Electronic Privacy Information Center v. United States Department of Homeland Security
892 F. Supp. 2d 28
D.D.C.2012Background
- EPIC filed a FOIA request to DHS seeking records on body scanner technology in surface transportation.
- DHS/S&T responded with partial disclosures and withholding of most records under Exemptions 3, 4, 5, and 6.
- S&T later supplemented with a May 2012 segregability analysis and new declarations explaining redactions.
- DHS disclosed additional records after EPIC filed suit, including a 174-page NEU report and other material.
- The court ordered further justification for redactions; EPIC challenged the Exemption 4 and 5 non-disclosures and segregation.
- The court granted DHS summary judgment on Exemptions 4 and 5 and EPIC's fee request after evaluating post-suit disclosures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemption 4 applies to withheld records. | EPIC contends public data negates confidentiality. | DHS shows data are confidential, not publicly available. | DHS's Exemption 4 withholding upheld. |
| Whether the records withheld under Exemption 5 are deliberative and predecisional. | Records should not be withheld if purely factual. | Records reflect deliberations and advisory opinions by DHS and contractors. | Exemption 5 withholdings sustained. |
| Whether DHS's segregability analysis adequately disclosed non-exempt portions. | Segregability analysis incomplete; more information should be released. | Segregability analysis sufficient; non-exempt material released where possible. | DHS's segregability analysis deemed adequate. |
| Whether EPIC is eligible for and entitled to attorney’s fees and costs. | Disclosures post-complaint show substantial relief; fees appropriate. | Fees denied if not substantial; no public benefit shown. | EPIC awarded attorney’s fees and costs. |
| Whether EPIC substantially prevailed for FOIA fee purposes. | Disclosures post-suit indicate substantial relief. | Relief not compelled by order; contested. | EPIC substantially prevailed; fee eligibility satisfied. |
Key Cases Cited
- U.S. Dept. of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (FOIA’s strong presumption of disclosure; burden on agency to justify withholding)
- NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) (FOIA and broad disclosure objectives; de novo review by courts)
- Krigorian v. Dep’t of State, 984 F.2d 461 (D.C. Cir. 1993) (reasonableness of segregability and non-disclosure standards)
- Mead Data Central, Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977) (importance of detailed Vaughn indices and non-disclosable material)
- Assassination Archives & Research Ctr. v. Central Intelligence Agency, 334 F.3d 55 (D.C. Cir. 2003) (de novo review; segregability and exemptions)
- Klamath Water Users Protective Ass’n v. Bureau of Indian Affairs, 532 U.S. 1 (2001) (consultant corollary to Exemption 5; intra-agency communications)
- Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) (deliberative process privilege scope and deliberative material)
- Judicial Watch, Inc. v. U.S. Dep’t of Energy, 412 F.3d 125 (D.C. Cir. 2005) (deliberative process and intra-agency communications)
- Petroleum Information Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429 (D.C. Cir. 1992) (deliberative process; factual material may be protected when intertwined)
- NIMJ v. U.S. Dep’t of Defense, 512 F.3d 677 (D.C. Cir. 2008) (consultant and intra-agency communications; predecisional materials)