Feds Must Show Killer More Documents

     WASHINGTON (CN) – Uncle Sam improperly withheld some documents from a convicted killer who filed a Freedom of Information Act request seeking to prove he’s been improperly detained, a federal judge ruled.
     John A. Petrucelli was convicted of the murder of a member of the Genovese crime family and was sentenced to life in prison.
     At the time of the murder Petrucelli was a member of the Tanglewood Boys, a violent gang that regularly engaged in murder, armed robbery, burglary, loan sharking, and bookmaking in the Bronx and Westchester County, New York, according to the June 27 ruling by U.S. District Judge Reggie B. Walton.
     Most of the gang’s members carried out these activities, at least in part, in the hope of becoming members of the Luchese organized crime family.
     According to Walton’s summary of the case, in the early morning of June 20, 1995, Petrucelli witnessed the shooting of Tanglewood Boy member Darin Mazzarella by an associate of the rival Genovese crime family.
     A few hours later, Petrucelli stabbed Paul Cicero, a cousin of a Genovese family associate, to avenge the shooting.
     After Petrucelli fled, Cicero passed in front of a stoop where a friend was sitting and said, “That bastard Johnny just stabbed me” while clutching his stomach. Cicero bled to death on the operating table at a nearby hospital, Walton wrote.
     Although tensions persisted between the two criminal organizations, a year after the incidents described, the families met and formally called a truce.
     While sitting in jail, Petrucelli began filing a series of Freedom of Information Act requests with the Federal Bureau of Prisons, the Executive Office for United States Attorneys and the Federal Bureau of Investigation, seeking everything from documents related to his arrest on Jan. 28, 2002 to information concerning his eligibility for the death penalty.
     Petrucelli believes the records he’s seeking under both the Privacy Act and the Freedom of Information Act could exculpate him from unlawful confinement.
     A number of disputes have been argued since Petrucelli began filing his requests, including whether the agencies improperly limited the scope of their search for responsive documents when they assumed that all or most would be in the Southern District of New York, where he was tried.
     He also was miffed that the FBI should claim it had only 500 pages of records related to his case, opining that “[t]he FBI’s file should be at least five thousand pages long,” Walton wrote.
     In both these instances, Walton concluded, the searches conducted by the agencies were reasonable under the circumstances of this case.
     The central question, however, was whether the agencies correctly applied various exemptions to documents they withheld.
     Walton concluded the Bureau of Prisons conducted reasonable searches for records responsive to the Petrucelli’s FOIA requests, and that it properly withheld information under FOIA Exemptions 6, 7(C), and 7(F).
     In addition, he found that the Executive Office for United States Attorneys and the FBI conducted reasonable searches for information responsive to Petrucelli’s requests, and that their withholdings under FOIA Exemptions 3, 5 and 7(C) were proper.
     In these respects, Walton granted summary judgment for the defendant.
     But his ruling wasn’t a complete victory for the defendants. Walton held that the Executive Office for United States Attorneys failed to justify its decisions to withhold information under exemption 7(D) -which covers the express grant of confidentiality, and 7(F), which protects from disclosure information contained in law enforcement records that “could reasonably be expected to endanger the life or physical safety of any individual.”
     “Where an agency withholds information provided under an express grant of confidentiality, it ‘is required to come forward with probative evidence that the source did in fact receive an express grant of confidentiality,'” Walton wrote. ” … Proof could take the form of declarations from the agents who extended the express grants of confidentiality, contemporaneous documents from the FBI files reflecting the express grants of confidentiality, evidence of a consistent policy of expressly granting confidentiality to certain designated sources during the relevant time period, or other such evidence that comports with the Federal Rules of Evidence.
     “Here, the FBI makes the necessary showing; however, the EOUSA does not.”
     Walton ruled that the FBI failed to adequately justify its decisions to withhold information under FOIA Exemptions 7(D) (implied assurance of confidentiality) and 7(E), which protects from disclosure law enforcement records to the extent that their production would disclose techniques and procedures for law enforcement investigations or prosecutions.
     Based on what the FBI presented him, Walton said, he could neither determine whether the cited exemptions apply nor whether any reasonably segregable information can be disclosed.
     Walton therefore denied summary judgment without prejudice as to the assertion of these exemptions, putting off a decision on the segregability of records for a latter date.
     Finally, he directed the parties to submit a joint proposed schedule for further proceedings within 45 days or to file renewed dispositive motions.

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