UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ANGELA CLEMENTE, : : Plaintiff, : : v.

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

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

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS RENEWED CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO FBIS RENEWED MOTION FOR SUMMARY JUDGMENT Preliminary Statement Pending before the Court are the motion of plaintiff Angela Clemente (Clemente) for Reconsideration (MRECON) of this Courts September 28, 2010 Memorandum Opinion and Order (Mem. Op.) and Defendants 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 Clementes requests, not just those which the FBI initially identified as responsive records. For the reasons set forth below, plaintiffs 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 3461TE. Scarpas 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 FBIs payroll as a secret informant.

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 governments first witness. He testified that he was the head of the FBIs investigation of Sessa, that everything in Sessas 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 Sessas trial; rather, DeVecchios 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

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), Sessas trial attorney attempted to subpoena the New York Police Department (NYPD) investigative file on the murder with which Sessa was

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 Sessas 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[]pas behalf many times to extricate him from problems he had from engaging in criminal conduct while also working as a government informant. Id. Sessas 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.

In summation at Sessas trial, the government emphasized DeVecchios 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 governments 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, Were 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 Sessas case, where he stated that he would report any criminal activity by any informant. Id., 6.

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 Scarpas crew, Larry Mazza, testified at DeVecchios trial that he stopped counting after Scarpa had committed 50 murders. The full extent of DeVecchios 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 Orenas

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 Sessas case. The attempted murder charges against these defendants were based on information which Scarpa furnished and introduced in documentary form by the U.S. Attorneys 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 Organized 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

assistance of several law enforcement officials, former Detective Simones 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 Clementes participation in Judge Leslie Crocker Snyders decision to investigate whether Scarpas mistress, Linda Schiro, had committed perjury at DeVecchios 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 Plaintiffs 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 Scarpas 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 reopened the case of a teenage murder victim of Scarpas. 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 DeVecchios book and his interview with 60 Minutes. The victims 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 Precincts alleged corruption are of great importance in possibly reopening a new case on behalf of this family. Id., 13. It is clear that DeVecchios 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 CL (for Clemente) followed by a number indicates the Bates-stamped page number which the FBI has assigned to documents in this case.
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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 Scarpas 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., 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 DeVecchios and Scarpas 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 Clementes 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, Clementes 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 FBIs error rate indicates that there has been improper withholding from approximately 37% of the 1,053 pages processed,5 a 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
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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 Clementes 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 Courts 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 Clementes 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 Plaintiffs 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 requesters 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.

Clementes 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.
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(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 Dept 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 FBIs 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 Baldwins 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.

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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 Clementes 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 Dept 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 FBIs 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 information 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 Courts interpretation is the one which should be employed, it is still clear that this means that the New York field offices informant file on Scarpa is within the scope of Clementes 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, Clementes 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 Offices 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. Dept 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 FBIs 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 DeVecchios book. C. The Placeholder Sheets Establish That There Are Materials Responsive to Clementes 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 Clementes 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 1791996 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 Clementes 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 Scarpas 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 Clementes contention that the evidence indicated that the FBI had not located materials that should have been in Scarpas informant file. Ms. Clemente identifies several categories of documents that, based on her knowledge of Mr. Scarpa and his activities, she believes should have appeared in Mr. Scarpa's FBI file,

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but were not included in it. P. Supp. at 2-4. For example, according to Ms. Clemente, "Scarpa was at the height of his activities" related to the Mafia in the early 1990s, and the FBI therefore must have collected many records documenting those activities. Id. at 3. But only 36 pages of the documents released to Ms. Clemente discuss that time period. Id. By Ms. Clemente's logic, the FBI's search for documents must have been inadequate, because it did not yield the records that she expected. See Id. It is established, however, that "[t]he adequacy of a search is not determined by its results 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. Dept of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984). The Court adds to this that Ms. Clemente cannot demonstrate that the FBIs 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 Scarpas 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 Scarpas 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

CL 1102, dated September 25, 1991, states that Scarpas 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.
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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 FBIs 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 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.
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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 Clementes 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 agencys interpretation 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 agencys view of FOIAs meaning). Deferring to the FBIs 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 FBIs regulation places a burden on the requester to submit multiple applications for the information she seeks. This drives up the time and cost

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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

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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 Governments parsimonious reading of Dettmanns request but did not overturn the FBIs practice of not processing see references in their entirety in that case when that practice was specifically brought to [the requesters] 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 Courts decision in Milner v. Dept of the Navy, 131 S.Ct. 1259 (2011), fundamentally redefined Exemption 2.

29

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 FBIs 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 FBIs 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 FBIs Compiled for Law Enforcement Purposes Claim Is Not Valid in the Circumstances of This Case

30

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 Schoens 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 DeVecchios role in those murdersfor which DeVecchio has never been brought to justice. Id.

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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. CR06-235. Bordley recounts that on February 1, 2005, the Kings County District Attorneys Office (DAs 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 DAs Office began an investigation. The Office was not able to substantiate the allegation that Scarpa was involved in the Grancio murder. However, during the Offices investigation it uncovered evidence of DeVecchios 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

Clemente sent this letter to the Brooklyn DA.

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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 [FBIs] 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 Scarpas 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 Scarpas 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

33

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 jurys 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 problem. 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 Scarpas 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.,

34

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, DeDomenicos 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

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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 DAs office about Masserias 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 Masserias 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., 2930. After Porcos 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.

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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 latters 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 Lampasis 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

37

Lampasi left for work at 4 a.m. He also told him about the gate on Lampasis 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 Information was Used Shows That It Was Not Compiled for Law Enforcement Purposes _ This Court rejected as unpersuasive Clementes 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 Hardys averment that the records in Scarpas file pertain to the investigation of the activities of subjects 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 Hardys declaration. Id. This is a flawed assessment of the applicability of Exemption 7s threshold test in this case. It ignores the illegal uses to which the information and the FBI/DeVecchio/Scarpa relationship were put.

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The fact that the contents of the documents compiled may be consistent with an investigation of the activities of subjects 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 [FBIs] 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,

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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 Scarpas 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. Scarpas file. Clemente at 85. However, because the Court found that the FBIs Vaughn index was not sufficiently detailed to permit Clemente to make her case regarding the public interest in the disclosure of information

40

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 Clementes 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 individuals 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

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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 Scarpas 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 governments conduct unless the basically information, with very few exceptions, is made public. The Courts 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

42

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 Plaintiffs 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

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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. Clementes 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 prosecutors efforts to

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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 FBIs 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 Scarpas file that either indicates that such information was made available to DeVecchio, Clemente needs to know the identities of the agents appearing in Scarpas 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. Attorneys Office, Eastern District of New York

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(EDNY). It says Caproni raised several concerns about SA OBrien, 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 OBrien 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 OBrien 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. Attorneys Office, EDNY and the OPR, and the need for me to secure the release of the names of SA Joe Phalen of C-10 (DeVecchios unit), SA OBrien, 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.

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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 Capronis office to comply with a court order to obtain the final closing teletype from Gregory Scarpas informant file. Id., Exhibit 8. As a result of a discussion about whether the judges order required furnishing the closing teletype, Favo says he read DeVecchios 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

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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 governments investigation of specific cases or continuing unsolved homicide cases and/or crimes that were committed, such as that of murder victim/confidential informant Matty Ianiello. Clemente notes that [t]his case remains in the files of the 62nd Precinct without closure for his family or any initiative by the 62nd Precinct to solve it. Id., 29. In this case, Scarpa found out through a law enforcement source that his brother Sals 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 Scarpas law enforcement source telling him about Ianiellos 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 Ianiellos and his own brothers 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 governments 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 Attorneys 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 Ianiellos and his own brothers 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 allencompassing, 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 Committees

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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 Scarpas 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 FBIs 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 FBIs 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 agencys 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 courts 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 governments 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 Comn, 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 Scarpas informant symbol number, NY3461-TE, in his new book, Were 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 FBIs Prepublication Review Office. See 28 C.F.R. 17.18. The publication of DeVecchios book is an indication that the FBI approved release of Scarpas 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 FBIs 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 harms 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 FBIs 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, plaintiffs renewed cross-motion for summary judgment should be granted and that of the FBI denied.