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Electronic Privacy Information Center v. United States Department of Homeland Security

United States District Court, District of Columbia

November 21, 2016

ELECTRONIC PRIVACY INFORMATION CENTER Plaintiff,
v.
THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY Defendant.

          MEMORANDUM OPINION

          Gladys Kessler United States District Judge

         Plaintiff Electronic Privacy Information Center ("Plaintiff" or "EPIC") brings this action against Defendant the United States Department of Homeland Security ("the Government" or "DHS") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff sought records concerning the Defense Industrial Base Cyber Pilot ("DIB Cyber Pilot"), a cyber-security pilot program jointly conducted by the United States Department of Defense ("DoD") and Defendant DHS. Memorandum in Support of Defendant's Motion for Summary Judgment ("Def.'s Mot. Summ. J.") at 2 [Dkt. No. 53-1].

         The program "aim[ed] ... to protect U.S. critical infrastructure[, ] . . . [and] furnished classified threat and technical information to voluntarily participating [] companies or their Commercial Service Providers[]." Id. EPIC, citing concerns from the Department of Justice that the, program "[ran] afoul of laws forbidding government surveillance of private Internet traffic[, ]"■ filed a FOIA request with DHS seeking records to determine whether the DIB Cyber Pilot program complied with federal wiretap laws. Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiff's Cross-Motion for Summary Judgment ("Pl's Mot. Summ. J.") at 2 [Dkt. No. 57-1]. Dissatisfied with DHS's response, EPIC initiated this lawsuit challenging the sufficiency of DHS's search and production.

         Thereafter, DHS conducted a search for records responsive to EPIC'S request, produced documents to EPIC, and provided a Vaughn Index for all documents that were withheld in full or in part under one of FOIA's several exemptions. 5 U.S.C. § 552(b); see also Defendant's Vaughn Index for Challenged Withholdings ("Vaughn Index") [Dkt. No. 53-4].

         The Court held that DHS's search for records responsive to EPIC'S FOIA request was sufficient and that the Government met its burden in justifying withholding documents under all but one relevant FOIA Exemption. Memorandum Opinion on Summary Judgment (Aug. 4, 2015) ("2015 Mem. Op.") at 16 [Dkt. No. 68] . The Court ordered DHS to submit a revised Vaughn Index to more fully explain the basis for withholding documents under FOIA Exemption 7(D), id. at 38, which it did on September 30, 2015. Notice of Filing of Supplemental, Revised Vaughn Index ("Supplemental Vaughn Index") [Dkt. No. 73] . EPIC now seeks attorneys' fees under 5 U.S.C. § 552(a)(4)(E). Memorandum of Points and Authorities in Support of Plaintiff's Motion for Attorneys' Fees and Costs ("Pl's Mot.") [Dkt. No. 81-1].

         I. BACKGROUND

         A. FOIA

         The Freedom of Information Act ("FOIA"), 5 U.S.C § 552, was enacted by Congress "to ensure an informed citizenry, vital to the functioning of a democratic society." Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992), cert. denied, 507 U.S. 984 (1993) (citing Fed. Bureau of Investigations v. Abramson, 456 U.S. 615, 621 (1982)).

         When an agency receives a request for records, the agency must conduct a sufficient search for records within the scope of the request. 5 U.S.C. § 552(a)(3)(A). The agency then must furnish the information in a timely manner, unless the information is precluded from disclosure by one of FOIA's nine exemptions. § 552(b). FOIA's goal is "broad disclosure, " and the exemptions must be "given a narrow compass." Milner v. Dep't of Navy, 562 U.S. 562, 571 (2011) (citing U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989)) .

         The agency has the burden of justifying its withholding of a document under a FOIA exemption. Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 91 (D.D.C. 2009) . To enable the Court to determine whether the agency has met its burden, the agency must submit a "Vaughn Index" consisting of affidavits or declarations that "identif[y] the reasons why a particular exemption is relevant and correlate [e] those claims with the particular part of a withheld document to which they apply." Id. (citing Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 146 (D.C. Cir. 2006)); see also Vaughn v. Rosen, 523 F.2d 1136 (D.C. Cir. 1975) .

         FOIA additionally provides for attorneys' fees in order to encourage FOIA suits that benefit the public and to compensate a complainant for enduring an agency's resistance to complying with FOIA. Barnard v. Dep't of Homeland Sec, 656 F.Supp.2d 91, 97 (D.D.C. 2009). FOIA provides that a court may award "reasonable attorney fees and other litigation costs reasonably incurred" in FOIA litigation in which the complainant has "substantially prevailed." 5 U.S.C. § 552(a) (4) (E) (i) .

         B. Factual Background

         1. EPIC'S FOIA Request and Appeal

         On July 26, 2011, EPIC submitted a FOIA request for documents to DHS, as well as requests for news media fee status and a fee waiver. Pl's Mot. Summ. J. at 2. EPIC requested records related to the DIB Cyber Pilot program "to monitor Internet traffic flowing through certain Internet Service Providers ("ISPs") from Internet users to a select number of defense contractors." Id. Specifically, EPIC requested five categories of documents, with the fifth category described as, "[a]ny privacy impact assessment performed as part of the development" of the DIB Cyber Pilot program. Id. at 3.

         After receiving a FOIA request, an agency must make a "determination" within 20 working days as to whether to comply with the request. 5 U.S.C. § 552 (a) (6) (A) (i) . A "determination" must include the scope of the documents that the agency will produce and withhold under FOIA exemptions. Citizens for Responsibility and Ethics in Washington v. Fed. Election Comm'n, 711 F.3d 180, 186 (D.C. Cir. 2013).

         The following week, on August 3, 2011, DHS sent a letter to EPIC acknowledging receipt of its FOIA request. Def.'s Mot. Summ. J. at 2. DHS also indicated that it had referred the request to the DHS National Protection and Programs Directorate ("NPPD"). DHS Response at 1-2 [Dkt. No. 58-3] . DHS notified EPIC that no responsive documents had been found for the fifth category and informed EPIC of its right to appeal that determination.

         After receiving no further communication regarding its FOIA request, EPIC faxed an administrative appeal approximately 100 days later on January 5, 2012, to the attention of NPPD FOIA Officer Lizzy Gary. EPIC Facsimile at 1-2 [Dkt. No. 57-4]. Under DHS's FOIA regulations, an appeal must be made in writing and received by the Associate General Counsel of DHS within 60 days of the date of the agency's "adverse determination." 6 C.F.R. § 5.9(a)(1). EPIC appealed NPPD's failure to respond to categories 1-4 of EPIC's FOIA request, but did not appeal DHS's determination that it lacked records for category 5 of the request. EPIC Facsimile at 2. In its Answer, DHS denied that the January 5, 2012 facsimile constituted a FOIA appeal, Answer ¶ 26-28 [Dkt. No. 7], and its timeliness. Defendant's Statement of Undisputed Material Facts in Support of its Motion for Summary Judgment ("Def.'s Statement") ¶ 9-10 [Dkt. No. 62-4].

         As already noted, the agency must make a determination as to any appeal within twenty days. 5 U.S.C. § 552(a) (6) (A) (ii) . An adverse determination by the Associate General Counsel will be the final action, 6 C.F.R. § 5.9(a)(2), and the decision "will be made in writing, " 6 C.F.R. § 5.9(b). On January 23, 2012, a FOIA Specialist from NPPD contacted EPIC by telephone requesting additional information with respect to category one of EPIC'S FOIA request. Declaration of Amie Stepanovich ("First Stepanovich Decl.") ¶ 12 [Dkt. No. 18-1]. EPIC was unable to provide the agency with further information, and DHS informed EPIC that "DHS was processing the request, " Id.; Def.'s Mot. Summ. J. at 3.

         Under FOIA, a person making a request for any records will be deemed to have exhausted administrative remedies if the agency fails to comply with the applicable time limit provisions under FOIA. 5 U.S.C. § 552 (a) (6) (C) (i) . Arguing that NPPD failed to comply with FOIA by neither responding to nor producing records for EPIC'S FOIA request within the statutory timelines, EPIC filed its Complaint for Injunctive Relief on March 1, 2012. Complaint for Injunctive Relief ("Compl.") ¶ 4 [Dkt. No. 1]. EPIC sought, inter alia, a court order compelling DHS to conduct a search for responsive records within five days and to produce documents within ten days, and attorneys' fees and other relief as "just and proper." Compl. ¶ A-E. DHS filed its Answer on May 1, 2012.

         2. FOIA Litigation

         After DHS filed its Answer, the parties submitted a Joint Meet and Confer Statement, where they agreed that categories 1-4 of EPIC'S FOIA request served as the basis of the FOIA litigation, and that EPIC did not appeal DHS's determination that it lacked records responsive to category 5. Joint Meet and Confer Statement ("Joint Statement") ¶ 3 [Dkt. No. 11]. The parties also stated that DHS was conducting a "new search for records" responsive to categories 1-4 of EPIC'S FOIA request. Id. ¶ 4. Although the parties agreed that the post-production issues would likely be the sufficiency of DHS's search, the appropriateness of the agency's withholdings, and attorneys' fees, they disagreed as to the appropriate production schedule. Id. ¶ 5, 8.

         DHS proposed a two-stage search for responsive records, with stage one focused on gathering responsive records and stage two focused on reviewing the documents for relevance and potential FOIA Exemptions. Id. ¶ 6. While DHS proposed a June 27, 2012 deadline for stage one, the agency was unable to propose a stage two deadline due to the need for inter-agency collaboration and the uncertainty as to timing. Id. Nonetheless, DHS stated it could complete its "first production" of responsive records on July 18, 2012. Id. Plaintiff's proposed schedule consisted of "concrete deadlines, " with DHS to complete production of documents and the Vaughn Index by August 24, 2012. Id. ¶7. On May 24, 2012, the Court adopted the Plaintiff's proposed timeline and issued a scheduling order for DHS to complete production of documents and the Vaughn Index by August 24, 2012. Order, May 24, 2012 ("Scheduling Order") [Dkt. No. 12].

         After DHS identified approximately 10, 000 pages of documents potentially responsive to EPIC'S FOIA request, it moved, on the last day of the August 24 deadline, to stay proceedings for ten days to enable the parties to narrow the scope of EPIC's request. Defendant's Motion for a 10-Day Stay of Proceedings ("Def.'s Mot. Stay") at 2-3 [Dkt. No. 13]. DHS argued that the large volume of classified documents potentially responsive to EPIC's FOIA request would require significant review by DHS and other agencies. Id. at 2. DHS noted its intention to move to modify the May 24, 2012 Scheduling Order, but stated that how much additional time it would need would "depend on whether the parties are able to reach agreement on narrowing the scope of the request." Id. at 2-3.

         After the Court granted DHS's ten-day stay, DHS moved for a second ten-day stay. Defendant's Motion to Continue Stay of Proceedings for 10 Additional Days ("Def.'s Second Mot. Stay") at 1 [Dkt. No. 14]. Although EPIC had narrowed its FOIA request on August 31, 2012, by excluding draft documents and by limiting the scope of request category three, DHS again sought more time to assess the impact of the narrowed request on the number of potentially responsive document pages. Id. at 2-3. In its second motion, DHS anticipated that it would need to further clarify and narrow EPIC's FOIA request in light of the remaining volume of classified document pages. Id.

         EPIC opposed DHS's second motion on the grounds that DHS failed to demonstrate "exceptional circumstances." Plaintiff's Opposition to Defendant's Motion for an Additional 10-Day Stay of Proceedings ("Pl's Opp'n Stay") at 3 [Dkt. No. 15]. EPIC noted that DHS had engaged in significant delays in seeking to narrow the scope of EPIC's request: first, by waiting until the deadline for full production had arrived - August 24, 2012, three months after the May 24 Scheduling Order - before first contacting EPIC; and then, even after the first 10-day stay was granted, waiting almost another week to contact EPIC about further narrowing the FOIA request. Id. EPIC also argued that DHS "failed to provide a date certain by which time any documents might actually be produced." Id. at 5.

         After the Court granted the second 10-day stay, Order (Sept. 5, 2012) ("Sept. 5, 2012 Order") [Dkt. No. 16], DHS moved to modify the scheduling order. Defendant's Motion to Modify the Scheduling Order ("Def.'s Mot. to Modify") at 1 [Dkt. No. 17]. DHS stated that the new scope of EPIC'S FOIA request only reduced the number of potentially responsive document pages from approximately 10, 000 to approximately 9, 200, and that EPIC did not agree to further narrow the request. Def.'s Mot. to Modify at 1-2. After estimating that it would take 16 months to review the documents due to EPIC's broad request, the volume of documents, and the need for interagency collaboration, DHS proposed a modified schedule with January 17, 2014 as the final due date for all responsive documents. Id. at 3.

         EPIC opposed DHS's motion on the grounds that DHS failed to show good cause. Plaintiff's Opposition to Defendant's Motion to Modify the Scheduling Order and Cross-Motion for Entry of An Order to Show Cause Why Defendant Should Not Be Held in Contempt at 7 [Dkt. No. 18]. EPIC argued that the delays were due to "preventable carelessness" on DHS's part, and that the agency had already been granted multiple stays despite its initial representation that it could produce documents on July 18, 2012. Id. at 4-5, 7. EPIC alo argued that DHS demonstrated bad faith in waiting until the day of the production deadline to ask EPIC to narrow its FOIA request, and that EPIC had agreed to narrow its request because of DHS's representation that doing so would "facilitate production." Id. at 1, 8.

         Although the Court permitted the scheduling order to be modified, it found DHS's proposed final production deadline of January 17, 2014 as "far too far away." Order, Oct. 16, 2012 ("Modified Scheduling Order") at 2 [Dkt. No. 25] . The Court ordered DHS to fully review at least 2, 000 document pages per month, "producing to Plaintiff all responsive and unclassified documents, " with complete production of documents by March 15, 2013, and the Vaughn Index by May 1, 2013. Id. at 3. The Order also required DHS to submit a monthly report indicating how many document pages it produced to EPIC each month. Id.

         In a subsequent order, the Court eliminated the requirement that DHS produce documents on a rolling basis. Order, Jan. 8, 2013 ("Order on Plaintiff's Motion for Reconsideration") at 2-3 [Dkt. No. 3 9] . Instead, DHS was ordered to produce all responsive documents by April 15, 2013, with the Vaughn Index due by June 1, 2013. Id. DHS was still required to provide a monthly report and to review a minimum number of document pages per month, but this minimum was reduced to 1, 500. Id.

         On April 15, 2013, DHS produced 1, 276 pages of responsive documents to EPIC; 117 pages were released in their entirety and the remaining 1, 159 pages were partially redacted pursuant to FOIA Exemptions. Second Declaration of James Holzer ("Second Holzer Decl.") ¶ 46 [Dkt. No. 53-3]. After receiving several additional extensions from the Court, DHS provided Plaintiff with its preliminary Vaughn Index on June 22, 2013, one day after the June 21, 2013, deadline. Pl's Mot. Summ. J. at 4. In total, DHS produced 1, 3 86 pages of documents, some released in full and some redacted, and withheld 362 pages of documents in full under several of FOIA's exemptions. Def. ' s Mot. Summ. J. at 1; see also 5 U.S.C. § 552(b) .

         EPIC filed its Motion for Summary Judgment on August 30, 2013, challenging the adequacy of the search performed by DHS in response to its FOIA request. Pl's Mot. Summ. J. at 6. EPIC also alleged that the Government improperly redacted and withheld documents under FOIA Exemptions 1, 3, 4, 5, and 7(D). Id. at 9, 12, 15, 22, 24. The Court held that DHS conducted a sufficient search under FOIA and commended DHS's "meticulous, organized, and thorough" initial search for responsive records. 2015 Mem. Op. at 15-16. The Court also found that the agency was justified in its withholding of documents under Exemptions 1, 3, 4, and 5. Id. at 21, 24, 32, 33.

         The only claim on which the Court did not find in favor of Defendant was with regard to documents withheld under Exemption 7 (D) . The Court held that the Vaughn Index was not sufficiently detailed to justify the Exemption 7D withholding, but permitted DHS to file a revised Vaughn Index. Id. at 33-38. Thus, the Court granted the majority of the Government's Motion for Summary-Judgment, and denied without prejudice only the portion relating to Exemption 7D. Id. at 37-38. The Court denied without prejudice EPIC'S Motion for Summary Judgment with regard to Exemption 7D and denied the remainder of EPIC'S Motion for Summary Judgment. Id. In sum, no portion of EPIC'S Motion for Summary Judgment was granted. DHS produced a revised Vaughn Index on September 30, 2015 [Dkt. No. 74], which Plaintiff did not challenge.

         The filing of the revised Vaughn Index thereby resolved all issues in dispute except costs and attorneys' fees. Joint Status Report ("Joint Report") at 1 [Dkt. No. 76].

         C. Procedural Background

         The parties now dispute EPIC'S Motion for Attorneys' Fees and Costs, filed on February 5, 2016. Pl's Mot. [Dkt. No. 81-1]. On March 9, 2016, DHS filed its Opposition. Defendant's Opposition to EPIC'S Motion for Attorney Fees and Costs ("Def.'s Opp'n") [Dkt. No. 86]. On March 22, 2016, EPIC filed its Reply. Reply in Support of Plaintiff's Motion for Attorneys' Fees and Costs ("Reply") [Dkt. No. 87].

         II. STANDARD OF REVIEW

         A court may award "reasonable attorney fees and other litigation costs reasonably incurred" in the course of FOIA litigation in which the complainant has "substantially prevailed." 5 U.S.C. § 552(a)(4)(E). Even though the award of attorneys' fees and costs is within the Court's discretion, a complainant must be both "eligible" for and "entitled" to attorneys' fees. See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011). In order to be "eligible" for attorneys' fees, a complainant must "substantially prevail []" in the litigation. Id. A complainant may "substantially prevail" by obtaining relief through a "judicial order, or an enforceable written agreement or consent decree"[1] or by obtaining a "voluntary or unilateral change in position" by the agency.[2] 5 U.S.C. § 552 (a) (4) (E) (ii)-(I) - (II) .

         To determine whether a complainant is "entitled" to attorneys' fees, the Court considers factors, including, but not limited to: "(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the records; and (4) the reasonableness of the agency's withholding of the requested documents." McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707, 711 (D.C. Cir. 2014) (citations omitted).

         The party seeking fees has the additional burden of establishing the reasonableness of the fees requested. Barnard, 656 F.Supp.2d at 97. The complainant must provide supporting documentation that is sufficiently detailed "to enable the court to determine with a high degree of certainty that such hours were actually and reasonably expended." Id., (quoting Role Models America, Inc. v. Brownlee, 353 F.3d 962, 975 (D.C. Cir. 2004)).

         III. Analysis A. Plaintiff's Eligibility for Attorneys' Fees

         EPIC argues that it is "eligible" under both the "judicial order" and the "catalyst" theories. Pl's Mot. at 6-8; Reply at 3-11.

         1. Plaintiff's Eligibility under the "Judicial Order" Theory

         EPIC argues that the following Orders issued by the Court support its eligibility for attorneys' fees under the "judicial order" theory: (1) the May 24, 2012, Scheduling Order, the Oct. 16, 2012, Modified Scheduling Order, and the Jan. 8, 2013, Order on Plaintiff's Motion for Reconsideration; and (2) the Court's Order on the parties' cross motions for summary judgment ("Summary Judgment Order") [Dkt. No. 67] . Pl's Mot. at 6-7. DHS argues that none of the Orders issued in this litigation establish that EPIC is eligible for attorneys' fees. Def.'s Opp'n at 5-9.

         a. Orders Requiring Production

         The Court begins with Plaintiff's argument that it substantially prevailed in this litigation as a result of the issuance of the Court's Scheduling Order, the Modified Scheduling Order, or the Order on Plaintiff's Motion for Reconsideration.

         A FOIA plaintiff substantially prevails when "awarded some relief on the merits of [its] claim" in the form of a judicial order that "change[s] the legal relationship between the plaintiff and defendant." Judicial Watch, Inc. v. FBI, 522 F.3d 364, 367-68 (D.C. Cir. 2008) (citing Davy v. Central Intelligence Agency, 456 F.3d 162, 165-66 (D.C. Cir. 2006) ("Davy I") (internal quotation marks omitted)) . An order that requires an agency to produce documents by a date certain changes the legal relationship between the parties, because prior to the order, the agency "[is] not under any judicial direction to produce documents by specific dates, " whereas after the order, the agency must do so or be subject to the sanction of contempt. Id. at 368 (citing Davy I, 456 F.3d at 166) .

         For example, in Judicial Watch an agency refused to release documents responsive to a FOIA request, withholding them pursuant to one of the FOIA Exemptions. 522 F.3d at 366. After the FOIA requestor filed suit, the agency and the requestor entered into a stipulation, whereby the agency would release the responsive documents by a date certain, and the district court approved the stipulation in a court order. Id. The Court of Appeals held that the plaintiff substantially prevailed as a result of the orders because the ...


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