Case Detail

FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that the Bureau of Prisons failed to segregate and unredact non-exempt information from a confidential informant report used to discipline prisoner Dennis Berard. BOP located a five-page report and withheld three pages entirely, releasing two pages with redactions. Because Berard challenged whether the five-page document was the report he was requesting, Kollar-Kotelly conducted an in camera review. Her in camera review convinced her that the document was what Berard had requested, but she also found the agency had failed to provide all non-exempt material. She agreed that some information was properly withheld under Exemption 7(D) (confidential sources). She noted that "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 the 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 as Lewisburg Prison Camp." She also found the agency had properly claimed Exemption 7(F) (harm to any person). She pointed out that "in 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 could reasonably be expected to endanger the life or safety of that individual." She also approved withholdings under Exemption 7(E) (investigative methods and techniques). She indicated that one page "contains database information, which if produced, could reveal techniques used by law enforcement investigators when sharing information across agencies. There is a reasonable risk that disclosure of this information would weaken BOP's effectiveness and potentially aid in circumvention of the techniques." But because she found much of the information in the report had previously been disclosed to Berard, she concluded the agency had failed to disclose all non-exempt segregable portions. Noting that "it is puzzling why BOP did not find it necessary to release that information, particularly in light of the fact that throughout this caseâ€"and throughout the underlying disciplinary actionâ€"Berard has disputed the very existence of both the confidential informant and the informant report at issue in this FOIA request. In addition, BOP should have disclosed pertinent, non-exempt information in the document's introductory paragraph, which set out the purpose of the memorandum. Such information would further authenticate the document and its disclosure would not be exempt under any FOIA provision." She provided a sealed version of the redacted records to allow BOP to file any objections. She indicated that it BOP had not objected within seven business days she would disclose the unredacted information.
Issues: Segregability - Disclosure of all non-exempt records, Exemption 7 - Law enforcement records

Date Filed	Doc #	Docket Text
2015-06-10	1	COMPLAINT against FEDERAL BUREAU OF PRISONS ( Filing fee $ 400, receipt number 4616071048) filed by DENNIS BERARD. (Attachments: # 1 Civil Cover Sheet)(td) (Entered: 06/11/2015)
2015-06-10		SUMMONS (3) Issued as to FEDERAL BUREAU OF PRISONS, U.S. Attorney and U.S. Attorney General (td) (Entered: 06/11/2015)
2015-06-11	2	ORDER Establishing Procedures for Cases Assigned to Judge Colleen Kollar-Kotelly. Signed by Judge Colleen Kollar-Kotelly on June 11, 2015. (NS) (Entered: 06/11/2015)
2015-07-24	3	MOTION to Amend/Correct the docket by DENNIS BERARD (jf) (Entered: 07/27/2015)
2015-08-03	4	ORDER. For the reasons stated in this Order, the Court hereby DENIES Plaintiff's Motion to Amend Docket and GRANTS Plaintiff's "Ex Parte Motion to Appoint Marshal to Serve Summons and Complaint." Accordingly, the Court hereby ORDERS the United States Marshal Service to serve Defendant in the above-captioned case with the Summons and Complaint. The Court FURTHER ORDERS that the U.S. Marshal Service shall serve Defendant prior to OCTOBER 8, 2015. The Court FURTHER ORDERS that the U.S Marshal Service shall promptly file a return of service affidavit on the docket once service has been completed. Signed by Judge Colleen Kollar-Kotelly on 8/3/2015. (lcckk3) (Entered: 08/03/2015)
2015-08-05	5	SUMMONS (3) REISSUED as to FEDERAL BUREAU OF PRISONS, U.S. Attorney and U.S. Attorney General pursuant to 4 Order. (md) (Entered: 08/05/2015)
2015-08-12	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/7/2015. ( Answer due for ALL FEDERAL DEFENDANTS by 9/6/2015.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. FEDERAL BUREAU OF PRISONS served on 8/6/2015, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 8/6/15. (td) (Entered: 08/19/2015)
2015-08-18	6	NOTICE of Appearance by Claire M. Whitaker on behalf of FEDERAL BUREAU OF PRISONS (Whitaker, Claire) (Entered: 08/18/2015)
2015-09-10	8	NOTICE of Change of Address by DENNIS BERARD (td); (Received by Civil Clerk 9/17/15) (Entered: 09/17/2015)
2015-09-17	9	MOTION for Extension of Time to File Answer by FEDERAL BUREAU OF PRISONS (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 09/17/2015)
2015-09-18	10	ANSWER to 1 Complaint by FEDERAL BUREAU OF PRISONS.(Whitaker, Claire) (Entered: 09/18/2015)
2015-09-29		MINUTE ORDER (Paperless). The Court shall grant Defendant's 9 Motion for Extension of Time to Answer. The Court notes that Defendant's counsel filed Defendant's Answer within a day of realizing that she mistakenly calendared the due date of Defendant's Answer to be 60 days after service, rather than 30 days as required under FOIA. Defendant's counsel took immediate steps to obtain a litigation report from the Bureau of Prisons and promptly filed the Answer. Plaintiff pro se has neither consented to, nor opposed, Defendant's Motion since Defendant's counsel filed the Motion on September 17, 2015. Accordingly, the Court grants Defendant's Motion for Extension of Time to File Answer and treats Defendant's Answer as timely filed. Signed by Judge Colleen Kollar-Kotelly on 9/29/2015. (lcckk1) (Entered: 09/29/2015)
2015-09-30	11	ORDER re Defendant's 10 Answer. It is unclear from Defendant's Answer whether Defendant has released those records segregated by Defendant as nonexempt. If Defendant has not already done so, Defendant shall release to Plaintiff those nonexempt records by OCTOBER 12, 2015. The parties shall confer and file a Joint Status Report not later than NOVEMBER 2, 2015, indicating whether Plaintiff is satisfied with Defendant's response and whether further briefing is necessary to resolve the dispute. If the parties determine that further briefing is necessary, the Joint Status Report shall include a proposed schedule for such briefing. Signed by Judge Colleen Kollar-Kotelly on 9/30/2015. (lcckk1) (Entered: 09/30/2015)
2015-09-30		Set/Reset Deadlines: Defendant to release non-exempt records by 10/12/2015. Joint Status Report due by 11/2/2015. (dot) (Entered: 09/30/2015)
2015-10-28	12	MOTION for Extension of Time to file Joint Status Report and Briefing Schedule by FEDERAL BUREAU OF PRISONS (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 10/28/2015)
2015-10-28	13	MOTION for Extension of Time to File Response/Reply re: 10 by DENNIS BERARD (Attachments: # 1 Exhibit)(td) (Entered: 10/29/2015)
2015-10-30	14	Joint STATUS REPORT by DENNIS BERARD. (td) (Entered: 10/30/2015)
2015-10-30	15	ORDER denying AS MOOT Defendant's 12 Motion for Extension of Time and denying Plaintiff's 13 Motion for Leave to File a Reply to Answer. The parties shall file a Joint Status Report in accordance with this Order by NOVEMBER 30, 2015. Signed by Judge Colleen Kollar-Kotelly on 10/30/2015. (lcckk1) (Entered: 10/30/2015)
2015-10-30		Set/Reset Deadlines: Joint Status Report due by 11/30/2015. (dot) (Entered: 11/02/2015)
2015-11-19	16	Proposed STATUS REPORT and briefing schedule by DENNIS BERARD. (td) (Entered: 11/20/2015)
2015-11-30	17	MOTION for Extension of Time to File Answer by FEDERAL BUREAU OF PRISONS (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 11/30/2015)
2015-11-30	18	RESPONSE TO ORDER OF THE COURT re 15 Order on Motion for Extension of Time to, Order on Motion for Extension of Time to File Response/Reply,, and Proposed Briefing Schedule filed by FEDERAL BUREAU OF PRISONS. (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 11/30/2015)
2015-11-30	19	ERRATA as to ECF No. 17 by FEDERAL BUREAU OF PRISONS. (Whitaker, Claire) (Entered: 11/30/2015)
2015-12-01		NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry 17 MOTION for Extension of Time to File Answer was entered in error and was refiled by counsel as Docket Entry 18 Response to Order of the Court. (znmw) (Entered: 12/01/2015)
2015-12-01	20	ORDER re Defendant's 18 Response to Order of the Court and Plaintiff's 16 Proposed Joint Status Report. It is hereby ORDERED that the parties shall adhere to the following schedule: Defendant shall file its Motion for Summary Judgment by no later than December 30, 2015; Plaintiff shall file his Opposition to Defendant's Motion for Summary Judgment by no later than January 29, 2016; Defendant shall file its Reply to Plaintiffs Opposition to Defendants Motion for Summary Judgment by no later than February 15, 2016. Signed by Judge Colleen Kollar-Kotelly on 12/1/2015. (lcckk1) (Entered: 12/01/2015)
2015-12-01		Set/Reset Deadlines: Defendant's Summary Judgment motion due by 12/30/2015. Response to Motion for Summary Judgment due by 1/29/2016. Reply to Motion for Summary Judgment due by 2/15/2016. (dot) (Entered: 12/01/2015)
2015-12-30	21	MOTION for Summary Judgment by FEDERAL BUREAU OF PRISONS (Attachments: # 1 Exhibit Attachment 1 (Declaration of Donna Johnson and exhibits), # 2 Statement of Facts, # 3 Text of Proposed Order)(Whitaker, Claire) (Entered: 12/30/2015)
2016-01-22	22	MOTION for Extension of Time to File Response/Reply as to 21 MOTION for Summary Judgment by DENNIS BERARD (td) (Entered: 01/28/2016)
2016-01-29	23	ORDER granting Plaintiff's 22 Motion for Extension of Time to File Response. It is hereby ORDERED that the Government shall promptly mail a copy of its 17 Motion for Summary Judgment to Plaintiff's address of record via certified mail. The Government shall file a notice with the Court, which includes relevant tracking information that indicates Plaintiff's receipt of the mailing. It is FURTHER ORDERED that Plaintiff shall file his Response to the Government's 17 Motion for Summary Judgment by no later than FEBRUARY 29, 2016. The Government shall file its Reply by MARCH 15, 2016. No further extensions shall be granted. It is FURTHER ORDERED that the Clerk of the Court shall mail a copy of this Order to Plaintiff's address of record. Signed by Judge Colleen Kollar-Kotelly on 1/29/2016. (lcckk1) (Entered: 01/29/2016)
2016-01-29		Set/Reset Deadlines: Plaintiff's Response to Motion for Summary Judgment due by 2/29/2016. Defendant's Reply to Motion for Summary Judgment due by 3/15/2016. (dot) (Entered: 01/29/2016)
2016-02-08	24	NOTICE to the Court (of receipt of Plaintiff's Opposition papers) by FEDERAL BUREAU OF PRISONS re 23 Order on Motion for Extension of Time to File Response/Reply,,, (Whitaker, Claire) (Entered: 02/08/2016)
2016-02-23	25	MOTION to take Judicial Notice by DENNIS BERARD (td) (Entered: 02/25/2016)
2016-03-07	26	ORDER. As of the date of this Order, Plaintiff has not filed with the Court any documents that could be construed as a response to Defendant's Motion for Summary Judgment. In light of the foregoing, it is hereby ORDERED that Plaintiff shall file with the Court his Opposition to Defendant's Motion for Summary Judgment by no later than March 31, 2016 . If Plaintiff does not respond, the Court may consider Defendant's Motion for Summary Judgment conceded. It is FURTHER ORDERED that the Government shall file a responsive brief within 10 business days of the date that Plaintiff's Opposition is filed with the Court . The Government's responsive brief should address the arguments made in Plaintiff's Opposition, as well as Plaintiff's 25 Motion to Take Judicial Notice. IT IS FURTHER ORDERED that the Clerk of the Court shall mail a copy of this Order to Plaintiff's address of record. Signed by Judge Colleen Kollar-Kotelly on 3/7/2016. (lcckk1) (Entered: 03/07/2016)
2016-03-07		Set/Reset Deadlines: Plaintiff's Response to Motion for Summary Judgment due by 3/31/2016. (dot) (Entered: 03/08/2016)
2016-03-14	27	MOTION for Protective Order by DENNIS BERARD (td) (Entered: 03/16/2016)
2016-03-23	28	REPLY to opposition to motion re 21 MOTION for Summary Judgment filed by FEDERAL BUREAU OF PRISONS. (Whitaker, Claire) (Entered: 03/23/2016)
2016-03-23	29	RESPONSE re 27 MOTION for Protective Order filed by FEDERAL BUREAU OF PRISONS. (Whitaker, Claire) (Entered: 03/23/2016)
2016-03-24	30	Memorandum in opposition to re 25 MOTION for Order /Motion for Judicial Notice filed by FEDERAL BUREAU OF PRISONS. (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 03/24/2016)
2016-06-24	31	ORDER re Plaintiff's 27 Motion for Protective Order. Upon review of the parties' submissions, it is hereby ORDERED that the relief requested by Plaintiff in his 27 Motion for Protective Order is GRANTED; it is FURTHER ORDERED that the Clerk of the Court shall file Exhibit A to Plaintiff's 27 Motion for Procedure Order, see ECF No. 27 , at 5-12, on the docket UNDER SEAL. The Court also observes that Plaintiff's Opposition to Defendant's Motion for Partial Summary Judgment, see ECF No. 27 , at 13-30, appears to have been docketed in error as part of Plaintiff's 27 Motion for Protective Order. In light of the foregoing, it is FURTHER ORDERED that the Clerk of the Court shall re-file Plaintiff's Opposition to Defendants Motion for Partial Summary Judgment, see ECF No. 27 , at 13-30, as a separate entry on the public docket. Additionally, upon review of the parties' submissions, the Court finds that the in camera review of the requested document would aid the Court in resolving the remaining issues in this case, specifically those raised by the parties while briefing Defendant's 21 Motion for Partial Summary Judgment. In light of the foregoing, it is FURTHER ORDERED that Defendant shall, by no later than JULY 8, 2016, submit to the Court, for in camera review, an unredacted version of the document produced by Defendant in response to Plaintiff's FOIA request. Signed by Judge Colleen Kollar-Kotelly on 6/24/2016. Finally, it is hereby ORDERED that the Clerk of the Court shall mail a copy of this Order to pro se Plaintiff at his address of record.(lcckk1) (Entered: 06/24/2016)
2016-06-24	32	SEALED DOCUMENT (Exhibit A) filed by DENNIS BERARD. (This document is SEALED and only available to authorized persons.)(znmw) (Entered: 06/27/2016)
2016-06-24	33	Memorandum in opposition to re 21 MOTION for Summary Judgment filed by DENNIS BERARD. (znmw) (Entered: 06/27/2016)
2016-07-08	34	NOTICE (Defendant's Notice of Submission in Camera) by FEDERAL BUREAU OF PRISONS re 31 Order,,,,,, (Whitaker, Claire) (Entered: 07/08/2016)
2016-07-21	35	MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on 7/21/16. (dot) (Entered: 07/21/2016)
2016-07-21	36	ORDER granting in part and denying in part 21 Motion for Summary Judgment; denying 25 Motion to Take Judicial Notice. Signed by Judge Colleen Kollar-Kotelly on 7/21/16. (dot) (Entered: 07/21/2016)
2016-07-21	37	UNSEALED PURSUANT TO ORDER FILED 8/18/2016.....SEALED DOCUMENT (This document is SEALED and only available to authorized persons.)(zdot) Modified on 8/19/2016 (znmw). (Entered: 07/21/2016)
2016-07-28	38	MOTION for Extension of Time to respond to Court's Order of July 21, 2016 re sealed document. by FEDERAL BUREAU OF PRISONS (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 07/28/2016)
2016-07-29		MINUTE ORDER granting Defendant's 38 Motion to Extend. Defendant shall respond to the Court's 7/21/2016 Order by no later than AUGUST 18, 2016. The Court reiterates, as explained in that Order, that, if Defendant does not file objections, the Court will release the document as proposed to Plaintiff. If Defendant does have objections, it shall state the reasons for those objections. If the Court disagrees with those objections, the Court will provide Defendant a further opportunity to respond prior to considering any release.The Court notes that no response is necessary from Plaintiff because at issue is the in camera review of a document. Signed by Judge Colleen Kollar-Kotelly on 7/29/2016. (lcckk2) (Entered: 07/29/2016)
2016-07-29		Set/Reset Deadlines: Defendant shall respond to the Court's 7/21/2016 Order by 8/18/2016. (dot) (Entered: 07/29/2016)
2016-08-17	39	NOTICE to the Court by FEDERAL BUREAU OF PRISONS re Set/Reset Deadlines (Whitaker, Claire) (Entered: 08/17/2016)
2016-08-18	40	ORDER. In light of the filing of BOP's 39 Notice indicating that it will not file any objections, and for the reasons stated in the Court's 35 Memorandum Opinion issued on July 21, 2016, it is hereby ORDERED that the record at issue, containing the redactions recommended by the Court and reviewed by BOP, filed on the public docket as ECF No. 37 , shall be UNSEALED, and a copy shall be mailed to pro se Plaintiff at his address of record. This is a final, appealable Order. Signed by Judge Colleen Kollar-Kotelly on 8/18/2016. (lcckk1) (Entered: 08/18/2016)
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