United States District Court, District of Columbia
G. Sullivan, United States District Judge
United States government collects data on nearly four billion
telephone calls every day. The data is added to a database
used by the Hemisphere Project ("Hemisphere"), a
program utilized by multiple government agencies. Defendant
the United States Drug Enforcement Agency ("the
DEA"), utilizes Hemisphere in cooperation with private
corporations to combat illicit drug activity. Although the
existence of Hemisphere was widely reported in 2013, details
of the program remain unknown.
February 2014, Plaintiff Electronic Privacy Information
Center ("EPIC") filed this lawsuit seeking
injunctive relief following the DEA's response to
EPIC's Freedom of Information Act ("FOIA")
requests. Compl., ECF No. 1 at ¶¶ 1-2. The primary
FOIA requests at issue in this case sought the
government's analysis of legal and privacy issues related
to Hemisphere. Both parties now move for Summary Judgment.
ECF Nos. 15 and 17. EPIC claims the DEA's search for
responsive records was insufficient and that certain
documents were unlawfully withheld. Pl.'s Mem. Supp.
Summ. J., ECF No. 17, Ex. 1. The DEA maintains that its
search was reasonable and documents were lawfully withheld.
Def.'s Mem. Supp. Summ. J., ECF No. 15. Upon
consideration of the motions, the responses and replies
thereto, the applicable law, and the entire record,
Plaintiff's Motion for Summary Judgment is DENIED in part
and HELD IN ABEYANCE in part and Defendant's Motion for
Summary Judgment is GRANTED in part and DENIED in part.
The Hemisphere Program
is a program that grants law enforcement officials access to
an AT&T database containing "decades of American's
phone calls." Compl. ¶ 6 (quoting Drug Agents
Use Vast Phone Trove, Eclipsing N.S.A.'s, New York
Times, September 1, 2013). Operational since 2007, Hemisphere adds
nearly four billion calls to its database daily, including
details about caller location. Id. ¶ 9. AT&T
manages the database and the DEA pays AT&T staff to provide
law enforcement agents with direct access to the call
information. Id. ¶ 7. According to the New York
Times, Hemisphere is funded through the White House's
Office of National Drug Control Policy. Id. ¶
EPIC's November 2013 FOIA Request and the DEA's
November 15, 2013 FOIA request sought four categories of
documents from the DEA:
(1) All Hemisphere training modules, request forms, and
similar final guidance documents that are used in the
day-to-day operation of the program;
(2) Any analyses, memos, opinions, or other communications
that discuss the legal basis of the program;
(3) Any analyses, memos, opinions, or other communications
that discuss the privacy impact of the program; and
(4) Any presentations, analyses, memos, opinions or other
communications for Congress that cover Hemisphere's
Id. ¶ 14.
identified six offices at its headquarters likely to have
responsive records: the Operations Division, the Intelligence
Division, the Office of Training, the Office of Chief
Counsel, the Office of Information Systems, and the Office of
Congressional and Public Affairs. Katherine L. Myrick Decl.
("Myrick Decl.") ¶ 10, Def.'s Mem. Supp.
Summ. J., Ex. 3. The DEA's Atlanta, Houston, Los Angeles,
and Washington, D.C. division offices were also asked to
search for responsive records. Id. ¶ 16. In
July 2014, the DEA responded to EPIC's FOIA request with
319 responsive documents. Id. ¶ 11. Of those
documents, 39 were released in full, 176 were released in
part and withheld in part, and 104 were withheld in full.
Standard of Review
to Federal Rule of Civil Procedure 56, summary judgment
should be granted if the moving party has shown that there
are no genuine issues of material fact and that the moving
party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Celotex Corp v. Catrett, 477
U.S. 317, 325 (1986). In determining whether a genuine issue
of material fact exists, the court must view all facts in the
light most favorable to the non-moving party. See
Mastushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). FOIA cases are typically and
appropriately decided on motions for summary judgment.
Gold Anti-Trust Action Comm. Inc. v. Bd. Of Governors of
Fed. Reserve Sys., 762 F.Supp.2d 123, 130 (D.D.C. 2011)
(citations omitted). In ruling on cross-motions for summary
judgment, the court shall grant summary judgment only if one
of the moving parties is entitled to judgment as a matter of
law upon material facts that are not genuinely disputed.
Shays v. FEC, 424 F.Supp.2d 100, 109 (D.D.C.2006).
Winston & Strawn LLP v. F.D.I.C., CIV.A.06 1120 EGS,
2007 WL 2059769, at *3 (D.D.C. July 13, 2007).
requires agencies to disclose all requested agency records,
unless one of nine statutory exemptions applies. 5 U.S.C.
§ 552 (a), (b). Congress enacted FOIA to "pierce
the veil of administrative secrecy and to open agency action
to the light of public scrutiny." Morley v.
C.I.A., 508 F.3d 1108, 1114 (D.C. Cir. 2007)
(quoting Dep't of Air Force v. Rose, 425 U.S.
352, 361 (1976)). Because disclosure rather than secrecy is
the "dominate objective of the Act, " the statutory
exemptions are "narrowly construed." See
McKneely v. United States Dept. of Justice, 2015 WL
5675515 at *2 (D.D.C. 2015) (internal citations omitted).
government bears the burden of justifying nondisclosure,
either through declarations or an index of information
withheld. See e.g., Consumers' Checkbook, 554
F.3d 1046 at 1057 (D.C. Cir. 2009) and Vaughn v.
Rosen, 484 F.2d 820 (D.C. Cir. 1973) (holding that an
indexing system was necessary in FOIA cases to "(1)
assure that a party's right to information is not
submerged beneath governmental obfuscation and
mischaracterization, and (2) permit the Court system
effectively and efficiently to evaluate the factual nature of
affidavits and declarations must be "relatively detailed
and non-conclusory." SafeCard Services v. SEC,
926 F.2d 1197, 1200 (D.C. Cir. 1991). 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."
Id. (internal citation and quotation omitted).
Courts must conduct a de novo review of the record
and may grant summary judgment solely on the basis of
information provided by the department or agency in
affidavits or declarations that describe the documents and
justifications for nondisclosure with "reasonably
specific detail." Cause of Action v. Federal Trade
Com'n, 961 F.Supp.2d 142, 153 (D.D.C.
2013)(quoting Military Audit Project v. Casey, 656
F.2d 724, 738 (D.C. Cir. 1981)).
The DEA's search was reasonable
challenges the sufficiency of the DEA's search for
documents relating to privacy issues, the third category of
documents listed in EPIC's request, arguing that "it
is difficult to believe that such a far-reaching, invasive
program would not have triggered some privacy analysis or
discussion that would be responsive to the third prong of
EPIC's request."Pl.'s Mem. Opp. Def.'s Summ. J.,
(Pl.'s Mem. Opp.), ECF No. 18 at 22. The DEA maintains
that EPIC's argument that the search was unreasonable
because certain documents "should exist" has been
rejected by the D.C. Circuit. Def.'s Reply Mem. Supp.
Summ. J. ("Def.'s Reply Mem."), ECF No. 20 at
Notably, EPIC does not respond to this argument in its reply
brief. See generally, Pl.'s Reply Mem., ECF No.
agency must show "beyond material doubt" that it
conducted a search reasonably calculated to uncover all
relevant documents in response to a FOIA request.
Id. (quoting Weisberg v. U.S. Dep't of
Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The
adequacy of an agency's search for responsive records is
measured by "the reasonableness of the effort in light
of the specific request." McKinley v. FDIC, 807
F.Supp.2d 1, 4 (D.D.C. 2011) (quoting Larson v. Dep't
of State, 565 F.3d 857, 869 (D.C. Cir. 2009)). An agency
is not obligated to search every record system. See
Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986)
(noting a search is not presumed unreasonable simply because
it fails to produce all relevant material); see
also Perry v. Block, 684 F.2d 121, 128 (D.C. Cir.
1982) (holding an agency need not demonstrate that all
responsive documents were found and that no other relevant
documents could possibly exist).
EPIC's only argument challenging the reasonableness of
the DEA's search is based on EPIC's perception of the
types of documents it believes should exist. Pl.'s Mem.
Opp. At 22. However, based on the legal standard for what
constitutes a reasonable search, arguments that certain
documents "should" or "must" exist are
consistently rejected. Indeed, EPIC's argument was
expressly rejected by the D.C. Circuit in Oglesby v. U.S.
Dept. of Army:
Appellant also contends that the search was unreasonable
because the agency did not find responsive documents that
appellant claims must exist . . . . However,
appellant provides no proof that these documents exist and
his own conviction that [such documents exist] is pure
speculation. Such hypothetical assertions are insufficient to
raise a material question of fact with respect to the
adequacy of the agency's search.
920 F.2d 57 (D.C. Cir. 1990)(citing Meeropol v.
Messe, 790 F.2d 942, 952-53 (D.C. Cir. 1986). Thus,
EPIC's argument that "it is difficult to believe
that such a far-reaching, invasive program would not have
triggered some privacy analysis or discussion that would be
responsive to the third prong of EPIC's request"
does not support a finding that the DEA's search was
inadequate. Elec. Privacy Info. Ctr. V. Dep't of
Homeland Sec., 384 F.Supp.2d 100, 107-08 & n.3 (D.D.C.
2005) (rejecting plaintiff's argument that the
agency's search should be held inadequate because the
search did not locate documents the plaintiff believed to
also makes two salient points in response to EPIC's
argument that it is "hard to believe" that
documents responsive to its third request were not found: (1)
the DEA uses and partly funds Hemisphere, but Hemisphere is
not a DEA program; and (2) two documents discussing legal
issues were found, but withheld under relevant exemptions.
Def.'s Reply Mem. At 9-10. For all of these reason, the
DEA's search was reasonable. On the question of the
reasonableness of the DEA's search, Defendant's
Motion for Summary Judgment is GRANTED and Plaintiff's
Motion for Summary Judgment is DENIED.
The Myrick Affidavit and redacted material submitted meet the
requirements set forth by Vaughn
argues a Vaughn index providing a detailed
description of material withheld is necessary for the Court
to determine whether material was properly redacted.
Pl.'s Mem. Opp. at 11. The DEA argues that the
Declaration of Katherine L. Myrick, together with the 280
pages withheld and attached to the declaration, which have
been redacted based on the relevant FOIA exemption, meet the
requirements set forth by Vaughn. Def.'s Reply
Mem. at 5.
and subsequent case law requires the government to provide
"a relatively detailed justification, specifically
identifying the reasons why a particular exemption is
relevant and correlating those claims with the particular
part of a withheld document to which they apply."
Mead Data Central, Inc. v. U.S. Dept. of Air Force,
566 F.2d 242, 251 (1977) (citing Vaughn, 484 F.2d at
825). Although there is no strict format required for a
Vaughn index, an agency must "disclose as much
information as possible without thwarting the exemption's
purpose." Defenders of Wildlife, 623 F.Supp.2d
83, 88 (D.D.C. 2009). Withholding information under
conclusory, generalized, or sweeping allegations of
exemptions is not acceptable. See, e.g. Morley v.
CIA, 508 F.3d 1108, 1115 (D.C. Cir. 2007); Judicial
Watch, Inc. v. FDA, 449 F.3d 141, 147 (D.C. Cir. 2006).
case, the Myrick Declaration identifies the exemptions relied
upon and describes the documents withheld under each
exemption. Myrick Decl.; Def.'s Mem. Supp. Summ. J., Ex.
3. The 280 responsive pages are attached to the Myrick's
declaration, with information redacted and labeled according
to the relevant exemption. Id. The nature of each
document is described in the text of Myrick's
declaration, and each redaction is labeled with the relevant
exemption. Id. Nevertheless, EPIC argues that the
declaration is insufficient because it provides fewer details
than the Vaughn index that was found inadequate in
Defenders of Wildlife. Pl.'s Reply Mem. at 3.
Specifically, EPIC complains that the Myrick Declaration
"fails to identify the title or shorthand title of any
document; the date the document was produced; any
description--even short, one sentence descriptions to
identify each document; or even any language to differentiate
between documents within categories." Id.
Court's view, the Myrick Declaration meets the
requirements of Vaughn. As discussed below, where
the Court finds the DEA's withholding justifications
conclusory, vague, or otherwise insufficient, the Court has
ordered the DEA to provide a more detailed explanation
through supplemental briefing and additional declarations, or
to produce relevant documents for in camera review.
Therefore, to the extent Plaintiff seeks a more detailed
Vaughn index, Plaintiff's Motion is DENIED.
Documents withheld under FOIA exemptions
objects to documents withheld by the DEA under FOIA
exemptions 5, 7(D) and 7(E). See generally,
Pl.'s Mem. ...