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Electronic Privacy Information Center v. Department of Justice

United States District Court, District of Columbia

November 7, 2017

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,
v.
DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION

          KETANJI BROWN JACKSON UNITED STATES DISTRICT JUDGE

         This decision marks the Court's third foray into the dispute between plaintiff Electronic Privacy Information Center (“EPIC”) and the Department of Justice (“DOJ”) regarding a document request that EPIC submitted to DOJ under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, in October of 2013. EPIC seeks records about a now-expired U.S. government national security program that involved the surreptitious use of pen register and trap-and-trace (“PR/TT”) devices to collect communications information (see Compl., ECF No. 1), and this Court previously denied EPIC's motion for a preliminary injunction, which the organization had filed contemporaneously with its complaint. See Elec. Privacy Info. Ctr. v. DOJ, 15 F.Supp.3d 32 (D.D.C. 2014) (“EPIC I”) (denying the request for an order that required DOJ to process the pending FOIA request immediately and provide responsive documents within 20 days). This Court has also summarily denied previous cross-motions for summary judgment in this matter, largely due to the government's continued release of additional responsive materials while the parties were briefing those motions. See Elec. Privacy Info. Ctr. v. DOJ, No. 13cv1961, 2016 WL 447426 (D.D.C. Feb. 4, 2016) (“EPIC II”).

         The parties have now narrowed the scope of the dispute, such that the only issues left for this Court to resolve are whether the government has properly withheld two categories of materials pursuant to FOIA Exemptions 1, 3, and/or 7(E): (1) Westlaw printouts that were attached to a certain brief that the government submitted to the Foreign Intelligence Surveillance Court (“FISC”), and (2) portions of certain reports that DOJ issued to Congress, consisting of summaries of FISC legal opinions, descriptions of the scope of the FISC's jurisdiction, and discussions of process improvements (collectively, the “Remaining Challenges”).[1] DOJ has submitted a revised Vaughn Index and supplemental affidavits speaking to the propriety of these withholdings (see Revised Vaughn Index, ECF No. 35; Fourth Decl. of David M. Hardy (“Hardy Suppl. Decl.”), ECF No. 35-1; Decl. of David J. Sherman (“Sherman Suppl. Decl.”), ECF No. 35-2), and it has also filed-ex parte and in camera-both unredacted copies of the withheld materials and classified versions of the government's supplemental declarations (see Notice of Lodging Documents for In Camera Review with the Classified Info. Sec. Officer (“Notice of Classified Lodging”), ECF No. 34; In Camera, Ex Parte Classified Fourth Decl. of David M. Hardy (“Classified Hardy Suppl. Decl.”); In Camera, Ex Parte Decl. of David J. Sherman (“Classified Sherman Suppl. Decl.”)).

         Before this Court at present are the parties' renewed cross-motions for summary judgment regarding these two categories of materials. (See Def.'s Mot. for Summ. J. (“Def.'s Mot.”), ECF No. 36; Pl.'s Renewed Mot. for Summ. J. (“Pl.'s Mot.”), ECF No. 37.) DOJ argues that the government properly withheld all of the information at issue in this case pursuant to Exemptions 3 and 7(E) (see Def.'s Mot. at 18-23), and that the classified material in the Congressional reports and FISC filing is further properly withheld under Exemption 1 (see Id. at 13-16).[2] DOJ also contends that the government has released all non-exempt, reasonably segregable portions of the records that EPIC has requested. (See Id. at 23-24.) EPIC's cross-motion insists that the fact that some of the material that DOJ initially withheld as exempt has now been released suggests that DOJ is acting in bad faith with respect to the withheld materials. (See Pl.'s Mot. at 12-14.) EPIC further asserts that none of the information that the government has withheld is properly deemed classified (see id. at 16-19), nor is it specifically exempted from disclosure by statute (id. at 19-21), nor do the materials satisfy the Exemption 7(E) criteria for protected law-enforcement information (see Id. at 21-23). EPIC also argues that the government has failed to release all reasonably segregable information. (See Id. at 24-25.)

         On September 30, 2017, this Court issued an order that GRANTED IN PART AND DENIED IN PART DOJ's motion for summary judgment, and also DENIED EPIC's Renewed Motion for Summary Judgment without prejudice. (See ECF No. 45.) This Memorandum Opinion explains the reasons for that order. In sum, and as discussed fully below, the Court has conducted an in camera review of the relevant materials, and it concurs with DOJ's contention that FOIA Exemption 3 was properly invoked with respect to the Westlaw printouts and the redacted portions of the Congressional reports that EPIC is challenging in this action. (See infra Sec. III.A.1.) It is also clear to the Court that the government has identified an Executive order that specifically authorizes it to maintain the secrecy of the material at issue in the interest of national defense, and that the challenged withheld material is properly classified pursuant to that order; therefore, the government is also entitled to rely on Exemption 1 to withhold the requested information.

         Notably, however, DOJ's general success in establishing that the disputed information can be withheld comes with a caveat: the Court has identified at least three redactions in the Congressional reports that DOJ has categorized as undisputed (i.e., “outside the Remaining Challenges”) but that do appear to fit within the categories of disputed redactions still at issue in this case. Given this mischaracterization, DOJ has not provided any reasons for the government's withholdings with respect to these particular redactions; therefore, this Court is in no better position to evaluate the appropriateness of these particular redactions than it was prior to the government's supplemental submissions. See EPIC II, 2016 WL 447426, at *3 (remarking that “the current sworn statements are too general in scope” and that “because the declarations fail to home in on the specific withholdings now at issue, they are manifestly inadequate to assist the Court in determining whether the declarants have made a reasonable assessment” under the FOIA). The Court has also identified two other aspects of the government's withholdings with respect to the congressional reports-a footnote on page 57 of Document 126 and a notation on page 59 of Document 127-that require further clarification, as explained below. Consequently, the accompanying Order requires DOJ to submit one or more supplemental declarations with respect to the congressional reports, in order to address the issues identified herein, and the Order also sets a schedule for submission of renewed motions for summary.

         I. BACKGROUND

         A. Prior Proceedings

         The prior proceedings in this matter are described in detail in the two opinions that this Court has previously issued in this case. See EPIC I, 15 F.Supp.3d 32; EPIC II, 2016 WL 447426. Thus, only a brief recounting of the relevant background details is necessary here. In short, EPIC submitted a FOIA request to DOJ on October 3, 2013, seeking certain records that pertain to the United States government's prior surreptitious use of PR/TT devices under the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. §§ 1841-46:

1. All reports made to the Permanent Select Committee on Intelligence in the House of Representatives and the Select Committee on Intelligence in the Senate, detailing the total number of orders for pen registers or trap and trace devices granted or denied, and detailing the total number of pen registers or trap and trace devices installed pursuant to 50 U.S.C. § 1843.
2. All information provided to the aforementioned committees concerning all uses of pen registers and trap and trace devices.
3. All records used in preparation of the above materials, including statistical data.

(EPIC FOIA Request, Ex. A to Pl.'s Mot. for Prelim. Inj., ECF No. 3-2.) EPIC filed the instant lawsuit, along with a motion for a preliminary injunction, when DOJ did not respond to this FOIA request by the statutory deadline. (See Compl., ECF No. 1.)

         After this Court denied EPIC's motion for a preliminary injunction, EPIC I, 15 F.Supp.3d 32, DOJ proceeded to process EPIC's FOIA request, and in doing so, referred certain documents to the Federal Bureau of Investigation (“FBI”) and the National Security Agency (“NSA”) for review and a withholding determination. (See Bradley Decl. ¶ 7.) See also 28 C.F.R. § 16.4(d)(2)(i) (“When the component processing the request believes that a different component, agency, or other Federal Government office is best able to determine whether to disclose the record, the component typically should refer the responsibility for responding to the request regarding that record, as long as the referral is to a component or agency that is subject to the FOIA.”). The government completed processing EPIC's FOIA request by late summer of 2014, and the parties then proceeded to brief cross-motions for summary judgment.

         On October 31, 2014, DOJ submitted its opening summary judgment brief and supporting declarations from declarants of DOJ, the NSA, and the FBI, and it also filed a Vaughn Index that contained 92 entries and invoked Exemptions 1, 3, 6, 7(C), and 7(E). EPIC II, 2016 WL 447426, at *2. (See Vaughn Index, Ex. A to 2d Decl. of Mark A. Bradley (“Bradley Decl.”), ECF No. 22-3, at 8-24.) Then, during the course of the remaining briefing of the summary judgment motions, the number of documents at issue shrank substantially, until at a motion hearing that this Court held on January 21, 2016, counsel for EPIC represented that only two issues remained for this Court to resolve: (1) whether the government has properly withheld the Westlaw printouts that are attached to Vaughn Index Document 68, which is a classified legal brief that the government once submitted to the FISC, and (2) whether the government properly redacted from the Semi-Annual Reports that DOJ made to Congress regarding use of FSIA PR/TT devices (hereinafter, the “SARs”) information that consisted of summaries of FISC legal opinions, descriptions of the scope of the FISC's jurisdiction, and discussions of FISA process improvements. Id. at *3. Importantly, upon its consideration of the parties' briefs and supporting materials, this Court found “that the declarations that DOJ has submitted in support of its motion for summary judgment do not address these withholdings in particular” and, thus, DOJ's evidence was insufficient to enable the Court to determine whether the government had properly invoked FOIA exemptions to withhold the information in dispute. Id. (emphasis in original). Consequently, the Court denied the parties' cross-motions without prejudice, and required DOJ to submit additional declarations that were tailored to the withholdings at issue. Id. at *4. The Court also mandated that DOJ submit the two categories of contested documents for in camera review. Id.

         B. Current Proceedings

         On March 18, 2016, DOJ filed an updated Vaughn Index and unclassified declarations from David M. Hardy of the FBI and David J. Sherman of the NSA. (See Revised Vaughn Index; Hardy Suppl. Decl.; Sherman Suppl. Decl.) On that same day, DOJ also lodged with the Classified Information Security Officer classified versions of the Hardy and Sherman supplemental declarations, as well a copy of Document 68 (the FISC brief) and the attached Westlaw printouts, and unredacted copies of the five contested SARs, which are documents 124-127 and 129 on the Vaughn Index. (See Notice of Classified Lodging; Classified Hardy Suppl. Decl.; Classified Sherman Suppl. Decl.)

         On April 8, 2016, the parties filed renewed cross-motions for summary judgment based on this significantly narrowed range of documents. (See Def.'s Mot.; Pl.'s Mot.) These are the motions that are presently before this Court. In its motion, DOJ argues that it is entitled to summary judgment because the government properly invoked FOIA Exemption 1 to withhold the Westlaw printouts attached to Document 68 and the redacted portions SARs, given that these materials contain classified NSA or FBI information. (See Def.'s Mot. at 13-16.) DOJ also contends that it was appropriate for the government to rely on FOIA Exemption 3, which permits the withholding of records that are “specifically exempted from disclosure by [a] statute [that] . . . establishes particular criteria for withholding or refers to particular types of matters to be withheld[, ]” 5 U.S.C. § 552(b)(3). (See Def.'s Mot. at 16-21.) In this regard, DOJ maintains that the withheld material contains classified information regarding United States communications intelligence activities, or pertains to the NSA's operations, and is thus exempted from disclosure under Section 102A(i)(1) of the National Security Act of 1947, 50 U.S.C. § 3024(i)(1) (exempting “intelligence sources and methods” from disclosure), or Section 6 of the National Security Agency Act of 1959, 50 U.S.C. § 3605 (authorizing the withholding of information that relates to “the organization or any function of the [NSA], or any information with respect to the activities thereof”), or 18 U.S.C. § 798(a)(3) (prohibiting disclosure of “classified information. . . concerning the communication intelligence activities of the United States”). (Def.'s Mot. at 18- 21). DOJ further insists that the Westlaw printouts and the Congressional reports were “compiled for law enforcement purposes[, ]” and thus fall within the protective ambit of FOIA Exemption 7(E) (id. at 23), and that the government has released all non-exempt, reasonably segregable portions of records that are responsive to EPIC's FOIA request (id. at 23).

         For its part, EPIC argues that by continuously releasing materials that it originally withheld, DOJ has called into question not only the propriety of the initial withholdings but also the government's continued withholding of the material that remains at issue in this case. (See Pl.'s Mot. at 13-15.) EPIC also challenges DOJ's Exemption 1 arguments, asserting that the material at issue is not “properly classified” given its nature (id. at 16 (citations omitted)), and that the government's withholding of otherwise publicly available Westlaw printouts is especially “absurd[]” (id. at 17). With respect to the government's reliance on Exemption 3, EPIC contends, first, that the government invoked Exemption 3 belatedly and in bad faith; and second, that affidavits from the FBI and the NSA are legally insufficient to justify the Exemption 3 withholdings because DOJ's National Security Division (“NSD”) created and controls the documents at issue, and NSD is not a member of the intelligence community that is permitted to invoke the National Security Act for purposes of Exemption 3. (Id. at 19- 21). EPIC also strenuously objects to DOJ's Exemption 7(E) arguments (id. at 21-23), and insists that “it is implausible that entire legal opinions” such as the Westlaw printouts “would be devoid of reasonably segregable material” (id. at 24). Similarly, EPIC states that the summaries of FISC opinions, FISC jurisdiction, and FISA procedures are reasonably segregable, non-exempt material that must be disclosed (id. at 24-25).

         The parties' cross-motions for summary judgment are now ripe for this Court's review. (See Def.'s Mem. of Law in Opp'n to Pl.'s Mot. (“Def.'s Opp'n”), ECF No. 38; Pl.'s Mem. in Opp'n to Def.'s Mot. (“Pl.'s Opp'n”), ECF No. 39; Def.'s Reply in Supp. of Def.'s Mot., ECF No. 42; Pl.'s Reply in Supp. of Pl.'s Mot. (“Pl.'s Reply”), ECF No. 43.)

         II. LEGAL STANDARDS

         A. The FOIA And Its Exemptions

         The FOIA seeks to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991) (internal quotation marks and citation omitted). As relevant here, the statute prescribes that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). However, “[i]n enacting FOIA, the Congress sought to balance the public's interest in governmental transparency against legitimate governmental and private interests [that] could be harmed by release of certain types of information.” United Tech. Corp. v. U.S. Dep't of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (second alteration in original) (internal quotation marks and citations omitted).

         To that end, the FOIA specifies nine exemptions that permit agencies to withhold information from disclosure. See 5 U.S.C. § 552(b); see also Judicial Watch, Inc. v. U.S. Dep't of the Treasury, 796 F.Supp.2d 13, 18 (D.D.C. 2011). For example, agencies are authorized to withhold otherwise responsive documents and information that are “properly classified” pursuant to an Executive order or otherwise “specifically exempted from disclosure” under certain statutes. 5 U.S.C § 552(b)(1), (3). “These exemptions are explicitly made exclusive, and must be narrowly construed.” Milner v. Dep't of the Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citations omitted). Moreover, even if a portion of the records is justifiably withheld pursuant to one of the enumerated exemptions, the FOIA provides that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt[.]” 5 U.S.C. § 552(b); see also Assassination Archives & Research Ctr. v. CIA., 334 F.3d 55, 58 (D.C. Cir. 2003) (explaining that “even if an agency establishes an exemption, it must nonetheless disclose all reasonably segregable, nonexempt portions of the requested record(s)” (citing 5 U.S.C. § 552(b)); Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977) (“The focus of the FOIA is information, not documents, and an agency cannot justify withholding an entire document simply by showing that it contains some exempt material.”).

         B. Summary Judgment In FOIA Cases Generally

         “FOIA cases typically and appropriately are decided on motions for summary judgment.” Judicial Watch, Inc. v. Dep't of the Navy, 25 F.Supp.3d 131, 136 (D.D.C. 2014) (quoting Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)). A district court reviewing a motion for summary judgment in the FOIA context conducts a de novo review of the record, 5 U.S.C. § 552(a)(4)(B), analyzing all underlying facts and inferences in the light most favorable to the FOIA requester. See Willis v. Dep't of Justice, 581 F.Supp.2d 57, 65 (D.D.C. 2008). Because Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is warranted only if the pleadings, disclosure materials on file, and affidavits “show[] 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); see also Judicial Watch v. Navy, 25 F.Supp.3d at 136 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)), in a FOIA case, summary judgment for an agency is appropriate only when the agency proves that it has “fully discharged its [FOIA] obligations[, ]” Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996). Thus, an “agency must demonstrate that ‘each document that falls within the class requested either has been produced . . . or is wholly exempt from [FOIA's] inspection requirements[.]'” Gov't Accountability Project v. FDA, 206 F.Supp.3d 420, 430 (D.D.C. 2016) (quoting Gilda Indus., Inc. v. U.S. Customs & Border Prot. Bureau, 457 F.Supp.2d 6, 9 (D.D.C. 2006) (first and second alterations in original).

         If an agency contends that it is entitled to withhold information under a FOIA exemption, it “bears the burden of proving the applicability of [the] claimed exemptions[, ]” and such a showing is typically made in agency affidavits. Am. Civil Liberties Union v. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). Such affidavits are entitled to a presumption of good faith, and the court can award the agency summary judgment based solely on the information so provided. See Hedrick v. FBI, 216 F.Supp.3d 84, 94-95 (D.D.C. 2016). However, to be sufficient to support a summary judgment motion, the agency's affidavits must describe “the justifications for nondisclosure with reasonably specific detail, [and] demonstrate that the information withheld logically falls within the ...


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