Berard v. BOP, No. 15-0891, 2016 WL 3962797 (D.D.C. July 21, 2016) (Kollar-Kotelly, J.)

Berard v. BOP, No. 15-0891, 2016 WL 3962797 (D.D.C. July 21, 2016) (Kollar-Kotelly, J.)

Re: Request for confidential informant report concerning plaintiff

Disposition: Granting in part and denying in part defendant's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records: "[T]he Court finds that BOP performed a reasonable search, located the requested document, and produced the requested document to Plaintiff, albeit in redacted form."
   
• Exemption 7(D): "[T]he Court finds that BOP properly withheld information on all five pages of the released document pursuant to FOIA Exemption 7(D)." The court first finds that "it is undisputed that the BOP is a law enforcement agency and is entitled to greater deference when considering that the documents were created for a law enforcement purpose." The court then holds that "BOP protected identifying information about, and information provided by, third parties under circumstances in which confidentiality can be inferred." "The third parties provided information concerning the activities of Plaintiff when he was an inmate at the Lewisburg Prison Camp and attempting to introduce contraband into the prison facilities." "These third parties and their families would be exposed to significant harm, whether it be physical or mental, if they were identified as cooperators or informers even in a minimum-security prison camp such as Lewisburg Prison Camp."
   
• Exemption 7(F): "The Court also finds that BOP properly withheld information on all five pages of the released document pursuant to FOIA Exemption 7(F)." The court explains that "[i]n light of the violent nature of the charges at issue in this case, disclosure of information provided to BOP by the confidential informant concerning the alleged conduct described above could reasonably be expected to endanger the life or safety of that individual."
   
• Exemptions 6 & 7(C): "The Court also finds that BOP properly withheld information on all five pages of the released document pursuant to Exemptions 6 and 7(C)." "[T]he Court's in camera review demonstrates that the information that BOP seeks to withhold – names of BOP staff involved in the investigation of the incident at issue, identifying information about inmates named in the informant report, and other personal information concerning both BOP staff and individual inmates – meets the 'similar files' requirement of Exemption 6." The court then notes that "[p]laintiff does not dispute that disclosure of such information could, or would, constitute an unwarranted invasion of the privacy of those persons, nor does he put forward any public interest that might outweigh such an invasion of privacy."
   
• Exemption 7(E): "The Court also finds that BOP has properly withheld information on page five of the released document pursuant to FOIA Exemption 7(E)." "[T]he Court finds that BOP sufficiently identified what procedures are involved, such that disclosure of information concerning those procedures 'could reasonably be expected to risk circumvention of the law.'" "In addition, the Court's in camera review demonstrates that the information that BOP seeks to withhold on page five 'would disclose techniques and procedures for law enforcement investigations.'" "As noted by BOP in its Vaughn Index, page five consists of a page from a BOP intelligence and investigative database." The court finds that "[t]here is a reasonable risk that disclosure of this information would weaken the BOP’s effectiveness and potentially aid in circumvention of the techniques."
   
• Procedural Requirements, "Reasonably Segregable" Obligation: "[T]he Court finds that Plaintiff is correct – BOP failed to properly segregate and unredact non-exempt material in the redacted record." "[T]he Court's in camera review demonstrates that BOP failed to segregate excerpts that already contained information that was subsequently cited and discussed in the DHO Report, which has already been disclosed to Plaintiff." "BOP acknowledges that it could have unredacted additional, segregable portions of the document released to [plaintiff]." "To assist BOP in those efforts, the Court is filing for BOP's ex parte review, as a sealed attachment to this Memorandum Opinion, the record at issue, containing suggested redactions that the Court deems appropriate." "The Court shall permit BOP to review the Court's suggested redactions of the record at issue, before the record is released to Plaintiff." "If the Court has not received any objections from BOP within seven business days . . . then the attached version shall be unsealed, and a copy shall be mailed to Plaintiff."