192 F. Supp. 3d 92
D.D.C.2016Background
- Hemisphere: a law-enforcement program (operational since 2007) that provides access to a large carrier-held telephone-call database; DEA uses Hemisphere in coordination with private companies to investigate drug crimes.
- EPIC submitted FOIA requests (Nov. 2013) seeking training materials, legal analyses, privacy analyses, and Congressional materials about Hemisphere; DEA produced 319 documents (39 fully released, 176 partially released, 104 withheld in full).
- DEA identified multiple HQ offices and several divisions to search; EPIC challenged the adequacy of the DEA’s search for privacy-related records and the legality of redactions/withholdings under various FOIA exemptions.
- The court addressed cross-motions for summary judgment: it granted the DEA summary judgment as to search adequacy and some Exemption 5 withholdings, but denied or held in abeyance other withholding claims and ordered supplemental submissions or in camera review for disputed items.
- Key contested exemptions: Exemption 5 (deliberative process, attorney-client, work product) and Exemption 7 subsections (7(D)—confidential sources; 7(E)—techniques/procedures); court found some withheld material properly withheld under Exemption 5 but required more detail or in camera review for many 7(D)/7(E) claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of DEA search for privacy analyses (FOIA prong 3) | Search unreasonable because a program this invasive likely generated privacy analyses that DEA failed to find | DEA’s searches of relevant components were reasonable; plaintiff’s speculation that documents "must" exist is insufficient | Search was reasonable; DEA SJ granted, EPIC SJ denied |
| Sufficiency of Vaughn-style justification / Myrick declaration | Declaration and redactions insufficiently detailed; need a full Vaughn index identifying each withheld document | Myrick declaration plus redacted attachments satisfy Vaughn requirements; additional details can be provided if needed | Declaration deemed adequate generally; EPIC’s request for a fuller Vaughn index denied, but court ordered supplementation/in camera review where justifications were conclusory |
| Withholding under Exemption 5 — draft legal memorandum and DOJ email | EPIC: draft may be final and thus not pre-decisional; email not covered by privileges | DEA: memorandum is pre-decisional/deliberative; email is protected by work-product (and other) privileges | Draft memorandum withheld validly under Exemption 5 (deliberative); email also protected (work product); DEA SJ granted as to these items |
| Withholdings under Exemption 7(D) and 7(E) (identities of private companies, methods of cooperation, names of agencies with access) | DEA failed to show express or implied assurances of confidentiality; 7(E) assertions too generalized and do not show how disclosure risks circumvention | Disclosure of company identities, cooperation methods, and agency access would enable criminals to evade or disrupt Hemisphere; disclosure risks circumvention | DEA failed to carry burden for many 7(D)/7(E) claims as presented; motions denied without prejudice for those categories and DEA ordered to supplement affidavits or submit documents for in camera review |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)
- Vaughn v. Rosen, 484 F.2d 820 (Vaughn index requirement in FOIA cases)
- Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344 (agency must show search reasonably calculated to uncover records)
- Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57 (speculation that records "must" exist insufficient to defeat adequacy of search)
- Nat’l Sec. Archive v. C.I.A., 752 F.3d 460 (deliberative process privilege and drafts that did not become final)
- Landano v. U.S. Dep’t of Justice, 508 U.S. 165 (standards for implicit or explicit assurances under Exemption 7(D))
- Hickman v. Taylor, 329 U.S. 495 (foundations of work-product protection)
- Upjohn Co. v. United States, 449 U.S. 383 (rationale for protecting attorney communications to ensure candor)
- Mayer Brown v. I.R.S., 562 F.3d 1190 (Exemption 7(E) protects information that would facilitate evasion; government must show logical risk of circumvention)
- Blackwell v. F.B.I., 646 F.3d 37 (government must demonstrate how release might enable law evasion)
- PHE, Inc. v. Dep’t of Justice, 983 F.2d 248 (upholding narrow withholding under Exemption 7(E) with detailed description of withheld material)