Berard v. Federal Bureau of Prisons

209 F. Supp. 3d 167, 2016 U.S. Dist. LEXIS 95158, 2016 WL 3962797
CourtDistrict Court, District of Columbia
DecidedJuly 21, 2016
DocketCivil Action No. 15-0891 (CKK)
StatusPublished
Cited by9 cases

This text of 209 F. Supp. 3d 167 (Berard v. Federal Bureau of Prisons) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berard v. Federal Bureau of Prisons, 209 F. Supp. 3d 167, 2016 U.S. Dist. LEXIS 95158, 2016 WL 3962797 (D.D.C. 2016).

Opinion

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE

Plaintiff Dennis Berard (“Berard” or “Plaintiff’), proceeding pro se, filed suit against Defendant, the Federal Bureau of Prisons (“BOP” or “Defendant”), seeking injunctive relief under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Presently before the Court is Defendant’s [21] Motion for Summary Judgment.

Upon consideration of the pleadings,1 including Defendant’s in camera submission of the record at issue, as well as all applicable case law, statutory authority, and the record of the case as a whole, the Court finds that BOP performed an adequate search for the single document requested by Berard and that BOP properly withheld responsive information pursuant to the FOIA exemptions defined in 5 U.S.C. § 552(b)(7)(C), (b)(7)(D), (B)(7)(E), and (b)(7)(F). However, the Court also finds that BOP failed to properly segregate and unredact non-exempt material in the redacted document that was released to Ber-ard. Accordingly, Defendant’s Motion for Summary Judgment is DENIED IN PART and GRANTED IN PART.

Specifically, the Court finds that BOP performed a reasonable search, located the requested document, and produced the requested document to Plaintiff in redacted form. Additionally, as explained below, the Court finds that BOP properly withheld information pursuant to FOIA Exemptions 7(D), 7(F), 7(C), 6, and 7(E); however, the Court also finds that BOP failed to release segregable material that should have been disclosed. Accordingly, the Court shall require BOP to segregate and unredact all non-exempt information in the record at issue and release the record to Berard, with modified redactions in accordance with this Memorandum Opinion. 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 re-dactions that the Court deems appropriate. If the Court has not received any objections from BOP within seven business days—by August 2, 2016—then the attached version shall be unsealed, and a copy shall be mailed to Plaintiff. If BOP does file an objection within the specified time period, then BOP’s filing should clearly set forward the basis of the objection and should attach BOP’s proposed modifications of the record to be released to Berard.

I. BACKGROUND

In March 2015, Berard submitted a FOIA request with the BOP, seeking a single document, which Berard described as “[t]he ‘confidential informant’ report referenced in the Disciplinary Hearing Officer’s Report, pertaining to the incident report number 2597656, to which I am the disciplined party.” Pl.’s Request Letter, Exhibit A to Declaration of Donna Johnson, ECF No. [21-1], at 2. Plaintiffs Request included an annexed copy of the Disciplinary Hearing Officer’s (“DHO”) Report, for clarity. See id.; see also DHO Report, Attachment A to Pl.’s Complaint, ECF No. [1], Berard’s Request was identified as FOIA No. 2015-03564. See Exhibit [170]*170B to Declaration of Donna Johnson, ECF No. [21-1].

BOP performed a search for the document requested by Plaintiff, and on June 12, 2015, BOP released to Berard a five-page document; two of the pages were released with redactions and three pages were withheld in full. See Exhibits D and E to Declaration of Donna Johnson, ECF No. [21-1], Berard subsequently filed an administration appeal from the BOP action on the FOIA Request, contending that the document provided to Berard was not the confidential informant report that he had requested. See Exhibit B to Declaration of Donna Johnson, ECF No. [21-1]. However, Berard filed the instant action before the appeal was considered, and the appeal was therefore closed. See Exhibit C to Declaration of Donna Johnson, ECF No. [21-1].

Berard’s Complaint alleges that BOP wrongfully withheld the requested record from Plaintiff and requests that this Court order Defendant to immediately process the requested record in its entirety. See Pl.’s Complaint, ECF No. [1], at 6.

BOP disputes that the requested record was wrongfully withheld, and has filed a Motion for Summary Judgment, requesting that Berard’s case be dismissed with prejudice. BOP contends that the search for the record was adequate, the FOIA processing was proper, and the withholding of information was in accordance with applicable FOIA exemptions. See Def.’s Mem., ECF No. [21], at 1.

Berard, in response, contends that the five pages of the responsive record proT duced by BOP are not the “confidential informant report” requested by Berard,2 and that BOP improperly redacted and withheld unprotected segregable information. See Pl.’s Opp’n, ECF No. [33], at 2.3

After the parties finished briefing, the Court granted an unopposed request by Plaintiff that the Court review, in camera, the unredacted version of the document produced by BOP to Plaintiff. See Order (June 24, 2016), ECF No. [31], The Court has now completed its in camera review of the unredacted version of the document produced by Plaintiff. Accordingly, Defen[171]*171dant’s Motion for Summary Judgment is now ripe for resolution.

II. LEGAL STANDARD

Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (citation omitted). Congress remained sensitive to the need to achieve balance between these objectives and the potential that “legitimate governmental and private interests could be harmed by release of certain types of information.” FBI v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982). To that end, FOIA “requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material.” Milner v. Dep’t of Navy, 562 U.S. 562, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). Ultimately, “disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). For this reason, the “exemptions are explicitly made exclusive, and must be narrowly construed.” Milner, 562 U.S. at 565, 131 S.Ct. 1259 (citations omitted).

When presented with a motion for summary judgment in this context, the district court must conduct a “de novo” review of the record, which requires the court to “ascertain whether the agency has sustained its burden of demonstrating the documents requested ... are exempt from disclosure under the FOIA.” Multi Ag. Media LLC v. Dep’t of Agriculture, 515 F.3d 1224, 1227 (D.C.Cir.2008) (citation omitted). The burden is on the agency to justify its response to the plaintiffs request. 5 U.S.C.

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209 F. Supp. 3d 167, 2016 U.S. Dist. LEXIS 95158, 2016 WL 3962797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berard-v-federal-bureau-of-prisons-dcd-2016.