Public Employees for Environmental Responsibility v. United States Section, International Boundary & Water Commission
408 U.S. App. D.C. 61
| D.C. Cir. | 2014Background
- PEER (Public Employees for Environmental Responsibility) submitted a FOIA request to the U.S. Section of the International Boundary and Water Commission seeking records about Amistad and Falcon dams; the agency released many records but withheld three categories.
- Withheld materials: (1) an expert panel report on structural deficiencies at Amistad Dam; (2) portions of emergency action plans for both dams; (3) inundation maps showing downstream areas, populations, and flood travel/peak times.
- The U.S. Section initially invoked FOIA Exemption 2, but after Milner changed to rely on Exemption 5 (deliberative process) for the expert report and Exemptions 7(E) and 7(F) (law enforcement techniques/guidelines and endangerment) for the plans and maps.
- The District Court granted summary judgment for the U.S. Section on the claimed exemptions and on the adequacy of the search; PEER appealed.
- The D.C. Circuit: affirmed withholding of the emergency action plans under Exemption 7(E) and the inundation maps under Exemption 7(F); vacated and remanded the Exemption 5 ruling for the expert report because of an unresolved factual question whether Mexican National Water Commission officials assisted in preparing the report.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Agency acted in bad faith / search adequacy | PEER: agency hid or failed to locate records initially, undermining affidavits | USIBWC: later supplemental searches found records and agency promptly notified PEER; no bad faith | No bad faith; affidavits remain reliable and search adequate |
| Applicability of Exemption 5 to expert report (consultant corollary; foreign gov't participation) | PEER: if Mexican National Water Commission officials assisted, report is not "inter-/intra-agency" and Exemption 5 does not apply | USIBWC: consultant corollary covers outside analysts solicited to aid deliberative process; Mexican assistance would have been to advise USIBWC | Vacated and remanded: factual question unresolved whether Mexican officials assisted; if they did, court must decide consultant-corollary application |
| Exemption 7 threshold: were plans and maps "compiled for law enforcement purposes"? | PEER: agency lacks proper law enforcement function; records are administrative | USIBWC: records used to prevent attacks, maintain security; USIBWC participates in dam safety with security duties | Held: records were compiled for law enforcement purposes (prevention/security qualifies) |
| Exemptions 7(E) & 7(F): do disclosures risk circumvention/endanger safety? | PEER: exemptions too broad; disclosure risk not particularized | USIBWC: plans reveal guidelines and procedures that could help saboteurs; maps reveal downstream vulnerabilities and populations; DHS intelligence supports risk | Held: 7(E) applies to emergency action plans (risk of circumvention); 7(F) applies to inundation maps (reasonable expectation of endangerment); both withholdings upheld |
Key Cases Cited
- Milner v. Department of the Navy, 131 S. Ct. 1259 (2011) (limits Exemption 2 for critical-infrastructure records and Justice Alito concurrence endorsing Exemption 7 for such records)
- Department of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001) (limits consultant corollary application where outside parties act as self-advocates)
- McKinley v. Board of Governors of the Federal Reserve System, 647 F.3d 331 (D.C. Cir. 2011) (consultant corollary confined to consultants without independent interests)
- John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989) (document must have been compiled for law enforcement purposes before exemption invoked)
- Tax Analysts v. IRS, 294 F.3d 71 (D.C. Cir. 2002) (definition and scope of "law enforcement" under Exemption 7)
- Pratt v. Webster, 673 F.2d 408 (D.C. Cir. 1982) (approach for assessing agency claims that records were compiled for law enforcement)
- Center for National Security Studies v. Department of Justice, 331 F.3d 918 (D.C. Cir. 2003) (deference to executive affidavits on national-security harms)
- Mayer Brown LLP v. IRS, 562 F.3d 1190 (D.C. Cir. 2009) ("risk circumvention of the law" standard for Exemption 7(E))
- Blackwell v. FBI, 646 F.3d 37 (D.C. Cir. 2011) (application of Exemption 7(E) and deference to agency on harms)