United States District Court, District of Columbia
TIMOTHY J. KELLY, United States District Judge
Department of Homeland Security ("DHS") runs a
government program known as Chemical Facility Anti-Terrorism
Standards ("CFATS"). The purpose of CFATS is to
identify chemical facilities that might be targeted by
terrorists, and to promulgate and enforce standards for
reducing the risks arising from potential terrorist attacks
on those facilities. DHS requires facilities to submit
information about certain chemicals they possess and, based
on those submissions and other information (including
information received from the broader intelligence
community), determines which facilities pose a "high
risk" of significant terrorism-related harm. Those
high-risk facilities are required to implement various
security measures. Alternatively, facilities may reduce their
chemical holdings to levels that do not qualify them as high
Greenpeace, Inc. ("Greenpeace") made a request
pursuant to the Freedom of Information Act
("FOIA"), 5 U.S.C. § 552, that DHS provide
information regarding previously high-risk facilities that
have reduced their chemical holdings. After a lengthy
administrative process, DHS produced two heavily-redacted
lists of facility names, withholding those names that might
serve to identify a particular facility. DHS argues that the
redacted information falls under FOIA's law-enforcement
exemption, because releasing it would threaten public safety
by increasing the risks to human life and health from
terrorist attacks. Greenpeace disagrees, claiming that FOIA
and DHS's own procedures require DHS to produce the
records without redactions. Greenpeace has therefore brought
suit against DHS and one of its components, the National
Protection and Programs Directorate ("NPPD, " and
together with DHS, "Defendants"). Greenpeace
asserts claims under FOIA and the Administrative Procedure
Act ("APA"), 5 U.S.C. § 551 et seq.,
and petitions the Court for a writ of mandamus.
have filed a motion to dismiss or, in the alternative, for
summary judgment. ECF No. 11. Greenpeace has cross-moved for
summary judgment. ECFNo. 14. For the reasons explained below,
Defendants' motion will be granted and Greenpeace's
will be denied. Greenpeace's claims under the APA and for
a writ of mandamus will be dismissed. In addition, the Court
will enter summary judgment for Defendants on
Greenpeace's FOIA claim.
Factual and Procedural Background
The CFATS Program
initially created the CFATS program in 2006. Falcon Reply
Decl. ¶ 4; see Nat'l Propane Gas Ass'n v.
DHS, 534 F.Supp.2d 16, 18 (D.D.C. 2008) (describing
history of program). The relevant act instructed DHS to issue
"regulations establishing risk-based performance
standards for security of chemical facilities and requiring
vulnerability assessments and the development and
implementation of site security plans for chemical
facilities." Nat'l Propane, 534
F.Supp.2d at 18 (quoting Department of Homeland Security
Appropriations Act, 2007, § 550(a), Pub. L. No. 109-295,
120 Stat. 1355, 1388 (2006)). DHS did so. See 6
C.F.R. pt. 27. In 2014, Congress enacted a formal statutory
framework for the CFATS program. See Protecting and
Securing Chemical Facilities from Terrorist Attacks Act of
2014, 6 U.S.C. § 621 et seq. The Infrastructure
Security Compliance Division ("ISCD"), a component
of DHS located within NPPD, operates CFATS. Pl's Resp.
SoMF ¶ 4.
CFATS, DHS determines whether chemical facilities present
"a high level of security risk, " which means that
there is "the potential that a terrorist attack
involving the facility could result in significant adverse
consequences for human life or health, national security or
critical economic assets." 6 C.F.R. § 27.205(a).
The first step in making this determination is to identify
which chemical facilities possess a "screening threshold
quantity, " or "STQ, " of one or more
"chemicals of interest." See 6 C.F.R.
§§ 27.105, 27.200(b)(2). The chemicals of interest
and their respective STQs are listed in Appendix A to the
CFATS regulations. See 6 C.F.R. pt. 27 app. A. DHS
requires chemical facilities to submit "Top-Screens,
" reports listing each chemical of interest that the
facilities possess at or above the STQ for that chemical.
See Pl's Resp. SoMF ¶ 3; 6 C.F.R. §
on the Top-Screens and other information, including
information received from the broader intelligence community
about the threat of attack, DHS makes a preliminary
determination of which facilities are high risk and places
those high-risk facilities into one of four tiers.
See Pl's Resp. SoMF ¶ 3; 6 C.F.R. §
27.220. DHS makes a final "tiering" decision for
each facility after a "security vulnerability
assessment." 6 C.F.R. §§ 27.215, 27.220(b).
High-risk facilities must then implement security measures
intended to reduce the risks associated with terrorist
attacks. Pl's Resp. SoMF ¶ 3.
designated as high risk can also request a redetermination of
their status if they alter their operations-for example, by
reducing their holdings of chemicals of interest.
See 6 C.F.R. § 27.205(b). Such facilities are
informally referred to as "de-tiered, " because
they are no longer considered high risk and thus are not
placed in one of the four tiers. See Falcon Reply
Decl. ¶ 11. In testimony before Congress in February
2012, an NPPD official explained that, since CFATS'
inception, "more than 1, 600 facilities [had] completely
removed their chemicals of interest, and more than 700 other
facilities [had] reduced their holdings of chemicals of
interest to levels resulting in the facilities no longer
being considered high-risk." Defs.' Resp. SoMF
¶ 1. In February 2014, another NPPD official testified
before Congress that "more than 3, 000 facilities [had]
eliminated, reduced or modified their holdings of chemicals
of interest." Id ¶ 3.
Greenpeace's FOIA Request and DHS's Response
18, 2012, Greenpeace sent a letter to NPPD's FOIA office
requesting "copies of all releasable documents and
records that contain the most complete listing of chemical
facilities that have reduced their holdings of threshold
quantities of 'chemicals of interest' (COI) rendering
them no longer 'high risk' facilities under
[CFATS]." Fuentes Decl. Ex. B, at 1; Hind Decl. Ex. C,
at l. Almost ten months later, on March 13,
2013, NPPD issued an "interim response" stating
that it had conducted a search and found 123 pages of
responsive records, which would be withheld in full. Fuentes
Decl. Ex. C, at 1; Hind Decl. Ex. D, at 1. The asserted
grounds for withholding the documents were FOIA Exemption 5,
and specifically, the deliberative process privilege;
Exemption 7(E), an exemption for law-enforcement techniques,
procedures and guidelines; and Exemption 7(F), an exemption
for law-enforcement information whose release might endanger
the safety of any individual. Fuentes Decl. Ex. C, at 1-2;
Hind Decl. Ex. D, at 1-2.
12, 2013, Greenpeace appealed the interim response to
DHS's Associate General Counsel. Fuentes Decl. Ex. E;
Hind Decl. Ex. E. Greenpeace argued that the claimed
exemptions did not apply. Fuentes Decl. Ex. E; Hind Decl. Ex.
E. In particular, citing Second Circuit case law, Greenpeace
argued that Exemption 7(F) did not apply because DHS had not
identified any particular individual who would be harmed by
release of the information. Fuentes Decl. Ex. E, at 3 (citing
ACLU v. Dep't of Def, 543 F.3d 59, 71 (2d Cir.
2008), vacated on other grounds, 130 S.Ct. 777
(2009)); Hind Decl. Ex. E, at 3. On September 27, 2013, while
Greenpeace awaited a decision on its administrative appeal,
NPPD finalized its earlier, "interim" response,
standing by its decision to withhold the records but relying
only on FOIA Exemptions 5 and 7(F), not 7(E). Fuentes Decl.
27, 2014, Greenpeace received a response on its appeal from
an attorney advisor at the U.S. Coast Guard Office of the
Chief Administrative Law Judge. Fuentes Decl. Ex. H; Hind
Decl. Ex. G. The attorney advisor explained that DHS's
General Counsel had assigned FOIA appeals arising within DHS
to that office. Fuentes Decl. Ex. H; Hind Decl. Ex. G;
see also Hind Decl. Ex. F (2011 DHS memorandum
assigning authority to Coast Guard). The attorney advisor
ruled as follows: "NPPD's decision to withhold the
records in their entirety pursuant [sic] is being reversed.
The Agency has not provided adequate explanation as to why
the requested records should be withheld pursuant to FOIA
Exemptions (b)(5), (b)(7)(E), or (b)(7)(F)." Fuentes
Decl. Ex. H, at 2; Hind Decl. Ex. G, at 2. The attorney
advisor further explained that his decision was DHS's
"final action, " and that Greenpeace could seek
review in federal district court. Fuentes Decl. Ex. H, at 2;
Hind Decl. Ex. G, at 2.
internal letter to NPPD's FOIA office, the Coast Guard
attorney advisor explained the basis for his decision. Palmer
Reply Decl. Ex. CC. He explained that he had relied on cases,
including Second Circuit precedent cited by Greenpeace,
holding that Exemption 7(F) is unavailable unless the agency
identifies a specific person who would be harmed by release
of the information. See Id. NPPD disagreed with the
attorney advisor's analysis of Exemption 7(F).
See Palmer Reply Decl. ¶¶ 12, 17. DHS had
continued to take the position in litigation that Exemption
7(F) does not require the agency to identify a specific
individual who would be harmed. See Id. ¶¶
12-14. The D.C. Circuit ultimately adopted that position in
2015. Id. ¶ 15 & n.3 (citing Elec.
Privacy Info. Ctr. ("EPIC") v. DHS, 777 F.3d
518 (D.C. Cir. 2015)). Therefore, while NPPD determined to
comply with the "letter" of the attorney
advisor's decision by releasing a redacted version of the
documents, it would not follow the attorney advisor's
reasoning in making those redactions. See Id. ¶
declarations further assert that DHS was not, in any event,
bound by the Coast Guard attorney advisor's decision.
They assert that, as a matter of agency procedure, DHS's
Office of General Counsel reserves the right to review FOIA
decisions made by Coast Guard attorney advisors. See
Palmer Decl. ¶ 8; Palmer Reply Decl. ¶ 7 ■ In
this case, Defendants assert, the Office of General Counsel
did just that and determined that most of the material should
be redacted pursuant to Exemption 7(F), contrary to the
attorney advisor's reasoning in the internal letter.
See Palmer Decl. ¶¶ 11-12; Palmer Reply
Decl. ¶¶ 12-19.
December 15, 2014, NPPD released the 123 pages of records to
Greenpeace, but in heavily redacted form. Fuentes Decl. Ex.
I; Hind Decl. Ex. H. The redacted records consisted of two
documents. The first was a list of facility names (the
"Unregulated Facilities List"). Hind Decl. Ex. H.
Most of the names were redacted, and those remaining were
nondescript: examples include "Tucson, AZ, "
"College Street, " "Main, " and
"Almond." Id. The Unregulated Facilities
List concluded with approximately 20 blank pages followed by
one final entry. See Id. The second document (the
"Untiered Facilities List") was a spreadsheet with
two columns. Fuentes Decl. Ex. J; Hind Decl. Ex. H, pt. II.
Each entry in the first column consisted of a single number
ranging from 0 to 19. See Hind Decl. Ex. H, pt. II.
This field represented the number of chemicals of interest
that each facility held at or above STQs. See
Pl's Resp. SoMF ¶ 6. The second column contained the
name of each facility, and as in the first document, most of
the names were redacted. See Hind Decl. Ex. H, pt.
II. NPPD asserted that Exemption 7(F) covered the redacted
material, because it "constitutes information compiled
for law enforcement purposes the disclosure of which could
reasonably be expected to endanger the life or physical
safety of any individual." Hind Decl. Ex. H, at 1.
February 13, 2015, Greenpeace filed another appeal to
DHS's Associate General Counsel. Hind Decl. Ex. I. The
appeal argued that the documents NPPD had produced were
"indecipherable" due to the redactions, which
violated the earlier decision by the Coast Guard attorney
advisor. See Id. at 1. On August 25, 2015, the same
Coast Guard attorney advisor responded, explaining that NPPD
was "obligated to comply" with his earlier decision
but that his office had "no ability to force
compliance." Hind Decl. Ex. J. He advised that
Greenpeace had exhausted its administrative remedies and
could bring suit in federal district court. See id.
DHS's Search Process
uses an electronic system called the Chemical Security
Assessment Tool ("CSAT") to maintain records
related to CFATS. Pl's Resp. SoMF ¶ 4. CSAT stores
the information that chemical facilities submit to DHS
pursuant to CFATS, including the information submitted in
their Top-Screens. Id; Fuentes Decl. ¶ 16. DHS
asserts that CSAT "is the only database within DHS that
stores the information necessary to produce a complete and
contemporaneous listing of chemical facilities that have
reduced their holdings of threshold quantities of chemicals
of interest, thereby rendering them no longer high risk
facilities." Pl's Resp. SoMF ¶ 4. Among the
information in CSAT is a name for each facility; these names
are provided by the facilities themselves when they register
in CSAT, and are not necessarily unique to each facility.
Id. ¶ 8.
2012, ISCD searched for records responsive to
Greenpeace's requests by running two queries within CSAT.
See Id. ¶ 5. The first query yielded a
spreadsheet of 2, 733 facilities that DHS had previously
determined to be high risk but that, as of the date of the
search, were no longer considered high risk. Id.
¶ 6. This spreadsheet (the Untiered Facilities List that
DHS ultimately produced with redactions) included both the
name of each facility and the number of chemicals of interest
at or above STQs. Id. Some of the facilities on this
list "still hold a screening threshold quantity of one
or more chemicals of interest" and thus continued to be
regulated under CFATS, even though they were no longer
considered high risk. Fuentes Decl. ¶17.
second query yielded the Unregulated Facilities List that DHS
also redacted and produced to Greenpeace. This list, a subset
of the Untiered Facilities List, contained the names of 1,
687 facilities still in operation that had reported having no
chemicals of interest at or above STQs. Pl's Resp. SoMF
¶ 7. Because these facilities have no chemical of
interest at or above an STQ, they are not regulated under
CFATS. Fuentes Decl. ¶ 18. DHS explains that, due to a
technical error, about 20 blank pages were inserted into the
list before the last entry, but that this error did not cause
any information to be withheld. Id. ¶ 22.
asserts that, by searching CSAT, it "conducted a search
of all locations likely to contain responsive documents using
methods reasonably expected to uncover all relevant
documents." Id. ¶23.
heavily redacted both lists before producing them to
Greenpeace. The redactions covered all "facility names
that would allow an individual to identify the specific
facility." Fuentes Decl. Ex. A (Vaughn index);
Fuentes Decl. ¶ 26. DHS's declarants state that
personnel in NPPD's FOIA office carefully reviewed each
entry on the lists to redact only those entries that would
allow a facility to be identified. See Fuentes Decl.
¶ 33. DHS invokes Exemption 7(F) to justify these
redactions, abandoning the other exemptions it had asserted.
It explains that ISCD is a "regulatory enforcement
division" of DHS and that both lists are compiled from
information obtained from regulated facilities, which face
penalties if they fail to comply with CFATS regulations.
Fuentes Decl. ¶ 25. Therefore, DHS asserts, they were
"compiled for law enforcement purposes, " the
threshold requirement under Exemption 7. 5 U.S.C. §
552(b)(7); see Fuentes Decl. ¶ 25.
offers two reasons why releasing the redacted information
"could reasonably be expected to endanger the life or
physical safety of any individual, " as is required to
satisfy Exemption 7(F). 5 U.S.C. § 552(b)(7). First,
these facilities represent "soft" targets. Falcon
Reply Decl. ¶ 5. Even facilities that are not determined
to be "high risk" under CFATS still contain
dangerous chemicals. Fuentes Decl. ¶ 30. Some facilities
have chemicals of interest at or above STQs, but nonetheless
are not considered high risk for a variety of reasons.
Id; Falcon Reply Decl. ¶ 13. Moreover, even
facilities that have no chemicals of interest at or
above STQs might still possess chemicals of interest at lower
levels. Fuentes Decl. ¶ 30. Even lower levels of those
chemicals can "present a risk to the lives and physical
safety of individuals, " particularly those that work at
or live near the facilities. Id. ¶ 32. But
because those facilities are not considered high
risk, DHS does not require them to institute security
measures, making them appealing targets for terrorists.
Id. ¶¶ 28, 32.
addition, DHS claims, revealing this information could help
terrorists identify facilities that are "high
risk." DHS explains that facilities "regularly move
between regulated and unregulated status, and tiered and
untiered status, based on fluctuations in their chemical
holdings and other facts that affect [DHS's] risk
assessment of the facility (e.g., based on new threat
information received from the intelligence community)."
Id. ¶ 31. If DHS were required to release the
unredacted lists periodically, then comparing the lists at
different times would reveal the existence of some high-risk
facilities: if a facility appeared on the list but later was
removed, then it would be identifiable as "high
risk." Id. DHS asserts that the risk of outing
high-risk facilities is especially high given the age of the
June 2012 lists at issue in this case: DHS is currently
reanalyzing its risk determinations and expects that
"approximately 5% of the previously untiered population
of facilities will be determined to be high-risk and
tiered." Falcon Deck ¶ 7.
claims that these threats are not just hypothetical. One NPPD
employee attests to "numerous reports from the
intelligence community" discussing "the threat of
terrorism involving chemicals and chemical facilities both in
the United States and abroad." Falcon Reply Deck ¶
6. There have also been actual chemical attacks overseas,
including "attacks at two American-owned chemical
facilities in France in 2015" and a thwarted terrorist
plot in Australia. Id. ¶ 7.
responds by submitting a number of declarations (all from
individuals who apparently have expertise in chemical safety)
challenging DHS's claim that releasing the redacted
information would pose a risk to life or physical safety.
Greenpeace suggests that facilities that no longer have
chemicals of interest at or above STQs are no more dangerous
than "thousands of other facilities that are unregulated
by CFATS" throughout the country. Orum Decl. ¶ 14.
It provides examples such as underground storage tanks (which
are regulated by the EPA and also listed on many state
government websites) and facilities like dairy farms, which
can be easily located online. Hind Decl. ¶ 17.
Greenpeace further claims that not releasing the
information would cause a safety risk: it would inhibit
"developing and publicizing knowledge of successful
practices at facilities" that have reduced their risk,
and thereby "perpetuate unnecessary terrorist targets of
opportunity." Orum Decl. ¶ 7; see Poje
Decl. ¶¶ 11-12.
also asserts that much of the redacted information is already
available to the public, such that there is no justification
for withholding it. Many chemical facilities are "also
regulated by other government agencies, " which have
made available lists of those facilities and the chemicals
they store. Orum Decl. ¶ 15. Greenpeace notes the
EPA's Toxic Release Inventory ("TRI") program,
which Congress created to "provide the public with
information about releases of toxic chemicals in their
community." Poje Decl. ¶ 10. Pursuant to the TRI
program, facilities must make annual disclosures of certain
chemicals they release or otherwise dispose of. Id.
Greenpeace also points to the EPA's Risk Management Plan
("RMP"), which requires facilities to report
holdings of certain substances over threshold amounts. Hind
Decl. ¶ 18. The Houston Chronicle maintains a
searchable online listing of RMP-regulated facilities.
Id. The chemicals covered by the TRI and RMP
programs overlap with the chemicals of interest regulated by
CFATS, meaning many of the facilities regulated by CFATS (and
the TRI- and RMP-reportable chemicals they store) are already
publicly disclosed. Id. ¶¶ 18-21 & Ex.
K; Poje Decl. ¶ 13. And Greenpeace asserts that
information about these facilities can also be accessed
through "a) web searches, phone books, tax records, or
other public databases or records; b) direct observation; or
c) engineering or other analysis of information sources that
are lawfully disclosed or required to be disclosed."
Orum Decl. ¶ 13.
response is twofold. First, it points out that CFATS overlaps
only incompletely with these other sources of public
information, meaning that revealing the redacted names will
provide terrorists with a new source of potential targets.
See Falcon Reply Decl. ¶ 10. Next, and perhaps
more importantly, DHS asserts that the availability of public
information about chemical facilities makes the redacted
information more dangerous, not less dangerous. A terrorist
could cross-check the already-public lists against the lists
of facilities that are not "high risk, " using the