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Borda v. U.S. Department of Justice

United States District Court, District of Columbia

March 28, 2017



          RANDOLPH D. MOSS United States District Judge

         In 2013, Plaintiff Christian Borda filed a series of requests for records with the Executive Office for the United States Attorneys (“EOUSA”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. Borda sought disclosure of records pertaining to grand jury proceedings before this Court, as well as records relating to his 2010 conviction for conspiracy to commit a narcotics offense. After the EOUSA failed to respond to his requests, Borda, proceeding pro se, filed this action. Dkt. 1. The EOUSA, in turn, informed Borda that a search had not revealed any responsive records, Dkt. 28-3 at 3 (Cunningham Decl. ¶ 8), and then moved for summary judgment, Dkt. 10. Borda did not oppose the EOUSA's motion, but, instead, moved to amend his complaint. Dkt. 20.

         On August 28, 2015, the Court denied the EOUSA's motion for summary judgment and granted Borda's motion for leave to amend. See Borda v. Exec. Office for the U.S. Attorneys, 125 F.Supp.3d 196 (D.D.C. 2015) (“Borda I”). The Court concluded that the “EOUSA's evidence [in support of its motion]-even taken as undisputed-d[id] not establish that it [had] conducted a search that was reasonably calculated to discover the documents [Borda] requested, ” and, accordingly, held that the “EOUSA [wa]s not entitled to summary judgment.” Borda I, 125 F.Supp.3d at 199-200. The Court permitted Borda to file his amended complaint, see Id. at 200; Dkt. 22, and the EOUSA forwarded Borda's FOIA requests to the Criminal Division of the Department of Justice (“Department”), see supra n.1. After performing a search, the Criminal Division released several pages of responsive records to Borda while withholding others, Dkt. 28-3 at 5-7 (Cunningham Decl. ¶¶ 13-17), and the Department renewed its motion for summary judgment, Dkt. 28. For the reasons explained below, the Court will grant in part and deny in part the Department's renewed motion.

         I. BACKGROUND

         Borda's amended complaint challenges the Department's responses to four FOIA requests he filed in 2013 and 2015. Three of the requests-dated, respectively, November 4, 2013, November 5, 2013, and March 24, 2015[2]-sought information related to the grand jury proceedings that resulted in the criminal charge against Borda for which he was later convicted. Dkt. 22 at 2-4 (Am. Compl. ¶¶ 6, 8-9, 13) (referencing United States v. Borda, 07-cr-065). The requests, for example, sought the “disclosure of the dates that the grand jury convened, ” whether the grand jury “was summoned pursuant to Fed. R. Crim. P. 6(a), ” the name of the judge “who supervised the [g]rand jury, ” and “all grand jury records in the public domain that are ministerial, or do not affect secrecy.” See, e.g., id. (Am. Compl. ¶¶ 8, 9, 13). Borda's November 4, 2013, request also sought copies of his arrest warrant, as well as copies of the “contractual cooperation agreements between the government and government witnesses related to” his criminal case. Id. at 2 (Am. Compl. ¶ 8). Borda's fourth request-dated November 20, 2013-sought information related to the grand jury proceedings “from case No. 10-243 filed in the U.S. District Court for the District of Columbia.”[3] Id. at 3-4 (Am. Compl. ¶¶ 11-12).

         The Department “construed” Borda's requests “as seeking substantially similar records and information, ” and on October 6, 2015, it forwarded a single “FOIA search request” to the “Narcotics and Dangerous Drugs Section” (“NDDS”), the section within the Criminal Division that was “responsible for the criminal prosecution” of Borda's case. Dkt. 28-3 at 5 (Cunningham Decl. ¶ 13). NDDS personnel identified “approximately [seventy] boxes of records . . . located in their archives” relating to Borda's criminal case, and “personnel familiar with [Borda's case] searched for and reviewed the archived records for any responsive materials.” Id. at 6 (Cunningham Decl. ¶ 13). Over the next three months, the Department forwarded a series of responsive records to Borda including his indictment, his arrest warrant, and a “publicly available” “plea agreement document” for one of the co-defendants in his criminal case. Id. at 6-7 (Cunningham Decl. ¶¶ 14-16). However, citing FOIA Exemptions 6, 7(C), and 7(D), the Department “withheld in full” four plea agreements that related to “persons who later testified as witnesses on behalf of the [United States]” in Borda's criminal trial and were “filed under seal.” Id. at 7-12 (Cunningham Decl. ¶¶ 17, 19, 22-23, 27-28).

         The Department now renews its motion for summary judgment, asserting that it “conducted a reasonable search of agency records;” that it “disclosed all non-exempt responsive records;” and that it did “not improperly with[o]ld any responsive records.” Dkt. 28-2 at 1. It supports its motion with two declarations from John E. Cunningham III, a trial attorney assigned to the Criminal Division's FOIA and Privacy Act Unit, see Dkt. 28-3 at 1 (Cunningham Decl.); Dkt. 33-1 (Second Cunningham Decl.), as well as a Vaughn index describing the four withheld plea agreements and the reasons they were withheld, see Dkt. 28-4 at 28-31; Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). Borda opposes the Department's motion, arguing that its search was inadequate; that it improperly invoked Exemptions 6, 7(C), and 7(D); and that it failed to perform a proper segregability analysis.[4] Dkt. 31 at 4-11.


         The Freedom of Information Act is premised on the notion that an informed citizenry is “vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). It thus mandates that an agency disclose records on request, unless they fall within one of nine exemptions. “These exemptions are explicitly made exclusive and must be narrowly construed.” Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011) (citation and quotation marks omitted). As relevant here, FOIA Exemption 6 protects information about individuals in “personnel and medical files and similar files” when its disclosure “would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemptions 7(C) and 7(D) protect from disclosure “records or information compiled for law enforcement purposes, ” but “only to the extent that” disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy, ” 5 U.S.C. § 552(b)(7)(C), or “could reasonably be expected to disclose the identity of a confidential source . . . [or] information furnished by a confidential source, ” id. § 552(b)(7)(D).

         FOIA cases are typically resolved on motions for summary judgment under Federal Rule of Civil Procedure 56. See, e.g., Shapiro v. U.S. Dep't of Justice, 153 F.Supp.3d 253, 268 (D.D.C. 2016). To prevail on a summary judgment motion, the moving party must demonstrate that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In a FOIA action, the agency may meet its burden by submitting “relatively detailed and non-conclusory” affidavits or declarations, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quotation marks and citation omitted), and an index of the information withheld, Vaughn, 484 F.2d at 827-28; Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). The Court reviews the agency's decision de novo, and the agency bears the burden of sustaining its action. 5 U.S.C. § 552(a)(4)(B).

         III. ANALYSIS

         A. Adequacy of the Department's Search for Responsive Records

         Borda lodges three objections to the Department's search for records responsive to his four FOIA requests. First, Borda accuses the Department of “fail[ing] to show that [it] searched for and reviewed any of the documents/information described in [his] FOIA request letters dated September 27, 2014, and October 3, 2014.” Dkt. 31 at 4. But as Borda acknowledges, his “amended [c]omplaint failed to include any allegations of agency non-compliance with respect to” either of those two requests. Id. at 13 n.2. Because Borda'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. See Singh v. District of Columbia, 55 F.Supp.3d 55, 70 (D.D.C. 2014) (“It is axiomatic that a party may not amend his complaint through an opposition brief.” (quotation marks omitted)).

         Next, Borda argues that the Department has not shown that its “purported[]” search “was reasonably calculated to uncover all documents/information responsive” to his multiple FOIA requests. Dkt. 31 at 5. “An agency has an obligation under FOIA to conduct an adequate search for responsive records.” Ewell v. U.S. Dep't of Justice, 153 F.Supp.3d 294, 301 (D.D.C. 2016). The adequacy of an agency's FOIA search “is judged by a standard of reasonableness, ” Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984), and “[a]n agency fulfills its obligations . . . if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents, '” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). “In order to obtain summary judgment[, ] the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 ...

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