                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

ALBERTO CONCEPCION,                               :
                                                  :
                 Plaintiff,                       :
                                                  :       Civil Action No.:       07-01766 (RMU)
                 v.                               :
                                                  :       Re Document Nos.:       53, 64
FEDERAL BUREAU                                    :
OF INVESTIGATION et al.,                          :
                                                  :
                 Defendants.                      :

                                     MEMORANDUM OPINION

           GRANTING THE DEFENDANT’S THIRD MOTION FOR SUMMARY JUDGMENT;
         DENYING THE PLAINTIFF’S MOTION FOR PRODUCTION OF THE FINAL AFFIDAVIT

         In October 2007, the pro se plaintiff, a federal prisoner, 1 commenced this action under

the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking all records relating to his

criminal case. See Compl. ¶¶ 10-13. The defendants – the United States Department of Justice

(“DOJ”) and two DOJ components, the Federal Bureau of Investigation (“FBI”) and the

Executive Office for United States Attorneys (“EOUSA”) – subsequently moved for summary

judgment, arguing that they had conducted an adequate search and produced all non-exempt,

responsive documents to the plaintiff. See generally Defs.’ 1st Mot. for Summ. J. (May 30,

2008).

         In March 2009, the court granted in part the defendants’ motion, concluding that the

defendants had “conducted reasonable and adequate searches for records responsive to the

plaintiff’s multiple FOIA requests” and that any withheld records or portions of records were,


1
         The plaintiff was convicted of heroin distribution in the United States District Court for the
         District of New Jersey and sentenced to 325 months of imprisonment. See United States v.
         Concepcion, Crim. No. 99-753 (D.N.J. July 7, 2000) (Judgment), aff’d, 259 F.3d 717 (3d Cir.
         2001).
with a sole exception, properly exempt under FOIA. Concepcion v. Fed. Bureau of

Investigation, 606 F. Supp. 2d 14, 44 (D.D.C. 2009). The FBI, however, had failed to

demonstrate a proper justification for withholding one responsive document – a draft affidavit by

a law enforcement official provided in support of a warrant application related to the plaintiff’s

criminal case. Id. at 34-35, 44. Accordingly, the court granted summary judgment to the

EOUSA and the DOJ, but denied summary judgment to the FBI.

       In May 2009, the FBI, now the only remaining defendant, filed a second motion for

summary judgment. See generally Def.’s 2d Mot. for Summ. J. (May 11, 2009). The FBI

informed the court that since the court’s previous ruling, it had learned that the draft affidavit at

issue was identical to the final affidavit made in support for the warrant application which had

been filed under seal in the United States District Court for the District of New Jersey. Id. at 3.

The defendant argued that because the draft and final affidavits were identical, the draft affidavit

should be exempt from disclosure pursuant to that court’s sealing order. Id. at 2-5; see also id.,

Fifth Decl. of David M. Hardy, Section Chief of the Record/Information Dissemination Section

at the FBI, (“Hardy’s 5th Decl.”) ¶¶ 9-11. The defendant also argued that the name of an FBI

Special Agent and the identities of and information provided by confidential sources were

properly withheld under FOIA exemption 7(C) and 7(D), respectively. Def.’s 2d Mot. for

Summ. J. at 5; see also Hardy’s 5th Decl. ¶¶ 14, 16.

       In March 2010, the court issued an order granting in part and denying in part the

defendant’s second motion. Order (Mar. 30, 2010). More specifically, the court concluded that

although the FBI had properly withheld certain information contained in the draft affidavit, it

was not entitled to withhold the entire draft affidavit solely because the United States District

Court for the District of New Jersey had sealed the final affidavit. Concepcion v. Fed. Bureau of



                                                  2
Investigation, 699 F. Supp. 2d 106, 113-14 (D.D.C. 2010). Accordingly, the court ordered the

defendant to release to the plaintiff a redacted copy of the draft affidavit on or before April 30,

2010. Order (Mar. 30, 2010).

       The matter now returns before the court upon the defendant’s third motion for summary

judgment in which the defendant asserts that it has produced the draft affidavit to the defendant.

Def.’s 3d Mot. for Summ. J. at 6; Hardy’s 6th Decl. ¶ 6. The defendant argues that because its

compliance resolves the sole remaining issue in this case, an entry of summary judgment in its

favor is appropriate at this juncture. Def.’s 3d Mot. for Summ. J. at 6. The plaintiff does not

dispute that the FBI produced the remaining draft affidavit. See generally Pl.’s Opp’n to Def.’s

3d Mot. for Summ. J. Instead, the plaintiff baldly asserts that certain records “continu[e] to be

‘wrongfully withheld,’” id. ¶ 5, and alleges wrongdoing by federal, state and local law

enforcement officials related to his criminal case before the United States District Court for the

District of New Jersey, see id. ¶¶ 17-42. 2




2
       After the FBI produced the draft affidavit, the plaintiff filed an additional motion seeking
       disclosure of the final signed affidavit. Pl.’s Mot. Requesting Affidavit Final Version (Nov. 12,
       2010). In response, the FBI asserts that the affidavit signed by the District of New Jersey court
       was not in the FBI’s custody or control at the time the FOIA request was made. Def.’s Opp’n at
       1. Because an agency is obligated to produce only those records in its custody and control at the
       time of the FOIA request, McGehee v. Cent. Intelligence Agency, 697 F.2d 1095, 1110 (D.C. Cir.
       1983), the court denies the plaintiff’s motion for disclosure of the final signed affidavit, see also
       Schoenman v. Fed. Bureau of Investigation, 573 F. Supp. 2d 119, 140 (D.D.C. 2008) (declining
       to require an agency to provide records that were “created during the course of searching for
       records responsive to [the p]laintiff’s FOIA request”).


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       Upon review of the FBI’s supporting declaration, the court is satisfied that the defendant

has complied with its March 30, 2010 order. 3 In light of the FBI’s compliance and the court’s

previous rulings, the court grants the FBI’s motion for summary judgment. An Order consistent

with this Memorandum Opinion is separately and contemporaneously issued this 7th day of

March, 2011.



                                                                   RICARDO M. URBINA
                                                                  United States District Judge




3
       The FBI is required to demonstrate that it produced all reasonably segregable material found in
       the responsive documents. See Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242,
       260 (D.C. Cir. 1977). In its March 27, 2009 ruling, the court determined that the defendants’
       declarations and the Vaughn indexes submitted to the court adequately specified “in detail the
       portions of the document[s] that [were] disclosable and [those that were] allegedly exempt.”
       Concepcion, 606 F. Supp. 2d at 44 (quoting Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir.
       1973)). Accordingly, the court determined that all reasonably segregable material had been
       released to the plaintiff, with the exception of the draft affidavit. Id. Upon consideration of the
       FBI’s production of the draft affidavit, the court concludes that the FBI has now produced all
       reasonably segregable material.

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