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Electronic Privacy Information Center v. Office of Director of National Intelligence

United States District Court, District of Columbia

October 9, 2013

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,
v.
OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, Defendant

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[Copyrighted Material Omitted]

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For ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff: Marc Rotenberg, ELECTRONIC PRIVACY INFORMATION CENTER, Washington, DC.

For OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, Defendant: Eric J. Soskin, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

OPINION

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MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge.

Plaintiff Electronic Privacy Information Center, a Washington-based nonprofit, submitted a Freedom of Information Act request to the Office of the Director of National Intelligence seeking guidelines describing how the National Counterterrorism Center retrieves and safeguards information from other federal agencies. After a search and review of records, the agency located 29 responsive documents. It released eight in part but declined to disclose the remaining 21, invoking a number of specific statutory exemptions to justify its withholding. Plaintiff then brought this suit challenging the adequacy of the

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agency's search, the propriety of many of its withholdings, and its segregability analysis. Believing that it has complied with its FOIA obligations, Defendant has now moved for summary judgment. As the Court agrees, it will grant that Motion.

I. Background

After the Director of National Intelligence, the Attorney General, and the Director of the NCTC signed an updated version of the " Guidelines for Access, Retention, Use, and Dissemination by the NCTC and Other Agencies of Information in Datasets Containing Non-Terrorism Information," Plaintiff submitted four FOIA requests to ODNI. See Def. Mot. at 2. The first, sent on March 28, 2012, asked for " the 'priority list' of databases that [NCTC] plans to copy." Id., Exh. 1 (Declaration of ODNI Chief Management Officer Mark Ewing), ¶ 9. The second, filed on June 14, 2012, requested information about the privacy procedures NCTC employs when handling the datasets described in the Guidelines. See id., ¶ 17; Def. Mot. at 2-3. The third and fourth requests, filed on June 14 and 15, 2012, sought documents describing the way NCTC works with other agencies to share the datasets and " guidelines or legal memoranda" discussing NCTC's interpretation of certain language in the Guidelines. See Ewing Decl., ¶ ¶ 27-28.

In response to EPIC's first request, ODNI produced seven pages partially redacted pursuant to FOIA Exemptions 1, 3, 5, and 7(E). See id., ¶ ¶ 15, 37(d). The second request prompted ODNI to release, at least in part, over 160 pages from four responsive records, but the agency also withheld portions of those pages pursuant to Exemptions 1, 2, 3, and 6. See id., ¶ ¶ 16, 19, 37(b). The agency's search did not turn up any documents responsive to the fourth request. See id., ¶ 19. None of ODNI's actions in relation to these three requests is challenged.

Instead, only ODNI's disclosures with respect to EPIC's third FOIA request are at issue here. In response to that request, ODNI released parts, but withheld the remainder, of eight documents pursuant to Exemptions 1, 2, and 6. It also withheld 21 documents in full. See Def. Mot. at 8. Of those 21 records, eleven are one-page documents described as " Deletion Issue Trackers." See Ewing Decl., ¶ 37(c)(ii). DITs describe instances in which " records in specific data-sets were possibly not deleted on time." Id., ¶ 56. Four others, totaling eight pages, are described as " Deletion Issue Reports," see id., ¶ ¶ 37(c)(iii), 56, which are like DITs but go into greater detail. Id. The remaining six documents ODNI withheld in full -- records totaling 19 pages -- are described as " Deletion Issue Tracker Emails," which are like DITs but are used for less consequential issues. Id., ¶ 78.

ODNI withheld all 21 documents because they pertain to " intelligence sources and methods," including the names of specific datasets and data-provider agencies, as well as other " bits of information that would provide insights into the particular sources and methods relied upon by NCTC analysts to produce terrorist intelligence reports, generate law enforcement investigative leads," and carry out other counterterrorism activities. Id., ¶ ¶ 54-58, 78-80. For those reasons, ODNI claims that all 21 records are protected in full by Exemption 3 and the National Security Act of 1947, as well as by Exemption 7(E). See Def. Mot. at 8, 21. According to the agency, moreover, all of the records are draft documents that remain " subject to change," Ewing Decl., ¶ 67, and contain " deliberative discussions among ODNI employees regarding possible approaches to take," " candid internal discussions," and " recommendations

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for actions." Id. As a result, ODNI also contends that the documents are protected by Exemption 5. See Def. Mot. at 9. The agency maintains, finally, that portions of some of the 21 documents are also exempt from disclosure pursuant to ...


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