Emmet G. Sullivan, United States District Judge.
The United States government collects data on nearly four billion telephone calls every day. The data is added to a database used by the Hemisphere Project ("Hemisphere"), a program utilized by multiple government agencies. Defendant the United States Drug Enforcement Agency ("the DEA"), utilizes Hemisphere in cooperation with private corporations to combat illicit drug activity. Although the existence of Hemisphere was widely reported in 2013, details of the program remain unknown.
In February 2014, Plaintiff Electronic Privacy Information Center ("EPIC") filed this lawsuit seeking injunctive relief following the DEA's response to EPIC's Freedom of Information Act ("FOIA") requests. Compl., ECF No. 1 at ¶¶ 1-2. The primary FOIA requests at issue in this case sought the government's analysis of legal and privacy issues related to Hemisphere. Both parties now move for Summary Judgment. ECF Nos. 15 and 17. EPIC claims the DEA's search for responsive records was insufficient and that certain documents were unlawfully withheld. Pl.'s Mem. Supp. Summ. J., ECF No. 17, Ex. 1. The DEA maintains that its search was reasonable and documents were lawfully withheld. Def.'s Mem. Supp. Summ. J., ECF No. 15. Upon consideration of the motions, the responses and replies thereto, the applicable law, and the entire record, Plaintiff's Motion for Summary Judgment
Hemisphere is a program that grants law enforcement officials access to an AT&T database containing "decades of American's phone calls." Compl. ¶ 6 (quoting Drug Agents Use Vast Phone Trove, Eclipsing N.S.A.'s, New York Times, September 1, 2013).
EPIC's November 15, 2013 FOIA request sought four categories of documents from the DEA:
(1) All Hemisphere training modules, request forms, and similar final guidance documents that are used in the day-to-day operation of the program;
(2) Any analyses, memos, opinions, or other communications that discuss the legal basis of the program;
(3) Any analyses, memos, opinions, or other communications that discuss the privacy impact of the program; and
(4) Any presentations, analyses, memos, opinions or other communications for Congress that cover Hemisphere's operations.
Id. ¶ 14.
The DEA identified six offices at its headquarters likely to have responsive records: the Operations Division, the Intelligence Division, the Office of Training, the Office of Chief Counsel, the Office of Information Systems, and the Office of Congressional and Public Affairs. Katherine L. Myrick Decl. ("Myrick Decl.") ¶ 10, Def.'s Mem. Supp. Summ. J., Ex. 3. The DEA's Atlanta, Houston, Los Angeles, and Washington, D.C. division offices were also asked to search for responsive records. Id. ¶ 16. In July 2014, the DEA responded to EPIC's FOIA request with 319 responsive documents. Id. ¶ 11. Of those documents, 39 were released in full, 176 were released in part and withheld in part, and 104 were withheld in full. Id.
Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether
FOIA requires agencies to disclose all requested agency records, unless one of nine statutory exemptions applies. 5 U.S.C. § 552 (a), (b). Congress enacted FOIA to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Morley v. C.I.A., 508 F.3d 1108, 1114 (D.C.Cir.2007) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). Because disclosure rather than secrecy is the "dominant objective of the Act," the statutory exemptions are "narrowly construed." See McKneely v. United States Dept. of Justice, 132 F.Supp.3d 44, 49 (D.D.C.2015) (internal citations omitted).
The government bears the burden of justifying nondisclosure, either through declarations or an index of information withheld. See e.g., Consumers' Checkbook, 554 F.3d 1046, 1057 (D.C.Cir.2009) and Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973) (holding that an indexing system was necessary in FOIA cases to "(1) assure that a party's right to information is not submerged beneath governmental obfuscation and mischaracterization, and (2) permit the Court system effectively and efficiently to evaluate the factual nature of disputed information.").
Agency affidavits and declarations must be "relatively detailed and non-conclusory." SafeCard Services v. S.E.C., 926 F.2d 1197, 1200 (D.C.Cir.1991). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." Id. (internal citation and quotation omitted). Courts must conduct a de novo review of the record and may grant summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations that describe the documents and justifications for nondisclosure with "reasonably specific detail." Cause of Action v. Federal Trade Com'n, 961 F.Supp.2d 142, 153 (D.D.C.2013)(quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981)).
EPIC challenges the sufficiency of the DEA's search for documents relating to privacy issues, the third category of documents listed in EPIC's request, arguing that "it is difficult to believe that such a far-reaching, invasive program would not have triggered some privacy analysis or discussion that would be responsive to the third prong of EPIC's request."
An agency must show "beyond material doubt" that it conducted a search reasonably calculated to uncover all relevant documents in response to a FOIA request. Id. (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983)). The adequacy of an agency's search for responsive records is measured by "the reasonableness of the effort in light of the specific request." McKinley v. F.D.I.C., 807 F.Supp.2d 1, 4 (D.D.C. 2011) (quoting Larson v. Dep't of State, 565 F.3d 857, 869 (D.C.Cir.2009)). An agency is not obligated to search every record system. See Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C.Cir.1986) (noting a search is not presumed unreasonable simply because it fails to produce all relevant material); see also Perry v. Block, 684 F.2d 121, 128 (D.C.Cir.1982) (holding an agency need not demonstrate that all responsive documents were found and that no other relevant documents could possibly exist).
Here, EPIC's only argument challenging the reasonableness of the DEA's search is based on EPIC's perception of the types of documents it believes should exist. Pl.'s Mem. Opp. at 22. However, based on the legal standard for what constitutes a reasonable search, arguments that certain documents "should" or "must" exist are consistently rejected. Indeed, EPIC's argument was expressly rejected by the D.C. Circuit in Oglesby v. U.S. Dept. of Army:
920 F.2d 57 (D.C.Cir.1990)(citing Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C.Cir. 1986). Thus, EPIC's argument that "it is difficult to believe that such a far-reaching, invasive program would not have triggered some privacy analysis or discussion that would be responsive to the third prong of EPIC's request" does not support a finding that the DEA's search was inadequate. Elec. Privacy Info. Ctr. v. Dep't of Homeland Sec., 384 F.Supp.2d 100, 107-08 & n. 3 (D.D.C.2005) (rejecting plaintiff's argument that the agency's search should be held inadequate because the search did not locate documents the plaintiff believed to exist).
The DEA also makes two salient points in response to EPIC's argument that it is "hard to believe" that documents responsive to its third request were not found: (1) the DEA uses and partly funds Hemisphere, but Hemisphere is not a DEA program; and (2) two documents discussing
EPIC argues a Vaughn index providing a detailed description of material withheld is necessary for the Court to determine whether material was properly redacted. Pl.'s Mem. Opp. at 11. The DEA argues that the Declaration of Katherine L. Myrick, together with the 280 pages withheld and attached to the declaration, which have been redacted based on the relevant FOIA exemption, meet the requirements set forth by Vaughn. Def.'s Reply Mem. at 5.
Vaughn and subsequent case law requires the government to provide "a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." Mead Data Central, Inc. v. U.S. Dept. of Air Force, 566 F.2d 242, 251 (D.C.Cir. 1977) (citing Vaughn, 484 F.2d at 825). Although there is no strict format required for a Vaughn index, an agency must "disclose as much information as possible without thwarting the exemption's purpose." Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 88 (D.D.C.2009). Withholding information under conclusory, generalized, or sweeping allegations of exemptions is not acceptable. See, e.g. Morley v. C.I.A., 508 F.3d 1108, 1115 (D.C.Cir. 2007); Judicial Watch, Inc. v. FDA, 449 F.3d 141, 147 (D.C.Cir.2006).
In this case, the Myrick Declaration identifies the exemptions relied upon and describes the documents withheld under each exemption. Myrick Decl.; Def.'s Mem. Supp. Summ. J., Ex. 3. The 280 responsive pages are attached to the Myrick's declaration, with information redacted and labeled according to the relevant exemption. Id. The nature of each document is described in the text of Myrick's declaration, and each redaction is labeled with the relevant exemption. Id. Nevertheless, EPIC argues that the declaration is insufficient because it provides fewer details than the Vaughn index that was found inadequate in Defenders of Wildlife. Pl.'s Reply Mem. at 3. Specifically, EPIC complains that the Myrick Declaration "fails to identify the title or shorthand title of any document; the date the document was produced; any description — even short, one sentence descriptions to identify each document; or even any language to differentiate between documents within categories." Id.
In the Court's view, the Myrick Declaration meets the requirements of Vaughn. As discussed below, where the Court finds the DEA's withholding justifications conclusory, vague, or otherwise insufficient, the Court has ordered the DEA to provide a more detailed explanation through supplemental briefing and additional declarations, or to produce relevant documents for in camera review. Therefore, to the extent Plaintiff seeks a more detailed Vaughn index, Plaintiff's Motion is
EPIC objects to documents withheld by the DEA under FOIA exemptions 5, 7(D)
FOIA Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency." 5 U.S.C. § 552(b)(5). Numerous privileges, including the deliberative process, attorney-client, and work product privileges are typically asserted in the context of withholdings under exemption 5. Tax Analysts v. I.R.S., 117 F.3d 607, 616 (D.C.Cir.1997). Records need not be disclosed if they would normally be protected under these privileges in the civil discovery context. N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975).
The DEA applied FOIA exemption 5 to two documents:
Myrick Decl. at ¶ 34 (a)-(b). Each will be addressed in turn.
EPIC argues that the memorandum is not protected by the deliberative process privilege because a final version of the document has not been identified, making the "draft" memorandum the final decision on the issues discussed therein. Pl.'s Mem. Opp. at 24. The DEA argues that the draft memorandum is properly considered "pre-decisional" because it "was prepared to facilitate the development of the DEA's policies and procedures regarding the use of Hemisphere and did not itself establish a final agency position." Def.'s Reply Mem. at 8.
The deliberative process privilege covers deliberative, pre-decisional communications. Nat'l Sec. Archive v. C.I.A., 752 F.3d 460, 462 (D.C.Cir.2014). "A document is predecisional if `it was generated before the adoption of an agency policy' and deliberative if `it reflects the give-and-take of the consultative process.'" EPIC v. Dept. of Homeland Security, 928 F.Supp.2d 139, 149 (D.D.C.2013)(citing Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C.Cir. 2006). Three policy goals undergird the deliberative process privilege: "(1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure
EPIC contends that "[w]hen an agency uses the deliberative process privilege to withhold draft documents under Exemption 5, it must identify a corresponding final decision." See Docket 18 at 24. As a matter of law, EPIC is incorrect. Sears, Roebuck & Co., 421 U.S. at 153 n. 18, 95 S.Ct. 1504 ("Our emphasis on the need to protect pre-decisional documents does not mean that the existence of the privilege turns on the ability of an agency to identify a specific decision in connection with which a memorandum is prepared.").
Indeed, the precise argument made by EPIC here — supported by the same quotes from three opinions of this Court — was rejected more than two years ago by Judge Royce C. Lamberth as "misplaced." See EPIC v. U.S. Dept. of Homeland Sec., 928 F.Supp.2d 139, 152 (D.D.C.2013), appeal dismissed (D.C. Cir. 13-5113) (Jan. 21, 2014). The quotes relied on by EPIC are taken out of context and, as described by Judge Lamberth, at least one is "particularly misleading." Id. Judge Lamberth's assessment is on point and deserves repeating here:
Id.
EPIC's attempt to equate the memorandum at issue in this case with the memoranda at issue in Sears, Roebuck & Co. is also misplaced. See Pl.'s Reply Mem. at 6. EPIC argues that the Supreme Court required the agency to "disclose Advice Memoranda in cases where the agency decided not to go forward with employment law prosecutions because these memoranda were the final embodiment of policies...." Id. EPIC's insistence that the draft memorandum here be treated as a final policy, as in Sears, ignores the reality of how government policies evolve. As discussed at length by the D.C. Circuit:
Nat'l Sec. Archive v. C.I.A., 752 F.3d 460, 463 (D.C.Cir.2014).
Having disposed of EPIC's meritless argument regarding the "draft" status of the memorandum at issue, the Court must now consider whether the DEA has met its burden of showing that the memorandum was genuinely part of the DEA's deliberative process. See e.g., EPIC v. U.S. Dept. of Homeland Sec., 928 F.Supp.2d at 155.
The parties' dispute over the email withheld under FOIA Exemption 5 involves a lengthy procedural background that will be reviewed briefly here. In the DEA's Memorandum in Support of its Motion for Summary Judgment, it argued that the email it claims is subject to FOIA exemption 5 is protected under the deliberative process, attorney-client and work product privileges. Def.'s Mem. Supp. Summ. J. at 7-9. EPIC's Memorandum in Opposition and Cross-Motion for Summary Judgment addressed the DEA's arguments pertaining to the memorandum discussed supra, but was silent in regard to the DEA's claimed privileges over the email. Pl.'s Mem. Opp. at 23-26. The DEA's Memorandum in Opposition and Reply argued that the Court should find that EPIC conceded the email is protected because it set forth no substantive objection. Def.'s Reply Mem. at 16. EPIC's Reply Memorandum then addressed the DEA's attorney-client and deliberative process privilege arguments, but remained silent in regard to the work product privilege. Pl.'s Reply Mem. at 6-14.
The DEA later argued that all of EPIC's arguments pertaining to the email should be deemed conceded under Local Rule 7(b) and relevant case law. See e.g., Elec. Privacy Info. Ctr. v. Office of the Dir. of Nat'l Intelligence, 982 F.Supp.2d 21, 26 (D.D.C.2013) ("It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded."). The DEA requested an opportunity for supplemental briefing if the Court was not inclined to conclude EPIC conceded the email was lawfully withheld. Def.'s Motion for Leave to File, ECF No. 23 at 1.
In September 2015, the Court granted the parties an opportunity to submit supplemental briefing on this issue. See September 29, 2015 Minute Order. EPIC's supplemental brief does not address the DEA's work product argument. Pl.'s Response to Def.'s Surreply, ECF No. 31 at 5. Rather, EPIC simply maintains that its general assertions show it has not conceded any argument. Id. ("EPIC argued... that the documents withheld by the DEA are not subject to Exemption 5 because they `would not normally be privileged in the context of civil discovery.'"). Id.
Although there is sufficient evidence in the record to conclude that EPIC has waived any argument regarding the application of the work-product doctrine to the email in question because EPIC did not contest the application of the work-product doctrine to the email message in its first summary judgment brief, see e.g. Texas v. United States, 798 F.3d 1108, 1113-14 (D.C.Cir.2015), the Court is also satisfied that the email is in fact protected by the privilege. The Court will therefore briefly address the merits of the DEA withholding the email under Exemption 5.
The work product doctrine "protects from disclosure materials prepared in anticipation of litigation or for trial by or for another party or its representative.
Id. Further, the work product doctrine protects both deliberative materials as well as factual material prepared in anticipation of litigation. Tax Analysts v. I.R.S., 117 F.3d 607 at 620 (D.C.Cir.1997).
Here, the DEA asserts under the sworn Declaration of Ms. Myrick that the email is "covered by the attorney work-product doctrine because it was prepared by a DOJ attorney in anticipation of litigation relating to the use of Hemisphere in law enforcement." Myrick Decl. ¶ 15-3 (b). This is the critical factor when determining whether a document is covered by the work product doctrine. See, e.g. Tax Analysts v. I.R.S., 391 F.Supp.2d 122, 127 (D.D.C.2005) (noting that the work product doctrine does not extend to every document generated by an attorney, but the "key is whether or not the documents were prepared in anticipation of litigation.") (citing Jordan v. United States Dep't of Justice, 591 F.2d 753 (D.C.Cir.1978). "[L]itigation need not be actual or imminent, it need only be `fairly foreseeable.'" Hertzberg v. Veneman, 273 F.Supp.2d 67, 79 (D.D.C.2003) (citing Coastal States Gas. Corp. v. Dep't of Energy, 617 F.2d 854, 865 (D.C.Cir.1980)).
While some articulable claim likely to lead to litigation must have arisen, the work product doctrine protects communications even if no specific claim is contemplated. Hertzberg, 273 F.Supp.2d at 79 (citing Schiller v. N.L.R.B., 964 F.2d 1205, 1208 (D.C.Cir.1992). Courts must inquire whether in light of the nature of the document and the factual situation of the case, the document can fairly be said to have been prepared because of the prospect of litigation. See In re Sealed Case, 146 F.3d 881, 884 (D.C.Cir.1998) (holding that a party "must at least have a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable.").
EPIC articulates no reason to doubt the veracity of Ms. Myrick's declaration. Moreover, the nature of the Hemisphere program, which clearly implicates controversial law-enforcement techniques and privacy rights as evidenced by this lawsuit, satisfies the Court that it is objectively reasonable for the government agencies involved to hold a subjective belief that litigation was and is a real possibility. The Court therefore concludes that the email at issue is protected by the work product doctrine because it was prepared in anticipation of litigation. See e.g., McKinley v. Board of Governors of Federal Reserve System, 647 F.3d 331, 341 (D.C.Cir.2011) (holding that the work product doctrine applied to a document prepared in anticipation of litigation and
For all of these reasons, the email was properly withheld under FOIA Exemption 5. The DEA's Motion for Summary Judgment on this issue is
Information may be withheld under FOIA Exemption 7 if it was compiled for law enforcement purposes. 5 U.S.C. § 552; see also Campbell v. U.S. Dept. of Justice, 164 F.3d 20 (D.C.Cir.1998) ("FOIA exempts from disclosure six categories of documents that have been `compiled for law enforcement purposes.'"). The DEA is a law enforcement agency tasked with enforcing the controlled substances laws and regulations in the United States. Myrick Decl. ¶ 5.
EPIC challenges the DEA's application of Exemption 7(D) to protect the identification of private companies that assist in the operation of Hemisphere because there is no evidence of an explicit or implicit assurance of confidentiality. Pl.'s Mem. Opp. at 26-28. The DEA contends that it has sufficiently shown that private institutions received both explicit and implicit assurances of confidentiality. Def.'s Mem. Supp. at 15-16.
Exemption 7(D) permits the government to withhold:
§ 552(b)(7)(D) (emphasis added). Exemption 7(D) applies whether the source provided the information under an express or implied assurance of confidentiality. U.S. Dep't of Justice v. Landano, 508 U.S. 165, 179, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993).
To withhold information under Exemption 7(D) by an express assurance of confidentiality, the DEA must present "probative evidence that the source did in fact receive an express grant of confidentiality." Campbell v. U.S. Dept. of Justice, 164 F.3d 20, 34 (D.C.Cir.1998), as amended (Mar. 3, 1999). Such evidence includes notations on the face of a withheld document, the personal knowledge of an official familiar with the source, a statement by the source, or contemporaneous documents discussing practices or policies for the dealing with the source or similarly situated sources. Id. The agency's declaration must permit "meaningful judicial review by providing a sufficiently detailed explanation for the agency's conclusions." Id.
Here, the DEA relies on Ms. Myrick's statement that "[a]ccording to the DEA personnel who are familiar with Hemisphere, the companies provide information to law enforcement with the express expectation that both the source and the information will be afforded confidentiality." Myrick Decl. ¶ 41. EPIC argues that the DEA's justification of express confidentiality is insufficient because the DEA does not (1) attach declarations from the agents who extended the promise of confidentiality, (2) produce any FBI document supporting the grant of confidentiality, or (3) submit evidence of a consistent policy granting confidentiality to designated sources during the relevant time period. Pl.'s Mem. Opp. at 28. The DEA acknowledges that Ms. Myrick's statement "admittedly does not provide a great amount of detail" because "some circumspection is necessary because of the sensitivity of the information involved." Def.'s Reply Mem. at 10.
The Court acknowledges the sensitive nature of the information at issue, but agrees with EPIC that the government has failed to meet its burden of showing that an explicit assurance of confidentiality was given to the private companies involved with Hemisphere. See e.g., Voinche v. F.B.I., 46 F.Supp.2d 26, 34 (D.D.C.1999) ("To properly invoke Exemption 7(D), however, the [government] must present more than the conclusory statement of an agent that is not familiar with the informant."). The DEA is therefore ordered to submit the relevant documents to the Court for in camera review, or to supplement the record with a declaration from a DEA employee who has first-hand knowledge of the explicit assurance of confidentiality given to the private companies. See e.g. Trea Senior Citizens League v. U.S. Dept. of State, 923 F.Supp.2d 55, 71 (D.D.C.2013) ("Having concluded there are various factual deficiencies in the defendant's sworn declarations, the Court `has several options, including inspecting the documents in camera, requesting further affidavits, or allowing the plaintiff discovery.'") (quoting Spirko v. U.S. Postal Serv., 147 F.3d 992, 997 (D.C.Cir.1998).
To establish that a source received an implicit assurance of confidentiality, several considerations are examined, including the nature of the crime and the informant's relation to the crime. Landano, 508 U.S. at 172, 113 S.Ct. 2014 ("A source is confidential within the meaning of Exemption 7(D) if the source `provided information ... in circumstances from which an assurance [of confidentiality] could be reasonably inferred.'") (internal citation omitted); Amuso v. DOJ, 600 F.Supp.2d 78, 100 (D.D.C.2009) ("[t]he nature of the crime investigated and [sic] informant's relation to it are the most important factors in determining whether implied confidentiality exists."). "Violence and risk of retaliation attendant to drug trafficking warrant an implied grant of confidentiality to a source who provides information to investigators." Lasko v. DOJ, 684 F.Supp.2d 120, 134 (D.D.C.2010); see also Mendoza v. DEA, 465 F.Supp.2d 5, 13 (D.D.C.2006) (holding that because violence and danger are inherent in drug trafficking activity, "the court can reasonably infer that the informant cooperated under an implied assurance of confidentiality."). Notably, Lasko and Mendoza and other cases that analyze implied assurances of confidentiality involve situations where individuals cooperated with the government under dangerous circumstances. See also Blanton v. U.S. Dept. of Justice, 63 F.Supp.2d 35, 49 (D.D.C.1999).
In this case, Ms. Myrick states that "confidentiality can be inferred because providing the information can lead to retaliation against the companies." Myrick Decl. ¶ 41. EPIC responds that the DEA failed to properly discuss the Roth factors, depriving the Court of adequate information to determine if an implicit guarantee of confidentiality should be found. Pl.'s Reply Mem. (citing Roth, 642 F.3d at 1184).
The Court agrees with EPIC that the DEA has failed to provide the necessary details to support a finding that confidentiality was implied to private companies assisting with the operation of Hemisphere. The DEA cites no authority for the proposition that potential retaliation against a private company is sufficient to justify a finding of implied confidentiality. To establish an implied assurance of confidentiality, the DEA must provide a more detailed explanation of the Roth factors — including the sources' relation to the crime, whether the source received payment, and whether the source has an ongoing relationship with the law enforcement agency.
For all of these reasons, Defendant's Motion for Summary Judgment on the issue of whether an explicit or implicit grant of confidentiality was given under Exemption 7(D) is
FOIA Exemption 7(E) permits the withholding of information collected for law enforcement purposes if release of that information would:
5 U.S.C. § 552(b)(7)(E). The purpose of Exemption 7(E) is to prevent publication of information that would "train potential violators to evade the law or instruct them how to break the law," and to protect information that, if disclosed, "increases the risks that a law will be violated or that past violators will escape legal consequences." Mayer Brown v. I.R.S., 562 F.3d 1190, 1193 (D.C.Cir.2009). Exemption 7(E) sets a "relatively low bar" for an agency to justify withholding information" but the government must "demonstrate logically how the release of the requested information might create a risk of circumvention of the law." Blackwell v. F.B.I., 646 F.3d 37, 42 (D.C.Cir.2011) (quoting Mayor Brown).
In this case, the DEA has asserted Exemption 7(E) for 11 categories of documents. Def.'s Mem. Supp. Summ. J., at 18-23. EPIC challenges three of those categories: (1) withholding of the names of private companies that assist with the operation of Hemisphere; (2) documents that reveal how the DEA secures cooperation of entities instrumental to Hemisphere's operation; (3) names of other law enforcement agencies with access to Hemisphere. Pl.'s Mem. Opp. at 28-38. Each category will be discussed in turn.
EPIC argues that the DEA fails to give any explanation of how disclosing the names of private corporations cooperating with Hemisphere would reveal techniques or procedures that may be exploited by potential criminals. Id. at 29. The DEA responds that "all of the material withheld under Exemption 7(E) in this case pertains to a single set of law enforcement techniques and procedures — Hemisphere and its use by law enforcement authorities to obtain access to telephone records in the course of law enforcement investigations." Def.'s Reply Mem. at 12. The DEA has offered no evidence or explanation for its claim that Hemisphere is a "single" technique and procedure. See e.g. Blackwell v. F.B.I., 646 F.3d 37 (D.C.Cir.2011) (protecting disclosure of procedures used during the forensic examination of a computer and methods of collection, organization and presentation of data); Petrucelli v. Dept. of Justice, 106 F.Supp.3d 129, 139 (D.D.C. 2015) (protecting disclosure of a ratings column on a form used to record investigation accomplishments as a technique and procedure).
Moreover, 7(E) is intended to protect information that is not generally known to the public. O'Reilly at 446; see also Rosenfeld v. U.S. Dept. of Justice, 57 F.3d 803, 815 (9th Cir.1995) (holding that use of a pretext phone call did not qualify for protection because the technique is generally known to the public) (citing National Sec. Archive v. F.B.I., 759 F.Supp. 872, 885 (D.D.C.1991)). As a general matter, the government's use of telephone interception and data collection for law enforcement purposes is known to the public. See e.g., Everything We Learned From Edward Snowden in 2013, National Journal, December 31, 2013 (noting, among other things, that Verizon provided daily information on domestic and international telephone calls to the National Security Agency). More specifically, the cooperation of major telecommunication companies with Hemisphere has been widely reported by various news outlets, as indicated by the Compliant in this case. See Compl. (citing Drug Agents Use Vast Phone Trove, Eclipsing N.S.A.'s, New York Times, September 1, 2013).
The DEA also argues that "knowing the identities of particular companies instrumental in the operation of Hemisphere would help criminals understand how Hemisphere works and how it can be evaded and would also facilitate efforts to disrupt Hemisphere, for example, by attacking facilities involved in the Hemisphere program." Def.'s Reply Mem. at 13. The DEA has failed to logically demonstrate how release of the private corporation's names would assist drug traffickers seeking to evade law enforcement. For example, according to one of the media reports cited in EPIC's Complaint, the AT&T database "includes every phone call which passes through the carrier's infrastructure, not just those made by AT&T customers." U.S. Drug Agency Partners with AT&T for Access to `Vast Database' of Call Records, The Guardian, September 2, 2013. The logical inference from this report is that a drug trafficking organization cannot avoid use of any one telephone carrier in order to evade the DEA's prosecution efforts through Hemisphere.
Second, the DEA has not provided enough information for the Court to agree with its assertion that knowing the identity of the private corporations assisting with Hemisphere would reveal the location of corporate facilities, and that such a disclosure might risk circumvention of the law. Although not confirmed by the government, the cooperation of Verizon Communications Inc. and AT&T in government data collection, as noted supra, has been publicly reported for years. Publicly available information about such telecommunication companies' facility locations is as available now as it would be were the DEA to disclose the identities of the companies assisting with Hemisphere. Further, even if facility locations were identified, it is unclear how an attack on publicly known facilities would compromise Hemisphere and risk circumvention of the law.
Finally, the DEA's citation to EPIC v. Office of the Dir. of Nat'l Intelligence, 982 F.Supp.2d 21, 30 (D.D.C.2013) is misplaced as the Court in that case relied on Exemption 3 to protect information that the Office of the Director of National Intelligence argued should not be disclosed. As noted by the Court in that case, "it is the responsibility of the [intelligence community], not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the ... intelligence-gathering process." Id. (citations omitted). This case is distinct because the DEA is a law enforcement agency, not an intelligence service. Moreover, the Court in EPIC v. Office of the Dir. of Nat'l Intelligence reviewed relevant documents in camera before concluding that the Defendant met its burden.
In sum, the record in this case does not, at this time, support a finding that disclosure of the names of the private companies cooperating with the government in the operation of Hemisphere will assist individuals in thwarting the DEA, or create a risk of circumvention of the law.
EPIC argues documents that reveal how Hemisphere secures cooperation from other entities do not meet the threshold requirement of Exemption 7, in that such documents were "not compiled for law enforcement purposes." Pl.'s Mem. Opp. at 31. The DEA maintains that all documents identified as responsive to EPIC's FOIA request were compiled for law enforcement purposes and that documents setting forth how to secure cooperation from third parties are protected under 7(E) because disclosure risks disruption of those means, which would "hamper law enforcement efforts by reducing or eliminating the availability and effectiveness of Hemisphere as a law enforcement tool." Def.'s Reply at 14-15.
It is possible that a document describing the means of securing cooperation includes specific information that would be protected by Exemption 7(E), yet it is also conceivable that the information is so generalized that the document cannot be said to have been created for law enforcement purposes, or that disclosure would not risk circumvention of the law. The DEA's conclusory assertion that publication of these documents could "reasonably be expected to lead to disruption of the means of securing cooperation" does not allow the Court to assess whether the documents deserve protection under 7(E). Myrick Decl. ¶ 45(k). Because the DEA insists that "a more specific description of this potential risk would entail revealing the withheld information," the DEA is
EPIC also challenges the DEA's withholding of the names of other law enforcement agencies that have access to Hemisphere's database, arguing that the DEA does not explain "why the names of federal agencies would reveal techniques, procedures,
The DEA cites no persuasive authority in support of withholding the names of other agencies who have access to Hemisphere's database. For example, the government cites Light v. Department of Justice for the proposition that the identity and expertise of investigating law enforcement units are protected under 7(E). 968 F.Supp.2d 11, 29 (D.D.C.2013). Light addressed Occupy Wall Street's FOIA request that sought information from the FBI. Under exemption 7(E), the FBI withheld "the location, identity, and expertise of the investigating FBI units" and the Court concluded that disclosure of such information could "allow an individual to avoid or circumvent those locations and those activities that are the targets of investigation." Id. Whereas Light protected the identity, location and expertise of specific units within the FBI that were tasked with investigating Occupy Wall Street protesters, EPIC's request here seeks the names of other government agencies that have access to the Hemisphere database. The DEA's argument that disclosure of other agencies with access to Hemisphere is equivalent to the disclosure of specific investigatory FBI units and locations is not persuasive.
The DEA also cites Pons v. U.S. Customs Service for the proposition that "information that concerns the cooperative arrangement between Customs and other law enforcement agencies" is protected under exemption 7(E). See Civ. No. 93-2094 (TFH), Civ. No. 93-2189 (TFH), 1998 U.S. Lexis 6084. In Pons, the Court reasoned that because "Defendant's evidence demonstrates that Customs does not publicize its cooperation with other agencies" and "relies in part on secrecy of its cooperative efforts to fulfill its law enforcement purpose," disclosure of the information sought by Plaintiff could "compromise the effectiveness of the agency, and could facilitate circumvention of the law." Id. at *20. Here, no evidence has been presented to the Court to justify the DEA's conclusory argument that "because every law enforcement agency has its own respective focus and sphere of authority, knowing which particular law enforcement agencies have access to Hemisphere would help criminals tailor their activities to avoid apprehension." Def.'s Reply Mem. 13-14.
For these reasons, the Defendant's Motion for Summary Judgment pertaining to withhold the names of other agencies that have access to the Hemisphere data is
For the foregoing reasons, Plaintiff's Motion is
