Borda v. DOJ, No. 14-229, 2017 WL 1166297 (D.D.C. Mar. 28, 2017) (Moss, J.)

Borda v. DOJ, No. 14-229, 2017 WL 1166297 (D.D.C. Mar. 28, 2017) (Moss, J.)

Re: Request for records concerning plaintiff's criminal conviction

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

• Litigation Considerations: The court finds that "[b]ecause [plaintiff's] operative complaint does not challenge the Department's response to these FOIA requests, he cannot, for the first time, attack the sufficiency of the Department's response by way of his opposition brief."
   
• Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records: "The Court concludes that – subject to one qualification . . . – the Department performed an adequate search for records responsive to [plaintiff's] FOIA requests." The court finds that "the Department reasonably directed its search efforts at the division and the personnel most familiar with [plaintiff's] criminal case, and those personnel, in turn, performed a physical search of the location where responsive records were likely to be retained." "[Defendant's] declaration explains who searched for responsive records . . ., where they searched for responsive records . . ., and the specific records identified and reviewed[.]" However, the court finds that "[t]he Department has not adequately explained how its decision to consolidate [plaintiff's] four FOIA requests into a single 'search request' – to the exclusion of at least some of [plaintiff's] specific search terms, . . . – was 'reasonably calculated to uncover all relevant documents[.]'"
   
• Exemption 7(D): "[T]he Court will grant the Department's motion for summary judgment as to its invocation of Exemption 7(D) to withhold the names of the individuals identified in the four plea agreements, as well as any additional information contained in the agreements that might reasonably disclose their identities." "The Court . . . concludes that the Department has carried its burden of showing that the individuals identified in the plea agreements were confidential sources." The court relates that defendant stated that "'individuals identified in [the withheld plea agreements] provided specific and detailed information' about an extended criminal investigation, and 'in doing so, have placed themselves in harm's way should their cooperation with/participation in the investigation, indictment[,] and trial of [[plaintiff]] become publicly known.'" The court also finds that, "[n]otably, the crime for which [plaintiff] was charged and convicted – '[c]onspiracy to distribute . . . [c]ocaine into the United States,' . . . – is one that the D.C. Circuit has characterized as particularly 'violen[t] and danger[ous],' and, in this context, it is reasonable for informants to 'fear reprisal by conspirators to distribute cocaine' due to their 'penchant for violence[.]'" Also, responding to plaintiff's argument, the court finds that "[i]t is . . . well settled that '[c]onfidentiality is not lost merely because a source becomes a government witness.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements: "The Court agrees [with plaintiff] that, at this point in the proceedings, the Department has not demonstrated that it is entitled to withhold the four plea agreements in their entirety." The court relates that "[t]he Department's Vaughn index notes that the four plea agreements range in length from eleven to eighteen pages, . . . but it identifies only a handful of paragraphs that 'reference the named Defendant's cooperation with' the Department[.]" "The Department makes no attempt to explain why the remaining paragraphs should be withheld, nor is an explanation evident to the Court." "Nor has the Department shown that it is impractical to segregate the non-exempt material from the material that is exempt." "Accordingly, the Court will deny summary judgment to the extent that the Department has failed to explain why non-exempt portions of the plea agreements cannot be released."