*fn8,The opinion of the court was delivered by: Reggie B. Walton United States District Judge,ELECTRONIC FRONTIER FOUNDATION, PLAINTIFF, v. UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT." />

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Electronic Frontier Foundation v. United States Department of Justice

September 10, 2012 *fn8


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


The plaintiff, Electronic Frontier Foundation, brings this action against the United States Department of Justice ("DOJ") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006), seeking the release of records concerning "discussions and negotiations between the United States and the European Union with respect to the international exchange of personal information for use by law enforcement authorities." Complaint ("Compl.") ¶ 1. Currently before the Court are the parties' renewed cross-motions for partial summary judgment. Upon careful consideration of the parties' submissions,*fn1 the Court concludes for the following reasons that it must grant the DOJ's motion in part and deny it in part without prejudice, and deny the plaintiff's motion.


A. Facts

The following facts are not in dispute. In November 2006, the United States and the European Union ("E.U.") agreed to negotiate a set of common principles concerning the protection of personal information in the trans-national law enforcement context. Def.'s Facts ¶ 1; Compl. ¶ 5. To pursue that goal, they created the United States-European Union High Level Contact Group ("HLCG"). Def.'s Facts ¶ 1. The HLCG negotiations consisted of two levels of deliberations involving the United States: (1) internal deliberations among United States government officials and employees concerning the United States's negotiation position; and (2) external deliberations with E.U. officials concerning common data protection principles. Id. ¶ 2. No single United States official exercised ultimate decisionmaking responsibility or authority over the HLCG deliberations. Id. Rather, the negotiations were carried out by an inter-agency group of experts from the DOJ, the United States Department of Homeland Security ("DHS"), and the United States Department of State ("State Department"). Id. ¶ 3.

In March 2008, "[m]ost of the [HLCG] principles were completed," and the HLCG reported their progress at a meeting attended by the Attorney General, the Secretary of Homeland Security, and their E.U. counterparts (collectively, the "ministers') in Brdo, Slovenia. Id. ¶ 7. The ministers agreed that the HLCG's work should continue, particularly on the issue of "redress."*fn2 Id. Consequently, the HLCG experts continued to meet by video conference or in person for approximately another 18 months. Id. "The United States continued to consider various proposals [from the E.U.] and reached a consensus on how to respond to each." Id.

"The [United States] and E.U. experts also held a seminar on the issue of redress in early October 2009[,] and continued [their] negotiations thereafter." Id.

The negotiating positions of the United States were developed in meetings, emails, and telephone calls among the HLCG experts, as well as during occasional discussions with senior policy officials at the DHS, DOJ, and State Department. Id. ¶ 6. Because the proposed provisions on data protection had to be accepted by all three agencies, the United States's positions were reached by consensus. Id. Thus, the DOJ and DHS each drafted proposed provisions, which were then the subject of discussion within the United States team of negotiators. Id. The representatives from the E.U. also drafted some of the proposals and counter-proposals. Id.

Once the HLCG principles were completed, they were formally presented to, and accepted by, the ministers at the "US-EU Justice and Home Affairs Ministerial Troika on October 28, 2009." Def.'s Mot., OIP Decl. ¶ 9. The ministers also decided at the October 28, 2009 Ministerial Troika to begin work immediately on a binding international agreement between the United States and the E.U. on privacy and the protection of personal data in the law enforcement context. Def.'s Facts ¶ 8. Negotiations on this issue began in March 2011, and were ongoing as of the filing date of the DOJ's reply brief in this case on April 12, 2012. Def.'s Reply at 5.

B. Procedural Background

By letter dated November 6, 2009, the plaintiff submitted a FOIA request to the DOJ seeking "all DOJ records created since January 20, 2009[,] that concern, discuss[,] or reflect the work or deliberations of the HLCG." Compl. ¶ 5. After receiving no records from the DOJ, the plaintiff instituted this action on April 26, 2010. Id. ¶ 11.

The parties then filed cross-motions for partial summary judgment. By Memorandum Opinion and Order dated November 30, 2011, the Court denied the DOJ's motion without prejudice, and granted the plaintiff's motion "insofar as it challenge[d] the adequacy of the DOJ's Vaughn submissions and the agency's segregability analysis," but otherwise denied it without prejudice.*fn3 Elec. Frontier Found. v. DOJ, 826 F. Supp. 2d 157, 175 (D.D.C. 2011). Specifically, the Court found that the DOJ's Vaughn submissions were "too vague for the Court to determine whether the [DOJ] components' properly applied the deliberative process privilege to the withheld documents," id. at 167, and that the DOJ's "description of its segregation efforts [was] too categorical for the Court to evaluate whether any factual material in the documents withheld in full is 'inextricably intertwined' with deliberative material such that the agency can permissibly withhold the documents in their entirety," id. at 174 (quoting Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002)). The Court thus directed the DOJ "to submit revised Vaughn submissions" and "a renewed motion for partial summary judgment," which took "into account the deficiencies identified by the Court." Id. at 175.

The DOJ has now submitted a renewed motion for partial summary judgment along with revised Vaughn submissions, which it claims are sufficiently detailed to demonstrate that it is entitled to withhold documents from the plaintiff pursuant to the deliberative process privilege of FOIA Exemption 5. See Def.'s Mot. at 5-26. In response, the plaintiff has submitted a cross-motion for partial summary judgment. Shifting the focus from the adequacy of the DOJ's Vaughn submissions, the plaintiff now challenges the DOJ's invocation of the deliberative process privilege, as well as its segregability analysis. See Pl.'s Mem. at 3-23.

As matters currently stand, the DOJ estimates that 178 pages of documents remain in controversy. Def.'s Reply at 2 n.3. The plaintiff disputes this figure, maintaining that approximately 490 pages of documents remain in dispute. Pl.'s Reply at 4 n.2.


"FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (collecting cases). Summary judgment will be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[T]he agency bears the burden of showing that there is no genuine issue of material fact, even when the underlying facts are viewed in the light most favorable to the requester." Weisberg v. DOJ, 705 F.2d 1344, 1350 (D.C. Cir. 1983). To satisfy this burden, the agency may rely upon affidavits, declarations, and other exhibits which describe the requested documents and "'the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record []or by evidence of agency bad faith.'" Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). Agency affidavits submitted in the FOIA context are "accorded a presumption of good faith." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).

The "'burden is on the agency' to show that [the] requested material falls within a FOIA exemption." Petroleum Info. Corp. v. Dep't of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (quoting 5 U.S.C. § 552(a)(4)(B)). Consistent with congressional intent tilting the scales in favor of full disclosure, the District of Columbia Circuit has instructed that "exemptions from disclosure must be narrowly construed . . . and conclusory and generalized allegations of exemptions are unacceptable." Morley v. CIA, 508 F.3d 1108, 1114-15 (D.C. Cir. 2007) (internal citation and quotation marks omitted). Nevertheless, "[w]hen disclosure touches upon certain areas defined in the exemptions . . . , the [FOIA] recognizes limitations that compete with the general interest in disclosure, and that, in appropriate cases, can overcome it." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004).


A. FOIA Exemption 5 and the Deliberative Process Privilege

The DOJ has invoked FOIA Exemption 5, which "allows an agency to withhold disclosure of a record if the record meets two requirements: (1) it is an 'inter-agency or intra-agency memorandum[] or letter[]' that (2) 'would not be available by law to a party other than an agency in litigation with the agency.'" McKinley v. Bd. of Govs. of Fed. Reserve Sys., 647 F.3d 331, 335-36 (D.C. Cir. 2011) (quoting 5 U.S.C. § 552(b)(5)). The Court will address these requirements in turn.

1. Inter-Agency or Intra-Agency Memoranda

For a document to satisfy the first requirement of Exemption 5, its "source must be a Government agency." Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001). According to the Vaughn submissions submitted by two DOJ components-the Office of Information Policy ("OIP") and the Criminal Division-the documents currently in dispute were only exchanged between agency officials within the Executive Branch. See Def.'s Mot., OIP Decl. ¶ 18 ("There is no indication-either based on the face of the documents themselves or on the . . . []search conducted by OIP staff-that the documents or information withheld by [the] OIP were shared outside of the Executive Branch."); Def.'s Mot., Crim. Div. Decl. ¶¶ 16, 22, 28, 33, 38, 43, 48, 53, 58, 63 (same). Although the OIP did locate some documents "that were exchanged between the United States HLCG members and their E.U. counterparts," its declaration explains that "OIP has referred such material to the Departments of State and Homeland Security for processing and direct response to [the] plaintiff." Def.'s Mot., OIP Decl. ¶ 20. Consequently, this "material is not currently under review by the Court." Id.; see also Def.'s Reply at 2 (contending that the "[p]laintiff's conjectures about documents allegedly shared with E.U. officials are not the subject of the current motions practice because any such documents would have been ...

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