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Friedman v. United States Secret Service

United States District Court, District of Columbia

February 14, 2013

Donald FRIEDMAN, Plaintiff,
v.
UNITED STATES SECRET SERVICE, Defendant.

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[Copyrighted Material Omitted]

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Donald M. Friedman, Fairfield, CA, pro se.

Kenneth A. Adebonojo, Judith A. Kidwell, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, District Judge.

Defendant has renewed its motion for summary judgment. Based on a review of the motion, plaintiff's opposition, and the entire record of this case, the Court will grant the motion in part and deny it in part without prejudice.

I. BACKGROUND

In September 2006, plaintiff submitted a request to the United States Secret Service (" Secret Service" ) under the Freedom

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of Information Act (" FOIA" ), see 5 U.S.C. § 552, for the following information:

Any and all files, records, documents, information, photos, research materials (incl. results), and purchasing and any other contract-related information related to or referring to any U.S. Secret Service development of, acquisition of, installation of, deployment of, testing of, research related to, and/or investigation or evaluation of the capabilities, properties, and/or effects of any:
1) directed energy weapons or systems (incl. any and all parts or components thereof); and/or
2) directed energy devices or systems (incl. any and all parts or components thereof); and/or
3) electromagnetic radiation-emitting devices or systems (incl. any and all parts or componants [sic] thereof) which are capable of causing any injury or perception of physical pain in any person who is hit or struck by the device's or system's emissions.

Am. Compl., Ex. A (Letter to FOIA/PA Manager, U.S. Secret Service, from plaintiff dated September 1, 2006) at 1-2 (emphasis added). In subsequent correspondence, plaintiff defined the term " directed energy weapons and/or systems" to mean:

any device(s) which use any directed, beamed, or pulsed emission of electromagnetic radiation and/or energy (which is comprised of any sound, infrasound, infrasonic, light, infrared, ultraviolet, heat, millimeter-wave, or microwave radiation and/or energy, which is capable of any of the following:
1) causing pain, injury, disability, discomfort, incapacitation, or disorientation; and/or
2) inducing sleep; and/or
3) stunning; and/or
4) causing nausea or seizure; and/or
5) decreasing spontaneous activity; and/or
6) affecting, modifying, influencing, or controlling any activity, behavior, or bodily functions; and/or
7) causing any other adverse effect on any part or system of the human body.

Id., Ex. B (Letter to FOIA/PA Manager, U.S. Secret Service, from plaintiff dated September 9, 2006) at 1-2 (emphasis added).

Plaintiff later amended the phrase " causing pain, injury, disability, discomfort, incapacitation, or disorientation" to read: " causing pain, injury, disability, discomfort, incapacitation, distraction, or alteration or degradation of any perception, performance, task, skill, or job[.] " Def.'s Mem. of P. & A. in Supp. [of its] Mot. for Summ. J., Decl. of Craig W. Ulmer (" Ulmer I Decl." ), Ex. F (Letter to U.S. Secret Service, Liaison Division, from plaintiff dated January 31, 2007) at 1 (emphasis in original). A third letter " clarified (but did not modify)" plaintiff's September 1, 2006 request, Am. Compl. ¶ 7, by defining the phrase " deployment of" to mean the " ‘ use of’ any directed energy weapons or systems, etc. since any use of any directed energy weapons or devices or any of the other devices described in [the] original request would also require deployment of those devices." Ulmer I Decl., Ex. D (Letter to FOIA/PA Manager, U.S. Secret Service, from plaintiff dated September 29, 2006) at 1-2. Further, plaintiff stated that " all special or limited access programs, areas, locations, labs, etc. within protective research, etc. must be searched since most, if not all, of the records being requested are probably considered sensitive or highly confidential." Id., Ex. D at 2 (emphasis in original). Plaintiff's fourth letter explained that his request " includes searching the one or more mobile units/vehicles, which have been within directed-energy weapon, system, or device range of [plaintiff], which agency personnel have

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been using to transport the various directed-energy weapons, systems, and devices and the wall-penetrating surveillance/targeting equipment [the Secret Service has] been criminally misusing on [him] on a daily basis since 2/25/97." Id., Ex. F (Letter to U.S. Secret Service, Liaison Division, from plaintiff dated January 31, 2007) at 2 (emphasis in original).

A. Secret Service Records

The Secret Service sent to plaintiff a written acknowledgment of its receipt of the FOIA request, assigned File Number 20060535. Am. Compl., Ex. D (Letter to plaintiff from K.J. Lyerly, Special Agent in Charge, Freedom of Information & Privacy Acts Officer, U.S. Secret Service, dated October 2, 2006). Secret Service staff began to process plaintiff's FOIA request upon payment of fees associated with the agency's search for records. See Ulmer I Decl. ¶¶ 9-12.

The Secret Service construed plaintiff's request broadly as one " for any documents concerning directed energy weapons/systems or electromagnetic radiation devices/systems." Id. ¶ 4. Staff initially conducted a search of the Master Central Index (" MCI" ) and of paper and computer records maintained by the Secret Service's Uniformed Division, Investigative Support Division and Intelligence Division; these searches produced no responsive records. Id. ¶¶ 15-16. Staff also determined that the Training component of the Office of Human Resources and Training conducted no training on weapons described in plaintiff's FOIA request, and, therefore, that the office maintained no responsive records. Id. ¶ 16. A search of paper records and the internal e-mail network of the Technical Security Division (" TSD" ), the division " primarily responsible for compiling information on Secret Service security measures and technologies which could potentially pose a threat to Secret Service protectees or ... facilities," yielded responsive records, although " none of the responsive material ... in any way deals with the plaintiff." Id. ¶ 17.

Even though the " responsive documents the Secret Service located do not in any way concern the plaintiff," id. ¶ 4, the Secret Service nevertheless released them to plaintiff on July 23, 2007, id. ¶ 19. It withheld approximately 454 pages of records in their entirety under Exemptions 1, 2, 4, 5, 6, 7(C) and 7(E). Id., Ex. H (Letter to plaintiff from Peter Schurla, Acting Special Agent in Charge, Acting Freedom of Information and Privacy Acts Officer, U.S. Secret Service, dated July 23, 2007) at 2. Subsequent review of the records led to the release of additional documents and information previously withheld. Id. ¶ 32. " In order to ensure that plaintiff received all releasable information," on October 11, 2007, the Secret Service released " a complete set of releasable information," explaining that information still was withheld under Exemptions 1, 2, 4, 5, 6, 7(C) and 7(E), see id., Ex. U (Letter to plaintiff from Craig W. Ulmer, Special Agent In Charge, Freedom of Information & Privacy Acts Officer, U.S. Secret Service, dated October 11, 2007) at 1. A third release of records occurred on October 24, 2007, at which time the Secret Service released " an additional seven pages of releasable information," reducing the number of pages withheld in their entirety to approximately 369 pages. Id. ¶ 33; see id., Ex. V (Letter to plaintiff from C.W. Ulmer dated October 24, 2007).

B. Referrals

The Secret Service's searches located records which originated in other federal agencies. Ulmer I Decl. ¶ 19. In accordance with its regulations, see 6 C.F.R. § 5.4(c), the Secret Service referred records to the United States Coast Guard, the Department of Energy, the United States Air Force, the United States Navy, the Department of Homeland Security, the

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Department of Justice, the United States Army, the Federal Aviation Administration, the Department of Defense, the Defense Threat Reduction Agency, and the United States Marine Corps, for each entity's direct response to plaintiff.[1] See Ulmer I Decl. ¶¶ 20-30.

1. United States Coast Guard Records

The records referred by the Secret Service to the United States Coast Guard (" Coast Guard" ) pertained to Underwater Loudhailer technology, see Mem. of P. & A. in Supp. of Def.'s Renewed Mot. for Summ. J. (" Def.'s Mem." ), Ex. 3 (Decl. of Richard Hansen (" Hansen Decl." )) ¶ 1, which was described as " just a general warning device equivalent to a public address system and was/is NOT a ‘ Directed Energy Weapon or System.’ " Hansen Decl. ¶ 4. In 2003, the Coast Guard's Research and Development Center in Connecticut " was to identify other potential interested [a]gencies, including the [Secret] Service, to evaluate/review the white papers submitted by industry on potential ‘ Underwater Loudhailer’ designs." Id. ¶ 3. The Secret Service had no interest in the technology " and refused to even look at/review it; and that was the end/only involvement of the [Secret] Service with that technology." Id. Accordingly, the Coast Guard determined that these records were beyond the scope of plaintiff's FOIA request for " Directed Energy Weapon or System." Id. ¶ 5. The Coast Guard did not release any information to plaintiff. Def.'s Mem., Ex. 1 (Second Decl. of Craig W. Ulmer (" Ulmer II Decl." )), Ex. A (Letter to plaintiff from T.W. Jones, Captain, U.S. Coast Guard, dated August 28, 2007).

2. Department of Energy Records

The two documents referred by the Secret Service to the Department of Energy (" DOE" ), described as " FY 1999 OSS-Sponsored R & D Quad Charts" and " Acoustic Barrier Test Bed," were " actually the title page and body of one single document." Ulmer II Decl., Ex. B (Letter to plaintiff from Larry D. Wilcher, Director, Office of Security Technology and Assistance, Office of Health, Safety and Security, DOE, dated November 5, 2007). The document " summarize[d] the status of a project conducted in the late 1990s to investigate the effect of acoustics on buildings." Id. The DOE " d[id] not believe this technology is a directed energy weapon, or that the project status summary is responsive" to plaintiff's FOIA request, and the DOE released no records then. Id. Subsequently, notwithstanding its prior determination that the document was " only marginally responsive," the DOE deemed it " suitable for release" to plaintiff in full. Def.'s Mem., Ex. 2 (Letter to plaintiff from L.D. Wilcher dated April 22, 2009).

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3. United States Air Force Records

The Secret Service referred to the United States Air Force (" Air Force" ) two reports titled " Contractor's Progress, Status, and Management Report for the Air Surveillance Integration Project" (39 pages) and " 9 February 1999 Status Review Meeting" (148 pages). Def.'s Mem., Ex. 6 (Decl. of Lucius A. Cattles, Jr. (" Cattles Decl." )) ¶¶ 3-4. Both reports were withheld in full under Exemption 1. Cattles Decl. ¶¶ 10-13; see Ulmer II Decl., Ex. P (Letter to plaintiff from Gerard Murray, Freedom of Information Act Manager, Headquarters 66th Air Base Wing (AFMC), Hanscom Air Force Base, dated August 21, 2008). The Air Force also withheld " the email addresses, login names, and passwords for military computer systems appearing in the records" under Exemption 2 on the ground that disclosure " could allow an individual to cause harm to government computer systems." Def.'s Mem., Ex. 5 (Decl. of Carolyn Price (" Price Decl." )) at 4 (page number designated by the Court).

Certain other records referred by the Secret Service to the Air Force were in turn forwarded to Kirtland Air Force Base in New Mexico for review. Def.'s Mem., Ex. 4 (Decl. of Tishlyn E. Taylor (" Taylor Decl." )) at 2 (page number designated by the Court). " The records consisted of nine electronic mail messages and a document dated January 31, 2000 from a meeting about laser technologies." Taylor Decl. at 2. The meeting notes were released in full, and the electronic mail messages were released in part after redacting names and personal identifying information about Air Force personnel under Exemption 6. Id. [2]

4. United States Navy Records

The United States Navy (" Navy" ) received records referred by the Secret Service, and " subsequently transferred this material to two of its components," Ulmer II Decl. ¶ 11, the Naval Explosive Ordnance Disposal Technology Division and the Naval Air Systems Command. The former released records in redacted form, withholding personal information under Exemption 6. Id., Ex. D (Letter to plaintiff from the Head of the Employee Resources and Development Division, Naval Explosive Ordnance Disposal Technology Division, Department of the Navy, dated September 10, 2007). The latter released in its entirety a document described as an " email written by Major Thomas F. Daley, (USMC), VH Class Desk Officer, dated 20 February 2001 6:30pm." Id., Ex. E (Letter to plaintiff from William T. Mohn, Associated Counsel, Initial Denial Authority, Naval Air Systems Command, Headquarters, dated April 22, 2008).

5. Department of Homeland Security Records

It appears that the Secret Service referred records to the Privacy Office of the Department of Homeland Security (" DHS" ), which in turn forwarded records to other DHS divisions.[3] Ulmer II Decl. ¶ 12; Def.'s Mem., Ex. 7 (Decl. of Gayle S. Worthy (" Worthy Decl." )) ¶ 3 & Ex. 8 (Decl. of Nicole Marcson (" Marcson Decl." )) ¶ 3.

The Office of the Under Secretary for National Protection and Programs, National Protection and Programs Directorate (" NPPD" ), received 128 pages of potentially responsive records, only nine of

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which fell under the NPPD's purview. Worthy Decl. ¶¶ 1, 3. These records were in a FOIA request file and contained " a NPPD letter, dated September 12, 2007, addressed to [plaintiff with] a final FOIA response consisting of nine pages." Id. ¶ 7. Four of these pages were released in their entirety, and five pages were released in part after having redacted the names, email addresses, phone numbers and other contact information of individuals under Exemption 6. Id.; Ulmer II Decl., Ex. F (Letter to plaintiff from Alisa N. Turner, Freedom of Information Act Officer, Initial Denial Authority, NPPD, DHS, dated September 12, 2007) at 1.

The NPPD forwarded to the Science and Technology (" S & T" ) Directorate a 43-page powerpoint document. Marcson Decl. ¶¶ 2, 5. Although the document " appear[ed] to have absolutely nothing to do with the original FOIA request ... for records pertaining to the deployment of or research related to ‘ energy weapons or systems,’ " id. ¶ 5, S & T released the document in part after having redacted certain information under FOIA Exemption 5. Id. ¶ 6; Ulmer II Decl., Ex. G (Letter to plaintiff from Nicole Marcson, Associate General Counsel for Science and Technology, DHS dated August 8, 2008) at 1.

On August 18, 2008, DHS returned to the Secret Service " the remaining documents originally referred to DHS for processing (total of 76 pages) after determining that this material originated from other entities." Ulmer II Decl. ¶ 13. Six of those pages were found to be proprietary material originating from Raytheon Company. Id. Raytheon claimed the documents contained trade secrets. The Secret Service withheld two of the six pages in full and released the remaining pages bearing redactions under Exemption 4, id. ¶ 14; see id., Ex. I (Letter to Emily Griesy, Freedom of Information and Privacy Acts Branch, U.S. Secret Service, from Thomas J. Finn, Counsel, Raytheon Missile Systems, dated September 12, 2008) at 1, and Exemptions 2, 6, 7(C) and 7(E), id., Ex. J (Letter to plaintiff from C.W. Ulmer dated September 15, 2008) at 1. Fifty-seven of the remaining pages originated from the Department of Defense (" DOD" ) and were referred to the DOD. Ulmer II Decl. ¶ 13. The ...


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