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Electronic Privacy Information Center v. Department of Homeland Security

United States District Court, District Circuit

November 12, 2013



JAMES E. BOASBERG United States District Judge

This case concerns efforts of the Electronic Privacy Information Center under the Freedom of Information Act to obtain documents related to the Department of Homeland Security’s Standard Operating Procedure 303. This protocol governs the shutdown of wireless networks in emergencies to, inter alia, prevent the remote detonation of explosive devices. After DHS withheld the lion’s share of the one responsive document it found, EPIC brought this action. DHS now moves for summary judgment, arguing that its search for documents was adequate, that it properly withheld the bulk of SOP 303 under applicable FOIA exemptions, and that no other non-exempt parts of the document could be released. EPIC cross-moves for summary judgment, contending that the two exemptions DHS relied on to withhold most of the document, 7(E) and 7(F), do not apply here. As the Court believes EPIC has the better of this argument, it will dispose of the Motions accordingly.

I. Background

Standard Operating Procedure 303 is an “Emergency Wireless Protocol[] . . . codifying a shutdown and restoration process for use by commercial and private wireless networks during national crises.” National Security Telecommunications Advisory Committee, NSTAC Issue Review 2006-07 at 139 (2007), The wireless networks could be shut down in certain emergency situations to, inter alia, “deter the triggering of radio-activated improvised explosive devices.” See Def. Mot., Exh. 2 (Declaration of James V.M.L. Holzer), ¶ 25.

On July 10, 2012, EPIC submitted a FOIA request to DHS seeking: “(1) the full text of Standard Operating Procedure 303 (SOP 303), which describes a shutdown and restoration process for use by ‘commercial and private wireless networks’ in the event of a crisis; (2) the full text of the pre-determined ‘series of questions’ that determines if a shutdown is necessary; and (3) any executing protocols or guidelines related to the implementation of SOP 303, distributed to DHS, other federal agencies, or private companies, including protocols related to oversight of shutdown determinations.” Id., ¶ 9. DHS responded to EPIC on August 21, 2012, saying that it “had conducted comprehensive searches for records that would be responsive to the request[, but] . . . that [DHS was] unable to locate or identify any responsive records.” Id., ¶ 16. EPIC administratively appealed on October 2, 2012, and on March 25, 2013, the United States Coast Guard, Office of the Chief Administrative Law Judge – the office that reviews these FOIA appeals – “remanded the matter back to DHS Privacy for further review.” Id., ¶¶ 17-18.

Upon additional inspection, DHS located one responsive record, the very document EPIC had requested: Standard Operating Procedure 303. Id., ¶¶ 19-20. “Included as part of SOP 303 itself are the two other categories of records that EPIC seeks, i.e., the full text of the predetermined series of questions that determines if a shutdown is necessary, and the executing protocols related to the implementation of SOP 303.” Id., ¶ 21. DHS “determined that the SOP is the only responsive document because there are no other documents that contain the full text of the questions or any executing protocols.” Id.

Portions of SOP 303 – “names, direct-dial telephone numbers, and email addresses for state homeland security officials” – were withheld from EPIC under Exemptions 6 and 7(C), which generally permit withholding of personal information. Id., ¶¶ 23-24. The remainder of the document was withheld under Exemptions 7(E) and 7(F), which permit withholding of certain law-enforcement information if it, respectively, would “disclose techniques and procedures for law enforcement investigations or prosecutions” or “could reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7); Holzer Decl., ¶¶ 25-26.

On February 27, 2013, EPIC filed this lawsuit seeking the release of the withheld portions of SOP 303. Both parties have now cross-moved for summary judgment.

II. Legal Standard

Summary judgment may 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). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to construe the evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual assertions in the moving party’s affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Defenders of Wildlife v. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009); Bigwood v. U.S. Agency for Int’l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency bears the ultimate burden of proof. See U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142, n.3 (1989). The Court may grant summary judgment based solely on information provided in an agency’s affidavits or declarations when they describe “the 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 nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III. Analysis

Congress enacted FOIA in order to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted). The statute provides that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B); Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989). “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary and capricious, FOIA expressly places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter de novo.’” Reporters Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). “At all times courts must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure’ . . . .” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)).

In moving for summary judgment, DHS first contends that its search was adequate. EPIC does not contest this point. DHS next maintains that its withholding of personal identifying information under Exemptions 6 and 7(C) was appropriate. EPIC makes no challenge here either. See Opp. at 5 n.1. Instead, it saves its ammunition for DHS’s claim that it properly withheld the bulk of SOP 303 under both Exemption 7(E) and 7(F). Because the Court ultimately finds that the agency’s invocation of these exemptions was not proper, it need not address the last issue EPIC raises – ...

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