Electronic Privacy Information Center v. Drug Enforcement Administration , 192 F. Supp. 3d 92 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________
)
ELECTRONIC PRIVACY INFORMATION )
CENTER, )
)
Plaintiff, )
)
v. )
) Civ. Action No.14-317 (EGS)
)
UNITED STATES DRUG )
ENFORCEMENT AGENCY, )
)
Defendant. )
)
MEMORANDUM OPINON
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
1
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 is DENIED in part and HELD IN ABEYANCE in part and
Defendant’s Motion for Summary Judgment is GRANTED in part and
DENIED in part.
I. BACKGROUND
A. The Hemisphere Program
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). 1 Operational since 2007, Hemisphere adds nearly four
billion calls to its database daily, including details about
1 Although media reports cite AT&T as one of the private
corporations assisting the government with Hemisphere, the
government has never confirmed this allegation and one of the
issues disputed in this lawsuit is whether the identity of
private institutions assisting the government should be
disclosed.
2
caller location. Id. ¶ 9. AT&T manages the database and the DEA
pays AT&T staff to provide law enforcement agents with direct
access to the call information. Id. ¶ 7. According to the New
York Times, Hemisphere is funded through the White House’s
Office of National Drug Control Policy. Id. ¶ 11.
B. EPIC’s November 2013 FOIA Request and the DEA’s Response
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. 2
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
2 EPIC’s first FOIA request, sent September 25, 2013, was
challenged by the DEA as not reasonably describing the requested
records, in violation of FOIA standards and Department of
Justice regulations. Compl. ¶¶ 22-24. EPIC modified its letter
and resent the requests in November 2013. Id.
3
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.
II. Standard of Review
A. Summary Judgment
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 (1986). In
determining whether a genuine issue of material fact exists, the
court must view all facts in the light most favorable to the
non-moving party. See Mastushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). FOIA cases are typically
and appropriately decided on motions for summary judgment. Gold
Anti-Trust Action Comm. Inc. v. Bd. Of Governors of Fed. Reserve
Sys., 762 F. Supp. 2d 123, 130 (D.D.C. 2011) (citations
omitted). In ruling on cross-motions for summary judgment, the
4
court shall grant summary judgment only if one of the moving
parties is entitled to judgment as a matter of law upon material
facts that are not genuinely disputed. Shays v. FEC, 424
F.Supp.2d 100, 109 (D.D.C.2006). Winston & Strawn LLP v.
F.D.I.C., CIV.A.06 1120 EGS, 2007 WL 2059769, at *3 (D.D.C. July
13, 2007).
B. FOIA
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 (1976)). Because disclosure rather than secrecy is the
“dominate objective of the Act,” the statutory exemptions are
“narrowly construed.” See McKneely v. United States Dept. of
Justice, 2015 WL 5675515 at *2 (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 at 1057 (D.C. Cir. 2009) and Vaughn v. Rosen, 484 F.2d 820(D.C. Cir. 1973) (holding that an indexing system was necessary
5
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. SEC, 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)).
III. Analysis
A. The DEA’s search was reasonable
EPIC challenges the sufficiency of the DEA’s search for
6
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.” 3
Pl.’s Mem. Opp. Def.’s Summ. J., (Pl.’s Mem. Opp.), ECF No. 18
at 22. 4 The DEA maintains that EPIC’s argument that the search
was unreasonable because certain documents “should exist” has
been rejected by the D.C. Circuit. Def.’s Reply Mem. Supp. Summ.
J. (“Def.’s Reply Mem.”), ECF No. 20 at 4-5. 5 Notably, EPIC does
not respond to this argument in its reply brief. See generally,
Pl.’s Reply Mem., ECF No. 22.
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
3 EPIC does not challenge the sufficiency of the DEA’s search in
response to the first, second or fourth prongs of its FOIA
request. Pl.’s Mem. Opp. at 22.
4 EPIC’s memorandum in opposition to DEA’s Motion for Summary
Judgment is also EPIC’s Cross-Motion for Summary Judgment.
5 DEA’s Reply Memorandum is also its Memorandum in Opposition to
Plaintiff’s Motion for Summary Judgment.
7
specific request.” McKinley v. FDIC, 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:
Appellant also contends that the search was unreasonable
because the agency did not find responsive documents
that appellant claims must exist . . . . However,
appellant provides no proof that these documents exist
and his own conviction that [such documents exist] is
pure speculation. Such hypothetical assertions are
insufficient to raise a material question of fact with
respect to the adequacy of the agency’s search.
8
920 F.2d 57 (D.C. Cir. 1990)(citing Meeropol v. Messe, 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 legal issues were found, but
withheld under relevant exemptions. Def.’s Reply Mem. at 9-10.
For all of these reason, the DEA’s search was reasonable. On the
question of the reasonableness of the DEA’s search, Defendant’s
Motion for Summary Judgment is GRANTED and Plaintiff’s Motion
for Summary Judgment is DENIED.
B. The Myrick Affidavit and redacted material submitted meet
the requirements set forth by Vaughn
9
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 (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, 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. CIA, 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
10
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 DENIED.
C. Documents withheld under FOIA exemptions
11
EPIC objects to documents withheld by the DEA under FOIA
exemptions 5, 7(D) and 7(E). See generally, Pl.’s Mem. Opp. Each
will be addressed in turn. 6
1. FOIA Exemption 5
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. NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).
6 EPIC notes that it “does not concede that the DEA’s
withholdings under 6, 7(C) or 7(F) were proper” but that it
“chose not to dispute these for the purposes of this lawsuit.”
Pl.’s Opposition, ECF No.24 at 3. EPIC’s failure to address the
DEA’s withholdings pursuant to exemptions 6, 7(C) or 7(F)
constitutes a concession, for the purposes of this motion, that
the documents were withheld lawfully. 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.”) (quoting Hopkins v.
Women's Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15,
25 (D.D.C. 2003), aff'd, 98 Fed. Appx. 8 (D.C. Cir. 2004)).
12
The DEA applied FOIA exemption 5 to two documents:
A draft memorandum prepared by an attorney in the DEA
Office of Chief Counsel analyzing legal issues regarding
the procedures used to obtain information through
Hemisphere, intended to assist senior DEA management,
and containing comments added by the same attorney
regarding the same topics . . . . [and]
An email message from a Deputy Assistant Attorney
General at DOJ to other Federal government employees
containing a preliminary assessment of three issues
relating to features of the Hemisphere program . . . .
Myrick Decl. at ¶ 34 (a)-(b). Each will be addressed in turn.
a. The Memorandum
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. CIA, 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
13
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 of proposed policies before they are
finally adopted; and (3) to protect against public confusion
that might result from disclosure of reasons and rationale
that were not in fact ultimately the grounds for an agency
action.” James T. O’Reilly, FEDERAL INFORMATION DISCLOSURE, Volume
1, Summer 2015 ed. § 15:16 at 1616 [hereinafter O’Reilly].
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 (“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.
14
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:
EPIC’s reliance on Exxon Corp. v. Dept. of
Energy is particularly misleading. EPIC
omitted the key modifying phrase “In some
instances” that precedes the language they
quote: “where DOE has failed to identify a
final document corresponding to a putative
draft, the ‘draft’ shall be ordered produced
. . . .” 585 F. Supp. 690, 698 (D.D.C. 1983).
Moreover, even the language EPIC does not
selectively omit reflects a more nuanced rule
than the one EPIC proposes; the sentence
concludes: “. . . to the extent that the agency
has provided no basis for determining that it
in fact has such status.” Id. Similarly, in
Mayer, Brown, Rowe & Maw LLP v. IRS, Judge
Collyer found that the documents at issue were
“too removed from an actual policy decision”
to warrant protection under exemption 5, but
the case does not stand for the proposition
that an agency seeking to withhold a draft
must always point to a final version of that
document. 537 F. Supp. 2d. 128, 136 (D.D.C.
2008). Finally, in Judicial Watch Inc. v. U.S.
Postal Serv., Judge Kennedy faulted the
government for failing to “identify specific
final decisions or decision making processes
related to the issues raised in the FOIA
request. 297 F. Supp. 2d 252, 264 (D.D.C.
2004). Judicial Watch does not stand for the
rule EPIC proposes.
Id.15
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:
There may be no final agency document because
a draft died on the vine. But the draft is
still a draft and thus still pre-decisional
and deliberative. See NLRB v. Sears, Roebuck
& Co., 421 U.S. 132, 151 n. 18, 95 S. Ct.
1504, 44 L.Ed.2d 29 (1975). A Presidential
speechwriter may prepare a draft speech that
the President never gives. A Justice
Department aide may give the Attorney General
a draft regulation that the Attorney General
never issues. Those kinds of documents are no
less drafts than the drafts that actually
evolve into final Executive Branch actions.
Moreover, the writer does not know at the time
of writing whether the draft will evolve into
a final document. But the writer needs to know
at the time of writing that the privilege will
apply and that the draft will remain
confidential, in order for the writer to feel
free to provide candid analysis. A privilege
contingent on later events—such as whether the
draft ultimately evolved into a final agency
position—would be an uncertain privilege, and
as the Supreme Court has said, an uncertain
privilege is “little better than no privilege
16
at all.” Upjohn Co. v. United States, 449 U.S.
383, 393, 101 S. Ct. 677, 66 L.Ed.2d 584(1981); see also Swidler & Berlin v. United
States, 524 U.S. 399, 408–09, 118 S. Ct. 2081,
141 L.Ed.2d 379 (1998). In short, to require
release of drafts that never result in final
agency action would discourage innovative and
candid internal proposals by agency officials
and thereby contravene the purposes of the
privilege.
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. 7 The DEA has met this burden.
First, the memorandum was prepared by an attorney in the DEA’s
7 It is extremely troubling that EPIC repeated a legal argument
that was rejected by this Court more than two years ago. “A
lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in law and
fact for doing so that is not frivolous, which includes a good-
faith argument for an extension, modification, or reversal of
existing law.” Rules of Professional Conduct: Rule 3.1 –
Meritorious Claims and Contentions, available at
https://www.dcbar.org/bar-resources/legal-ethics/amended-
rules/rule3-01.cfm. EPIC did not acknowledge Judge Lamberth’s
decision, let alone attempt to distinguish the facts or offer
additional authority to support its legal argument. This
suggests a hasty cut-and-paste of arguments from one brief to
another. Other errors in EPIC’s brief also support this
conclusion. For example, two of EPIC’s headings appear to have
been cut and pasted from a previous brief involving the DHS
rather than the DEA. See e.g. Pl.’s Mem. Opp. at 19 and 21.
17
office of Chief Counsel for senior DEA management. Myrick
Decl. ¶ 34(a); see e.g. Coastal States Gas Corp. v. Dep’t of
Energy, 617 F.2d 854, 868 (D.C. Cir. 1980) (noting that “a
document from a subordinate to a superior official is more
likely to be predecisional, while a document moving in the
opposite direction is more likely to contain instructions to
staff explaining the reasons for a decision already made.”).
Second, the memorandum includes comments by the attorney who
prepared the document, reflecting the deliberative posture of
the memorandum. Myrick Decl. ¶ 34(a); See also Nat'l Sec.
Archive v. C.I.A., 752 F.3d 460, 463 (D.C. Cir. 2014) (noting
that the term deliberative means “the communication is
intended to facilitate or assist development of the agency's
final position on the relevant issue.”). (Internal citations
omitted).
For all of these reasons, the draft memorandum was
properly withheld under FOIA Exemption 5. The DEA’s Motion
for Summary Judgment on this issue is GRANTED and Plaintiff’s
Motion for Summary Judgment is DENIED. 8
b. The Email
8 Because the memorandum is protected from disclosure under the
deliberative process privilege, the Court need not address the
parties’ arguments pertaining to the attorney-client and work
product privileges.
18
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
19
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,
Case No. 14-5151, 2015 WL 4910078, at *4 (D.C. Cir. Aug.
20
18, 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. . . .” Williams
& Connolly v. S.E.C., 662 F.3d 1240, 1243 (D.C. Cir. 2011)
(internal quotations omitted) (citing Fed. R. Civ. P.
26(b)(3)(A)); see also Hickman v. Taylor, 329 U.S. 495, 510-
11 (1947). The doctrine must be interpreted broadly:
[I]t is essential that a lawyer work with a
certain degree of privacy, free from
unnecessary intrusion by opposing parties and
their counsel. Proper preparation of a
client’s case demands that he assemble
information, sift what he considers to be the
relevant from the irrelevant fats, prepare his
legal theories and plan his strategy without
undue and needless interference. That is the
historical and necessary way in which lawyers
act within the framework of our system of
jurisprudence to promote justice and to
protect their clients’ interests. This work is
reflected, of course, in interviews,
statements, memoranda, correspondence,
briefs, mental impressions, personal beliefs,
and countless other tangible and intangible
ways. . . .
Id. Further, the work product doctrine protects both
deliberative materials as well as factual material prepared
21
in anticipation of litigation. Tax Analysts v. IRS, 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 Johnson 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. NLRB, 964 F.2d 1205, 1208 (D.C. Cir. 1992). Courts
22
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 was therefore protected from disclosure under
FOIA Exemption 5).
For all of these reasons, the email was properly withheld
under FOIA Exemption 5. The DEA’s Motion for Summary Judgment
23
on this issue is GRANTED and Plaintiff’s Motion for Summary
Judgment is DENIED.
2. Exemption 7
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. 9 EPIC challenges the
material withheld by the DEA under subsections 7(D) and 7(E).
Pl.’s Mem. Opp. at 26-31. Each will be discussed in turn.
a. Whether an explicit or implicit assurance of
confidentiality was given to the private
institutions assisting with Hemisphere
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
9
The DEA’s investigative jurisdiction derives from the Controlled
Substances Act (“CSA”), 21 U.S.C. § 801, et seq. Myrick Decl. ¶
5. The CSA authorizes the DEA to enforce the Act through the
investigation of trafficking in controlled substances. Id.24
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:
Records or information compiled for law
enforcement purposes, but only to the extent
that the production of such law enforcement
records or information . . . could reasonably
be expected to disclose the identity of a
confidential source, including a State, local,
or foreign agency or authority or any private
institution which furnished information on a
confidential basis, and, in the case of a
record or information compiled by criminal law
enforcement authority in the course of a
criminal investigation . . ., information
furnished by a confidential source.
§ 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 (1993). 10 Determination of whether a source is
confidential is made on a case-by-case basis. Id. at 179-80. The
Court’s focus under Exemption 7(D) is whether the source cooperated
10In its Reply, EPIC argues that “[t]he recognition of
corporations as confidential informants would be an
unprecedented expansion of Exemption 7(D) and would conflict
with the Supreme Court’s holding in Landano.” Pl.’s Reply Mem.
at 14. Landano held that the government is not entitled to a
presumption that all sources supplying information to the FBI
are confidential sources. 508 U.S. 165, 175. The Court did not
suggest that private companies are incapable of serving as
confidential informants. EPIC also provides no support for its
contention that the statutory language of “private institution”
is inapplicable to corporations. § 552(b)(7)(D) (establishing
that confidential sources may include “a State, local, or
foreign agency or authority or any private institution which
furnished information on a confidential basis”).
25
with an understanding of confidentiality, not whether the document
is generally thought to be confidential. Miller v. U.S. Dept. of
Justice, 872 F.Supp. 2d 12, 26 (2013) (citing Landano, 508 U.S. at
172) (emphasis added). Finally, Exemption 7(D) does not require a
balancing of public and private interests. Roth v. U.S. Dep’t of
Justice, 642 F.3d 1161, 1184-85 (D.C. Cir. 2011) (noting the
factors considered before finding an implicit assurance of
confidentiality include the character of the crime at issue, the
sources’ relation to the crime, whether the source received
payment, and whether the source has an ongoing relationship with
the law enforcement agency).
i. The Myrick Declaration does not support finding
that an express assurance of confidentiality
was given
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
26
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
27
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.) (“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).
ii. The Myrick Declaration does not support a
finding that an implicit assurance of
confidentiality was given
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 (“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,
28
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
29
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. 11
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 DENIED
without prejudice. The DEA must either disclose the relevant
information withheld under Exemption 7(D), supplement the record
with additional affidavits and authority justifying its
withholding, or produce documents for the Court’s in camera
review.
b. FOIA Exemption 7(E)
FOIA Exemption 7(E) permits the withholding of information
collected for law enforcement purposes if release of that
information would:
11 Establishing that the private institutions received an
implicit assurance of confidentiality will not be necessary if
the DEA establishes that an explicit assurance of
confidentiality was received.
30
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.
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
31
Hemisphere. Pl.’s Mem. Opp. at 28-38. Each category will be
discussed in turn.
i. Withholding names of private companies
cooperating in the operation of Hemisphere
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 (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
32
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. FBI, 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).
In support of its position, the DEA relies on PHE, Inc. v.
Dep’t of Justice for the proposition that this Circuit has
upheld invocations of 7(E) at an even higher level of
generality. 983 F.2d 248, 251 (D.C. Cir. 1993). PHE does not
support the DEA’s argument. In PHE, the FBI identified a 16-page
manual as relevant to the plaintiff’s FOIA request. Id. at 250.
The FBI released 15 of the 16 pages, redacting only one page,
explaining that the withheld material “detailed specific
33
documents, records and sources of information available to
Agents investigating obscenity violations, as well as the type
of patterns of criminal activity to look for when investigating
certain violations.” Id. at 251. Not only did the FBI disclose
the vast majority of the manual at issue in PHE, it gave a
detailed description of the material that was withheld under
exemption 7(E). In contrast, the DEA’s explanation in this case
is simply that Hemisphere is a “single set of law enforcement
techniques and procedures.” Def.’s Reply Mem. at 12.
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
34
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
35
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. The DEA has yet to produce any
documents for in camera review in this case.
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. 12 The Defendant’s
Motion for Summary Judgment pertaining to whether the names of
the private companies assisting with Hemisphere are justifiably
withheld under Exemption 7(E) is DENIED without prejudice. The
DEA must either disclose the relevant information withheld under
Exemption 7(E), supplement the record with additional affidavits
and authority justifying its withholding, or produce documents
for the Court’s in camera review.
12As discussed in Section III. C. 2, the DEA may establish that
the identities of the private companies assisting with
Hemisphere should be protected based on either an explicit or
implicit assurance of confidentiality under Exemption 7(D). Such
a showing under 7(D) would make the issue of whether the private
company identities should be protected under 7(E) moot.
36
ii. Documents that reveal how cooperation from third
parties is secured
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. ¶
37
45(k). Because the DEA insists that “a more specific description
of this potential risk would entail revealing the withheld
information,” the DEA is ORDERED to produce the documents
withheld under this rationale for in camera review. See e.g.
Fitzgibbon v. U.S. Secret Service, 747 F. Supp. 51, 60 (D.D.C.
1990) (noting that the F.B.I.’s conclusory statement that
certain techniques were not known to the public were “general
and cursory at best” and that the “only way the Court can
ascertain whether the assertions are correct is by way of in
camera review.”).
iii. Names of the law enforcement agencies that have
access to the Hemisphere database
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, or
guidelines” or how such disclosure could “reasonably be expected
to risk circumvention of the law.” Pl.’s Reply Mem. at 37. 13 The
13 EPIC also objects to what it characterizes as “categorical”
withholdings under Exemptions 7(D) and 7(E). Pl.’s Mem. Opp. at
16–19 and Pl.’s Reply Mem. at 4-5. EPIC’s argument is not
persuasive. The DEA has specified the page numbers and marked
the relevant redacted material under Exemption (D) and (E).
Myrick Decl. ¶¶ 40-45. As discussed in Section III. C. 2. b.,
the type of record withheld is not significant to the Court’s
analysis of whether they were properly withheld under Exemption
7 (D). Rather, the question is whether the private institutions
received an explicit or implicit assurance of confidentiality.
In regard to the DEA’s withholdings under 7(E), EPIC challenges
38
DEA maintains that knowledge of the other agencies would “be
helpful to criminals and criminal organizations . . . [which
would be] better informed about the capabilities of their
pursuers” because “each law enforcement agency has its own
respective focus and sphere of authority.” Def.’s Reply Mem. at
14.
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 (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,
only three of the 11 categories withheld. Pl.’s Mem. Opp. at 28-
38. As discussed supra, the Court has highlighted the extent to
which the Myrick Declaration and authority cited by the DEA in
support of its arguments under Exemption 7(E) fall short.
39
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.
40
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 DENIED without prejudice.
The DEA must either disclose the names of other agencies that
have access to the data withheld under Exemption 7(E),
supplement the record with additional affidavits and authority
justifying its withholding, or produce documents for the Court’s
in camera review. 14
IV. Conclusion
For the foregoing reasons, Plaintiff’s Motion is DENIED in
part and Defendant’s Motion is GRANTED in part and DENIED in
part. Plaintiff’s Motion shall be HELD IN ABEYANCE on those
issues where the Court has invited supplemental submissions from
Defendant. To the extent Defendant plans to submit supplemental
briefing, the parties shall submit a proposed briefing schedule
14
EPIC argues that the DEA has not met its burden to show that
it properly segregated unprotected material from its
redactions. Pl.’s Mem. Opp. at 19. The DEA maintains that any
words or phrases not covered by an exemption would be
“incomprehensible” and “not contribute to the understanding
of how the DEA or the United States conducts business either
in general or specifically related to the matters requested
by Plaintiff.” Myrick Decl. ¶ 48. Because the Court has
ordered and otherwise invited the DEA to submit certain
documents to the Court for in camera review, the Court will
defer its ruling on the issue of segregability until after it
has reviewed documents in camera.
41
no later than July 8, 2016.
Signed: Emmet G. Sullivan
United States District Judge
June 24, 2016.
42