Case Detail

FOIA Project Annotation: A federal court in Pennsylvania has ruled that the FBI may not issue a Glomar response neither confirming nor denying the existence of records for surveillance records pertaining to John Gilmartin, who was charged with violating anti-fraud laws by the SEC. Eric McPhail, a co-defendant, requested the records from the FBI. The agency issued a Glomar response and McPhail filed suit. McPhail claimed that the existence of investigatory records on Gilmartin had been publicly acknowledged when the SEC charged hm. But the FBI argued that a public acknowledgement of the existence of FBI records could only be based on an acknowledgement of the FBI itself, not another agency. The court rejected that argument. Instead, the court pointed out that the FBI "appears to argue that only the FBI can 'officially confirm or acknowledge' an investigation because any investigation must be by the FBI to violate Mr. Gilmartin's privacy interest here. Yet, Mr. Gilmartin not only knew that he was investigated by the government for securities fraud, he was charged by the government (albeit a different agency) for securities fraud. These charges against him as one of 6 co-defendants were the subject of a press release issued by the SEC, that were reported by local news outlets, and the charges were, of course, of public record. How can the FBI assert that Mr. Gilmartin has any privacy interest in precisely the same securities fraud investigation based on the precise set of circumstances at the precise time and place simply because the FBI may have participated? The law does not support this reading of the exemption." The court noted that "courts have held that under the 'officially acknowledged doctrine' as applied to Glomar responses, agencies lose their right to assert the response when the existence or non-existence of an investigation has been publicly disclosed by the government. The FBI has provided no support for the assertion that the public disclosure has to have been made by the same agency."
Issues: Determination - Glomar response

Date Filed	Doc #	Docket Text
2016-09-22	1	MOTION for Leave to Proceed in forma pauperis by ERIC J. MCPHAIL. (Attachments: # 1 Complaint, # 2 Exhibit, # 3 Consent to Jurisdiction by U.S. Magistrate Judge, # 4 Envelope) (nk) (Entered: 09/22/2016)
2016-09-22		Remark: 285 USM forms received for all defendants (nk) (Entered: 09/22/2016)
2016-09-27	2	ORDER granting 1 Motion for Leave to Proceed in forma pauperis and the Clerk is directed to file the Complaint. The filing fee is $350 and Plaintiff having been granted leave to prosecute in forma pauperis, pursuant to the Prison Litigation Reform Act, the Superintendent/Warden of the institution where this inmate is incarcerated is directed to remit from the prisoners account, in monthly installments, the full $350 fee. Enclosed is a copy of the form Authorization which Plaintiff is directed to execute and return to the Clerk of Court or withdraw this action by October 6, 2016. Failure to do so may result in the dismissal of this action for failure to prosecute. IT IS HEREBY ORDERED that as soon as funds are available in the inmates prison account, the Superintendent/Warden shall submit an initial partial payment of twenty per cent (20%) of the greater of: 1) the average monthly deposits to the inmates account for the past six months, or 2) the average monthly balance in the inmates prison account for the past six months. The remittance must be accompanied by a statement of the calculations used to arrive at the amount, a copy of which the Superintendent/Warden shall furnish to the inmate. After the initial payment, if there remains any unpaid fee due and owing the Court, the Superintendent/Warden in any institution where the inmate is incarcerated is required by law to set aside and remit on a monthly basis twenty percent (20%) of the preceding months deposits credited to the prisoners account until the filing fee has been paid in full. Each time a deposit is made to the inmates account, the Superintendent/Warden shall set aside the deposit immediately before any disbursement is made by the inmate, until an amount equal to twenty percent (20%) of the previous months deposits is obtained. When the twenty percent (20%) amount is obtained, and the amount in the account exceeds ten dollars, it shall be transmitted in one monthly payment to the Clerk of Court. Each payment shall be clearly identified by name and number of the prisoner and the number assigned to this civil action. Payments must be made payable to Clerk, U.S. District Court of the Western District of Pennsylvania and transmitted to: Clerk of Court, U.S. District Court for Western District of Pennsylvania, 17 South Park Row, Erie, PA 16501. In the event the Plaintiff is transferred to a different correctional facility before the full filing fee is paid, this Order must be forwarded to the Superintendent/Warden of the receiving institution. This Order will be binding on the Superintendent/Warden of any correctional facility where the prisoner is incarcerated until the filing fee is paid in full in accordance with provisions of 28 U.S.C. § 1915(b)(1). Signed by Magistrate Judge Susan Paradise Baxter on 9/27/16. (Attachments: # 1 Authorization) (lrw) (Entered: 09/27/2016)
2016-09-27	3	COMPLAINT against THOMAS D. ANDERSON, DAVID HARDY, filed by ERIC J. MCPHAIL. (Attachments: # 1 Exhibit) (dm) (Entered: 09/28/2016)
2016-09-27	4	CONSENT to Trial/Jurisdiction by US Magistrate Judge by ERIC J. MCPHAIL. (dm) (Entered: 09/28/2016)
2016-10-05	5	Filing fee: $350, receipt number 14668003015 (dm) (Entered: 10/06/2016)
2016-10-11	6	ORDER that the United States Marshal is directed to mail a copy of the complaint, summons, and this order to each defendant as directed by plaintiff. Costs shall be advanced by the United States. Signed by Magistrate Judge Susan Paradise Baxter on 10/11/16. (lrw) (Entered: 10/11/2016)
2016-10-13		Remark: Service Copies provided to U.S. Marshal's Service Erie, PA (nk) (Entered: 10/13/2016)
2016-12-12	7	Request to Take Judicial NOTICE of Documents Related to This Matter by ERIC J. MCPHAIL (Attachments: # 1 Exhibit, # 2 Envelope) (dm) (Entered: 12/12/2016)
2016-12-15	8	SUMMONS/Return of Service Returned Executed by ERIC J. MCPHAIL. THOMAS D. ANDERSON served; DAVID HARDY served; US ATTORNEY GENERAL served; US ATTORNEY served on 11/21/2016, answer due 1/20/2017. (dm) (Entered: 12/15/2016)
2016-12-21	9	MOTION to Extend Time to File Responsive Pleading by THOMAS D. ANDERSON, DAVID HARDY. (Attachments: # 1 Proposed Order) (Colville, Michael) (Entered: 12/21/2016)
2016-12-21	10	NOTICE of Change of Address by ERIC J. MCPHAIL. FILER advised that the change of address has been made on above captioned matter only. If you wish to have address changed on other matters before this court, it is your responsibility to file such a notice at each case number. This NEF has been mailed to ERIC J. MCPHAIL. (dm) (Entered: 12/21/2016)
2016-12-21	11	TEXT ORDER granting 9 Motion to Extend Time To File Responsive Pleading: Response/Answer due 2/17/2017. Signed by Magistrate Judge Susan Paradise Baxter on 12/21/16. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (lrw) (Entered: 12/21/2016)
2016-12-21		Update Answer Deadline: Answer due from THOMAS D. ANDERSON on 2/17/2017; DAVID HARDY on 2/17/2017 (lrw) (Entered: 12/21/2016)
2016-12-27	12	MOTION for Default Judgment against THOMAS D. ANDERSON, DAVID HARDY by ERIC J. MCPHAIL. (Attachments: # 1 Envelope) (dm) (Entered: 12/27/2016)
2017-01-03	13	TEXT ORDER denying 12 Motion for Default Judgment. Signed by Magistrate Judge Susan Paradise Baxter on 1/3/17. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (lrw) (Entered: 01/03/2017)
2017-02-15	14	ANSWER to 3 Complaint by THOMAS D. ANDERSON, DAVID HARDY. (Colville, Michael) (Entered: 02/15/2017)
2017-03-08	15	TEXT ORDER, Case Management Conference via telephone set for 3/17/2017 at 11:00 AM before Magistrate Judge Susan Paradise Baxter. Counsel for Defendants is directed to make arrangements for all parties to participate by conference call on the above date and time. Plaintiff is to provide Defendants' counsel with his contact information. Signed by Magistrate Judge Susan Paradise Baxter on 3/8/17. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (lrw) (Entered: 03/08/2017)
2017-03-16	16	TEXT ORDER, Defendants' Willingness to proceed before Magistrate Judge due by 3/24/2017. Signed by Magistrate Judge Susan Paradise Baxter on 3/16/17. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (lrw) (Entered: 03/16/2017)
2017-03-17	17	Minute Entry for proceedings held before Magistrate Judge Susan Paradise Baxter: Case Management Conference held on 3/17/2017. Status Conference via telephone set for 5/24/2017 at 3:00 PM before Magistrate Judge Susan Paradise Baxter. Counsel for Defendants is to initiate the conference call. (Court Reporter: Ron Bench) (lrw) (Entered: 03/17/2017)
2017-03-23	18	CONSENT to Trial/Jurisdiction by US Magistrate Judge by EXECUTIVE OFFICES OF THE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION. (Colville, Michael) (Entered: 03/23/2017)
2017-04-17	19	Plaintiffs first Status Report and MOTION for Evidentiary Hearing by ERIC J. MCPHAIL. (Attachments: # 1 Exhibit, # 2 Envelope) (jd) (Entered: 04/17/2017)
2017-04-17	20	TEXT ORDER Response/Briefing Schedule re 19 Motion for Evidentiary Hearing: Defendants' Response to Motion due by 4/27/2017. Signed by Magistrate Judge Susan Paradise Baxter on 4/17/17. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (lrw) (Entered: 04/17/2017)
2017-04-27	21	RESPONSE to Motion re 19 MOTION for Hearing filed by EXECUTIVE OFFICES OF THE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION. (Colville, Michael) (Entered: 04/27/2017)
2017-04-28	22	ORDER denying 19 Motion for Evidentiary Hearing filed by ERIC J. MCPHAIL. Signed by Magistrate Judge Susan Paradise Baxter on 4/28/2017. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (dm) (Entered: 04/28/2017)
2017-05-19	23	TEXT ORDER, Status Conference set for 5/24/2017 at 3:00 PM has been RE-SCHEDULED for 5/25/2017 at 3:00 PM before Magistrate Judge Susan Paradise Baxter. Counsel for Defendants is directed to make arrangements for all parties to participate by conference call on the above date and time. Signed by Magistrate Judge Susan Paradise Baxter on 5/19/17. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (lrw) (Entered: 05/19/2017)
2017-05-22	24	TEXT ORDER, Status Conference set for 5/25/2017 at 3:00 PM has been RE-SCHEDULED for 6/6/2017 at 10:30 AM before Magistrate Judge Susan Paradise Baxter. Signed by Magistrate Judge Susan Paradise Baxter on 5/22/17. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (lrw) (Entered: 05/22/2017)
2017-06-06	25	Minute Entry for proceedings held before Magistrate Judge Susan Paradise Baxter: Status Conference held on 6/6/2017. Surv. video of country club to be produced for in camera review by July 14, 2017. Written response from Defendants on Gilmartin and audio surv. and #4(audio) due by July 14, 2017. Reply by Plaintiff due July 28, 2017. Vaughn index due by September 29, 2017. Status Conference set for 8/10/2017 at 11:00 AM before Magistrate Judge Susan Paradise Baxter. Defendants are to initiate the telephone conference. (Court Reporter: Ron Bench) (lrw) (Entered: 06/06/2017)
2017-06-16	26	NOTICE of Change of Address by ERIC J. MCPHAIL. FILER advised that the change of address has been made on above captioned matter only. If you wish to have address changed on other matters before this court, it is your responsibility to file such a notice at each case number. This NEF has been mailed to ERIC J. MCPHAIL. (jd) (Additional attachment(s) added on 6/16/2017: # 1 Envelope) (jd). (Entered: 06/16/2017)
2017-07-27	27	PLAINTIFFS CHALLENGE TO THE ADEQUACY OF A SEARCH FOR RECORDS RESPONSIVE TO THE JUNE 15, 2016 FREEDOM OF INFORMATION ACT REQUEST (jd) (Entered: 07/27/2017)
2017-07-27	28	Memorandum in Support of Plaintiff's Opposition to the Use of a Glomar Response to Plaintiff's Freedom of Information Act Request Seeking Records Pertaining to Co-Defendant John J. Gilmartin (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Envelope) (jd) Modified on 7/31/2017. (dm) (Entered: 07/28/2017)
2017-08-10	29	Minute Entry for proceedings held before Magistrate Judge Susan Paradise Baxter: Status Conference held on 8/10/2017. Court expressed intent to appoint special master under Rule 53. Court will take 27 and 28 under advisement and will issue written opinion. Government to produce password/code to Court for proper in camera review of CD. (Court Reporter: Ron Bench) (dm) (Entered: 08/10/2017)
2017-08-22	30	NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings re Case Management held on March 17, 2017 before Judge Susan Paradise Baxter. Court Reporter/Transcriber Ronald J. Bench, Telephone number 814-464-9613. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter/transcriber or viewed at the clerk's office public terminal. Any Notice of Intent to Request Redaction and Redaction Request must be separately mailed to the court reporter of said proceedings. Notice of Intent for Redaction of Personal Data Identifiers due by 8/29/2017. Redaction Request due 9/12/2017. Redacted Transcript Deadline set for 9/22/2017. Release of Transcript Restriction set for 11/20/2017. (jd) (Entered: 08/22/2017)
2017-08-22	31	NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings re Status Conference held on June 6, 2017 before Judge Susan Paradise Baxter. Court Reporter/Transcriber Ronald J. Bench, Telephone number 814-464-9613. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter/transcriber or viewed at the clerk's office public terminal. Any Notice of Intent to Request Redaction and Redaction Request must be separately mailed to the court reporter of said proceedings. Notice of Intent for Redaction of Personal Data Identifiers due by 8/29/2017. Redaction Request due 9/12/2017. Redacted Transcript Deadline set for 9/22/2017. Release of Transcript Restriction set for 11/20/2017. (jd) (Entered: 08/22/2017)
2017-08-22	32	NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings re Status Conference held on August 10, 2017 before Judge Susan Paradise Baxter. Court Reporter/Transcriber Ronald J. Bench, Telephone number 814-464-9613. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter/transcriber or viewed at the clerk's office public terminal. Any Notice of Intent to Request Redaction and Redaction Request must be separately mailed to the court reporter of said proceedings. Notice of Intent for Redaction of Personal Data Identifiers due by 8/29/2017. Redaction Request due 9/12/2017. Redacted Transcript Deadline set for 9/22/2017. Release of Transcript Restriction set for 11/20/2017. (jd) (Entered: 08/22/2017)
2017-09-07	33	MEMORANDUM ORDER that Defendants may not use a Glomar response to Plaintiff's request for "all electronic surveillance, wiretaps and audio files from [co-defendant] John J. Gilmartin." Signed by Magistrate Judge Susan Paradise Baxter on 9/7/2017. (dm) (Entered: 09/07/2017)
2017-09-12	34	TEXT ORDER, Status Conference via telephone set for 9/14/2017 at 11:00 AM before Magistrate Judge Susan Paradise Baxter. Counsel for Defendants is directed to make arrangements for all parties to participate by conference call on the above date and time. Signed by Magistrate Judge Susan Paradise Baxter on 9/12/17. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (lrw) (Entered: 09/12/2017)
2017-09-14	35	Minute Entry for proceedings held before Magistrate Judge Susan Paradise Baxter: Status Conference held on 9/14/2017. Motion for Reconsideration due by 9/21/2017. Opposition due within 7 days. Vaughn index due 9/29/2017. (Court Reporter: Ron Bench) (lrw) (Entered: 09/14/2017)
2017-09-20	36	MOTION for Reconsideration re 33 Memorandum Opinion & Order, by EXECUTIVE OFFICES OF THE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 Proposed Order) (Colville, Michael) (Entered: 09/20/2017)
2017-09-20	37	BRIEF in Support re 36 Motion for Reconsideration filed by EXECUTIVE OFFICES OF THE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Colville, Michael) (Entered: 09/20/2017)
2017-09-25	38	NOTICE of Change of Address by ERIC J. MCPHAIL. FILER advised that the change of address has been made on above captioned matter only. If you wish to have address changed on other matters before this court, it is your responsibility to file such a notice at each case number. This NEF has been mailed to ERIC J. MCPHAIL. (Attachments: # 1 Envelope) (jd) (Entered: 09/25/2017)
2017-09-27	39	RESPONSE IN OPPOSITION TO 36 MOTION for Reconsideration filed by ERIC J. MCPHAIL. (Attachments: # 1 Exhibit, # 2 Envelope) (jd) (Entered: 09/27/2017)
2017-09-28	40	RESPONSE to 25 Status Conference, Set Deadlines/Hearings, filed by EXECUTIVE OFFICES OF THE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Colville, Michael) (Entered: 09/28/2017)
2017-09-29	41	MOTION for Leave to File Documents Under Seal by FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 Proposed Order) (Colville, Michael) (Entered: 09/29/2017)
2017-10-02	42	TEXT ORDER Response/Briefing Schedule re 36 Motion for Reconsideration: Response to Motion due by 10/10/2017. Signed by Magistrate Judge Susan Paradise Baxter on 10/2/17. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (lrw) (Entered: 10/02/2017)
2017-10-06	43	NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings re Status Conference held on 9/14/2017 before Judge Susan Paradise Baxter. Court Reporter/Transcriber Ron Bench, Telephone number 814-464-9613. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter/transcriber or viewed at the clerk's office public terminal. Any Notice of Intent to Request Redaction and Redaction Request must be separately mailed to the court reporter of said proceedings. Notice of Intent for Redaction of Personal Data Identifiers due by 10/13/2017. Redaction Request due 10/27/2017. Redacted Transcript Deadline set for 11/6/2017. Release of Transcript Restriction set for 1/4/2018. (dm) Modified on 4/13/2018. (jd) (Entered: 10/06/2017)
2017-10-10	44	Remark: Returned mail stating "no mail receptacle, unable to forward", due to data entry error by docket clerk. Address corrected and letter returned to Plaintiff (jd) (Entered: 10/10/2017)
2018-03-12	45	REQUEST for Status Conference by ERIC J. MCPHAIL. (Attachments: # 1 Envelope) (dm) (Entered: 03/12/2018)
2018-09-21		Case Reassigned to Judge Susan Paradise Baxter. Magistrate Judge Susan Paradise Baxter no longer assigned to the case. (kly) (Entered: 09/21/2018)
2018-10-26	46	ORDER upon consideration of Defendant, FBIs Motion for Leave of Court to File Records Referenced in David M. Hardys Declaration Under Seal 41 , IT IS HEREBY ORDERED that the Motion is GRANTED; IT IS FURTHER ORDERED that the Government shall not be required to file a redacted version of the document. The Clerks Office shall docket the seal document without requiring the Government to first file a redacted version. Signed by Judge Susan Paradise Baxter on 10/26/18. (lrw) (Entered: 10/26/2018)
2018-10-30	47	SEALED DOCUMENT by FEDERAL BUREAU OF INVESTIGATION. This document Sealed pursuant to 46 Order on Motion for Leave to File Documents Under Seal. (jv) (Entered: 10/30/2018)
2018-10-31	48	ORDER that Defendants motion to reconsider the Courts Order dated September 7, 2017 36 is GRANTED, the Courts Memorandum Order 33 is VACATED, and Defendants use of a Glomar response to Plaintiffs request for all electronic surveillance, wiretaps and audio files from [co-defendant] John J. Gilmartin is upheld. Signed by Judge Susan Paradise Baxter on 10/31/18. (lrw) (Entered: 10/31/2018)
2018-10-31	49	ORDER denying as moot 45 Motion for Hearing filed by ERIC J. MCPHAIL, in light of this Court's Memorandum Order entered on this date. This Order is without prejudice to Plaintiff's right to request a telephonic hearing by specifying the matters that he believes may require the Court's attention. Signed by Judge Susan Paradise Baxter on 10/31/2018. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (fcf) (Entered: 10/31/2018)
2018-12-10	50	TEXT ORDER, Telephonic Status Conference set for 12/17/2018 at 11:30 AM before Judge Susan Paradise Baxter. Counsel for Defendants is directed to make arrangements for all parties to participate by conference call on the above date and time. Signed by Judge Susan Paradise Baxter on 12/10/18. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (lrw) (Entered: 12/10/2018)
2018-12-17	51	Minute Entry for proceedings held before Judge Susan Paradise Baxter: Telephonic Status Conference held on 12/17/2018. A stipulation of dismissal will be prepared and filed by the parties. (Court Reporter: Janis Ferguson) (lrw) (Entered: 12/17/2018)
2018-12-17	52	STIPULATION of Dismissal with Prejudice by EXECUTIVE OFFICES OF THE UNITED STATES ATTORNEYS, FEDERAL BUREAU OF INVESTIGATION. (Colville, Michael) (Entered: 12/17/2018)
2018-12-20	53	STIPULATION AND ORDER: Pursuant to Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure, it is hereby stipulated and agreed to by and between the respective parties that the Defendants, Federal Bureau of Investigation and Executive Offices of The United States Attorneys shall be dismissed from the above captioned matter, with prejudice, and the Court may enter an Order accordingly. Signed by Judge Susan Paradise Baxter on 12/20/18. (lrw) (Entered: 12/20/2018)
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