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Electronic Privacy Information Center v. United States Department of

September 14, 2012

ELECTRONIC PRIVACY INFORMATION CENTER, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, DEFENDANT.



The opinion of the court was delivered by: Barbara J. Rothstein United States District Judge

MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND GRANTING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS

This action concerns a Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., request. Plaintiff the Electronic Privacy Information Center ("EPIC") challenges defendant United States Department of Homeland Security's ("DHS" or "the department") response to its FOIA request seeking certain DHS records related to the agency's plans to utilize body scanner technology in the context of surface transportation. Before the court are [Dkt. ## 9, 10] parties' cross-motions for summary judgment and EPIC's motion for attorney's fees and costs. For the reasons set forth below, the court concludes that DHS's motion for summary judgment should be granted and EPIC's motion for summary judgment denied. The court further concludes that EPIC is eligible for and entitled to attorney's fees and costs.

I. BACKGROUND

A. DHS Testing of Whole Body Imaging Technology

In 2005, the Transportation Security Administration ("TSA"), a branch of the DHS,

began testing Whole Body Imaging ("WBI") technology in U.S. airports with the goal of using WBI to screen commercial aircraft travelers. Compl. ¶ 5; Answer ¶ 5. WBI devices use either backscatter*fn1 x-ray or millimeter wave technology to capture three-dimensional images of individuals. Compl. ¶ 6; Answer ¶ 6. Body scanner devices have also been tested at surface transportation stations in the U.S. and abroad. Compl. ¶ 8; Answer ¶ 8. In 2006, machines utilizing both active and passive millimeter wave technology were tested on PATH train riders at a New Jersey train station.*fn2 Compl. ¶ 9-10; Answer ¶ 9-10. Beyond these facts, the parties dispute the extent of DHS's public testing of WBI technology in surface transportation.

B. DHS's Involvement in Research and Development of Whole Body Imaging Technology The Homeland Security Advanced Research Projects Agency ("HSARPA") is the

external funding arm for DHS's Science and Technology Directorate ("S&T"). Def.'s Statement of Genuine Facts Not in Material Dispute ¶ 1. HSARPA invests in new technologies that promote homeland security. Towards this end, the agency awards procurement contracts for research or the development of prototypes to public and private entities, businesses, and universities. Def.'s Statement of Genuine Facts Not in Material Dispute ¶ 1. In December 2004, HSARPA issued Broad Agency Announcement ("BAA") 05-03, announcing the creation of the Prototypes and Technology for Improvised Explosives Device Detection ("PTIEDD") Program. Id. ¶ 2; Aug. 18, 2011 Declaration of Rebecca Medina ("Medina Aug. 2011 Decl.") ¶ 3.*fn3

PTIEDD aimed to develop and improve existing systems capable of detecting explosive compounds in vehicles, and to support research and development of other technologies for detecting improvised explosive devices ("IEDs") in vehicles, left-behind packages, or carried by suicide bombers. Id. BAA 05-03 invited parties to "submit proposals for developing working prototypes of explosive detection devices and novel technologies and devices that would advance the state of the art." Id. In May 2006, HSARPA amended BAA 05-03 to invite submissions for a "prototype electro-imaging device capable of detecting concealed explosives and weapons."

Id. ¶¶ 2, 4.

According to Medina, the BAA 05-03 bidders were required to register and submit proposals online at a password-protected website, with all data uploaded to the website protected from public view or download. Id. ¶ 3. Furthermore, all submissions were considered proprietary/source selection sensitive. Id. HSARPA awarded two contracts under BAA 05-03. The first was to Northeastern University ("NEU") to assess the state of the art in explosives detection technology and its adaptability to mass transit scenarios. Id. ¶¶ 5-6. The other contract went to Rapiscan, Inc. ("Rapiscan") to explore how its portal-based detector system might be adapted for standoff detection in mass transit threat scenarios. Both these contracts ended in 2008, and S&T's Explosives Division ("EXD"), which succeeded HSARPA in managing the PTIEDD program, decided to terminate it. Id.

C. EPIC's FOIA Request and DHS's Response

On November 24, 2010, EPIC submitted a FOIA request to DHS seeking certain records pertaining to DHS's activities in developing and using explosives detection systems. Specifically, EPIC sought seven categories of records:

1. All documents detailing plans by federal law enforcement agencies to implement body scanner technology in the surface transportation context.

2. All contracts, proposals, and communications with private transportation and shipping companies (including, but not limited to NJ PATH, Amtrak, and Greyhound) regarding the implementation of body scanner technology in surface transit.

3. All contracts, proposals, and communications with states, localities, tribes, and territories (and their subsidiaries or agencies) regarding the implementation of body scanners in surface transportation.

4. All documents detailing plans by federal law enforcement agencies to use 'Z Backscatter Vans" or similar technology.

5. All contracts, proposals, and communications with the manufacturers of the 'Z Backscatter Vans" or similar chronology.

6. All contracts, proposals, and communications with states, localities, tribes, and territories (and their subsidiaries or agencies) regarding the implementation of 'Z Backscatter' or similar technology.

7. All images generated by the 'Z Backscatter Vans' or body scanner technology that has been used in surface transit systems.

Compl. ¶ 16.

According to DHS, EXD staff first identified 21 records, comprising approximately 1,100 pages, as potentially responsive to EPIC's request. Def.'s Statement of Genuine Facts Not in Material Dispute ¶ 14. S&T then informed EPIC that it had located 1,156 pages of records responsive to the FOIA request. Initially, the agency released 15 pages in full, 158 pages in redacted form, and withheld 983 pages in their entirety. DHS invoked FOIA Exemptions 3, 4, 5, and 6 to justify its decisions to withhold information. Id. ¶ 17; see also Vaughn Index (Attachment 1 to Medina Aug. 2011 Decl.). It listed these documents and the justification for the claimed exemptions in a Vaughn Index.*fn4

EPIC then filed an administrative appeal, challenging the S&T's partial withholding of 158 pages of documents and the S&T's complete withholding of 983 pages of documents. The agency failed to comply with the statutory deadline to reply to this appeal. EPIC then initiated this lawsuit.

After the commencement of this litigation, DHS disclosed two more records in full (an additional 151 pages in their entirety) and two more records in part (21 pages in redacted form). According to DHS, these additional disclosures were the fruit of DHS's additional review of the withheld records to determine whether any additional non-exempt information could be reasonably segregated and disclosed. It claims that it undertook such a review "[i]n an effort to narrow the issues for judicial review." Def.'s Statement of Genuine Facts Not in Material Dispute ¶ 14; see also Medina July 2011 Decl. ¶ 25. EPIC disputes this justification.

In its motion for summary judgment, DHS also explains in cursory fashion why portions of partially disclosed documents had been redacted. Finding this segregabilty analysis insufficient, this court ordered DHS to submit an adequate justification for the department's redactions. See Memorandum Order of May 11, 2012 [Dkt. # 19]. Accordingly, DHS filed a supplemental declaration of Rebecca Medina, which explains the methods that the department employed to review and redact the documents and the basis for the department's withholdings. Notice of Filing, May 31, 2012 ("Medina May 2012 Decl.").

In addition, on June 6, 2012, DHS notified the court that it had found another responsive record, in the form of a 174-page report prepared by NEU, pursuant to a contract the DHS awarded it under Broad Agency Announcement 05-03. Curiously, the department states that S&T located this record while searching for records in response to an "unrelated FOIA request submitted by EPIC." Medina Decl., July, 24, 2012 ¶ 3 ("Medina July 2012 Decl."). DHS claims that part of the information contained is subject to Exemption 4 because it contains proprietary information. According to DHS, the withheld information relates to the progress made in evaluating four sensors as well sensor design, capabilities and test results. ASE, one of NEU's two "industrial partners," stated to DHS that it considers this information confidential commercial information, which if released, would cause substantial competitive harm to ASE and place it at a disadvantage on future contracts. Medina July 2012 Decl. ¶ 6. As well, DHS states that the report contains information on how "both hardware and data integration of the sensors would have been integrated if the program moved forward from Phase I, which it did not." Medina July 2012 Decl. ¶ 6. DHS further asserts that it conducted a segregability analysis for releasable material within this report and that all reasonably segregated material has been released. Id. ¶ 7.*fn5 It has also filed an updated Vaughn Index. The court ordered EPIC to file a response, if it had one, by August 1, 2012. See Order of July 25, 2012. EPIC did not reply.

Thus, in sum, a total of 21 records have been determined to be responsive to EPIC's FOIA request. DHS has withheld 18 records in full or in part. Def.'s Statement of Genuine Facts Not in Material Dispute ¶ 14; Def.'s Notice of Filing Additional Record, June 6, 2012. The department maintains that it has fulfilled all of FOIA's requirements by conducting an adequate search for responsive documents properly asserting Exemptions 3, 4, 5, and releasing all reasonably segregable information.*fn6

D. EPIC's Complaint

EPIC challenges DHS's reliance on Exemptions 4 and 5, and contends that it is entitled to an award of attorney's fees and costs.EPIC also argues that DHS has not properly segregated materials that are not exempt from disclosure. In limiting its challenge to these exceptions, EPIC concedes that DHS's search was adequate and that DHS properly withheld certain records under Exemption 3. EPIC asks the court to order DHS to produce all records responsive to its FOIA request and award EPIC attorney's' fees and costs incurred. Compl. at 7.

II. LEGAL STANDARDS

A. The Freedom of ...


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