Gulluni v. United States Attorney for the District of Massachusetts

United States District Court

District of Massachusetts

)

Anthony Gulluni, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 21-30058-NMG

United States Attorney for the )

District of Massachusetts, )

)

Defendant. )

)

MEMORANDUM & ORDER

GORTON, J.

This case arises from an investigation conducted by the

United States Department of Justice (“DOJ”) of the Narcotics

Bureau of the Springfield, Massachusetts Police Department

(“SPD”). Based upon a comprehensive review of materials

provided by SPD, inter alia, DOJ concluded that members of the

Bureau had engaged in a pattern and practice of using excessive

force and that officers lied in connection with some of the

underlying incidents and internal SPD documentation. Anthony

Gulluni (“Gulluni” or “plaintiff”), the Hampden County District

Attorney (“HCDA”), subsequently sought SPD records from DOJ that

contributed to those findings. DOJ denied the request and,

ultimately, HCDA initiated this litigation to obtain those

records. Pending before this Court are cross-motions for

summary judgment.

I. Background

In April, 2018, DOJ initiated an investigation into SPD’s

Narcotics Bureau pursuant to the Violent Crime Control and Law

Enforcement Act of 1994, 34 U.S.C. § 12601. The investigation,

which culminated in a report released to the public in July,

2020, involved a comprehensive review of more than 114,000 pages

of incident reports, investigative reports, policies, training

materials and other internal documents from SPD, as well as

interviews with SPD officers, Springfield officials and

community members. The report was highly critical of SPD,

citing both specific instances of misconduct and general

failures of the department. In sum, DOJ concluded that members

of the Narcotics Bureau engaged in a pattern and practice of

using excessive force and that officers lied in connection with

some incidents, including by falsifying documents to disguise or

hide their use of force. Although the report cited some

specific instances of misconduct, the names of the involved

persons and the dates of the misconduct were omitted.

After the report was released, HCDA made an initial, oral

request to DOJ for the SPD documents relied upon in the report.

Approximately two weeks after that request was made, on August

6, 2020, DOJ denied it orally.

On August 19, 2020, Gulluni pursued the matter by issuing

letters to Assistant Attorney General Eric Dreiband, the lead

attorney for DOJ’s Civil Rights Division, and Andrew Lelling,

the United States Attorney for the District of Massachusetts,

the two offices that co-authored the relevant report. Those

letters were identical in content and, citing federal

regulations and governing case law, requested documents that had

originally been produced to DOJ by SPD and subsequently were

referenced in the report. Specifically, the letters requested:

(1) documents determined to be examples of officers falsifying

reports to disguise or hide their use of force, (2) documents

that revealed a pattern or practice of officers making false

reports that were inconsistent with other available evidence and

(3) photographs or other digital material inconsistent with

officers’ reports. In part, the letters argued that HDCA

required the materials to determine its constitutional discovery

obligations pursuant to Brady v. Maryland, 373 U.S. 83, 87

(1963).

After Gulluni sent a second set of letters reiterating his

request, Lelling responded via electronic mail on October, 29,

2020. In his response, Lelling declined to provide the

materials sought on the grounds that they were privileged,

pursuant to both the work product privilege and the law

enforcement privilege, and belonged to SPD. The letter stated

that it represented the final agency decision concerning the

August, 2020 request. Dreiband never responded verbally or in

writing to the request.

Gulluni subsequently attempted to obtain the relevant

material from SPD but learned, through a letter from the

Springfield City Solicitor, that DOJ had not provided the City

or SPD with any information that would allow the police

department or any other branch of the local government to

identify the materials that had been relied upon to form the

conclusions contained in the report. The Springfield City

Solicitor informed Gulluni that all the materials supplied to

DOJ would be made available to HCDA, although repeated attempts

to coordinate the logistics of such a review have been

unsuccessful.

In May, 2021, HCDA initiated this action contending that

DOJ’s failure to disclose the requested information based upon

the enumerated privileges was arbitrary, capricious, an abuse of

discretion and not in accordance with law, in violation of the

Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706.

II. Motion for Summary Judgment

A. Legal Standard

The role of summary judgment is “to pierce the pleadings

and to assess the proof in order to see whether there is a

genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d

816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc.,

895 F.2d 46, 50 (1st Cir. 1990)). The burden is on the moving

party to show, through the pleadings, discovery and affidavits,

“that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a).

A fact is material if it “might affect the outcome of the

suit under the governing law....” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A genuine issue of material

fact exists where the evidence with respect to the material fact

in dispute “is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

If the moving party satisfies its burden, the burden shifts

to the nonmoving party to set forth specific facts showing that

there is a genuine, triable issue. Celotex Corp. v. Catrett, 477

U.S. 317, 324 (1986). The Court must view the entire record in

the light most favorable to the non-moving party and make all

reasonable inferences in that party's favor. O'Connor v.

Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary judgment is

appropriate if, after viewing the record in the non-moving

party's favor, the Court determines that no genuine issue of

material fact exists and that the moving party is entitled to

judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23.

B. Standard and Scope of Review

A reviewing court may reverse the decision of an executive

agency, such as DOJ, to withhold requested material only if that

decision was “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A);

see Commonwealth of Puerto Rico v. United States, 490 F.3d 50,

61 (1st Cir. 2007).

Judicial review is accordingly severely limited, and

courts are only free to determine whether the agency

followed its own guidelines or committed a clear error

of judgment. [Courts] may not substitute [their] own

judgment for that of an agency.

Commonwealth of Puerto Rico v. United States (D.P.R. Sept. 26,

2006), aff'd, 490 F.3d 50 (1st Cir. 2007) (quotations and

citations omitted). In reviewing such a decision, a court

therefore looks to both the agency’s internal regulations and

the substantive law governing the legal justification for the

denial of the request. Id. Courts are generally limited in that

review to the administrative record. Camp v. Pitts, 411 U.S.

138, 142 (1973) (per curiam).

Pursuant to the Housekeeping Act, 5 U.S.C. § 301, DOJ has

promulgated regulations governing its response to information

requests. Those rules are set forth at 28 C.F.R. § 16.21 et

seq. and are commonly known as Touhy regulations, in reference

to United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468

(1951) (upholding authority of executive agencies to promulgate

regulations establishing conditions for disclosure of

information). Those regulations, which “are only procedural,

and do not create a substantive entitlement to withhold

information[,]” Commonwealth, 490 F.3d at 62, provide that DOJ

is to consider, inter alia, the “substantive law concerning

privilege” in deciding whether disclosure is appropriate. 28

C.F.R. § 16.26(a)(2). Among the kinds of requests that the

regulations enumerate as those that should be denied are those

that:

would reveal investigatory records compiled for law

enforcement purposes, and would interfere with

enforcement proceedings or disclose investigative

techniques and procedures the effectiveness of which

would thereby be impaired

28 C.F.R. § 16.26(b)(5).

Gulluni argues that the typical deference accorded to the

actions of administrative agencies pursuant to 5 U.S.C. §

706(2)(A) does not apply here because DOJ acted “contrary to

constitutional right, power, privilege of immunity,” 5 U.S.C. §

706(2)(B). The problem with that reasoning is that, while a

reviewing court need “not defer to the agency’s pronouncement on

constitutional issues,” NYC C.L.A.S.H., Inc. v. Carson, 442 F.

Supp. 3d 200, 209 (D.D.C. 2020), that standard has not been

extended to circumstances where, as here, the plaintiff has not

brought a constitutional claim. Gulluni has enumerated only a

claim pursuant to the APA and, while the constitutional rights

of defendants prosecuted by HCDA may be implicated pursuant to

the disclosure requirements of Brady, 373 U.S. at 87, those

rights do not belong to the plaintiff presently before the

Court. For that reason, insofar as constitutional rights

implicate the applicable scope of review, Bos. All. of Gay,

Lesbian, Bisexual & Transgender Youth v. United States Dep't of

Health & Hum. Servs., 557 F. Supp. 3d 224, 245 (D. Mass. 2021),

that analysis is also irrelevant.

C. Application

As an initial matter, defendant contends that the issue

presented is moot because HCDA has, with the assistance of SPD,

already identified the incidents that gave rise to the

allegations of falsification contained in the report. Thus,

according to defendant, HCDA can obtain the requested materials

directly from SPD, rather than relying upon DOJ as the

intermediary. Defendant also contends that the matter is unripe

for a related reason: the Court is being asked to speculate on a

hypothetical, rather than live, dispute because HCDA has access

to that which it seeks.

Those arguments are refuted by the record before this

Court. In his communication with HCDA, the Springfield City

Solicitor identified 23 incidents described in the DOJ report,

some of which implicated issues of officer falsification and/or

inconsistency. The Solicitor was able to link most of those

incidents with arrest records and/or other SPD documentation,

thereby providing HCDA enough information to pursue further

investigation.

The Solicitor was, however, unable to identify the

underlying events in four of the incidents, which include both

general and specific statements concerning officer misconduct.

As such, the information provided by the Solicitor to HCDA does

not moot the prevailing question in this litigation because: (1)

while HCDA was able to obtain certain records regarding the

identified incidents, it remains unclear whether all the

documentation relied upon by DOJ concerning those incidents has

been provided, (2) the Solicitor has been unable to identify

records concerning four of those incidents, notwithstanding the

fact that some of them are general statements that presumably

involve multiple incidents, and (3) HCDA lacks confirmation that

the incidents identified by the Solicitor are, in fact, those

that DOJ relied upon in its report. For those reasons, HCDA has

not been able to acquire the records it seeks and the matter is

therefore neither moot nor unripe.

The Court therefore proceeds to consider each of the

alleged justifications that DOJ offered in withholding the

relevant information and concludes that the agency did not

violate the APA in denying the request.

In his October, 2020 letter, United States Attorney Lelling

first explained that the materials requested could not be

supplied because they were subject to the attorney work product

privilege. That privilege:

protects work done by an attorney in anticipation of,

or during, litigation from disclosure to the opposing

party.

State of Maine v. U.S. Dep't of Interior, 298 F.3d 60, 66 (1st

Cir. 2002). See Hickman v. Taylor, 329 U.S. 495 (1947). The

privilege has, however, been extended to a select grouping of

documents where the “selection process itself

represents...counsel’s mental impressions and legal opinions.”

Sporck v. Peil, 759 F.2d 312, 314-315 (3d Cir. 1985).

[T]he identification and selection of documents is

within the less-shielded category of ordinary work

product but not within the highly protected category

of opinion work product.

Bamberg v. KPMG, LLP, 219 F.R.D. 33, 36 (D. Mass. 2003)

(quoting, in part, In re San Juan Dupont Plaza Hotel Fire

Litigation, 859 F.2d 1007, 1015–1017 (1st Cir., 1988)).

Ordinary work product is subject to disclosure

where a party demonstrates a substantial need for the

information and an undue hardship should it not be

produced.

United States v. Cadden, No. CR 14-10363-RGS, 2015 WL 5737144,

at *2 (D. Mass. Sept. 30, 2015) (quoting, in part, In re San

Juan, 859 F.2d at 1015)).

Typically, the work product privilege is invoked in

discovery disputes pursuant to Federal Rule of Civil Procedure

26 and serves to shield materials that would reveal the

litigation strategy of opposing counsel. That purpose is, of

course, not relevant here, where the materials sought have the

potential to implicate litigation not against the requester but

rather against a third-party entity (i.e. SPD). Nevertheless,

in light of the deferential standard applicable to DOJ’s legal

determinations, this Court cannot say that DOJ made a “clear

error of judgment,” Davis Enter. v. EPA, 877 F.2d 1181, 1186 (3d

Cir.1989), in concluding that the requested materials are

subject to the work product privilege or finding that Gulluni

failed to satisfy the stringent requirements that would justify

disclosure notwithstanding that determination.

The selection of materials relied upon by DOJ in its report

would undoubtedly have yielded “a glimpse” into the agency’s

analysis, which ultimately led to the execution of a consent

decree between the DOJ and SPD. In re San Juan, 859 F.2d at

1018. Moreover, the availability of the requested materials

from SPD undermines Gulluni’s substantial need for the

information from DOJ and the significant progress HCDA has

already made in identifying the materials also reduces any undue

hardship that may arise from the denial.

Nor can this Court conclude that the denial of the Touhy

request pursuant to the law enforcement privilege was arbitrary

and capricious. In his letter denying the request of Gulluni,

Mr. Lelling justified the invocation of that privilege upon “an

open and ongoing civil investigation.” Courts have long

recognized a qualified privilege for certain kinds of

information related to the activities of law enforcement. See

Roviaro v. United States, 353 U.S. 53 (1957). Over time, that

privilege has been extended to materials that, if disclosed,

would reveal “law enforcement techniques and procedures” and

thereby frustrate “the public interest in effective law

enforcement[.]” Commonwealth, 490 F.3d at 64. The First Circuit

Court of Appeals has emphasized that the privilege is

appropriately invoked where disclosure might jeopardize future

government investigations. See United States v. Cintolo, 818

F.2d 980, 983–84 (1st Cir. 1987). The privilege is, however,

not absolute and is

subject to balancing the federal government’s interest

in preserving the confidentiality of sensitive law

enforcement techniques against the requesting party’s

interest in disclosure.

Commonwealth, 490 F.3d at 64.

HDCA appropriately contends that the materials it seeks

from DOJ reveal somewhat less information regarding a government

investigation than that which has been previously shielded by

the law enforcement privilege. In Cabral, for example, the

information sought included the method of communication used by

federal investigators and thus directly implicated investigative

techniques. Cabral, 587 F.3d at 23. Nevertheless, this Court

concludes that DOJ’s denial of the request was reasonable under

the deferential standard of review prescribed by the APA based

on the department’s interest in preserving the materials that

formed the foundation of the resulting report and ultimate

consent decree.

The execution of that consent decree in April, 2022 does

not undermine defendant’s reasoning because it is irrelevant to

this Court’s assessment of the adequacy of DOJ’s invocation of

the privilege at the time it was made in October, 2020. DOJ’s

interest in withholding the materials is particularly strong

because HDCA did not propose rules or regulations governing

their use or publication and public disclosure might decrease

the willingness of local police departments to share records

with DOJ in the future. Commonwealth, 490 F.3d at 68, 62. For

those reasons, the denial of Gulluni’s request based on the law

enforcement privilege was not unreasonable and the claim of

Gulluni pursuant to the APA cannot prevail.

ORDER

For the foregoing reasons, the motion of plaintiff for

summary judgment (Docket No. 18) is DENIED, and the motion of

defendant for summary judgment (Docket No. 24) is ALLOWED.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated September 6, 2022