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Electronic Privacy Information Center v. United States Department of Justice

United States District Court, District of Columbia

August 15, 2018



          TREVOR N. MCFADDEN, U.S.D.J.

         The Electronic Privacy Information Center, or EPIC, claims a right under the Freedom of Information Act to records from the Department of Justice about evidence-based assessment tools that seek to predict the statistical probability of an individual's recidivism. The Department has identified relevant records in its possession but has withheld many records in whole or in part, either as private personal information or as information protected by the presidential communications and deliberative process privileges. Because the Department has justified each of the withholdings that EPIC challenges, the Department's Motion for Summary Judgment will be granted and EPIC's Cross-Motion for Summary Judgment will be denied.

         I. BACKGROUND

         EPIC's Freedom of Information Act, or FOIA, request seeks five categories of records related to evidence-based assessment tools, which can also be described as risk assessment tools:

1. All validation studies for risk assessment tools considered for use in sentencing, including but not limited to, COMPAS, LSI-R, and PCRA.[1]
2. All documents pertaining to inquiries for the need of validation studies or general follow up regarding the predictive success of risk assessment tools.
3. All documents, including but not limited to, policies, guidelines, and memos pertaining to the use of evidence-based sentencing.
4. Purchase/sales contracts between risk-assessment tool companies, included [sic] but not limited to, LSI-R and the federal government.
5. Source codes for risk assessment tools used by the federal government in pre-trial, parole, and sentencing, from PCRA, COMPAS, LSI-R, and any other tools used.

Compl. ¶ 14.

         The Department of Justice identified and produced 359 pages of records, with some redactions on 128 of those pages to protect privileged information under FOIA Exemption 5 and private personal information under FOIA Exemption 6. Decl. of Vanessa R. Brinkmann ISO Def.'s Mot. Summary J. (Brinkmann Decl.) ¶¶ 8, 14. The Department withheld 2, 363 pages in full under Exemption 5, claiming that the records enjoy the presidential communications privilege and the deliberative process privilege. Id. ¶ 14. One of the key withholdings is a document that the Department describes as a Predictive Analytics Report prepared for submission to the White House. Id. ¶ 12. This report was prepared “at the direction of the White House” after a 2014 White House report that tasked President Barack Obama's senior advisors with leading a comprehensive review of the effect of big data technologies, including the use of predictive analytics in law enforcement. Id. ¶¶ 10-11. The Department also withheld drafts, research, briefing material, and emails related to the Report. Id. ¶ 15. EPIC sued to challenge several of these withholdings.[2] Now before the Court are Cross-Motions for Summary Judgment.[3]


         To prevail on a motion for summary judgment, a movant must 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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). FOIA requires federal agencies to “disclose information to the public upon reasonable request unless the records at issue fall within specifically delineated exemptions.” Judicial Watch, Inc. v. FBI, 522 F.3d 364, 365-66 (D.C. Cir. 2008); see also 5 U.S.C. § 552(a)(3)(A) (records sought must be “reasonably describe[d]”). Thus, a FOIA defendant is entitled to summary judgment if it shows that there is no genuine dispute about whether “each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements.” See Weisberg v. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980).

         To show that any unproduced documents are exempt from FOIA, an agency may file “affidavits describing the material withheld and the manner in which it falls within the exemption claimed.” King v. Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). An agency affidavit that addresses these points with “reasonably specific detail” provides sufficient grounds for summary judgment unless it is “controverted by either contrary evidence in the record [or] by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also SafeCard Servs. Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (giving agency declarations “a presumption of good faith, which cannot be rebutted by purely speculative claims”). Courts review the applicability of FOIA exemptions de novo. King, 830 F.2d at 217. Courts decide the “vast majority” of FOIA cases on motions for summary judgment. See Brayton v. Office of United States Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).

         III. ANALYSIS

         FOIA Exemption 5 protects “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested.” 5 U.S.C. § 552(b)(5). Exemption 5 has been interpreted to include materials subject to the presidential communications privilege as well as ...

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