923 F. Supp. 2d 262
D.D.C.2013Background
- FOIA request (Sept 2006) for directed energy weapons/devices and related electromagnetic-emission records; plaintiff narrowed definitions via subsequent letters; SS released some records and withheld substantial portions under multiple exemptions.
- SS conducted broad searches across MCI, divisions, and supporting offices; initial searches yielded no responsive records, but some documents were later released with redactions; approximately 369-454 pages remained withheld.
- SS referred records to multiple agencies (Coast Guard, DOE, Air Force, Navy, DHS, DOJ, Army, FAA/TSA, DTRA, etc.) for response; several referrals produced responsive material or determinations of non-responsiveness.
- Records obtained from referrals showed various agencies determined records were non-responsive or withheld under different exemptions; some Raytheon and DoD-origin records were treated under Exemption 4/7.
- Plaintiff challenged search thoroughness and asserted bad faith; court applied summary judgment standard and presumed good faith of agency declarations unless rebutted; court found Exemption 1 and 5 proper but denied/without prejudice as to other exemptions.
- Final order: grant in part and deny in part without prejudice; renewal required for remaining exemptions; dates set for renewed motion and other related filings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reasonableness of search for records | Friedman claims searches were inadequate and vehicles/computers contained hidden records. | Declarations show reasonably calculated searches across multiple divisions and referrals. | Searches deemed reasonable; referrals proper. |
| Exemption 1 applicability | Classification/selective withholding may be improper; concerns about national security disclosures. | Declassification decisions supported; records properly classified under Exemption 1. | Exemption 1 upheld for certain Secret Service and Air Force records. |
| Exemption 2 applicability post Milner | Milner eliminates broad use of Exemption 2 for internal emails; should withhold only internal personnel rules. | Exemption 2 should cover internal emails as internal personnel practices. | Partial denial; Milner undermines the basis to withhold email addresses, login names, and passwords; reconsider under Milner. |
| Exemption 5 deliberative process | No objection to Exemption 5; records are deliberative and predecisional. | Records satisfy deliberative/predecisional requirements. | Exemption 5 applied to Secret Service and Homeland Security documents. |
| Exemption 7 and other exemptions (6,4,7E,2, etc.) | Agency overuse or misapplication; insufficient descriptions for Exemption 7 and related exemptions. | Authorities support withholding under Exemptions 6, 7(C), 7(E), with some gaps acknowledged. | Court cannot conclude Exemption 7 (and some 6/4/7E) apply to all items; partial denial with guidance to renew. |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment burden on movant; burden shifting)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (material facts; genuine issue)
- Milner v. Dep’t of Navy, 131 S. Ct. 1259 (2011) (Exemption 2 scope narrowed to internal personnel rules)
- Vaughn v. Rosen, 523 F.2d 1136 (D.C. Cir. 1975) (deliberative process privilege framework)
- Washington Post Co. v. U.S. Dep’t of Health & Human Servs., 690 F.2d 252 (D.C. Cir. 1982) (framework for Exemption analysis)
- Blackwell v. FBI, 646 F.3d 37 (D.C. Cir. 2011) (exemption 7 analysis; deference to agency)
- Lardner v. Dep’t of Justice, 638 F. Supp. 2d 14 (D.D.C. 2009) (agency bears burden to show records are law enforcement files)
- Schoenman v. Fed. Bureau of Investigation, 573 F. Supp. 2d 119 (D.D.C. 2008) (FOIA plaintiff must show exemptions or non-disclosure issues)