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Friedman v. United States Secret Service

United States District Court, District of Columbia

October 19, 2017

DONALD FRIEDMAN, Plaintiff,
v.
UNITED STATES SECRET SERVICE, Defendant.

          MEMORANDUM OPINION [DKTS. ## 96, 106]

          RICHARD J. LEON UNITED STATES DISTRICT JUDGE.

         This 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.

         BACKGROUND

         Plaintiff 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 information:

[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].[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").

         The 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).

         STANDARD OF REVIEW

         Summary 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. Cir. 2011)).

         To 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).

         ANALYSIS

         A. Exemptions

         1. Exemption 2

         Exemption 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. ¶¶ 11-12.

         It 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.

         2. Exemption 4

         Exemption 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) (en banc)).

         Among 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. # 72-2].

         The 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 ...


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