PHYLLIS J. HAMILTON, District Judge.
Defendant's motion for summary judgment and plaintiff's cross-motion for summary judgment came on for hearing before this court on January 15, 2014. Plaintiff Electronic Frontier Foundation ("plaintiff" or "EFF") appeared through its counsel, Jennifer Lynch. Defendant Department of Homeland Security ("defendant" or "DHS") appeared through its counsel, Jennie Kneedler. Having read the papers filed in conjunction with the motions and carefully considered the arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS in part and DENIES in part defendant's motion for summary judgment, and GRANTS in part and DENIES in part plaintiff's cross-motion for summary judgment as follows.
This case arises under the Freedom of Information Act ("FOIA"). On June 25, 2012, plaintiff EFF made a request to U.S. Customs & Border Protection ("CBP")
CBP claims that it began processing EFF's request on July 9, 2012, but EFF argues that CBP failed to respond to the request. Regardless, EFF filed this suit on October 30, 2012, asserting two causes of action under FOIA — one for wrongfully withholding records, and one for wrongfully denying EFF's fee waiver request.
After the lawsuit was filed, the parties conferred multiple times regarding the requests. On January 25, 2013, CBP released the only document responsive to category (1), which is not at issue in these motions. On April 29, 2013, CBP released a redacted copy of the CONOPS report responsive to category (3). As to category (2), EFF agreed to receive the records in the form of portions of Daily Reports to the Office of Air and Marine ("OAM"), which were released in three sets, one covering each of 2010, 2011, and 2012. EFF does not challenge the adequacy of defendant's search for documents.
Portions of the CONOPS report and the OAM Daily Reports were redacted under various FOIA exemptions, but only exemption 7(E) is currently at issue. Exemption 7(E) protects from disclosure "records or information compiled for law enforcement purposes" when production of those records "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law."
A party may move for summary judgment on a "claim or defense" or "part of . . . a claim or defense." Fed. R. Civ. P. 56(a). Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
FOIA cases are typically decided on motions for summary judgment.
First, the court weighs whether the agency has established that it fully discharged its obligations under FOIA.
If the agency has met this burden, the court next considers whether the agency has shown that any information not disclosed falls within one of the nine FOIA Exemptions. 5 U.S.C. § 552(a)(4)(B);
"A basic policy of FOIA is to ensure that Congress and not administrative agencies determines what information is confidential."
Thus, to prevail on a summary judgment motion in a FOIA proceeding, where the underlying facts and possible inferences are construed in favor of a FOIA requester, an agency must prove that it has adequately searched for documents and that any withheld documents information fall within an exemption. In this case, plaintiff does not challenge the adequacy of defendant's search, so the only issue left for the court is whether the redacted information was properly withheld under exemption 7(E).
As explained above, the only FOIA exemption relevant to these motions is exemption 7(E), which protects from disclosure records or information compiled for law enforcement purposes when production of those records:
5 U.S.C. § 552(b)(7)(E).
As a threshold matter, the parties have competing interpretations of this exemption's scope. DHS argues that the exemption applies either (1) when production would disclose techniques and procedures for law enforcement investigations or procedures (regardless of whether disclosure could reasonably be expected to risk circumvention of the law), or (2) when production would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law. DHS refers to this interpretation as providing "categorical protection" for techniques and procedures. EFF, in contrast, argues that the "reasonably be expected to risk circumvention of the law" requirement actually applies to both parts of exemption 7(E) — in other words, in EFF's view, the exemption applies either (1) when production would disclose techniques and procedures for law enforcement investigations or procedures, if such disclosure could reasonably be expected to risk circumvention of the law, or (2) when production would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law. The Ninth Circuit has not spoken on the issue, and other courts are split.
Having reviewed the cases cited by the parties, the court is persuaded by the view articulated by the Second Circuit in
626 F.3d at 681.
The court further agrees with the
That said, while the court is persuaded by
Having established the scope of the exemption, the court now turns to the actual withholdings made by CBP. As discussed above, there are two categories of documents relevant to this motion: the OAM Daily Reports and the CONOPS report. The court will first address the OAM Daily Reports.
The parties use different methods of categorizing the withholdings made from the Daily Reports. CBP groups them into the following five categories: (1) location of operation, (2) map of location of operation, (3) supporting agency when the name is also the location of operation, (4) type of operation, and (5) operational capabilities. EFF groups the withholdings into only two categories: (1) location-based information, and (2) operational information. It appears that EFF's "location-based information" group corresponds to categories (1), (2), and (3) under CBP's rubric (i.e., location of operation, map of location of operation, and supporting agency when the name is also the location of operation), while EFF's "operational information" group corresponds to CBP categories (4) and (5) (i.e., type of operation and operational capabilities). In this order, the court will use EFF's method of categorizing the withholdings.
Regarding the location-based information, EFF challenges CBP's withholdings on two grounds. First, EFF argues that the information is "not so precise that releasing it would allow a criminal to know that he was under investigation and that there is a corresponding risk of circumvention of the law." EFF misstates the relevant standard here, which does not require defendant to show that release would allow a criminal to know that he was under investigation, and instead, merely requires that release would disclose law enforcement techniques and procedures, or that it would disclose law enforcement guidelines and would risk circumvention of the law. Defendant argues that releasing the information would reveal where OAM has clearance to fly and the frequency with which operations are conducted in a given area. EFF focuses on the example of redacted county names, and argues that many counties in Arizona are extremely large, such that the disclosure of a county of operation would not reveal the specific location of operation. EFF further argues that "it is well known that there is a significant amount of criminal activity" in Arizona, and thus argues that "[g]iven the size and populations of these counties and their high crime rates, it is hard to imagine that releasing location information such as county names — or releasing other location information withheld in this case — would allow suspected criminals in the area to link CBP's drone activity to their particular criminal activity."
There are multiple problems with EFF's argument. First, the court has interpreted exemption 7(E) to provide categorical protection to law enforcement techniques and procedures, without any need to show that disclosure would risk circumvention of the law. The location of CBP's drone operations do qualify as "techniques and procedures," and thus are entitled to the exemption's protections without any further showing.
But even if the court were to require defendant to show risk of circumvention of the law, the court finds that defendant has done so. Its declaration states that "[r]eleasing the geographic location of the operation would show where OAM has clearance to fly and one could deduce which areas OAM does not have clearance to fly or does not operate," which would risk circumvention of the law in those areas.
EFF attempts to undermine defendant's showing by arguing that the withheld information is not "so precise" that release would risk circumvention of the law. However, in making its argument, EFF cherry-picks examples that best support its argument. Specifically, EFF focuses on the fact that defendant has withheld the names of various county sheriff's departments in Arizona, and argues that counties in Arizona are so large that disclosure of their names would not reveal the specific location of CBP drone operations. But EFF's statistics regarding Arizona county size say nothing about the size of other counties in other states, where disclosure of the county name may indeed be "precise" enough to risk circumvention of the law. And, more importantly, defendant's withholdings are not limited to county names, it has also withheld the specific locations of operations, and maps showing the specific locations of operations. Simply put, EFF has focused on a narrow set of examples where risk of circumvention of the law is at its relative lowest, but looking at the entirety of EFF's request for location-based information, the court finds that disclosing the location of drone operations would reveal where drone efforts are focused, and therefore would disclose law enforcement techniques and procedures (and would risk circumvention of the law, if the court were to impose such a requirement). Specifically, if the targets of drone operations knew where the operations were likely to be conducted, they could avoid those areas and increase the likelihood of evading detection.
EFF also argues that exemption 7(E) does not apply if the information is "generally known to the public."
Finally, EFF argues that other agencies have released location-based information, but it appears that only piecemeal disclosures have been made (from, for instance, the Texas Department of Public Safety and the Miami-Dade Police Department, each of which presumably have access to only a subset of the information available to DHS); and tellingly, EFF identifies only voluntary disclosures and does not provide any authority establishing that location-based information is not protectable under exemption 7(E).
Thus, the court finds that defendant has adequately shown that location-based information from the OAM Daily Reports was properly withheld under FOIA exemption 7(E).
Turning to operational information, EFF initially did not dispute that disclosure would disclose law enforcement techniques/procedures/guidelines, nor did it dispute that disclosure would risk circumvention of the law. Instead, in its cross-motion, EFF hinged its argument on the "generally known" test from
Defendant responds by arguing that the supplemental Eckardt declaration (attached to defendant's reply) specifically states that the information withheld is "not generally known to the public or, if some tactics, techniques or procedures are generally known, the information withheld from the plaintiff contains more detailed information and/or analysis than has been previously released."
EFF does attempt to contradict the Eckardt declaration by showing that certain aspects of drone operations are generally known. Specifically, EFF cites a report discussing the effect of weather on drone operations, and a statement to Congress that drones sometimes have trouble distinguishing humans from animals and even more trouble distinguishing citizens from non-citizens.
Here, the court finds persuasive the approach taken in
In its reply, EFF admits that the already-disclosed information "may not necessarily be exactly the same as the information CBP continues to withhold," but attempts to re-insert arguments regarding the applicability of exemption 7(E) in the first instance, arguing that the release of that limited subset of information "shows that release of similar information has not created any risk of circumvention of the law." The court finds this argument problematic. First, EFF makes this argument (that release of operational information does not risk circumvention of the law) for the first time in its reply brief, thereby depriving DHS of an opportunity to respond. But because DHS did address this argument in its opening motion (arguing that disclosure would reveal the vulnerabilities of drone operations, and thus would allow targets to exploit those vulnerabilities), the court does find it appropriate to consider the argument. However, the court finds that EFF's reasoning is circular — it assumes that the release of the already-known information has not actually increased the risk of circumvention of the law, without providing any basis for that assumption. The court has no way of determining whether the risk of circumvention would be lower if the already-released information had not been made public. In other words, it is possible that the limited knowledge about drones that is publicly available actually has increased the risk of circumvention.
Regardless of the deficiencies in EFF's argument, the burden remains with defendant to establish that exemption 7(E) applies. Defendant provides a sworn declaration stating that releasing information regarding the drones' operational capabilities and vulnerabilities would disclose its techniques and procedures for law enforcement investigations or prosecutions, and that disclosure would risk circumvention of the law by allowing persons to exploit the drones' vulnerabilities.
In sum, with regard to the OAM Daily Reports, the court GRANTS defendant's motion for summary judgment and DENIES plaintiff's cross-motion for summary judgment.
Next, the court will address CBP's withholdings from the CONOPS report. Again, all of CBP's challenged redactions fall under exemption 7(E). EFF makes two challenges to the withholdings themselves: (1) that defendant has not shown that the information is not generally known, and (2) that the information is not "so specific that its release would present a reasonable risk of circumvention of the law." In addition to challenging the withholdings themselves, EFF separately argues that defendant has failed to segregate and release all non-exempt information from the CONOPS report. The court will first address the basis for the withholdings themselves, and then will discuss the segregation of non-exempt information.
EFF first challenges the applicability of exemption 7(E) to the CONOPS report, arguing that defendant has not shown that the withheld information is "so specific that its release would present a reasonable risk of circumvention of the law." As an initial matter, the court has already held that defendant need not make such a showing if disclosure of the information would disclose law enforcement techniques and procedures, and EFF does not dispute that disclosure of the complete CONOPS report would indeed disclose law enforcement techniques and procedures. However, the court will nonetheless address EFF's argument in the alternative.
CBP categorizes its CONOPS report withholdings into eight groups: (1) target list, (2) airspace restrictions and operational challenges, (3) map showing airspace restrictions and law enforcement techniques, (4) identification of a threat, (5) analysis of a threat, (6) targeting priorities and techniques, (7) UAS capabilities, and (8) gap analysis. EFF does not use the same rubric, and again categorizes all withholdings into two general categories: location-based information and operational information. In its reply, EFF does attempt to reconcile these differing categorizations, characterizing CBP category (3) ("map showing airspace restrictions and law enforcement techniques") as part of the "location-based information" group, and placing all other categories into the "operational information" group.
Here, the court's previous analysis (with regard to the OAM Daily Reports) applies with equal force. As before, defendant argues that release of the location-based information would allow persons to "target their illegal activity in those areas where CBP is not authorized to fly." EFF only briefly challenges this argument, and instead focuses its argument on showing that the information is already generally known. However, EFF does argue that "it is unlikely that releasing information on where CBP is authorized to fly its drones would affect actual criminal activity on the ground, in the sea or in the air, because CBP does not rely on drones alone to investigate or interdict illegal activity." The court finds EFF's logic here to be flawed. Even if other measures (aside from drones) are used, disclosure of the location of drone operations may still increase the risk of circumvention of the law. While the use of other measures may indeed dampen the increase in risk, it does not eliminate the risk. Thus, the court finds that release of location-based information would disclose law enforcement techniques and procedures, and even if defendant were required to show risk of circumvention of the law, defendant would meet that burden as well. Thus, the court finds that CBP's location-based withholdings do fall within the scope of exemption 7(E).
Turning to the withholdings of operational information, defendant argues that the release of operational information would "reveal the specific areas that present difficulty to the agency in detecting criminal activity and the program's vulnerabilities." EFF does not meaningfully challenge this argument, again focusing its response on the argument that the operational information is already generally known. The court finds that release of the operational information — which includes CBP's methods for identifying and analyzing threats, as well as drone capabilities and vulnerabilities — would indeed disclose techniques and procedures for law enforcement, thus entitling the information to protection under exemption 7(E). And even if the court were to require defendant to show that release of the information would risk circumvention of the law, defendant would also meet its burden under that test. By revealing the criteria used by CBP to assess threats, and the capabilities and vulnerabilities of CBP drones, the information would allow persons to avoid detection and exploit vulnerabilities. Thus, the court finds that CBP's withholding of operational information does fall within the scope of exemption 7(E).
However, even if the withheld information falls within the scope of exemption 7(E)'s language, it may not be exempted from disclosure if the information is generally known.
Next, as to operational information, EFF relies on the evidence discussed in the context of the Daily Reports, arguing that "CBP has already made much information about its gaps in operational monitoring capabilities available to the public through other reports, news articles, and statements to Congress." But, again, while EFF succeeds at showing that some aspects of drone operations are generally known, its piecemeal evidence does not establish that further detailed information about drones is generally known.
Having established that defendant's withholdings were properly made under exemption 7(E), the court now turns to EFF's argument that defendant "has failed to segregate and release all non-exempt information from the CONOPS report." To properly evaluate EFF's argument, the court directed defendant to provide the court with an unredacted copy of the CONOPS report for in camera review. The court has reviewed the unredacted CONOPS report, and will address the redactions specifically challenged in EFF's motion.
First, EFF challenges the redactions on pages 13-14 and 60-61 of the CONOPS report, arguing that those pages are "almost completely redacted." Page 13 contains a table listing drones' operational capability gaps, and the court finds that the entire page was properly redacted under exemption 7(E). Page 14 continues the discussion of operational gaps, and the court finds that the withholdings were proper under exemption 7(E). Pages 60 and 61 describe anticipated drone mission scenarios (or "vignettes") and defendant's approach to those scenarios. This discussion extends to pages 62 and 63. The court finds that these vignettes are indeed protectable under exemption 7(E). Page 60 also contains a map of CBP's operational area, and as defendant argued, the map contains information regarding CBP's techniques and procedures for law enforcement. While the court finds that the map itself discloses the same type of information that was disclosed in the Congressional testimony cited by EFF, the information overlaid on the map does go beyond what is generally known, and the court finds that the map itself is so intertwined with protected material that segregation is not possible.
Aside from challenging pages 13-14 and 60-61, plaintiff also challenges the "heavy redactions" on pages 37, 40, 41, 45, 47, 49, 50, 55, 57, 59, 62, and 63. The court has already discussed pages 62 and 63 above, and it will now address the remaining challenged redactions.
Page 37 does not actually contain any redactions. However, page 38 does, so the court will assume that EFF meant to point to page 38. The redacted portion of page 38 discusses operational challenges facing CBP's use of drones, which the court finds to be properly withheld under exemption 7(E). The redacted portions of page 40 and 41 similarly discuss vulnerabilities in drone surveillance, which the court also finds to be properly withheld under exemption 7(E).
Page 45 (and page 44, which is not specifically mentioned by EFF) mentions more operational challenges facing CBP's use of drones, which the court finds to be properly withheld under exemption 7(E).
Page 47 has two sets of redactions. The first block of redactions consists of a list of operational challenges facing CBP's use of drones, which the court finds to be properly withheld under exemption 7(E). The second block of redactions includes a discussion of the location of CBP's operations and techniques for dealing with possible illegal activity in these locations. The court finds that the discussion of law enforcement techniques was properly redacted, however, this redacted paragraph (the last paragraph on page 47) also includes a general discussion of the region, and mostly serves to describe the figure on the following page (Figure 9, on page 48). Critically, Figure 9 was not redacted, so the court finds no reason to conclude that the description of Figure 9 should be redacted. Thus, the court finds that the first sentence under the heading "U.S. Southeastern Coast/Northern Carribean" can be segregated from exempt information, and should not have been redacted under exemption 7(E). Also, even though EFF did not specifically challenge the redactions on page 48, the court similarly finds that the information on that page should not have been redacted under exemption 7(E). Page 48 describes the geographical area depicted in Figure 9, and discusses the history of illegal activity in the region. No law enforcement techniques, procedures, or guidelines are disclosed.
Page 49 contains only a single redacted section, which describes the type of cocaine smuggling operations that are typically found in the U.S. Southeastern Coast and Northern Carribean region. The redacted information does not disclose any law enforcement techniques, procedures, or guidelines, and instead contains the same type of information contained in the next (unredacted) paragraph — a description of the means typically used by smugglers in the area, without any discussion of defendant's approach for dealing with smugglers. Accordingly, the court finds that the first paragraph on page 49 should not have been redacted under exemption 7(E).
Page 50, in contrast, does contain a discussion of defendant's techniques and procedures for its interdiction and counterterrorism operations, which the court finds was properly redacted under exemption 7(E).
Page 55 contains two blocks of redactions, both of which cover airspace restrictions limiting drone operations. The court finds that this information was properly redacted under exemption 7(E). While EFF did not specifically mention page 56, the court finds that the redacted information on that page is of the same type as the redacted information on page 55, and thus finds that it too was properly redacted.
Page 57 contains only a single redaction, which discusses airspace restrictions. The court finds that this information was properly redacted under exemption 7(E).
Page 59 contains three redacted paragraphs, all of which discuss drone capabilities. The court finds that this information was properly redacted under exemption 7(E).
For the foregoing reasons, DHS' motion for summary judgment is GRANTED in part and DENIED in part, and EFF's cross-motion for summary judgment is GRANTED in part and DENIED in part. DHS is directed to remove the following redactions: (1) the first sentence under the heading "U.S. Southeastern Coast/Northern Carribean" on page 47, (2) the two blocks of redacted text on page 48, and (3) the single block of redacted text on page 49. A revised copy of the CONOPS report shall be served upon EFF by
Additionally, as this motion concerned only the cause of action for wrongful withholding, there remains a pending cause of action for the wrongful denial of EFF's fee waiver request. The parties shall meet and confer and advise the court, in a status statement or stipulation to be filed by
Finally, the parties are also directed to address how the unredacted CONOPS report, submitted for in camera review, should be handled going forward. The parties shall advise the court of their proposal in the April 28, 2014 stipulation.
