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Electronic Privacy Information Center v. United States Drug Enforcement Agency

United States District Court, District of Columbia

June 24, 2016



          Emmet G. Sullivan, United States District Judge

         The 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.

         In 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.

         I. BACKGROUND

         A. The Hemisphere Program

         Hemisphere 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).[1] 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. ¶ 11.

         B. EPIC's November 2013 FOIA Request and the DEA's Response

         EPIC'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 operations.

Id. ¶ 14.[2]

         The DEA 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. Id.

         II. Standard of Review

         A. Summary Judgment

         Pursuant 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).

         B. FOIA

         FOIA 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).

         The 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 disputed information.").

         Agency 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)).

         III. Analysis

         A. The DEA's search was reasonable

         EPIC 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."[3]Pl.'s Mem. Opp. Def.'s Summ. J., (Pl.'s Mem. Opp.), ECF No. 18 at 22.[4] 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 4-5.[5] Notably, EPIC does not respond to this argument in its reply brief. See generally, Pl.'s Reply Mem., ECF No. 22.

         An 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).

         Here, 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 exist).

         The DEA 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.

         B. The Myrick Affidavit and redacted material submitted meet the requirements set forth by Vaughn

         EPIC 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.

         Vaughn 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).

         In this 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.

         In the 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.

         C. Documents withheld under FOIA exemptions

         EPIC objects to documents withheld by the DEA under FOIA exemptions 5, 7(D) and 7(E). See generally, Pl.'s Mem. ...

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