVecchio’s trial. See October 2008, Report of the Special District

Attorney in the Matter of the Investigation of Linda Schiro by Judge

Crocker, reproduced as Attachment 1 to Plaintiff’s December 4, 2008

Motion for Leave to File Supplemental Complaint. Id., ¶ 11.

In 2003, Clemente reopened a cold case on the murders of Salvatore

Scarpa and Matty Ianiello. This case continues as an open, very active case.

Clemente contends that she has solved both murders. She is working on

locating a few additional pieces of evidence, at which time she “will present

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these murders for prosecution.” Both are directly related to Scarpa’s

participation and/or order with strong allegations and/or evidence of the

participation of Agent DeVecchio. Id., ¶ 12.

In or around 1998, Clemente began reviewing, and ultimately re-

opened the case of a teenage murder victim of Scarpa’s. This was the case

of Patrick Porco (“Porco”). Agent DeVecchio was indicted on this murder

in 2006 and sued in civil court around the same time period that the

prosecution withdrew its case against him. Recent newly discovered

information has been identified in both Agent DeVecchio’s book and his

interview with 60 Minutes. The victim’s family has asked Clemente and an

attorney to look into reopening another avenue on their case in civil and

possibly criminal court. The documents that were released to Clemente

from the FBI relate to the NYPD 62nd Precinct’s alleged corruption are of

great importance in possibly reopening a new case on behalf of this family.

Id., ¶ 13.

It is clear that DeVecchio’s improper relationship with Scarpa

extended for a very long time. CL 903-9041 is a New York letterhead

memorandum dated March 1, 1974, in which Scarpa admits to his role in a

severe beating of a “kid” who was subsequently murdered. See 4th Clemente

1 “CL” (for “Clemente”) followed by a number indicates the Bates-stamped page number which the FBI has assigned to documents in this case.

10

Decl., Exhibit 1. Although Scarpa talks about this as having happened ten

years earlier, in about 1965, despite this admission of his involvement in a

felony murder, he was not taken off the streets. Id., ¶ 16.

Cl 773-775 is a June 16, 1971 letterhead memorandum from the New

York field office which lists 19 members of the 62nd precinct of the New

York Police Department who Scarpa said would take bribes, and one “bad

cop” who he said would not. See id., Exhibit 3. There is a very large public

interest in learning who these police officers were and who they were

working with. This is the precinct which mishandled the Patrick Porco

homicide. It is the homicide which led to the 2006 indictment of

DeVecchio, who was implicated because of his relationship with Scarpa.

Id., ¶ 17.

Several years ago Clemente opened a case, which is still ongoing, on

Sal Scarpa, Gregory Scarpa, Sr.’s brother. Sal Scarpa was murdered. It is

alleged that DeVecchio was intimately involved in this murder, that Scarpa

either murdered or ordered his brother to be murdered. There is nothing in

the records released to Clemente about Sal Scarpa’s murder. CL 1055 states

that Scarpa was paid for his information furnished during the period

December 15, 1986 through June 12, 1987.2 See 4th Clemente Decl.,

2 The amount of money he was paid was redacted when this document was originally provided to Clemente. Obviously, when the full set of documents

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Exhibit 4. Sal Scarpa was murdered on January 15, 1987. Obvious

questions are raised by DeVecchio’s and Scarpa’s silence on this matter.

The inference that both men were operating outside the law and not for any

valid law enforcement purposes is compelling. Id., ¶ 19.

ARGUMENT

I. ALL RECORDS MUST BE REPROCESSED

In renewing its motion for summary judgment, the FBI has submitted

a new Vaughn Index. By Clemente’s count, there are 192 pages in this

index. However, this includes three pages which are “changed to”

placeholder sheets. As the FBI did not make any Vaughn evaluation of the

underlying materials represented by these placeholders or the parts of them

selected by Clemente for vaughning, there are only 189 pages that were

actually vaughned.3 Of these 189 pages, 69 have now been released with

is reprocessed, as it must be, this withheld information should be released to Clemente.3 These three placeholders are Cl 665, CL 918, and CL 1148 (all reproduced as Exhibit 5 hereto). CL 665 and CL 918 were selected for the current (“2011”) Vaughn index. CL 665 and 1148 represent entire sections which were removed to the New York field office. By his March 23, 2009 letter to AUSA Christian Natiello, Clemente’s counsel selected all three of these documents for the Supplemental Vaughn index. He specified that with respect to CL 665 “I want the first and last underlying documents in the ‘changed to’ section,’” and that with respect to CL 918, “I want both serial 179-1996-179 and 183-5940-3x. See Exhibit B to Second Declaration of David M. Hardy (“2d Hardy Decl.”).

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additional information.4 This means that 37% of the Vaughn sample index

pages have been released with additional information.

In Bonner v. U.S. Dept. of State, 928 F.2d 1148, 1154 (D.C.Cir.

1991), the Court of Appeals made it quite clear that if significant portions of

a Vaughn sampling index indicate flaws in the standards applied in the

original processing, “then the propriety of withholding other responsive, but

non-sample, documents would come to the fore.” In Bonner and Meeropol

v. Meese, 790 F.2d 942, 960 (D.C.Cir.1986), the D. C. Circuit indicated that

error rates of 30% and 25% respectively were “unacceptably high.” These

cases did not set a floor for an unacceptably high error rate; they just

indicated those rates were too high.

In this regard, it must be noted that a district court “has an affirmative

duty to consider the segregability issue sua sponte.” Transpacific Policing

Agreement v. U.S. Customs, 177 F.3d 1022, 1028 (D.C.Cir.1999). Given

the fact that the FBI’s error rate indicates that there has been improper

withholding from approximately 37% of the 1,053 pages processed,5 a

4 These 69 pages are reproduced in Exhibit 1 hereto. They appear in numerical order according to their “Clemente” Bates Stamp number. The first copy of each page is in the form it was originally released to Clemente. The copy immediately behind that page is the same page with additional information released.5 This is the number of pages which Hardy says were processed. See 4th Hardy Decl., n.1. The FBI excluded 17 pages for reasons that are unclear. If these were copies of file covers, then they should have been copied and

13

reprocessing of some fashion is required before this court can reasonably

find that the segregability obligation has been fulfilled. Certainly, summary

judgment cannot be granted on the basis of such a record.

A 37% error rate is unacceptable. It means that approximately 320

pages should have additional releasable information. Moreover, as will be

shown below, this figure, damning though it is, substantially underestimates

the amount of still-releasable material in these records because it assumes

the withholdings in the current Vaughn index are justified. They are not, as

will be shown in detail below.

II. THE FBI HAS NOT CONDUCTED AN ADEQUATE SEARCH

In Clemente v. F.B.I., 741 F.Supp.2d 64 (D.D.C. 2010), this Court

rejected Clemente’s position that the FBI had failed to search for and

produce all records she had requested. The Court did not, however, enter

summary judgment in favor of the FBI on these issues, and Clemente

subsequently moved for reconsideration of the Court’s findings. That

motion remains pending before this Court. For the reasons set forth below,

as well as those contained in this motion, this Court should reconsider its

previous opinion and revise it accordingly.

released to Clemente.

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A. The FBI Has Not Produced Either “the Entire UNREDACTED File on Scarpa” or “Any Informant

File on Scarpa”_______ ________________________

1. “The Entire File UNREDACTED”

This Court rejected Clemente’s position that her initial pro se

requests6 for “the entire UNREDACTED file of Gregory Scarpa, Sr.”

included all materials on Scarpa “regardless of their location in any

particular file.” Clemente v. F.B.I., 741 F.Supp.2d 64, 79 (D.D.C.2010),

quoting Reply in Support of Plaintiff’s Cross-Motion for Summary

Judgment (“PMSJ Reply”), at 4-5.

This request was sufficient to trigger a search of both Headquarters

and New York field office files for a couple of reasons. First, all that the

FOIA requires is that the requester “‘reasonably describe’ the records

sought.” Hemenway v. Hughes, 601 F.Supp. 1002, 1005 (D.D.C. (1985),

citing 5 U.S.C. § 552(a)(3). The 1974 amendments to the FOIA indicate

that requester’s description is sufficient if it enables a professional agency

employee familiar with the subject area to locate the records with a

“reasonable amount of effort.” H.R. Rep. No. 93-876, 93 Cong., 2d Sess.

6 Clemente’s initial pro se requests were dated April 12 and May 21, 2008, and were identically worded. See Complaint, Exhibits 1 and 2 (hereafter referred to in the singular as her initial request). By letter dated June 9, 2008, the FBI assigned this request No. 1115387. See Complaint, Exhibit 3.

15

(1974) at 6. There is no question but that Clemente met this standard here.

In interpreting a FOIA request, an agency “must bear in mind that ‘the

fundamental objective of the FOIA is to foster disclosure, not secrecy’”,

Hemenway at 1004, quoting Chrysler Corp. v. Brown, 441 U.S. 281, 290

n.10, (1979), quoting Dep’t of Air Force v. Rose, 425 U.S. 352 (1976, “and

to provide information to the people on matters of public concern. . . .” Id.,

at 1004-1005. Thus, in construing a request, “the agency must be careful not

to read the request so strictly that the requester is denied information the

agency well knows exists in its files, albeit in a different form from that

anticipated by the requester. To conclude otherwise would frustrate the

central purpose of the Act.” Id. at 1005.

Campbell v. U.S. Dept. of Justice, 164 F.3d 20 (D.C.Cir. 1998) dealt

with essentially the same issue raised here. There the requester asked for

“the FBI file” on James Baldwin. Id. at 26. In contrast to the FBI’s actions

in this case, in Campbell the FBI searched both New York and field office

files and “produced a limited number of responsive documents, often in

redacted form.” The documents provided suggested that the FBI had

monitored Baldwin’s activities. Id. The Court of Appeals endorsed the

principle that the request was not limited to the location to which it was

directed but included both the New York and FBI Headquarters files.

16

Indeed, it went beyond this. Noting that the case record was

ambiguous as to whether the New York office had searched its ELSUR

(“Electronic Surveillance”) indices, the Court held this was immaterial to the

appeal because “even if the New York office had searched its ELSUR index,

the national office would still have been obliged to search its own index if it

had cause to believe that such a search would identify responsive

information.” Id., at 27, n. 4.

Here any reasonable interpretation of “the entire UNREDACTED file

of Gregory Scarpa, Sr.” would require a search of the New York office files

because only with that inclusion could the entire Scarpa file be said to have

been searched. Clearly, the New York office file(s) on Scarpa are within the

scope of the request submitted by Clemente’s April 12, 2008 request. [A]n

agency ‘cannot limit its search to only one record system if there are others

that are likely to turn up the information requested.’” Id., at 28, quoting

Oglesby v. United States Dep’t of the Army, 920 F.2d 57, 68 (D.C.Cir.

1990).

Here, it was immediately obvious that there were relevant New York

office files. Virtually every record released to Clemente is a record that was

either sent to, or received by, the New York office. See the FBI’s 2011

Vaughn index, Exh. C to 4th Hardy Decl.

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2. “Any Informant File”

Advised by her counsel that her need for prompt access to the records

she sought would be thwarted unless she submitted another request seeking

no more than 500 pages, Clemente, by letter dated July 9, 2008 (“1st July 9

letter”), wrote that she wished “to clarify in certain respects” her initial

request. See Complaint, Exhibit 4. She first limited it to 500 pages. She

then specified that one of the three items she wished to be given priority

included “`any informant file’ on Mr. Scarpa.” This Court found that it was

reasonable to read this as meaning that her request was “limited to

information on informant files and, more specifically, to informant files

whose primary subject matter is Mr. Scarpa.” Clemente, supra, at 79.

This may be a reasonable reading of this phrase, but it is not the only

reasonable reading, nor is it the one most in accord with the purposes of the

FOIA outlined above. The terms “record”, “file”, “document”, “material”

and “information”, are often used interchangeably both by FOIA requesters

and by courts. In Campbell, for example, the requester sought “the FBI file”

on James Baldwin, but what he got was not “the FBI file” but multiple

“files” that included, among other things “information” or “records” on the

surveillance of Baldwin that was retrievable not through a search of “the

file” or “files” but through a search of the ELSUR index.

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What is critical for evaluating what information is being demanded

by a request is not the kind of vessel in which the requester believes the

information is stored or where that vessel is located but the type of in-

formation that is sought. In this case, that was information related to Scarpa

as an informant; it was not simply what FBI technically considers to be a

“file” on Scarpa. While this interpretation is broader than the one employed

by this Court, it is the interpretation which best accords with the

considerations set forth in Hemenway and other cases cited above which

emphasize the latitude to be given a requester in the construction of her

request.

However, assuming that this Court’s interpretation is the one which

should be employed, it is still clear that this means that the New York field

office’s informant file on Scarpa is within the scope of Clemente’s request

as “any informant file on Mr. Scarpa.” That there is such a New York

informant file on Scarpa is beyond doubt. The documents released to

Clemente from Headquarters file 179-1996 are virtually all, if not all,

addressed to or received from the New York office. The New York

informant file number on the documents is always deleted, whereas the

Headquarters file number is not. Moreover, the documents provided

Clemente routinely display the subject of the file as “Top Echelon/

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CRIMINAL/INFORMANT PROGRAM/NEW YORK DIVISION.”

Finally, Sections 3 and 4 of HQ 179-1996 were transferred to a New

York file whose file number has been uniformly deleted on the grounds that

it is a confidential source file number; that is, because it is a number which

is assigned to the confidential informant. Because it is a confidential

informant source number, that file number has been routinely deleted,

initially under Exemption 2, now under Exemption 7(D).

Thus, Clemente’s request for “any informant file” on Scarpa includes

materials from the New York Office that have not been provided.

B. The Information in FBI Headquarters File 179-1996 Required Searches of the NY Informant File on Scarpa And the New York Field Office’s ELSUR INDICES__

This Court asserted that “the FBI is not required to locate, retrieve or

release documents located not at FBIHQ, but at regional field offices.

Clemente at 80. As case authority it cited Fischer v. U.S. Dep’t of Justice,

496 F.Supp.2d 34, 43 n. 9 (D.D.C. 2009). But Fischer is inconsistent with

Campbell, which sets forth the governing D.C. Circuit precedent. Campbell

held that the FBI’s claim that its search obligation was limited to the “main”

files located through a search of its Central Records System ( “CRS”) was

not supported by existing authority. Rather, “such authority indicates that

the FBI must search ELSUR in addition to CRS in response to a general

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FOIA request for which ELSUR may be relevant.” Campbell, supra, 164

F.3d at 28.

Cl 1050 states of Scarpa: “For the past several years source has

provided a continuous flow of extremely singular information which led to

17 Title III intercepts and reauthorizations forming the basis for the

prosecution of the hierarchy of the Colombo family.” 4th Clemente Decl.,

¶ 20, Exhibit 5. As Clemente notes, “[t]his clearly indicates the existence of

electronic or video surveillance materials pertinent to my FOIA requests

which have not been provided to me.” Id. CL 1050 comes from HQ file

179-1996. These surveillances, however, took place in New York City and

Scarpa participated in them as NY-3461-TE. Some of these surveillances

were recently shown on the 60 Minutes program on May 22nd regarding

DeVecchio’s book.

C. The Placeholder Sheets Establish That There Are Materials Responsive to Clemente’s Request for Any Informant File on Scarpa Which Have Not Been Provided

This Court discussed two “placeholder sheets” which were part of the

last Vaughn index. Actually, as explained in n. 3, supra, there are in fact

three placeholder sheets in the file released to Clemente, but only two were

selected for inclusion in the 2011 Vaughn index. All three were selected for

the Supplemental Vaughn. Of the three, the two which are most relevant to

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the issue of whether the FBI conducted a proper search for informant

materials responsive to Clemente’s request for informant materials are CL

665 and CL 918.

These two placeholders are particularly significant for several reasons.

First, they represent the transfer of entire sections of the FBIHQ file 179-

1996 to a New York field office file whose file number has been universally

redacted because it is a confidential source code file number. An FBI

customarily places 200-300 pages in each file section. These materials

clearly come within the scope of information responsive to Clemente’s

request for information on Scarpa under the “any informant file” scope

which this Court endorsed.

Secondly, the date of transfer is significant. Placeholder sheets 665

and 918 state that Section 3 and Section 4 of FBIHQ file 179-1996, actually

became part of Scarpa’s “New York Field Office informant file when they

were transferred to it on December 28, 1994.” See Fourth Declaration of

David M. Hardy, ¶ 12. In its earlier decision, this Court took note of

Clemente’s contention that the evidence indicated that the FBI had not

located materials that should have been in Scarpa’s informant file.

Ms. Clemente identifies several categoriesof documents that, based on her knowledgeof Mr. Scarpa and his activities, she believesshould have appeared in Mr. Scarpa's FBI file,

22

but were not included in it. P. Supp. at 2-4. Forexample, according to Ms. Clemente, "Scarpawas at the height of his activities" related tothe Mafia in the early 1990s, and the FBI there-fore must have collected many records docu-menting those activities. Id. at 3. But only 36 pages of the documents released to Ms. Cle-mente discuss that time period. Id. By Ms.Clemente's logic, the FBI's search for docu-ments must have been inadequate, because itdid not yield the records that she expected. SeeId. It is established, however, that "[t]headequacy of a search is not determined by itsresults but by the search itself.”

Clemente at 79, quoting Harrison v. Fed. Bureau of Prisons, 68 F.Supp.

76, 81-82 (D.D.C.2010)(citing Weisberg v. Dep’t of Justice, 745 F.2d 1476,

1485 (D.C.Cir.1984).

The Court adds to this that “Ms. Clemente cannot demonstrate that the

FBI’s search was inadequate by listing hypothetical documents that she

believes could and should have been located and released to her.” Id.

Clemente does not have to list “hypothetical documents” to make her

case. The obvious conclusion from what has now been pieced together is

that the documents which are missing were contained in Sections 3 and 4 of

HQ file 179-1996. The missing documents are not “hypothetical.” They are

in the New York field office and can easily be retrieved and produced.

There are some rather troubling possible implications to the fact that

the “transferred” sections 3 and 4 appear to cover the period that the

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Colombo War was waged during the early 1990s. This was a period in

which Scarpa was at the height of his activities and appears to have been

receiving greatly increased sums of payments from the FBI.7 These

sections are transferred to the New York office after Scarpa’s death. This is

puzzling. Not only has Scarpa died prior to the transfers, but the transfers

presumably merely duplicate what the New York office already has since all

the other records in the HQ 179-1996 file provided Clemente were either

sent to or received from the New York office.

The puzzlement does not end there. Clemente was provided 1,053

pages from the HQ 179-1996 file, which is allegedly an “informant file.”

Since FBI sections run about 200-300 pages per section, what has been

provided would normally be the equivalent of about four sections. Yet the

two sections which appear to contain the material coming at the end of

Scarpa’s activities are said to have been transferred out of this file, leaving,

apparently, just sections 1 and 2 to hold 1,053 pages, an improbable

7CL 1102, dated September 25, 1991, states that Scarpa’s “total authorization level is now $148,400,” which is far in excess of what CBS reported Scarpa had been paid in its May 22, 2011 “60 Minutes” piece.

24

occurrence, given the capacity of the two-prong binders that FBI files are

normally stored in.8

Until now, both Clemente and the Court have accepted the FBI’s

claim that the file it provided Clemente is an “informant file” she requested.

But further puzzlement has developed on this claim. The file actually

furnished to Clemente is said to be HQ 179-1996. This is not an informant

file number, as is indicated by the fact that the file number has been

disclosed, whereas it would be redacted if it were an informant file. Rather,

it is a file bearing the “179” classification, which is for “Extortionate Credit

Transactions.” On every document, the entire “179” file number is written

in by hand. Obvious questions are, if this is the Headquarters informant file,

why is there no redacted Headquarters informant file number, and why is

there instead a “179” file which appears merely to duplicate information in

the New York informant file?

In any event, even under the best possible construction of these facts,

what is relevant is that Clemente requested “any informant file,” and instead

she only has part of a file she requested. It is totally at odds with the

purpose and goals of the FOIA to allow an agency through some technical

8 Clemente is unable to tell for sure how many sections comprise this “file” because the FBI has not provided copies of the file covers. File covers can be most helpful to researchers, and this is another example of how the FBI has failed to produce all that she requested.

25

artifice to deprive the requester of access to all of the records she requested

on a particular subject. That is what has happened here.

D. Other Policy and Procedural Considerations Regarding The Evaluation of Clemente’s Requests_____________

In addition to having relied on Fischer, this Court also cited

28 C.F.R. §§ 16.3, 16.41 for the proposition that for a “FOIA request made

only to FBIHQ, the FBI is not required to locate, retrieve, or release

documents located not at FBIHQ, but at regional field offices. Clemente at

80. As pointed out above, the D.C. Circuit rejected this proposition in

Campbell. Aside from this, there are additional concerns that should be

mentioned.

First, courts “owe no particular deference” to an agency’s interpreta-

tion of what FOIA requires. Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309,

1313 (D.C.Cir.2003), citing Tax Analysts v. I.R.S., 117 F.3d 607, 613

(D.C .Cir.1997) (noting that court “will not defer to an agency’s view of

FOIA’s meaning”).

Deferring to the FBI’s regulation runs counter to the intent of the

FOIA to operate without unnecessary bureaucratic encumbrances which

delay and obstruct prompt and unfettered access to government records. The

FBI’s regulation places a burden on the requester to submit multiple

applications for the information she seeks. This drives up the time and cost

26

the requester must expend to obtain the information she seeks. This is made

more onerous by the fact that the requester normally does not know all, and

in some cases may not know any, of the field offices which hold responsive

records on the subject in which she is interested, thus requiring her to submit

needless requests, a procedure which is unnecessarily costly not only to the

requester but to the Bureau as well. Moreover, when the requester does

submit requests to other field offices and responsive records exist there, the

request is normally referred to Headquarters for processing. The FBI, of

course, has this information readily available at FBI Headquarters.

Moreover, where such additional requests are pursued, the end result

generally is that the FBI orders the field office to transfer the records to FBI

Headquarters for processing, See Fourth Declaration of James H. Lesar

(“4th Lesar Decl., ¶ 3. This again delays compliance with the request.

Nothing in the FOIA requires a requester to submit to a field office a

request that she has already submitted to Headquarters. Many agencies

will forward a request submitted to their headquarters to appropriate field offices

without requiring the requester to do this. Id.

It should further be noted that the FBI did not advise Clemente that it

would not be searching for informant files in its New York or other field

offices. This deprived her of the opportunity to administratively appeal its

27

decision not to search such offices for “any informant file” on Scarpa and

thereby waived its right to rely on this practice to limit her clear and

unambiguous request for any informant file on Scarpa. See Dettman v.

United States Dept. of Justice, 802 F.2d 1472 (D.C.Cir.1986) “decline[d] to

embrace the Government’s parsimonious reading of Dettmann’s request” but

did not overturn the FBI’s practice of not processing “see” references in

their entirety in that case “when that practice was specifically brought to [the

requester’s] attention in writing and has since been specifically sanctioned.”

Id. at 1476 (footnote omitted).

E. The FBI Has Not Searched or Produced Records from Tickler File on Scarpa___________________________

CL 1102 indicates in its distribution list at the lower left-hand corner

that a copy was sent to a “tickler file.” A search is required to determine

whether such a file still exists and contains responsive records. See

Campbell, 164 F.3d at 27-29.

III. THE FBI HAS FAILED TO MEET ITS BURDEN OF PROOF ON ITS EXEMPTION CLAIMS__________

A. Exemption 2 Claims Must be Reprocessed

As the FBI notes, the Supreme Court’s decision in Milner v. Dep’t of

the Navy, 131 S.Ct. 1259 (2011), fundamentally redefined Exemption 2.

28

As a result, the FBI reviewed the documents in the 2011 Vaughn index

sample and has determined that “to the extent that Exemption 2 had been

asserted in conjunction with other exemptions, such as Exemptions (b)(7)(D)

and (b)(7)(E) it is now withdrawn. The FBI has removed the (b)(2) markings

on those pages. Also, upon re-reviewing the sample, the FBI has determined

that Exemption (b)(7)(D) should be asserted rather than Exemption (b)(2) to

protect the source symbol number and source file number of the subject of

the request.” 4th Hardy Decl., ¶ 17.

By implication, where the FBI asserted only Exemption 2 and did not

assert Exemptions 7(D) or 7(E), the redactions have been removed and the

information released. As noted above, this requires a reprocessing of the

Scarpa records not included in the 2011 Vaughn sample.

As set forth below, the FBI’s Exemption 7(D) and 7(E) claims remain

at issue. To the extent that these represent new claims that were not

previously asserted in the course of the FBI’s multiple cross-motions for

summary judgment, Clemente contends that they have been waived by their

very belated assertion. She lays out her position on this in more detail in her

section on Exemption 7(D) below.

B. The FBI’s “Compiled for Law Enforcement Purposes” Claim Is Not Valid in the Circumstances of This Case

29

1. How FBI Special Agent DeVecchio and Mafia Confidential Informant Scarpa Promoted Law

Enforcement Purposes___________________

The underlying premise of the “compiled for law enforcement

purposes” threshold of Exemption 7 is that the public interest does not favor

extending the extra protection envisioned by the subparts of Exemption

where the public interest warrants disclosure because the information has

been used in a manner which violates or thwarts legitimate law enforcement

goals and procedures. David Schoen’s experience indicates the degree of

public concern about the illegality of the Scarpa/DeVecchio activities.

Along with Clemente, he met with congressional officers to discuss their

“rampant misconduct and the long corrupt relationship and the impact it had

on the very integrity of the system.” Schoen Decl., ¶ 9. Schoen spoke

regularly with prosecutors in Kings County, New York, “who brought and

then botched a murder case against DeVecchio based on his work with

Scarpa.” Id. He has also “participated in debriefings with witnesses with

firsthand knowledge about that relationship, including one who admitted to

murders in which he was never even suspected. This witness provided

detailed information about DeVecchio’s role in those murders—for which

DeVecchio has never been brought to justice.” Id.

30

The picture of untrammeled and widespread corrupt, illegal, and even

murderous activities which Schoen and Clemente have portrayed in their

affidavits is further supported by the affidavit of Assistant District Attorney

(“AUSA”) Ann Bordley (“Bordley”) in Kings County which she filed in the

United States District Court for the Eastern District of New York, in the case

of The People of the State of New York v. R. Lindley DeVecchio, No. CR-

06-235.

Bordley recounts that on February 1, 2005, the Kings County District

Attorney’s Office (“DA’s Office” or “Office”) received a letter suggesting

that DeVecchio was involved in the murder of Nicholas Grancio (“Grancio”)

on January 7, 1992, in Brooklyn, New York.9 At the time, DeVecchio was

an FBI Special Agent. Affidavit of Ann Bordley (“Bordley Aff.”), ¶ 3. The

DA’s Office began an investigation. The Office was not able to substantiate

the allegation that Scarpa was involved in the Grancio murder. However,

during the Office’s investigation it uncovered evidence of DeVecchio’s

participation in the murders of four other persons: Mary Bari, Joseph

DeDomenico, Jr., Patrick Porco, and Lorenzo Lampasi. Id., ¶ 4.

Based on her review of the four month grand jury investigation of

DeVecchio in 2006, Bordley gives a detailed account of what the grand jury

9 Clemente sent this letter to the Brooklyn DA.

31

established. This included the fact that “[d]uring the course of his criminal

career, Scarpa engaged in a wide variety of crimes, including burglary, loan

sharking, illegal gambling, drug dealing, and murder. When asked by one of

his criminal associates how many murders he had committed, Scarpa

responded that he had stopped counting after he had reached fifty.” Id., ¶ 6.

“From approximately 1978 to 1992, Scarpa paid [DeVecchio] for

information about the [FBI’s] investigation of organized crime. Id., ¶ 7.

DeVecchio did not reveal his financial relationship with Scarpa to the FBI.”

Id., ¶ 9. Instead, on July 1, 1980, DeVecchio registered Scarpa as a

confidential informant with the FBI, and from 1980 until 1992, DeVecchio

served as Scarpa’s official handler. Scarpa did not comply with FBI rules

regarding confidential informants, under which a confidential informant “is

not permitted to participate in any criminal activities [] in the absence of

prior written authorization from F.B.I. supervisors.” Id. Although Scarpa

“never received any authorization to commit any crime,” he continued to

commit crimes, “including burglary, loan sharking, illegal gambling, drug

dealing, and murder. . . .” Id.

DeVecchio was aware of Scarpa’s criminal activities but did nothing

to stop them. “On the contrary, [DeVecchio] helped Scarpa and his

associates to commit crimes and to evade detection by law enforcement

32

agents.” Id., ¶ 10. In particular, DeVecchio aided Scarpa and others to kill

Mary Bari, Joseph DeDomenico, Jr., Patrick Porco, and Lorenzo Lampasi.

Id.

Bordley, based Kings County grand jury’s records, gives a brief

summary of these four murders and the involvement of DeVecchio and

Scarpa in them.

The Murder of Mari Bari

Mary Bari was the girlfriend of Alphonse Persico, (“Persico”) the

brother of Carmine Persico, the boss of the Colombo crime family. In

September, 1984, when Persico was a fugitive from justice, DeVecchio met

with Scarpa and told him that Bari was speaking to federal law enforcement

agents. He expressed concern that Bari would tell the agents where Persico

could be found. DeVecchio told Scarpa that he had to take care of this prob-

lem. Scarpa said that he would. Id., ¶ 12. On September 24, 1984, Scarpa

and others killed Bari with three gunshot wounds to the head. Id., ¶¶ 13-14.

The Murder of Joseph DeDomenico, Jr.

DeDomenico was a member of Scarpa’s crew who committed

burglaries with Scarpa and others. In 1985 or 1986, the relationship began

to deteriorate. Scarpa held DeDomenico responsible for a crime that had

gone badly and humiliated him by criticizing him in front of others. Id., ¶¶

33

16-17. DeDomenico then formed his own crew and committed a series of

burglaries of jewelry stores and fur stores. During the course of six months

to a year, DeDomenico’s crew made about a million dollars from these

burglaries. DeDomenico did not inform Scarpa about his crew or share the

proceeds of the crimes with him.

In the early spring of 1986, DeVecchio told Scarpa that DeDomenico

had been committing these burglaries behind his back. He also told him that

DeDomenico had left his wife and was living with a woman who was a

born-again Christian. DeVecchio said he did not trust DeDomenico and was

worried that he might talk. He told Scarpa that they could not keep

DeDomenico around and that Scarpa had to do something about him.

Scarpa said he would take care of it. Id., ¶¶ 18-19. Scarpa told Lawrence

Mazza, his right-hand man, that they had to kill DeDomenico. He explained

that DeDomenico had become a born-again Christian and that this was one

step away from being a “rat.” Id., ¶ 20.

Scarpa had a son, Gregory Scarpa, Jr. (“Scarpa, Jr.”). In September,

1987, Scarpa, Jr., acting in concert with others, shot and killed DeDomenico

in a stolen car. After the death of DeDomenico, DeVecchio met with

Scarpa, who told him about the murder. Id., ¶¶ 21-23.

The Murder of Patrick Porco

34

Scarpa had another son, Joey Scarpa, whose best friend was Patrick

Porco. On October 31, 1989, Joey Scarpa, Patrick Porco, Reyes Aviles, and

Craig Sobel, acting in concert, shot and killed 17 year-old Dominic

Masseria. In May, 1990, Porco spoke with NYPD detectives and the Kings

Count DA’s office about Masseria’s death. Id., ¶¶ 24-26.

In May 1990 Scarpa took a phone call from DeVecchio. After

speaking with him very briefly, Scarpa and his mistress, Linda Schiro, then

left their home and went to a pay telephone. Scarpa called DeVecchio and

spoke with him while Schiro stayed in the car. When Scarpa returned to the

car he told Schiro Porco was going to rat on his son Joey and they had to do

something about it. Id., ¶¶ 27-28.

When Scarpa returned home, he told his son Joey that Porco was

going to tell the authorities about his role in Masseria’s murder. On May

26th or 27th, Joey Scarpa and John Sinagra picked up Porco in his car, killed

him, then drove to another location where they dumped his body. Id., ¶¶ 29-

30.

After Porco’s death, DeVecchio met Scarpa at his home. Scarpa told

him that his son Joey had killed Porco but was very upset about the killing

and very angry with his father. DeVecchio told Scarpa that he would get

over it when he realized he had avoided jail as a result. Id., ¶ 32.

35

The Murder of Lorenzo Lampasi

In 1991 a war broke out between factions of the Colombo

crime family. One faction was loyal to imprisoned crime boss Carmine

Persico, the other to acting boss Victor Orena. Both factions organized “hit”

teams. “Scarpa, who was part of the Persico faction, formed a hit team

which killed people associated with the Orena faction.” Id., ¶33.

On or about May 15, 1992, DeVecchio met with Scarpa at the latter’s

home. Scarpa told DeVecchio that he wanted to kill Lampasi, who was part

of the Orena faction. “Scarpa asked [DeVecchio] for information on

Lampasi, including the address where Lampasi was living and the time that

Lampasi left the house for work in the morning.” DeVecchio said he would

get Scarpa the information. Id., ¶ 34.

Law enforcement agencies had conducted surveillance on Lampasi at

his home in Brooklyn. This surveillance showed that Lampasi left his home

for work at about 4:00 a.m. There was a gate on Lampasi’s driveway which

he had to open in order to drive his car onto the street. Every morning, after

Lampasi drove past the gate, he got out of his car to close and lock it. Id.,

¶ 35.

On or about May 19 or 20, 1992, the DeVecchio met with Scarpa at

his home. He gave Scarpa the information he wanted, telling him that

36

Lampasi left for work at 4 a.m. He also told him about the gate on

Lampasi’s driveway, and that Lampasi had to get out of the car to open and

close the gate. Id., ¶ 36. On May 22, 1992, Scarpa picked up two members

of his hit team where, at about 4 a.m., they killed Lampasi after he drove

down his driveway past the gate and then got out of the car to lock and close

the gate. Id., ¶¶ 38-39.

2. The Way in Which the Informant File Infor- mation was Used Shows That It Was Not

Compiled for Law Enforcement Purposes _

This Court rejected as “unpersuasive” Clemente’s argument that the

Scarpa informant file information was not compiled for law enforcement

purposes because Scarpa had engaged in illegal activities at the behest of the

FBI. Clemente at 84. The Court noted Hardy’s averment that the records in

Scarpa’s file “‘pertain to the investigation of the activities of subject’s

involvement as a TE informant for the FBI and his involvement in [La Cosa

Nostra].’” It found that the contents of the records are consistent with

Hardy’s declaration. Id.

This is a flawed assessment of the applicability of Exemption 7’s

threshold test in this case. It ignores the illegal uses to which the

information and the FBI/DeVecchio/Scarpa relationship were put.

37

The fact that the contents of the documents compiled may be consistent with

an ‘“investigation of the activities of subject’s involvement as a TE

informant for the FBI and his involvement in [La Cosa Nostra]’” is not

inconsistent with the information having also been gathered in manner that

thwarted or violated law enforcement purposes.

The record in this case establishes that “[f]rom approximately 1978 to

1992, Scarpa paid [DeVecchio] for information about the [FBI’s]

investigation of organized crime. Id., ¶ 7. In short, the Mafia informant was

paying FBI Special Agent DeVecchio bribes for information about the

Mafia. But as the contents of the documents which have been released to

Clemente show abundantly, the FBI was also paying Scarpa large sums of

money for information on the Mafia, even though he was involved in

rampant criminal activities which placed him in clear violation of the FBI

rule under which a confidential informant “is not permitted to participate in

any criminal activities [] in the absence of prior written authorization from

F.B.I. supervisors.” Bordley Aff., ¶ 9.

DeVecchio and Scarpa clearly used information acquired as a result of

their relationship to jointly engage in felonies. Thus, when Scarpa wanted to

murder Lorenzo Lampasi, a member of the rival Orena faction of the

Colombo family, he asked DeVecchio to get him information on Lampasi,

38

“including the address where Lampasi was living and the time that Lampasi

left his house for work in the morning.” Id., ¶ 34. DeVecchio obtained the

information from “[l]aw enforcement agencies [which] had conducted

physical surveillance on Lampasi at his home” and, supplied with this

information, Scarpa and his hit team planned and then murdered Lampasi.

Id., ¶¶ 35-40.

In view of this and many similar incidents which have been

documented above, any claim that the information compiled during Scarpa’s

tenure as an FBI informant were compiled for law enforcement purposes is

simply untenable.

C. Exemptions 6 and 7(C)

In its Memorandum Opinion, this Court agreed that “the

public has a significant interest in learning about any misuse of criminal

information by the FBI.” The Court felt, however, that “Ms. Clemente has

failed to explain how that interest would be advanced by the release of the

names and identifying information of all individuals mentioned in Mr.

Scarpa’s file.” Clemente at 85. However, because the Court found that the

FBI’s Vaughn index was not sufficiently detailed to permit Clemente to

make her case regarding the public interest in the disclosure of information

39

withheld under Exemption 7(C), it declined to make a definitive ruling

pending submission of a sufficiently detailed Vaughn index. Id. at 85-86.

While this instruction was helpful to Clemente’s case and has resulted

in the release of much information previously withheld under Exemptions 6

and 7(C), thus requiring that the remaining records in the Scarpa file be

reprocessed, it also presents some problems.

The FOIA places the burden of proof on the government do

demonstrate its entitlement to exemptions. See 5 U.S.C. § 552(b). Here

that burden has been reversed. Clemente has shown in considerable detail

that this case involves outrageous governmental conduct, including murder

and acquiescence in murder and other felonious conduct, as well as improper

expenditure of substantial amounts of taxpayer funds. Yet despite this, the

burden is placed on her to show that disclosure of any and all pieces of an

individual’s identity or identifying information is in the public interest,

whereas the FBI is allowed to establish its privacy claims without any real

and candid assessment of the public interest and only speculative assertions

regarding privacy put forward by its affiant, Mr. Hardy. Although the

Court agrees that the “public has a significant interest learning about any

misuse of criminal informants by the FBI,” Clemente at 85, which should be

enough to outweigh the boilerplate, speculative allegations of privacy

40

intrusion not founded on personal knowledge that are involved here.

Instead, the Court requires that Clemente take the further step of showing,

notwithstanding this finding of public interest, just how it would be

advanced with respect to the identities and identifying information

mentioned in Scarpa’s file. Id.

Clemente believes this approach is in error for several reasons. First,

where there is a sufficient public interest in disclosure, other considerations

must be weighed besides the individualized pieces of information in a file.

There is an element of completeness to be taken into account. In these

situations, the public cannot trust or have confidence in the scrutiny being

given the government’s conduct unless the basically information, with very

few exceptions, is made public.

The Court’s approach ignores the fact that the public interest can be so

great as to override almost any privacy concerns. In U.S. Dept. of Justice v.

Reporters Committee, 489 U.S. 749, 780 (1989), the Supreme Court held

that computerized rap-sheets were exempt from disclosure under Exemption

7(C) as a categorical matter because privacy interest protected by the

exemption was at its apex, whereas “the FOIA-based public interest in

disclosure” was at its nadir. However, in Bennett v. Drug Enforcement

Admin., 55 F.Supp.,2d 36 (D.D.C.1999) this Court ordered the release of the

41

rap-sheet information at issue there. Judge Kessler found that the

information provided by the plaintiff “is very compelling, suggesting

extensive government misconduct, and the information sought is necessary

to confirm whether Plaintiff’s findings are backed by the record.” Id. at 42.

Jude Kessler also found that “it is clear from the far-reaching and serious

consequences of the activities and collaboration” of the DEA informant and

DEA “that there is a substantial public interest in exposing any public

wrongdoing which these two parties may have engaged in.” Id. As a

consequence, Judge Kessler concluded that “[t]his public interest can only

be served by full disclosure” of the rap-sheet in question. Id.

The privacy interests at stake in this case are far below those at

issue in Bennett. Most of those mentioned in the Scarpa informant file are

deceased or retired. Most of those mentioned are likely to have had

extensive criminal records as organized crime members, a factor which

diminishes the privacy intrusion substantially, as does the extensive

publicity many of them received.

While the public interest in Bennett was very substantial and justified

“full disclosure” of the information at issue there, here the public interest is

overwhelming, involving, as it does, a though-going corruption of the FBI

by organized crime over decades. Although Clemente can point to some

42

individual pieces of information that are clearly of great public interest, she

cannot do so with respect to every such piece of withheld information. The

problem is that she cannot point to individual pieces of information and

establish that there is a great public interest in its disclosure without

knowing exactly what that information is. Any piece of information, no

matter how innocuous it seems initially, may at some point attain greater

meaning when the full record of the case is available. This Court recognized

that the investigation of a crime requires access to all possibly pertinent

information when, in its discussion of Exemption 7(D), it noted that the

Mafia is an organization formed for the purpose of coordinating and

committing crimes, and stated: “Any information furnished to the FBI about

the organization could aid in the detection and prosecution of crime. . . .”

Clemente at 87 (emphasis added). The same is also true with respect to Ms.

Clemente’s investigation in which she is in effect acting as a private attorney

general pursuing the public interest in disclosure of all information which

may help her discover with exactitude exactly what went on, who was

involved in what, and how. All the information provided by Scarpa and

DeVecchio needs to be available for consideration. The principles of

fullness and completeness which apply to a prosecutor’s efforts to

43

investigate a crime also apply to those of a citizen acting as a private

attorney general investigating public corruption.

Clemente can, however, indicate some particular areas where the

public interest in the fullest possible disclosure of identities and identifying

information is both identifiable and particularly strong.

One such area concerns the requests of the Public Integrity Section,

Criminal Division, of the Department of Justice, to the FBI’s Office of

Professional Responsibility (“OPR”) to interview a number of FBI Special

agents concerning whether or not DeVecchio had advance knowledge of

plans to arrest certain Mafia hoodlums. See 4th Clemente Decl., ¶ 25,

Exhibit 6. In short, this inquiry focused on whether information provided

by Scarpa about pending arrests was used by DeVecchio to obstruct or delay

said arrests. In order to evaluate whether there is any information in

Scarpa’s file that either indicates that such information was made available

to DeVecchio, Clemente needs to know the identities of the agents appearing

in Scarpa’s file. Id.

A May 3, 1995 memorandum from ADIC James J. Kallstrom to

Stephan C. Robinson enhances this need. It concerns a call that Robinson

had received on March 2, 1995 from Valerie Caproni (“Caproni”), Chief of

the Criminal Division, U.S. Attorney’s Office, Eastern District of New York

44

(‘EDNY”). It says Caproni raised several concerns about SA O’Brien,

“who was conducting the OPR investigation against DeVecchio.” Id., ¶ 26,

Exhibit 7. Caproni stated that some of her AUSAs had participated in some

of the interviews that O’Brien had conducted and had read the 302s, and it

was her opinion that “‘a lot of information was missed.’” Robinson warned

Caproni that she was making serious allegations which themselves might

“be worthy of an OPR investigation,” that he “would have to raise these

issues,” and that it was hard for him to see how the scheduled interview of

DeVecchio could continue with O’Brien conducting it. Id. Caproni,

however, wanted to go ahead with the interview and suggested that one of

her AUSAs sit in on it, a course which Johnston rejected. Caproni also

mentioned that SA O.Brien “had failed to interview an agent (later identified

as SA Joe Phalen of C-10) on the matter of the alleged inappropriate transfer

of an indictment or prosecution memo to SCARPA.” Id. This exchange

indicates a degree of tension between the U.S. Attorney’s Office, EDNY and

the OPR, and the need for me to secure the release of the names of SA Joe

Phalen of C-10 (DeVecchio’s unit), SA O’Brien, and AUSA Caproni

wherever they appear in the Scarpa informant file so Clemente can evaluate

any backdoor maneuverings that were going on and the presence of any

hidden loyalties affecting the course of events. Id.

45

On July 7, 1995, SA Chris Favo executed an affidavit about

DeVecchio which, among other things, recounted a strange episode in which

he went to Caproni’s office to comply with a court order to obtain the “final

closing teletype from Gregory Scarpa’s informant file.” Id., Exhibit 8. As a

result of a discussion about whether the judge’s order required furnishing the

closing teletype, Favo says he read “DeVecchio’s teletype re-opening

Scarpa after he had been closed by [redacted]. This teletype indicated there

was no merit to the information that Scarpa had participated in a conspiracy

[redacted]. This teletype was false.” Id.

This episode raises questions about what was going on here. It

appears that Caproni was trying to keep from the judge a teletype from

DeVecchio which SA Favo said was false. Understanding what was going

on requires identifying all the FBI agents and other governmental officials

whose names appear in the Scarpa file. Those mentioned in the Favo

affidavit alone include SA Raymond Andrich, SA Jeffrey W. Tomlinson,

Senior Supervisory Agent (“SSA”) DeVecchio, AUSA Valerie Caproni,

SSA David Stone, ASAC North, Lt. William Shannon, SA Michael Tabman,

and SSA Christopher Mattiace. Id.

An area of particular interest in this case concerns the corruption in

the 62nd Precinct. Clemente says that knowing the names of these officers

46

would help her to determine whether they have already been identified in

some of her current cases that she expects to present to the DA for

prosecution. It will shed light on the reliability of the government’s

investigation of specific cases or continuing “unsolved” homicide cases

and/or crimes that were committed, such as that of murder victim/confi-

dential informant Matty Ianiello. Clemente notes that “[t]his case remains

in the files of the 62nd Precinct without closure for his family or any initia-

tive by the 62nd Precinct to solve it. Id., ¶ 29.

In this case, Scarpa found out through a law enforcement source that

his brother Sal’s good friend, Ianiello, was an informant. Scarpa told his

brother to stay away from Ianiello. Sal Scarpa told someone he thought

Greg Scarpa was an informant and he was going to do something about it,

and this got back to brother Greg. Scarpa then ordered the murders of

Ianiello and his brother Sal. Id., ¶ 30. As a result of Scarpa’s law

enforcement source telling him about Ianiello’s status as an FBI informant,

the FBI informant was killed. Id., ¶ 32.

Clemente states that “[k]nowing the name of who handled this case in

the 62nd precinct is essential to learning what role Scarpa had in giving

information about both Ianiello’s and his own brother’s murders. It is also

essential to determining the accuracy of that information, as well as to

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identifying whether law enforcement purposes were served or circumvented

when, in fact, two people were killed, one of whom was an informant.” Id.,

¶ 33.

Clemente states that in the Sal Scarpa, she now knows that “one of the

government’s informants who was involved in that murder did NOT plead

guilty to this murder when he identified all the crimes he had been involved

in.” She asserts that “[t]his becomes highly significant as regards the

credibility and accuracy of the information that was supplied to the

government but not properly used to hold those accountable for that

murder.” Id.

The 62nd Precinct also handled the Porco and DeDomenico homicides

for which DeVecchio was indicted in 2007. According to Clemente, “[b]oth

of these cases would benefit from the disclosure of the names of the FBI

agents and 62nd Precinct officers that were involved in these cases since

“they were not thoroughly investigated for prosecution until I brought the

Scarpa/ DeVecchio corruption to the Brooklyn District Attorney’s office.”

Id., ¶ 35. She needs to know whether the same officers were involved in this

case as in the Ianiello case. Were the same agents involved, and if so what

was their relationship with Scarpa and DeVecchio? Id.

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With regard to the “mafia cops” (Louis Eppolito) case, Clemente

states that she has received information that one of the officers recently

charged and convicted of crimes including murder, worked at the 62nd

Precinct. If the court were to release the names of the officers that Scarpa

identified as being corrupt in the 62nd Precinct, “it would serve the public

interest and that of the victims’ families to know if one of those names is

Eppolito” id. at ¶ 36, saying that “if Eppolito is guilty as charged, and his

name is one that Scarpa identified, then the public interest is further

advanced by knowing what other cases he was involved in because this will

enable the identification or determination of other murders that may not have

yet been solved.” Id. She concludes that whether there was a relationship

between Scarpa and Eppolito is a question that urgently needs to be

answered.

Knowing the name of who handled this case in the 62nd precinct is

essential to learning what role Scarpa had in giving information about both

Ianiello’s and his own brother’s murders. It is also essential to determining

the accuracy of that information, as well as to identifying whether law

enforcement purposes were served or circumvented when, in fact, two

people were killed, one of whom was an informant.

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Congress recognized the concept that there can be an all-

encompassing, overriding public interest in disclosing all information about

private parties contained in government records when it passed the President

John F. Kennedy Assassination Records Act of 1992, 44 U.S.C.§ 4107 note.

The JFK Act contained no provision exempting or postponing the disclosure

of information about citizens or governmental officials on privacy grounds.

The names and identifying information concerning anyone mentioned in FBI

documents on organized crime were disclosed. The names of FBI agents,

officers, and employees were disclosed, as were those of state and local

officials. The names of informants and their code numbers were also

disclosed. See 4th Lesar Decl., ¶ 4.

In ruling in this case, this Court held that to render the life status of

any individual or groups of individuals relevant, Clemente must

a) show that the public interest sought to be advanced is a significant one, an interest more

specific than having the information for its own sake, and (2) show the information is likely to advance that interest" Sussman v. U.S, Marshals Serv., 494 F.3d at 1115. "[T]he only public interest relevant for purposes of Exemption 7(C) is one that focuses on the citizens' right to be informed about what their government is up to.

Clemente at 85.

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As Clemente has shown above, she is not seeking this information

simply to possess it for its own sake but so there can be an evaluation of

what happened on the basis of a full and complete evaluation of what the

whole record discloses. The examples she has provided above graphically

convey how that interest will be advanced by disclosure of such information.

In Hall v. U.S. Dept. of Justice, 26 F.Supp.2d 78, 81 (D.D.C.1998),

this Court dealt with the question of “how to determine whether affected

parties are alive.” The Court held: “To avoid person-by-person analysis, the

following rule will govern in this case: if 50 years have passed since the

date of the document or the event it describes, whichever is earlier, it will be

presumed that the informant is deceased. The FBI may rebut the

presumption. If the presumption is not rebutted, Exemption 7(C) will

apply.” Id. at 81-82.

This rebuttable presumption should be applied here, but it should be

modified to apply a shorter period of time. Several reasons make this

appropriate. First, the JFK Act went into effect just 29 years after the

assassination of President Kennedy and applied to records less old than that

(for example, the records of the investigation conducted by New Orleans

District Attorney Jim Garrison in 1966-1969, of the Church Committee’s

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investigation, 1974-1975, and of the investigation conducted by the House

Select Committee on Assassinations, 1976-1978).

Additionally, in this case there are still a number of living persons

who were victims of DeVecchio and Scarpa’s crimes. In order to rectify the

wrongs done them, the public interest in disclosing the privacy information

furnished by Scarpa is greatly enhanced. Under these circumstances, the

rebuttable presumption period endorsed by Judge Robertson in Hall should

be reduced to 25 years.

D. Exemption 7(D)

Exemption 7(D) exempts law enforcement records or information to

the extent it “could reasonably be expected to disclose the identity of a

confidential source, including a state, local or foreign agency . . . and, in the

case of a record or information compiled by criminal law enforcement

authority in the course of a criminal investigation or an agency conducting a

lawful national security intelligence investigation, information furnished by

a confidential source.” Consideration of an Exemption 7(D) claim requires a

district court to find that an alleged confidential source had furnished

information to the FBI under either an express or implied promise of

confidentiality. With respect to express sources, a district court must find

that there is sufficient evidence of an express promise to warrant a finding of

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that fact. In the case of an implied source, an agency must establish that the

circumstances warrant a finding that there was an implied promise of

confidentiality.

With respect to its Exemption 7(D)-1 claim, which concerns

“Confidential Source Symbol Numbers”, Hardy states that these informants

report information to the FBI “pursuant to an express grant of

confidentiality.” Hardy Decl., ¶ 27. However, in Department of Justice v.

Landano, 508 U.S. 165, 179 (1993), the FBI conceded that it “does not have

a policy of discussing confidentiality with every source, and when such

discussions do occur, agents do not always document them.” In Campbell,

the Court of Appeals noted that “the declarant presumably lacks personal

knowledge of the particular events that occurred 30 years ago,” and

remanded to afford the FBI an opportunity to “produce such additional

information as is necessary to document its claim.” Campbell, 164 F.3d at

35. What was true in Campbell is equally true here, if not more so. Since

the records at issue here are largely more than 40 years old, it is highly

implausible that Hardy has personal knowledge as to whether each of the

FBI’s alleged confidential sources was given an express promise of

confidentiality. The FBI has failed to produce any documentation in support

of its claim of express confidentiality. Accordingly, it cannot be awarded

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summary judgment with respect to any of its Exemption 7(D) claims based

on alleged express confidentiality.

The same is also true with respect to the FBI’s claim that

Confidential Source file numbers are protected under 7(D)-2. As the FBI

notes, these are “[s]imilar in usage to the confidential source symbol

number. . . .” Id., ¶ 44. Again, the FBI has made no showing of an express

promise of confiden-tiality.

The FBI has, in any event, waived its right to

assert Exemption 7(D) to protect informant symbol numbers and informant

symbol file numbers. First, this contention is untimely. In Ray v. U.S.

Dept. of Justice, 908 F.2d 1549 (D.C. Cir. 1990) the Court of Appeals dealt

with a case in which after the agency’s Exemption 6 claim had been rejected

by the district court, it belatedly sought to assert Exemptions 1, 7(C), and

7(D). The Court of Appeals upheld the district court’s rejection of this

effort, holding that while “courts have some discretion to excuse

untimeliness where justice so requires, discretionary relief should not be

applied “in light of the government’s failure, for almost two full years to

bring these concerns to the attention of the court or the plaintiffs,” it could

“find no circumstances in this case that warrant not applying the

fundamental rule that a defendant must `allege all affirmative defenses in a

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responsive pleading and the failure to do so will normally result in waiver.’”

Id., at 1557 (emphasis in original), citing Chilivis v. Securities and

Exchange Com’n, 673 F.2d 1205, 1208 (11th Cir.1982). See Rosenfeld v.

DOJ, 57 F.3d 803, 811 (9th Cir.1995)(same). Here, the delay in asserting

this claim comes after two prior motions for summary judgment.

Second, FBI former Special

Agent DeVecchio has disclosed Scarpa’s informant symbol number, NY-

3461-TE, in his new book, We’re Going to Win This Thing, at p. 7. See 4th

Clemente Decl., ¶ 14, Exhibit 2. Books by FBI Special Agents are required

to be submitted for review by the FBI’s Prepublication Review Office. See

28 C.F.R. § 17.18. The publication of DeVecchio’s book is an indication

that the FBI approved release of Scarpa’s file number.

It is also obvious from

the records released that the concealed symbol number and symbol file

number apply to Scarpa. This and the fact that he is deceased eliminate the

rationale for withholding these numbers. The FBI has in fact released many

such numbers pertaining to deceased confidential sources without any harm

having occurred. See Lesar Decl., ¶ 4 .

E. The FBI Has Failed to Sustain Its Exemption 7(E) Claims

Exemption 7(E), provides for the withholding materials that “would

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disclose techniques and procedures for law enforcement investigations or

prosecutions, or would disclose guidelines for law enforcement

investigations or prosecutions if such disclosure could reasonably be

expected to risk circumvention of the law.” Only information covered by

the second clause is at issue in the 2011 Vaughn index. This means

however, that information of the kind that was previously withheld under

this clause must now be disclosed in the reprocessing of the remainder of the

entire file.

Of course, no information at all should be withheld under Exemption

7(E) because, as shown above, the information was not “compiled for law

enforcement purposes,” which is, course “[t]he threshold requirement of an

Exemption 7 claim.” Coleman v. F.B.I., 13 F.Supp.2d 75, 83 (D.D.C.1998).

This Court found that in order to sustain its Exemption 7(E) claim, the

FBI “must provide evidence from which the Court can deduce something of

the nature of the techniques in question.” Clemente at 88. The FBI has

provided some additional information, but it is not helpful to its 7(E)

exemption claim.

Hardy now specifies that the techniques “included arranging

interviews at specific meeting locations, using a codename to identify the

confidential informant, engaging in scripted telephone conversations and

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creating pre-textual law enforcement contacts.” 4th Hardy Decl., ¶ 55.

While Hardy acknowledges that Exemption 7(E) is generally limited to

techniques and procedures that are not well known to the public, he argues

that “even commonly known procedures may be protected from disclosure if

the disclosure could reduce or nullify their effectiveness.” Id. He cites no

“guidelines” for law enforcement investigations or prosecutions” that would

be disclosed.

This Court previously ruled that “[r]eferences to the number of

informants operative in the 1960s do not qualify for protection under

Exemption 7(E) for the same reason that they do not merit it under

Exemption 2. See id. To persuade the Court that any references to the

number of the FBI's informants should be protected from disclosure, the FBI

must demonstrate in a subsequent motion for summary judgment that those

references may reasonably be construed as "current." Clemente at 88. The

FBI’s 2011 Vaughn index drops the Exemption 2/7(E) claims for this

narrow category but continues to employ it for other techniques which

cannot be reasonably construed as “current.” Exhibit 2 hereto is a

compilation of 12 examples of the use of Exemption 7(E) in the 2011

Vaughn index. Ten of the twelve are dated between 1962 and 1967. The

last two are dated in 1973 (CL 842) and 1985 (CL 993).

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The FBI has not shown that disclosure of the cited techniques could

reasonably be expected to risk circumvention of the law. Hardy does

speculate that “[i]f revealed, the details of how the techniques were

employed[] could enable criminal targets to avoid detection by developing

countermeasures to circumvent the ability of law enforcement officials to

use confidential informants effectively and efficiently and furthermore

would could place the confidential informants in harm’s way through risk of

exposure.” 4th Hardy Decl., ¶ 55.

But the cited techniques are so hackneyed that disclosure of their use

26 to 49 years ago is not needed for criminals to envision countermeasures.

The basis for the FBI’s speculation is insufficient to support a contention

that the circumvention postulated can reasonably be expected to result from

the disclosure of the withheld information. Similar speculative arguments

have been rejected in Gerstein v. Dept. of Justice, 2005 U.S. Dist. LEXIS

41276 (N.D.Cal. Sept. 30, 2005) and Hidalgo v. F.B.I., 541 F.Supp.2d 250

(D.D.C.2008).

Finally, Clemente notes that the FBI continues to withhold under 7(E)

CL 84 and CL 85. The first sentence in each of these documents states that

the FBI had instructed the informant (Scarpa) that he “must not participate in

the execution of Joseph Magliocco.” Exhibit 4 is another form of CL 84

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which bears the same date but does not have the redaction that appears in CL

84 and CL 85. The information Exhibit 4 contains makes it clear that

although in the redacted versions it appears that Scarpa was being instructed

not to participate in the murder of Joseph Magliocco, in fact a ruse was

being established which would make him at least an accessory casing the

murder scene. The CL 84-85 Exemption 7(E) redactions cannot be

sustained for at least three reasons: (1) the technique was not being

employed to avoid risk of circumvention of the law to enable it; (2) the

information compiled with regard to this incident was not being “compiled

for law enforcement purposes” but to violate them; and (3) the evidence

indicates that the material withheld by the Exemption 7(E) redactions in CL

84-85 has been disclosed in Exhibit 5 and thus cannot be withheld. Davis v.

U.S. Dept. of Justice, 968 F.2d 1276 (D.C.Cir. 1992).

CONCLUSION

For the reasons set forth above, plaintiff’s renewed cross-motion for

summary judgment should be granted and that of the FBI denied.

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