Borda v. U.S. Department of Justice, Criminal Division

245 F. Supp. 3d 52, 2017 WL 1166297, 2017 U.S. Dist. LEXIS 45382
CourtDistrict Court, District of Columbia
DecidedMarch 28, 2017
DocketCivil Action No. 14-229 (RDM)
StatusPublished
Cited by10 cases

This text of 245 F. Supp. 3d 52 (Borda v. U.S. Department of Justice, Criminal Division) 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
Borda v. U.S. Department of Justice, Criminal Division, 245 F. Supp. 3d 52, 2017 WL 1166297, 2017 U.S. Dist. LEXIS 45382 (D.D.C. 2017).

Opinion

MEMORANDUM OPINION

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. Bor-da 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 Deck ¶ 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 “EOU-SA [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.l. 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 Deck ¶¶ 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, 20152—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 crim[56]*56inal case. Id. at 2 (Am. Compl. ¶ 8). Bor-da’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 Deck ¶ 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 Deck ¶¶ 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 Deck ¶¶ 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 Deck); Dkt. 33-1 (Second Cunningham Deck), 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.

II. LEGAL FRAMEWORK

The Freedom of Information Act is premised on the notion that an informed [57]*57citizenry 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, 98 S.Ct. 2311, 57 L.Ed.2d 159 (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, 131 S.Ct. 1259, 179 L.Ed.2d 268 (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).

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Cite This Page — Counsel Stack

Bluebook (online)
245 F. Supp. 3d 52, 2017 WL 1166297, 2017 U.S. Dist. LEXIS 45382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borda-v-us-department-of-justice-criminal-division-dcd-2017.