Case Detail

FOIA Project Annotation: Judge Amy Berman Jackson has ruled that the EOUSA properly referred records concerning the 2011 conviction of Gerald Michael on charges of drug trafficking and possession of a firearm in the Middle District of North Carolina to the Bureau of Alcohol, Tobacco and Firearms, which subsequently referred some of the records to the FBI; that the agencies conducted an adequate search for records; and that the agencies properly withheld records under Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records), including a Glomar response neither confirming nor denying the existence of audiotapes involving Tony Walser and Robert Bone, two defendants who cooperated with the government during Michael's prosecution. Michael requested the records pertaining to his conviction under both FOIA and the Privacy Act. ATF disclosed 252 pages in part and 36 pages in full, withholding 159 pages entirely. It referred 30 pages to the FBI, which disclosed 10 of them in full, and 20 in part. Jackson found the agencies' explanation of their searches sufficient. Michael argued the search was inadequate because the agencies did not locate any audiotapes. In response, Jackson noted that "defendant has averred that it found no audiotapes during its searches. The adequacy of a search is not determined by its results, but by the method of the search itself." Jackson agreed with the agencies that the records Michael sought were contained in exempt law enforcement systems of records for purposes of Privacy Act disclosure. ATF cited the Consolidated Appropriations Act of 2012, which prohibits the agency from using funds to disclose gun trace records, as an Exemption 3 (other statutes) statute. Although courts have occasionally questioned whether the Appropriations Act exemption had survived the 2009 OPEN FOIA Act requirement that Exemption 3 statutes specifically cite FOIA, Jackson, noting that the majority of district courts addressing the issue had upheld its continued use, agreed with the agency that it was applicable here. Upholding the agencies' redaction of personally-identifying information, Jackson pointed out that "disclosure of personal information of law enforcement personnel may hinder the ability to conduct ongoing investigations, may lead to unwarranted harassment, and may otherwise cause embarrassment and constitute the invasion of privacy that is contemplated by the Exemptions." Michael argued that the names of individuals identified in court should not be protected. Jackson sympathized, noting that "plaintiff makes a good point," but then indicated that "courts had held that third-parties do not waive their privacy interests in government records for FOIA purposes, even if they have previously testified in open court."
Issues: Search - Referral, Exemption 7(C) - Invasion of privacy concerning law enforcement records

Date Filed	Doc #	Docket Text
2017-01-31	1	COMPLAINT against U.S. DEPARTMENT OF JUSTICE (Filing fee $ 0.00) filed by GERALD EUGENE MICHAEL. (Attachments: # 1 Civil Cover Sheet)(jf) (Entered: 02/03/2017)
2017-01-31		SUMMONS Not Issued as to U.S. DEPARTMENT OF JUSTICE (jf) (Entered: 02/03/2017)
2017-01-31	2	MOTION for Leave to Proceed in forma pauperis by GERALD EUGENE MICHAEL (jf) (Entered: 02/03/2017)
2017-01-31	3	PRISONER TRUST FUND ACCOUNT STATEMENT for period of six months by GERALD EUGENE MICHAEL (jf) (Entered: 02/03/2017)
2017-01-31	4	ORDER directing an initial partial filing fee in the amount of $32.16 from Prison Account of Gerald Eugene Michael and granting 2 MOTION for Leave to Proceed In Forma Pauperis (see order for full details). Signed by Chief Judge Beryl A. Howell on 01/31/2017. (jf) (Entered: 02/03/2017)
2017-02-08	5	SUMMONS (3) Issued as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (md) (Entered: 02/08/2017)
2017-02-28	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF JUSTICE served on 2/27/2017, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 2/27/2017. (jf) (Entered: 03/01/2017)
2017-03-28	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/21/2017. Answer due for ALL FEDERAL DEFENDANTS by 4/20/2017. (zjf) (Entered: 03/29/2017)
2017-04-20	8	NOTICE of Appearance by Daniel Patrick Schaefer on behalf of U.S. DEPARTMENT OF JUSTICE (Schaefer, Daniel) (Entered: 04/20/2017)
2017-04-20	9	MOTION for Extension of Time to File Answer re 1 Complaint by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Text of Proposed Order)(Schaefer, Daniel) (Entered: 04/20/2017)
2017-04-21		MINUTE ORDER granting 9 Motion for Extension of Time. It is ORDERED that defendant's shall answer or otherwise respond to the complaint by June 19, 2017. Signed by Judge Amy Berman Jackson on 4/21/17. (DMK) (Entered: 04/21/2017)
2017-04-21		Set/Reset Deadlines: Defendant shall answer or otherwise respond to the complaint by 6/19/2017. (jth) (Entered: 04/21/2017)
2017-06-19	10	MOTION for Extension of Time to File Answer re 1 Complaint by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Schaefer, Daniel) (Entered: 06/19/2017)
2017-06-20		MINUTE ORDER granting 10 defendant's motion for an extension of time to file an answer to the complaint. Defendant shall file its answer and proposed briefing schedule on or before August 18, 2017. SO ORDERED. Signed by Judge Amy Berman Jackson on 6/20/17.(ah) (Entered: 06/20/2017)
2017-06-23		Set/Reset Deadlines: Defendant shall file its answer and proposed briefing schedule on or before 8/18/2017. (jth) (Entered: 06/23/2017)
2017-08-18	11	MOTION for Extension of Time to File Answer re 1 Complaint and Proposed Briefing Schedule by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Schaefer, Daniel) (Entered: 08/18/2017)
2017-08-21		MINUTE ORDER granting 11 Motion for Extension of Time to Answer. It is ORDERED that defendant's motion for extension of time is GRANTED and that defendant's answer to plaintiff's complaint is due by August 25, 2017. It is FURTHER ORDERED that defendant's motion for summary judgment is due by October 19, 2017, plaintiff's opposition is due by December 8, 2017, and defendant's reply is due by January 23, 2018. Signed by Judge Amy Berman Jackson on 8/21/17. (DMK) (Entered: 08/21/2017)
2017-08-21		Set/Reset Deadlines: Defendant's Answer to Plaintiff's Complaint is due 8/25/2017; Defendant's motion for summary judgment is due by 10/19/2017; Plaintiff's Opposition is due by 12/8/2017; Defendant's Reply is due by 1/23/2018. (jth) (Entered: 08/21/2017)
2017-08-25	12	ENTERED IN ERROR.....ANSWER to 1 Complaint by U.S. DEPARTMENT OF JUSTICE.(Schaefer, Daniel) Modified on 8/25/2017 (zrdj). (Entered: 08/25/2017)
2017-08-25	13	ANSWER to 1 Complaint by U.S. DEPARTMENT OF JUSTICE.(Schaefer, Daniel) (Entered: 08/25/2017)
2017-08-25		NOTICE OF CORRECTED DOCKET ENTRY: re 12 Answer to Complaint was entered in error at the request of counsel and counsel was refiled as pleading 13 . (zrdj) (Entered: 08/25/2017)
2017-10-13	14	MOTION for Extension of Time to File Motion for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Schaefer, Daniel) (Entered: 10/13/2017)
2017-10-18		MINUTE ORDER granting 14 Defendant's Motion for Extension of Time. It is ORDERED that defendants motion for summary judgment is due by November 21, 2017, plaintiffs opposition is due by January 8, 2018, and defendants reply is due by February 22, 2018. Signed by Judge Amy Berman Jackson on 10/18/17. (DMK) (Entered: 10/18/2017)
2017-10-25	15	STATUS REPORT by GERALD EUGENE MICHAEL. (td) (Entered: 10/26/2017)
2017-10-25	16	MOTION to Clarify by GERALD EUGENE MICHAEL; (See docket entry no. 15 to view) (td) (Entered: 10/26/2017)
2017-10-27		MINUTE ORDER. In response to plaintiff's status report, the Court advises that defendant did file an answer 13 to the complaint on August 25, 2017, but that no reply to that pleading is required under the rules. Defendant has indicated that it plans to file a dispositive motion, a motion for summary judgment, which is now due on November 21, 2017. According to the schedule set by the Court on October 18, 2017, plaintiff's opposition to that motion will be due on January 8, 2018. When defendant's motion is filed in November, the Court will issue an additional order advising plaintiff of the rules concerning motions for summary judgment, the opposition he may file, and the potential consequences if he does not oppose the motion. In other words, there is nothing due from the plaintiff at this time, and the plaintiff can expect to receive more instructions from the Court when he does have to file something. Plaintiff will also be free to seek an extension of time if he needs it, but he should try to file any motion for an extension at least two days before the pleading is actually due. Signed by Judge Amy Berman Jackson on 10/27/17. (DMK) (Entered: 10/27/2017)
2017-10-27		MINUTE ORDER denying as moot 16 Motion to Clarify in light of the minute order issued on this date. Signed by Judge Amy Berman Jackson on 10/27/17. (DMK) (Entered: 10/27/2017)
2017-10-30		Set/Reset Deadlines: Response to Dispositive Motion due by 1/8/2018. (tb) (Entered: 10/30/2017)
2017-11-20	17	MOTION for Extension of Time to File Motion for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Schaefer, Daniel) (Entered: 11/20/2017)
2017-11-21		MINUTE ORDER granting 17 Defendant's Motion for Extension of Time. It is ORDERED that defendant's motion for summary judgment is due by November 22, 2017; plaintiff's opposition is due by January 9, 2018; and defendant's reply is due by February 23, 2018. Signed by Judge Amy Berman Jackson on 11/21/17. (DMK) (Entered: 11/21/2017)
2017-11-22	18	MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Text of Proposed Order)(Schaefer, Daniel) (Entered: 11/22/2017)
2017-11-27	19	Order advising plaintiff to respond by January 9, 2018, to defendant's motion for summary judgment or risk entry of judgment for the defendant based solely on defendant's asserted facts (see written order for details). Signed by Judge Amy Berman Jackson on 11/27/17.(ah) (Entered: 11/27/2017)
2017-12-29	20	MOTION for Extension of Time to File Response as to 18 MOTION for Summary Judgment by GERALD EUGENE MICHAEL (jf) (Entered: 01/03/2018)
2018-01-03		MINUTE ORDER granting 20 Plaintiff's Motion for Extension of Time to File Response. It is ordered that plaintiff's response to defendant's motion for summary judgment is due by 2/23/2018, and defendant's reply is due by 4/9/2018. Signed by Judge Amy Berman Jackson on 1/3/18. (DMK) (Entered: 01/03/2018)
2018-02-15	21	RESPONSE re 18 MOTION for Summary Judgment filed by GERALD EUGENE MICHAEL. (Attachments: # 1 Exhibit)(jf) (Entered: 02/20/2018)
2018-04-09	22	REPLY to opposition to motion re 18 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit 6)(Schaefer, Daniel) (Entered: 04/09/2018)
2018-09-27	23	MEMORANDUM OPINION granting 18 defendant's motion for summary judgment; denying [21-1] plaintiff's motion for discovery. See document for details. Signed by Judge Amy Berman Jackson on 9/27/2018. (dm) (Entered: 09/27/2018)
2018-09-27	24	ORDER granting 18 defendant's motion for summary judgment; denying [21-1] plaintiff's motion for discovery. See document for details. Signed by Judge Amy Berman Jackson on 9/27/2018. (dm) Modified on 9/27/2018 (dm). (Entered: 09/27/2018)
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