311 F. Supp. 3d 110
D.C. Cir.2018Background
- DHS's CFATS program identifies "high-risk" chemical facilities and requires security measures; facilities can be "de-tiered" by reducing chemical holdings.
- Greenpeace requested records listing facilities that reduced holdings and were no longer "high risk." DHS searched CSAT and produced two lists (Untiered and Unregulated) heavily redacted, citing FOIA Exemption 7(F).
- A Coast Guard attorney advisor initially ordered full release; DHS's Office of General Counsel reviewed and released redacted lists, maintaining Exemption 7(F) justifications; Greenpeace exhausted administrative appeals and sued under FOIA, APA, and sought mandamus.
- Defendants moved to dismiss or for summary judgment; Greenpeace cross-moved for summary judgment. The Court treated the FOIA claim de novo and considered APA and mandamus claims on procedural grounds.
- The Court granted defendants summary judgment on FOIA, dismissed the APA claim for failure to state a claim (FOIA provides an adequate remedy), and dismissed the mandamus claim for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court should "enforce" the Coast Guard attorney advisor's decision as a FOIA remedy | The advisor's decision required full, unredacted production and the court should compel DHS to comply | FOIA requires de novo judicial review; courts cannot be bound to enforce an agency internal advisory decision | Dismissed: FOIA provides de novo review; plaintiff cannot seek enforcement of the advisor's ruling alone |
| Whether DHS's search for responsive records was adequate | Greenpeace did not dispute search adequacy | DHS searched CSAT—the only database storing the needed data—and used reasonable queries | Held: Search adequate; no genuine dispute |
| Whether Exemption 7(F) applies to facility-identifying names | Greenpeace: Redactions unnecessary; much info is publicly available or concerns facilities that pose no risk; withholding impedes public safety improvements | DHS: Lists compiled for law-enforcement purposes; releasing names would reasonably be expected to endanger life/physical safety by revealing soft targets and government threat assessments | Held: Exemption 7(F) applies—DHS met burden that disclosure could reasonably endanger life or safety |
| Whether DHS failed FOIA segregability obligations | Greenpeace: DHS could identify and disclose names of facilities that permanently removed all chemicals of interest | DHS: Records do not reliably or readily identify "permanently" risk-free facilities; locating such info would require unreasonable creation or manual compilation | Held: DHS satisfied segregability; no obligation to create new records or perform exhaustive manual review |
Key Cases Cited
- Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int'l Boundary & Water Comm'n, U.S.-Mexico, 740 F.3d 195 (D.C. Cir.) (threshold for Exemption 7: records must be compiled for law-enforcement purposes)
- Elec. Privacy Info. Ctr. v. DHS, 777 F.3d 518 (D.C. Cir.) (Exemption 7(F) does not require identification of specific individuals; deference to national-security harm predictions)
- Milner v. Dep't of Navy, 562 U.S. 562 (Sup. Ct.) (discusses Exemption 7 and critical infrastructure contexts)
- ACLU v. U.S. Dep't of Defense, 628 F.3d 612 (D.C. Cir.) (risk of providing adversaries insight into government threat assessments)
- CREW v. FEC, 711 F.3d 180 (D.C. Cir.) (FOIA timing provision and exhaustion; de novo review remedy)
- Doe v. United States, 821 F.2d 694 (D.C. Cir.) (de novo standard means court makes independent judgment)
- Larson v. Dep't of State, 565 F.3d 857 (D.C. Cir.) (standard for agency affidavits to justify withholding)
- Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157 (Sup. Ct.) (if disclosed, information belongs to all; protective limitations are unavailable under FOIA)