Myrick v. Johnson , 199 F. Supp. 3d 120 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
JEFFREY MYRICK, )
)
Plaintiff, )
) Civil Action No. 15-1451
v. )
)
JEH CHARLES JOHNSON, )
)
Defendant. )
______________________________)
MEMORANDUM AND OPINION
Plaintiff Jeffrey Myrick (“Plaintiff”) is a Special
Agent employed by Immigration and Customs Enforcement
(“ICE”), in the Homeland Security Investigations (“HSI”)
division. On January 7, 2015, Plaintiff requested certain
documents from the U.S. Department of Homeland Security
(“Defendant”) pursuant to the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. Complaint for Injunctive Relief
(“Compl.”), ECF No. 2, ¶ 5. Specifically, Plaintiff sought
information “pertaining to Special Agent/Program Manager
Chris Watkins of the Certified Undercover Operation in
Fairfax, VA at the Cyber Crimes Center named ‘Operation
Coverall,’” as well as other logistical information
regarding the undercover operation. Id. On February 25,
2016, Defendant filed a Motion for Summary Judgment,
arguing that it is exempt from acknowledging the existence
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or non-existence of the records under FOIA Exemptions 6,
7(C), and 7(E). For the reasons discussed below,
Defendant’s Motion for Summary Judgment is GRANTED.
I. Background
Plaintiff’s FOIA request sought documents pertaining
to the relevant undercover operation “to ascertain whether
his then-first level supervisor and Defendant’s agent, Sjon
Shavers, Section Chief, Cyber Crimes Unit, engaged in
employment discrimination on account of Plaintiff’s race.”
Compl. ¶ 3. When Plaintiff did not receive the requested
information more than seven months later, he filed suit on
September 4, 2015. Id. ¶¶ 6-7. On January 13, 2016,
Defendant informed Plaintiff that it could “neither confirm
or deny the existence of records responsive to
[Plaintiff’s] request,” and that if they existed, “they
would be exempt from disclosure pursuant to FOIA Exemptions
6, 7(C), and/or 7(E).” Declaration of Fernando Pineiro
(“Pineiro Decl.”), ECF No. 11, Ex. 2.
Defendant filed a Motion for Summary Judgment on
February 25, 2016, arguing that it is exempt from
acknowledging the existence or non-existence of the records
under Exemptions 6, 7(C), and 7(E). Def.’s Mem. Supp. Mot.
Summ. J. (“Def.’s Mem. Supp”), ECF No. 11 at 5, 8.
Accordingly, Defendant attached an affidavit, the Pineiro
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Declaration, asserting that this response was necessary to
avoid disclosing information that could cause an
“unwarranted invasion of privacy” under Exemptions 6 and
7(C) or “could reasonably be expected to risk circumvention
of the law” under Exemption 7(E). Pineiro Decl., Ex. 2, ¶¶
20, 25.
II. Legal Framework
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. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986); Waterhouse v. District of
Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). 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 Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B. Freedom of Information Act
FOIA requires agencies to disclose all requested
agency records unless one of nine specific statutory
exemptions applies. 5 U.S.C. § 552(a). FOIA is designed to
“pierce the veil of administrative secrecy and to open
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agency action to the light of public scrutiny.” Dep’t of
Air Force v. Rose, 425 U.S. 352, 361 (1976) (citations
omitted). “Given the FOIA’s broad disclosure policy, the
United States Supreme Court has ‘consistently stated that
FOIA exemptions are to be narrowly construed.’” Wolf v.
CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (quoting Dep’t of
Justice v. Julian, 486 U.S. 1, 8 (1988)).
“FOIA’s ‘strong presumption in favor of disclosure
places the burden on the agency to justify the withholding
of any requested documents.” Dep’t of State v. Ray, 502
U.S. 164, 173 (1991). The government may satisfy its burden
of establishing its right to withhold information from the
public by submitting appropriate declarations and, where
necessary, an index of the information withheld. See Vaughn
v. Rosen, 484 F.2d 820, 827–28 (D.C. Cir. 1973). “If an
agency’s affidavit describes the justifications for
withholding the information with specific detail,
demonstrates that the information withheld logically falls
within the claimed exemption, and is not contradicted by
contrary evidence in the record or by evidence of the
agency’s bad faith, then summary judgment is warranted on
the basis of the affidavit alone.” ACLU v. Dep’t of the
Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (“[A]n agency’s
justification for invoking a FOIA exemption is sufficient
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if it appears ‘logical’ or ‘plausible.’”) (internal
citations omitted).
III. Analysis
Defendant argues that acknowledging whether the
records exist would disclose the existence or non-existence
of the specific undercover operation, its subject matter,
and its personnel and thus “increase[ ] the likelihood that
subjects and potential subjects of investigations will
develop methods to obscure their criminal conduct, and
thereby circumvent law enforcement,” in contravention of
Exemption 7(E). Def.’s Mem. Supp. at 8-9. In response,
Plaintiff claims that Defendant “has not logically shown
how the acknowledgement of the records could be reasonably
expected to risk circumvention of the law” because he “has
not shown how acknowledging that a[n] undercover operation
exists would increase the knowledge of any supposed
criminal actors.” Pl.’s Opp’n Def.’s Mot. Summ. J. (“Pl.’s
Opp’n”), ECF No. 12 at 13.
Information may be withheld under FOIA Exemption 7 if
it was compiled for law enforcement purposes. 5 U.S.C. §
552(b)(7). ICE HSI is an entity in the Department of
Homeland Security tasked with investigating a wide range of
criminal activity. Pineiro Decl. ¶¶ 11-12. The requested
records “would necessarily be ICE records compiled for the
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purpose of ICE’s responsibilities to enforce the civil and
criminal laws under its authorities.” Pineiro Decl. ¶ 24.
Exemption 7(E) exempts information collected for law
enforcement purposes that
would disclose techniques and procedures
for law enforcement investigations or
prosecutions, or would disclose
guidelines for law enforcement
investigations or prosecutions if such
disclosure could reasonably be expected
to risk circumvention of the law.
5 U.S.C. § 552(b)(7)(E). In other words, Exemption 7(E)
“exempts from disclosure information that could increase
the risks that a law will be violated or that past
violators will escape legal consequences,” not merely
information that expressly “instruct[s] [potential
violators] how to break the law.” Mayer Brown LLP v. IRS,
562 F.3d 1190, 1193, 1194 (D.C. Cir. 2009) (emphases
omitted). It “only requires that the [agency] ‘demonstrate
[ ] logically how the release of [the requested]
information might create a risk of circumvention of the
law.’” Id. at 1194 (quoting PHE v. Dep’t of Justice, 983
F.2d 248, 251 (D.C. Cir. 1993)). Exemption 7(E) is properly
invoked for information and techniques that are secret and
“not generally known to the public.” Nat’l Sec. Archive v.
FBI, 759 F. Supp. 872, 885 (D.D.C. 1991); Jaffe v. CIA, 573
F. Supp. 377, 387 (D.D.C. 1983).
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“An agency asserts a Glomar response when it refuses
to confirm or deny the very existence of responsive
records.” 1 Mobley v. CIA, 806 F.3d 568, 584 (D.C. Cir.
2015). In the context of a FOIA exemption, “an agency may
issue a Glomar response . . . if the particular FOIA
exemption at issue would itself preclude the acknowledgment
of such documents.” Elec. Privacy Info. Ctr. v. NSA
(“EPIC”), 678 F.3d 926, 931 (D.C. Cir. 2012) (citing Wolf
v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)). “In
determining whether the existence of agency records vel non
fits a FOIA exemption, courts apply the general exemption
review standards established in non-Glomar cases.” Wolf,
473 F.3d at 374. In the case of Exemption 7(E), therefore,
a Glomar response is appropriate when confirming or denying
the existence of the requested records “could reasonably be
expected to risk circumvention of the law.” See 5 U.S.C. §
552(b)(7)(E); EPIC, 678 F.3d at 931.
1 As Defendant explains, the Glomar response “take[s] its
name from the Hughes Glomar Explorer, a ship built (we now
know) to recover a sunken Soviet submarine, but disguised
as a private vessel for mining manganese nodules from the
ocean floor.” Def.’s Mem. Supp. at 3 (quoting Bassiouni v.
CIA, 392 F.3d 244, 246 (7th Cir. 2004) and citing Phillipi
v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976)).
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Defendant has demonstrated logically why its Glomar
response is appropriate under Exemption 7(E). The Pineiro
Declaration states:
If criminal actors were to learn that a
particular ICE HSI office is not engaged
in specific undercover operations, the
criminal actors could conclude that there
is less risk of certain activities being
discovered by law enforcement in that
jurisdiction. Likewise, if criminal
actors know that a particular office, and
particular personnel, [are] involved
with undercover operations, the criminal
actors could adjust their activities in
a way to avoid that office’s undercover
activities.
Pineiro Decl. ¶ 20. Like in Jaffe, where the government
appropriately invoked Exemption 7(E) as to portions of
documents that “assertedly relate to law enforcement
procedures not known to the public,” here, Defendant’s
Glomar response is authorized under Exemption 7(E) because
an undercover operation is not known to the public and
acknowledging its existence or non-existence would
therefore increase the risk of circumvention of the law.
See 573 F. Supp. at 387.
Plaintiff asserts that “Defendant has not shown how
acknowledging that a[n] undercover operation exists would
increase the knowledge of any supposed criminal actors.”
Pl.’s Opp’n at 13. Defendant correctly points out in its
reply that Plaintiff fails to “[rebut] the showing made by
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Defendant in the Pineiro declaration” and rather makes
“conclusory, single-sentence assertions.” Def.’s Reply at
4. The Pineiro Declaration provides a thorough explanation
of the potential 7(E) risks of acknowledging the existence
or non-existence of the undercover operation, and Plaintiff
does not offer any facts that indicate “contrary evidence
in the record” or “evidence of agency bad faith.” See ACLU,
628 F.3d at 619. Exemption 7(E) only requires a logical
demonstration of the risk that the law would be
circumvented, and Defendant has met this standard. See
Mayer Brown, 562 F.3d at 1194. Therefore, there is no
genuine dispute as to the appropriateness of Defendant’s
Glomar response under Exemption 7(E). 2
IV. Conclusion
For the foregoing reasons, the information sought by
Plaintiff is properly withheld under FOIA Exemption 7(E)
and the Glomar doctrine. Defendant’s Motion for Summary
Judgment is GRANTED.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
August 4, 2016
2 Because the parties’ dispute is fully resolved under
Exemption 7(E), the Court need not discuss the parties’
arguments under Exemptions 6 or 7(C).
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