United States District Court, District of Columbia
G. SULLIVAN UNITED STATES DISTRICT JUDGE
case concerns the Hemisphere Project
(“Hemisphere”), a program utilized by multiple
government agencies, that collects daily data on telephone
calls. The data is retained in a database and used by the
United States Drug Enforcement Agency (“the
DEA”), in cooperation with private corporations, to
combat illicit drug activity. Although the existence of
Hemisphere was widely reported in 2013, details of the
program remain unknown.
Electronic Privacy Information Center (“EPIC”)
filed this lawsuit seeking injunctive relief following the
DEA's response to EPIC's Freedom of Information Act
(“FOIA”) requests. Compl., ECF No. 1 ¶¶
1-2. The primary FOIA requests at issue in this case sought
the government's analysis of legal and privacy issues
related to Hemisphere. The DEA ultimately responded to the
request with 319 documents: 39 were released in their
entirety, 104 withheld in their entirety, and 176 released in
part. The DEA claimed several FOIA exemptions as
justification for the withheld documents and portions.
Relevant to the pending motion, the DEA claimed FOIA
Exemption 7(E), which allows the government to withhold
records or information compiled for a law enforcement
purpose, for 11 categories of documents. See 5
U.S.C. § 552(b)(7)(E).
parties filed cross-motions for summary judgment and the
Court denied EPIC's motion in part finding that,
inter alia, the DEA's search for documents was
reasonable and that the DEA properly withheld certain
documents under FOIA Exemption 5. See Elec. Privacy Info.
Ctr. (“EPIC”) v. United States Drug Enf't
Agency, 192 F.Supp.3d 92, 100 (D.D.C. 2016). The Court
also denied the DEA's motion in part finding that the DEA
failed to sufficiently justify its reliance on FOIA Exemption
7(E). Id. at 111-116. The Court ordered the DEA to
either produce the documents to EPIC, supplement the record
with additional affidavits and authority justifying its
withholdings, or the produce documents for the Court's
in camera review. Id. at 115- 16. The Court
also ordered the DEA to produce documents related to a
particular category for in camera review.
Id. at 114. The Court deferred ruling on whether the
DEA had processed and released all reasonably segregable
information. See Id. at 116 n.14.
parties have filed supplemental briefs on the issues
remaining to be resolved by the Court and the DEA partially
withdrew its motion for summary judgment, leaving only two
categories of withholdings in dispute. See generally
Notice of Partial Withdrawal of Def.'s Mot. for Summ. J.
(“Not. Of Partial Withdrawal”), ECF No. 41.
Accordingly, the only issues before this Court are whether:
(1) the DEA has properly invoked FOIA Exemption 7(E) over the
two remaining categories of documents; and (2) the DEA has
met its obligation to segregate all unprotected information
from its withheld documents.
consideration of the motions, the responses and replies
thereto, the applicable law, the entire record, and for the
reasons stated in this Memorandum Opinion, defendant's
motion for summary judgment is GRANTED and
plaintiff's cross-motion for summary judgment is
Court has already described the facts of this case in detail
in its prior Memorandum Opinion. See EPIC, 192
F.Supp.3d 92 (D.D.C. 2016). The Court will briefly outline
the surveillance program which gave rise to the FOIA request,
the DEA's response to the request, and the procedural
history of this case.
The Hemisphere Program
is a program that grants law enforcement officials access to
an AT&T database containing “decades of
American's phone calls.” Compl. ¶ 6
(quoting Drug Agents Use Vast Phone Trove, Eclipsing
N.S.A.'s, New York Times, Sept. 1, 2013).
Operational since 2007, Hemisphere adds nearly four billion
calls to its database daily, including details about caller
location. Id. ¶ 9. AT&T manages the
database and the DEA pays AT&T staff to provide law
enforcement agents with direct access to the call
information. Id. ¶ 7. According to the New York
Times, Hemisphere is funded through the White House's
Office of National Drug Control Policy. Id. ¶
EPIC's November 2013 FOIA Request and the DEA's
EPIC's November 15, 2013 FOIA request sought four
categories of documents from the DEA:
(1) All Hemisphere training modules, request forms, and
similar final guidance documents that are used in the
day-to-day operation of the program;
(2) Any analyses, memos, opinions, or other communications
that discuss the legal basis of the program;
(3) Any analyses, memos, opinions, or other communications
that discuss the privacy impact of the program; and
(4) Any presentations, analyses, memos, opinions or other
communications for Congress that cover Hemisphere's
Id. ¶ 14.
identified six offices at its headquarters likely to have
responsive records: The Operations Division, the Intelligence
Division, the Office of Training, the Office of Chief
Counsel, the Office of Information Systems, and the Office of
Congressional and Public Affairs. See Def.'s
Mem. Supp. Summ. J., Decl. of Katherine L. Myrick
(“Myrick Decl.”), ECF No. 15-3 ¶ 16. The
DEA's Atlanta, Houston, Los Angeles, and Washington, D.C.
division offices were also asked to search for responsive
records. Id. In July 2014, the DEA responded to
EPIC's FOIA request with 319 responsive documents.
Id. ¶ 11. Of those documents, 39 were released
in full, 176 were released in part and withheld in part, and
104 were withheld in full. Id.
justify its withholdings, the DEA relied on FOIA exemptions
5, 6, 7(C), 7(D), 7(E), and 7(F). 5 U.S.C. §
552(b)(5);(6);(7)(C)-(F). Most relevant to this case, the DEA
has asserted Exemption 7 for 11 categories of documents.
Def.'s Mem. Suppl. Summ. J., ECF No. 15 at
18-23. EPIC challenged three of those categories:
(1) names of private companies that assist with the operation
of Hemisphere (Categories 7D-1 and 7E-6); (2) documents
that reveal how the DEA secures cooperation of entities
instrumental to Hemisphere's operation ...