United States District Court, District of Columbia
MEMORANDUM OPINION [DKTS. ## 96, 106]
RICHARD J. LEON UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Second Renewed
Motion for Summary Judgment [Dkt. # 96]. For the reasons
discussed below, the motion is GRANTED IN PART and DENIED IN
PART without prejudice.
brought this action under the Freedom of Information Act
("FOIA"). See 5 U.S.C. § 552. In his
September 1, 2006 FOIA request to the United States Secret
Service ("Secret Service"), a component of the
United States Department of Homeland Security
("DHS"), plaintiff sought the following
[A]ny and all files, records, documents, information, photos,
research materials (incl. results), and purchasing and any
other contract-related information related to or referring to
any U.S. Secret Service development of, acquisition of,
installation of, deployment of, testing of, research related
to, and/or investigation or evaluation of the capabilities,
properties, and/or effects of any:
1) directed energy weapons or systems (incl. any and all
parts or componants [sic] thereof); and/or
2) directed energy devices or systems (incl. any and all
parts or componants [sic] thereof); and/or
3) electromagnetic radiation-emitting devices or systems
(incl. any and all parts or componants [sic] thereof) which
are capable of causing any injury or perception of physical
pain in any person who is hit or struck by the device's
or system's emissions.
First Am. Compl. [Dkt. # 8], Ex. A, Letter from Plaintiff to
FOIA/PA Manager, Secret Service (Sept. 1, 2006), at 1-2 [Dkt.
# 8-1]. The Secret Service construed the request
as one "for any documents concerning directed energy
weapons/systems or electromagnetic radiation
devices/systems." Def.'s Mem. Supp. Mot. Summ. J.
& Opp'n to Pl.'s Mot. Compel [Dkt. # 40], Ex. A,
Decl. of Craig W. Ulmer ¶ 4 [Dkt. # 40-2] ("Ulmer
Decl. I"). The Secret Service ultimately released 218
pages in full or in part and withheld 369 pages in full,
relying on Exemptions 1, 2, 4, 5, 6, 7(C), and 7(E).
Id. ¶ 33; see id., Ex. V, Letter from
Craig W. Ulmer, Special Agent In Charge, FOIA & Privacy
Act Branch, Secret Service, to Plaintiff (Oct. 24, 2007), at
1 [Dkt. # 40-2]; Def.'s Mem. Supp. Renewed Mot. Summ. J.
[Dkt. # 72] ("Def.'s Renewed Mem."), Ex. 10,
Third Decl. of Craig W. Ulmer ¶ 4 [Dkt. # 72-3]
("Ulmer Decl. III").
judge previously assigned to this action denied
Defendant's Motion for Summary Judgment [Dkt. # 40]
without prejudice, and granted in part and denied in part
without prejudice Defendant's Renewed Motion for Summary
Judgment [Dkt. # 72]. In its February 15, 2013 Memorandum
Opinion and Order [Dkt. # 87], defendant was directed to file
a renewed motion to address the following:
(1) information withheld by the United States Secret Service
under Exemptions 2, 6, 7(C), and 7(E); (2) information
withheld by the United States Air Force under Exemptions 2, 6
and 7(C); (3) information withheld by the United States Navy
under Exemption 6; (4) information withheld by the United
States Department of Homeland Security under Exemption 6; (5)
information withheld from the Raytheon records under
Exemptions 2, 4, 6, 7(C), and 7(E); (6) information withheld
by the United States Department of Justice, Office of Justice
Programs, under Exemptions 6 and 7(E); and (7) information
withheld from Defense Threat Reduction Agency records under
Exemptions 6 and 7(C).
Friedman v. U.S. Secret Serv., 923 F.Supp.2d 262,
284 (D.D.C. 2013).
judgment is appropriate "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). In the FOIA context, this requires a
district court, reviewing de novo an agency's decision to
withhold responsive records, to find that "the agency
has sustained its burden of demonstrating that the documents
requested are . . . exempt from disclosure under the
FOIA." Newport Aeronautical Sales v. Dep't of
the Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012)
(alteration in original) (quoting Am. Civil Liberties
Union v. U.S. Dep't of Justice, 655 F.3d 1, 5 (D.C.
satisfy that burden, an agency may submit affidavits of
responsible agency officials, which are accorded substantial
weight "in the typical national security FOIA
case." Am. Civil Liberties Union v. US. Dep't of
Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (quoting
Krikorian v. Dep't of State, 984 F.2d 461, 464
(D.C. Cir. 1993)). "If an agency's affidavit
describes the justifications for withholding the information
with specific detail, demonstrates that the information
withheld logically falls within the claimed exemption, and is
not contradicted by contrary evidence in the record or by
evidence of the agency's bad faith, then summary judgment
is warranted on the basis of the affidavit alone."
Id. Provided that they are accordingly detailed,
agency affidavits cannot "be rebutted by purely
speculative claims about the existence and discoverability of
other documents." Mobley v. Cent. Intelligence
Agency, 806 F.3d 568, 581 (D.C. Cir. 2015) (quoting
SafeCard Servs., Inc. v. Sec. & Exch.
Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991)).
Indeed, "[t]o successfully challenge an agency's
showing that it complied with the FOIA, the plaintiff must
come forward with 'specific facts' demonstrating that
there is a genuine issue with respect to whether the agency
has improperly withheld extant agency records." Span
v. U.S. Dep't of Justice, 696 F.Supp.2d
113, 119 (D.D.C. 2010).
2 protects from disclosure material that is "related
solely to the internal personnel rules and practices of an
agency." 5 U.S.C. § 552(b)(2). The Secret Service
no longer relies on Exemptions 2 and 7(E) to withhold
internal email addresses, choosing instead to rely on
Exemption 7(C). See Def.'s Mem. Supp. Second
Renewed Mot. Summ. J. [Dkt. # 96] ("Def.'s Second
Renewed Mem."), Ex. A, Decl. of Brady J. Mills
¶¶ 6-8 [Dkt. # 96-2] ("Mills Decl."). In
addition, the Secret Service withdraws its reliance on
Exemption 2 with respect to the Raytheon documents, and
instead relies on Exemptions 4 and 7(E). Id.
appears, however, that the Air Force maintains its reliance
on Exemption 2 to withhold "the e-mail addresses, login
names, and passwords for military computer systems appearing
in the records." Def.'s Renewed Mem., Ex. 5, Decl.
of Carolyn Price [Dkt. # 72-3]. This position is untenable in
light of the Supreme Court's decision in Milner v.
Department of the Navy, which restricts application of
Exemption 2 to "[a]n agency's . . . rules and
practices dealing with employee relations or human
resources." 562 U.S. 562, 570 (2011). With respect to
the Air Force's reliance on Exemption 2, defendant's
motion must be denied in part without prejudice.
4 protects "trade secrets and commercial or financial
information obtained from a person [that are] privileged or
confidential." 5 U.S.C. § 552(b)(4). For FOIA
purposes, a trade secret is "a secret, commercially
valuable plan, formula, process, or device that is used for
the making, preparing, compounding, or processing of trade
commodities . . . that can be said to be the end product of
either innovation or substantial effort." United
Techs. Corp. v. U.S. Dep't of Defense, 601 F.3d 557,
563 n.9 (D.C. Cir. 2010) (alteration in original) (quoting
Pub. Citizen Health Research Grp. v. Food & Drug
Admin., 704 F.2d 1280, 1288 (D.C. Cir 1983)). "If
the requested documents constitute 'trade secrets, '
they are exempt from disclosure, and no further inquiry is
necessary." Pub. Citizen Health Research Grp.,
704 F.2d at 1286. Where, however, the documents instead
"constitute commercial or financial information, "
they are exempt from disclosure only if they are also
privileged or confidential. Commercial or financial matter is
"confidential" where "disclosure would be
likely either (1) to impair the Government's ability to
obtain necessary information in the future; or (2) to cause
substantial harm to the competitive position of the person
from whom the information was obtained." Jurewicz v.
U.S. Dep't of Agric, 741 F.3d 1326, 1331 (D.C. Cir.
2014) (quoting Critical Mass. Energy Project v. Nuclear
Regulatory Comm'n 975 F.2d 871, 878 (D.C. Cir. 1992)
the responsive records were "six pages ... that
originated with the Raytheon Company ('Raytheon
records')." Mills Decl. ¶ 9; see
Def.'s Renewed Mem., Ex. 1, Second Decl. of Craig W.
Ulmer ¶¶ 13-14 [Dkt. # 72-2] ("Ulmer Decl.
II"). The Secret Service forwarded those records to
Raytheon for its "determination regarding the
proprietary nature" of certain information contained
therein. Ulmer Decl. II, Ex. J, Letter from Craig W. Ulmer,
Special Agent In Charge, FOIA & Privacy Act Branch,
Secret Service, to Plaintiff (Sept. 15, 2008), at 1 [Dkt. #
Raytheon records were part of a "presentation . . .
entitled 'Portable Active Denial Systems'
(ADS)." Ulmer Decl. II, Ex. I, Letter from Thomas J.
Finn, Counsel, Raytheon Missile Systems, to Emily Griesy,
Commc'ns Ctr., FOIA & Privacy Act Branch, Secret
Service (Sept. 12, 2008), at 1 [Dkt. # 72-2] ("Griesy
Letter"). The Secret Service withheld one page in full
under Exemptions 4 and 7(E) because it "contained a list
of several of Raytheon's government customers, as well as
a description of the particular types of Raytheon directed
energy weapons that the listed customers had purchased or
shown an interest in." Mills Decl. ¶ 15;
see Griesy Letter 1 ("The customer list and the