117 F. Supp. 3d 46
D.D.C.2015Background
- EPIC submitted FOIA requests (July 2011, narrowed Aug. 31, 2012) seeking records about the Defense Industrial Base (DIB) Cyber Pilot, including contracts, communications with defense contractors and ISPs, legal/technical analyses, and MOUs between agencies.
- DHS/NPPD coordinated a multi-office search (including classified network searches), initially identifying ~16,000 pages and ultimately producing 1,386 pages (some redacted) and withholding 362 pages in full.
- DHS provided Vaughn indices and declarations explaining search methods and withholding bases under FOIA Exemptions 1, 3, 4, 5, and 7(D). EPIC challenged the adequacy of the search and the application of those exemptions.
- The Court reviewed agency declarations, Vaughn entries, and EPIC’s examples of allegedly missing email attachments and cross-referenced documents.
- Ruling: Court held DHS’s search adequate and upheld withholdings under Exemptions 1, 3, 4, and 5, but found DHS failed to meet its burden under Exemption 7(D) and ordered DHS to submit a revised Vaughn index addressing which companies actually provided information to the agency.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of DHS search | DHS failed to re-evaluate search after EPIC identified missing attachments; more responsive records likely exist | DHS conducted a thorough, targeted multi-component search using keywords, SME input, and manual review; limited omissions were addressed | Search was reasonable and adequate; summary judgment for DHS on adequacy granted |
| Exemption 1 (classified information) — original classification authority | DHS did not prove NSA official (Sherman) had original classification authority; documents therefore not properly classified | Declarations (Holzer, and Sherman in another matter) establish Sherman as TOP SECRET original classification authority | DHS met its burden; Exemption 1 withholdings upheld |
| Exemption 3 (statutory exemptions: 18 U.S.C. § 798 and NSA Act §6) | Vaughn entries insufficient to show withheld material fits statutes; some material not NSA functions | Withheld material relates to NSA capabilities/activities; statutes are proper Exemption 3 bases and documents themselves show NSA nexus | DHS met burden; Exemption 3 withholdings upheld |
| Exemption 4 (confidential commercial information — participant identities) | Company identities are not commercial information and many relationships with DHS are already public | Participation was voluntary under confidentiality agreements; disclosure could harm companies commercially and impair future cooperation | Context-specific finding: company identities are commercial/confidential here; Exemption 4 withholdings upheld |
| Exemption 5 (privileged communications) | Specific redaction (Document 276) not shown to be privileged | Redaction is attorney–client / agency counsel communication seeking legal advice | Exemption 5 applied properly; withholding upheld |
| Exemption 7(D) (confidential sources) — identities of participating companies | DHS treats participants as sources regardless of whether they provided information; many participants merely received info | DHS asserts companies volunteered under express confidentiality and acted as confidential sources providing information | DHS failed to show that all withheld companies were "sources" who provided information; Vaughn entries insufficient. Exemption 7(D) denial without prejudice; DHS may revise Vaughn index |
Key Cases Cited
- Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871 (D.C. Cir. 1992) (test for confidentiality under Exemption 4 for voluntarily submitted commercial information)
- Milner v. Dep't of the Navy, 562 U.S. 562 (2011) (FOIA favors disclosure; exemptions construed narrowly)
- Morley v. C.I.A., 508 F.3d 1108 (D.C. Cir. 2007) (agency must show search was reasonably calculated to uncover requested records)
- Steinberg v. United States Dep't of Justice, 23 F.3d 548 (D.C. Cir. 1994) (agency not required to search every cross-referenced document; adequacy assessed by affidavits describing search)
- Vaughn v. Rosen, 523 F.2d 1136 (D.C. Cir. 1975) (requirement for index/justification of withheld materials)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment standard)
- Landano v. United States Dep't of Justice, 508 U.S. 165 (1993) (confidentiality under Exemption 7(D) requires express or implied assurance of confidentiality)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (Exemption 5 covers materials normally privileged in civil discovery)