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THOMAS v. OFFICE OF THE UNITED STATES ATTY. FOR TH

June 12, 1996

HERBERT THOMAS, Plaintiff, against OFFICE OF THE UNITED STATES ATTORNEY FOR THE EASTERN DISTRICT OF NEW YORK, Defendant.


The opinion of the court was delivered by: BLOCK

 BLOCK, District Judge:

 Plaintiff pro se Herbert Thomas ("Thomas") seeks disclosure pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, of records and documents contained in the files of the United States Attorney's Office for the Eastern District of New York ("USAO-EDNY") relating to Bruce Cutler's ("Cutler") connections with and alleged involvement in the activities of John Gotti ("Gotti") and the Gambino Crime Family. The USAO-EDNY, having previously denied Thomas' administrative request as an invasion of Gotti's and Cutler's personal privacy, see 5 U.S.C. §§ 552(b)(6) and (7)(C), now moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment dismissing the complaint on the same grounds.

 I. BACKGROUND

 The facts in this case are not in dispute. Thomas, currently incarcerated at the Great Meadow Correctional facility, was arrested on January 9, 1978 by the New York City Police for a murder and robbery at the "Night Cap Club," located at 880 Jamaica Avenue, Brooklyn, New York. *fn1" He was subsequently indicted for the murder and robbery and was convicted of murder, after a jury trial, on December 7, 1978. Cutler, the subject of Thomas' FOIA request, was the Assistant District Attorney ("ADA") who prosecuted him.

 Following his service as an ADA, Cutler entered into private practice as a criminal defense attorney. One of Cutler's clients was John Gotti, the reputed boss of the Gambino Crime Family. Cutler however, was disqualified from representing Gotti in the case encaptioned United States v. Gotti, 90 Cr 1051, because the Court found, inter alia, that his role as "house counsel" for the Gambino Crime Family created a conflict of interest that could not be waived. United States v. Gotti, 771 F. Supp. 552, 560-63 (E.D.N.Y. 1991) (Glasser, J.). Based on Cutler's position as "house counsel" for the Gambino Crime Family, Thomas argues that Cutler had a "personal concern" and derived "personal benefit" from his prosecution of Thomas because the "Night Cap Club" was connected with Gotti, the Gambino Crime Family and Organized Crime. Thomas is apparently of the opinion that Cutler was "involved" with Gotti during the course of his service as an ADA and that this alleged involvement compromised Cutler's prosecution of Thomas. Presumably in preparation for a collateral attack on his conviction, Thomas requested documents from the files of the USAO-EDNY compiled during its investigation and prosecution of Gotti, which he believes would support this view.

 The Request

 By letter dated May 18, 1992, Thomas requested access to all records and documents maintained by the USAO-EDNY pertaining to Cutler and relating to Cutler's involvement with the Gambino Crime Family or Organized Crime, as well as a copy of Judge I. Leo Glasser's June 1991 order and decision barring Cutler from appearing as counsel for Gotti. Having received no response to his initial letter, Thomas wrote a second letter explaining that he interpreted the non-reply as a denial of his request and that he wished to appeal that denial. That letter was received on July 17, 1992 by the Executive Office for United States Attorneys ("EOUSA") and appears to have been treated as an initial request.

 The Response

 The EOUSA subsequently advised Thomas, preliminarily, that: 1) as a third party requester, he would receive only public court records and news clippings concerning the prosecution and conviction of the subject of his request unless he obtained authorization from the subject granting access; 2) both the Privacy Act, 5 U.S.C. § 552a(b) and two FOIA exemptions, 5 U.S.C. §§ 552(b)(6) and (7)(C), prohibited the release of any non-public records that might exist concerning the subject of his request; and 3) Thomas had thirty days in which to advise whether he was still interested in having his request processed.

 The two FOIA exemptions invoked by the USAO-EDNY are designed to protect an individual's privacy interest in materials contained in government files. Exemption 6 protects "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Exemption 7(C) excludes records or information compiled for law enforcement purposes from disclosure, "but only to the extent that the production of such [materials] . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552 (b)(7)(C). Thomas does not dispute that the materials he requested were compiled for law enforcement purposes.

 The letter further informed Thomas that it was not a formal denial since the EOUSA had not yet contacted the district office in question, and thus, had not yet determined whether any records exist concerning the subject of his request. *fn2" Thomas asked the EOUSA to fully process his request. He was subsequently informed in a letter from the EOUSA that his request had been processed under both the FOIA and the Privacy Act, 5 U.S.C. § 552a, and had been partially denied pursuant to the two FOIA exemptions previously referenced. *fn3"

 The letter noted that Thomas had not received any authorization for release of the records from the subject of his request, stating as follows:

 
You have requested records concerning a third party. Without release authorization from the subject of your request we are prohibited by both the Privacy Act and the Freedom of Information Act from disclosing any ...

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