Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _______________________________
)
ELECTRONIC PRIVACY INFORMATION )
CENTER, )
)
Plaintiff, )
)
v. )
) Civ. Action No.14-317 (EGS) )
UNITED STATES DRUG )
ENFORCEMENT AGENCY, )
)
Defendant. )
)
MEMORANDUM OPINON
The United States government collects data on nearly four billion telephone calls every day. The data is added to a database used by the Hemisphere Project (“Hemisphere”), a program utilized by multiple government agencies. Defendant the United States Drug Enforcement Agency (“the DEA”), utilizes Hemisphere in cooperation with private corporations to combat illicit drug activity. Although the existence of Hemisphere was widely reported in 2013, details of the program remain unknown.
In February 2014, Plaintiff Electronic Privacy Information Center (“EPIC”) filed this lawsuit seeking injunctive relief following the DEA’s response to EPIC’s Freedom of Information Act (“FOIA”) requests. Compl., ECF No. 1 at ¶¶ 1-2. The primary FOIA requests at issue in this case sought the government’s *2 analysis of legal and privacy issues related to Hemisphere. Both parties now move for Summary Judgment. ECF Nos. 15 and 17. EPIC claims the DEA’s search for responsive records was insufficient and that certain documents were unlawfully withheld. Pl.’s Mem. Supp. Summ. J., ECF No. 17, Ex. 1. The DEA maintains that its search was reasonable and documents were lawfully withheld. Def.’s Mem. Supp. Summ. J., ECF No. 15. Upon consideration of the motions, the responses and replies thereto, the applicable law, and the entire record, Plaintiff’s Motion for Summary Judgment is DENIED in part and HELD IN ABEYANCE in part and Defendant’s Motion for Summary Judgment is GRANTED in part and DENIED in part.
I. BACKGROUND
A. The Hemisphere Program
Hemisphere is a program that grants law enforcement officials access to an AT&T database containing “decades of American’s phone calls.” Compl. ¶ 6 ( quoting Drug Agents Use Vast Phone Trove, Eclipsing N.S.A.’s , New York Times, September 1, 2013). [1] Operational since 2007, Hemisphere adds nearly four billion calls to its database daily, including details about *3 caller location. Id. ¶ 9. AT&T manages the database and the DEA pays AT&T staff to provide law enforcement agents with direct access to the call information. Id. ¶ 7. According to the New York Times, Hemisphere is funded through the White House’s Office of National Drug Control Policy. Id. ¶ 11.
B. EPIC’s November 2013 FOIA Request and the DEA’s Response EPIC’s November 15, 2013 FOIA request sought four categories of documents from the DEA:
(1) All Hemisphere training modules, request forms, and
similar final guidance documents that are used in the day-to-day operation of the program; (2) Any analyses, memos, opinions, or other communications
that discuss the legal basis of the program; (3) Any analyses, memos, opinions, or other communications
that discuss the privacy impact of the program; and (4) Any presentations, analyses, memos, opinions or other
communications for Congress that cover Hemisphere’s operations.
Id. ¶ 14. [2]
The DEA identified six offices at its headquarters likely to have responsive records: the Operations Division, the Intelligence Division, the Office of Training, the Office of Chief Counsel, the *4 Office of Information Systems, and the Office of Congressional and Public Affairs. Katherine L. Myrick Decl. (“Myrick Decl.”) ¶ 10, Def.’s Mem. Supp. Summ. J., Ex. 3. The DEA’s Atlanta, Houston, Los Angeles, and Washington, D.C. division offices were also asked to search for responsive records. Id. ¶ 16. In July 2014, the DEA responded to EPIC’s FOIA request with 319 responsive documents. Id. ¶ 11. Of those documents, 39 were released in full, 176 were released in part and withheld in part, and 104 were withheld in full. Id.
II. Standard of Review
A. Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted if the moving party has shown that
there are no genuine issues of material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a);
Celotex Corp v. Catrett
,
F.D.I.C.
, CIV.A.06 1120 EGS,
B. FOIA
FOIA requires agencies to disclose all requested agency
records, unless one of nine statutory exemptions applies. 5
U.S.C. § 552 (a), (b). Congress enacted FOIA to “pierce the veil
of administrative secrecy and to open agency action to the light
of public scrutiny.”
Morley v. C.I.A.
,
The government bears the burden of justifying
nondisclosure, either through declarations or an index of
information withheld.
See e.g., Consumers’ Checkbook
, 554 F.3d
1046 at 1057 (D.C. Cir. 2009) and
Vaughn v. Rosen
,
Agency affidavits and declarations must be “relatively
detailed and non-conclusory.”
SafeCard Services v. SEC
, 926 F.2d
1197, 1200 (D.C. Cir. 1991). Such affidavits or declarations are
accorded “a presumption of good faith, which cannot be rebutted
by purely speculative claims about the existence and
discoverability of other documents.”
Id.
(internal citation and
quotation omitted). Courts must conduct a
de novo
review of the
record and may grant summary judgment solely on the basis of
information provided by the department or agency in affidavits
or declarations that describe the documents and justifications
for nondisclosure with “reasonably specific detail.”
Cause of
Action v. Federal Trade Com’n
,
III. Analysis
A. The DEA’s search was reasonable
EPIC challenges the sufficiency of the DEA’s search for *7 documents relating to privacy issues, the third category of documents listed in EPIC’s request, arguing that “it is difficult to believe that such a far-reaching, invasive program would not have triggered some privacy analysis or discussion that would be responsive to the third prong of EPIC’s request.” [3] Pl.’s Mem. Opp. Def.’s Summ. J., (Pl.’s Mem. Opp.), ECF No. 18 at 22. [4] The DEA maintains that EPIC’s argument that the search was unreasonable because certain documents “should exist” has been rejected by the D.C. Circuit. Def.’s Reply Mem. Supp. Summ. J. (“Def.’s Reply Mem.”), ECF No. 20 at 4-5. [5] Notably, EPIC does not respond to this argument in its reply brief. See generally, Pl.’s Reply Mem., ECF No. 22.
An agency must show “beyond material doubt” that it
conducted a search reasonably calculated to uncover all relevant
documents in response to a FOIA request.
Id.
(
quoting Weisberg
v. U.S. Dep’t of Justice
,
Here, EPIC’s only argument challenging the reasonableness of the DEA’s search is based on EPIC’s perception of the types of documents it believes should exist. Pl.’s Mem. Opp. at 22. However, based on the legal standard for what constitutes a reasonable search, arguments that certain documents “should” or “must” exist are consistently rejected. Indeed, EPIC’s argument was expressly rejected by the D.C. Circuit in Oglesby v. U.S. Dept. of Army :
Appellant also contends that the search was unreasonable because the agency did not find responsive documents that appellant claims must exist . . . . However, appellant provides no proof that these documents exist and his own conviction that [such documents exist] is pure speculation. Such hypothetical assertions are insufficient to raise a material question of fact with respect to the adequacy of the agency’s search.
The DEA also makes two salient points in response to EPIC’s argument that it is “hard to believe” that documents responsive to its third request were not found: (1) the DEA uses and partly funds Hemisphere, but Hemisphere is not a DEA program; and (2) two documents discussing legal issues were found, but withheld under relevant exemptions. Def.’s Reply Mem. at 9-10. For all of these reason, the DEA’s search was reasonable. On the question of the reasonableness of the DEA’s search, Defendant’s Motion for Summary Judgment is GRANTED and Plaintiff’s Motion for Summary Judgment is DENIED .
B. The Myrick Affidavit and redacted material submitted meet the requirements set forth by Vaughn *10 EPIC argues a Vaughn index providing a detailed description of material withheld is necessary for the Court to determine whether material was properly redacted. Pl.’s Mem. Opp. at 11. The DEA argues that the Declaration of Katherine L. Myrick, together with the 280 pages withheld and attached to the declaration, which have been redacted based on the relevant FOIA exemption, meet the requirements set forth by Vaughn. Def.’s Reply Mem. at 5.
Vaughn
and subsequent case law requires the government to
provide “a relatively detailed justification, specifically
identifying the reasons why a particular exemption is relevant
and correlating those claims with the particular part of a
withheld document to which they apply.”
Mead Data Central, Inc.
v. U.S. Dept. of Air Force
,
In this case, the Myrick Declaration identifies the exemptions relied upon and describes the documents withheld *11 under each exemption. Myrick Decl.; Def.’s Mem. Supp. Summ. J., Ex. 3. The 280 responsive pages are attached to the Myrick’s declaration, with information redacted and labeled according to the relevant exemption. Id. The nature of each document is described in the text of Myrick’s declaration, and each redaction is labeled with the relevant exemption. Id. Nevertheless, EPIC argues that the declaration is insufficient because it provides fewer details than the Vaughn index that was found inadequate in Defenders of Wildlife. Pl.’s Reply Mem. at 3. Specifically, EPIC complains that the Myrick Declaration “fails to identify the title or shorthand title of any document; the date the document was produced; any description——even short, one sentence descriptions to identify each document; or even any language to differentiate between documents within categories.” Id.
In the Court’s view, the Myrick Declaration meets the requirements of Vaughn. As discussed below, where the Court finds the DEA’s withholding justifications conclusory, vague, or otherwise insufficient, the Court has ordered the DEA to provide a more detailed explanation through supplemental briefing and additional declarations, or to produce relevant documents for in camera review. Therefore, to the extent Plaintiff seeks a more detailed Vaughn index, Plaintiff’s Motion is DENIED .
C. Documents withheld under FOIA exemptions *12 EPIC objects to documents withheld by the DEA under FOIA exemptions 5, 7(D) and 7(E). See generally, Pl.’s Mem. Opp. Each will be addressed in turn. [6]
1. FOIA Exemption 5
FOIA Exemption 5 protects from disclosure “inter-
agency or intra-agency memorandums or letters which would
not be available by law to a party . . . in litigation with
the agency.” 5 U.S.C. § 552(b)(5). Numerous privileges,
including the deliberative process, attorney-client, and
work product privileges are typically asserted in the
context of withholdings under exemption 5.
Tax Analysts v.
I.R.S.
,
Sears, Roebuck & Co.
,
*13 The DEA applied FOIA exemption 5 to two documents: A draft memorandum prepared by an attorney in the DEA Office of Chief Counsel analyzing legal issues regarding the procedures used to obtain information through Hemisphere, intended to assist senior DEA management, and containing comments added by the same attorney regarding the same topics . . . . [and] An email message from a Deputy Assistant Attorney General at DOJ to other Federal government employees containing a preliminary assessment of three issues relating to features of the Hemisphere program . . . .
Myrick Decl. at ¶ 34 (a)-(b). Each will be addressed in turn.
a. The Memorandum EPIC argues that the memorandum is not protected by the deliberative process privilege because a final version of the document has not been identified, making the “draft” memorandum the final decision on the issues discussed therein. Pl.’s Mem. Opp. at 24. The DEA argues that the draft memorandum is properly considered “pre-decisional” because it “was prepared to facilitate the development of the DEA’s policies and procedures regarding the use of Hemisphere and did not itself establish a final agency position.” Def.’s Reply Mem. at 8.
The deliberative process privilege covers deliberative,
pre-decisional communications.
Nat’l Sec. Archive v. CIA
, 752
F.3d 460, 462 (D.C. Cir. 2014). “A document is predecisional
if ‘it was generated before the adoption of an agency policy’
and deliberative if ‘it reflects the give-and-take of the
*14
consultative process.’”
EPIC v. Dept. of Homeland Security
,
EPIC contends that “[w]hen an agency uses the
deliberative process privilege to withhold draft documents
under Exemption 5, it must identify a corresponding final
decision.”
See
Docket 18 at 24. As a matter of law, EPIC is
incorrect.
Sears, Roebuck & Co.
,
Indeed, the precise argument made by EPIC here——
supported by the same quotes from three opinions of this
Court——was rejected more than two years ago by Judge Royce C.
*15
Lamberth as “misplaced.”
See EPIC v. U.S. Dept. of Homeland
Sec.
,
EPIC’s reliance on Exxon Corp. v. Dept. of Energy is particularly misleading. EPIC omitted the key modifying phrase “In some instances” that precedes the language they quote: “where DOE has failed to identify a final document corresponding to a putative draft, the ‘draft’ shall be ordered produced . . . .”585 F. Supp. 690 , 698 (D.D.C. 1983). Moreover, even the language EPIC does not selectively omit reflects a more nuanced rule than the one EPIC proposes; the sentence concludes: “. . . to the extent that the agency has provided no basis for determining that it in fact has such status.” Id. Similarly, in Mayer, Brown, Rowe & Maw LLP v. IRS , Judge Collyer found that the documents at issue were “too removed from an actual policy decision” to warrant protection under exemption 5, but the case does not stand for the proposition that an agency seeking to withhold a draft must always point to a final version of that document. 537 F. Supp. 2d. 128, 136 (D.D.C. 2008). Finally, in Judicial Watch Inc. v. U.S. Postal Serv. , Judge Kennedy faulted the government for failing to “identify specific final decisions or decision making processes related to the issues raised in the FOIA request. 297 F. Supp. 2d 252, 264 (D.D.C. 2004). Judicial Watch does not stand for the rule EPIC proposes.
Id.
EPIC’s attempt to equate the memorandum at issue in this case with the memoranda at issue in Sears, Roebuck & Co. is also misplaced. See Pl.’s Reply Mem. at 6. EPIC argues that the Supreme Court required the agency to “disclose Advice Memoranda in cases where the agency decided not to go forward with employment law prosecutions because these memoranda were the final embodiment of policies . . . .” Id. EPIC’s insistence that the draft memorandum here be treated as a final policy, as in Sears , ignores the reality of how government policies evolve. As discussed at length by the D.C. Circuit:
There may be no final agency document because a draft died on the vine. But the draft is still a draft and thus still pre-decisional and deliberative. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 n. 18, 95 S. Ct. 1504, 44 L.Ed.2d 29 (1975). A Presidential speechwriter may prepare a draft speech that the President never gives. A Justice Department aide may give the Attorney General a draft regulation that the Attorney General never issues. Those kinds of documents are no less drafts than the drafts that actually evolve into final Executive Branch actions. Moreover, the writer does not know at the time of writing whether the draft will evolve into a final document. But the writer needs to know at the time of writing that the privilege will apply and that the draft will remain confidential, in order for the writer to feel free to provide candid analysis. A privilege contingent on later events—such as whether the draft ultimately evolved into a final agency position—would be an uncertain privilege, and as the Supreme Court has said, an uncertain privilege is “little better than no privilege *17 at all.” Upjohn Co. v. United States, 449 U.S. 383, 393, 101 S. Ct. 677, 66 L.Ed.2d 584 (1981); see also Swidler & Berlin v. United States,524 U.S. 399 , 408–09,118 S. Ct. 2081 ,141 L.Ed.2d 379 (1998). In short, to require release of drafts that never result in final agency action would discourage innovative and candid internal proposals by agency officials and thereby contravene the purposes of the privilege.
Nat'l Sec. Archive v. C.I.A. , 752 F.3d 460, 463 (D.C. Cir. 2014).
Having disposed of EPIC’s meritless argument regarding
the “draft” status of the memorandum at issue, the Court must
now consider whether the DEA has met its burden of showing
that the memorandum was genuinely part of the DEA’s
deliberative process.
See e.g., EPIC v. U.S. Dept. of Homeland
Sec.
, 928 F. Supp.2d at 155.
[7]
The DEA has met this burden.
First, the memorandum was prepared by an attorney in the DEA’s
*18
office of Chief Counsel for senior DEA management. Myrick
Decl. ¶ 34(a);
see e.g. Coastal States Gas Corp. v. Dep’t of
Energy
, 617 F.2d 854, 868 (D.C. Cir. 1980) (noting that “a
document from a subordinate to a superior official is more
likely to be predecisional, while a document moving in the
opposite direction is more likely to contain instructions to
staff explaining the reasons for a decision already made.”).
Second, the memorandum includes comments by the attorney who
prepared the document, reflecting the deliberative posture of
the memorandum. Myrick Decl. ¶ 34(a);
See also Nat'l Sec.
Archive v. C.I.A.
,
For all of these reasons, the draft memorandum was properly withheld under FOIA Exemption 5. The DEA’s Motion for Summary Judgment on this issue is GRANTED and Plaintiff’s Motion for Summary Judgment is DENIED . [8]
b. The Email *19 The parties’ dispute over the email withheld under FOIA Exemption 5 involves a lengthy procedural background that will be reviewed briefly here. In the DEA’s Memorandum in Support of its Motion for Summary Judgment, it argued that the email it claims is subject to FOIA exemption 5 is protected under the deliberative process, attorney-client and work product privileges. Def.’s Mem. Supp. Summ. J. at 7-9. EPIC’s Memorandum in Opposition and Cross-Motion for Summary Judgment addressed the DEA’s arguments pertaining to the memorandum discussed supra, but was silent in regard to the DEA’s claimed privileges over the email. Pl.’s Mem. Opp. at 23-26. The DEA’s Memorandum in Opposition and Reply argued that the Court should find that EPIC conceded the email is protected because it set forth no substantive objection. Def.’s Reply Mem. at 16. EPIC’s Reply Memorandum then addressed the DEA’s attorney-client and deliberative process privilege arguments, but remained silent in regard to the work product privilege. Pl.’s Reply Mem. at 6-14.
The DEA later argued that all of EPIC’s arguments pertaining to the email should be deemed conceded under Local Rule 7(b) and relevant case law. See e.g. , Elec.
Privacy Info. Ctr. v. Office of the Dir. of Nat'l
Intelligence
,
Def.’s Motion for Leave to File, ECF No. 23 at 1.
In September 2015, the Court granted the parties an opportunity to submit supplemental briefing on this issue. See September 29, 2015 Minute Order. EPIC’s supplemental brief does not address the DEA’s work product argument.
Pl.’s Response to Def.’s Surreply, ECF No. 31 at 5. Rather, EPIC simply maintains that its general assertions show it has not conceded any argument. Id. (“EPIC argued . . . that the documents withheld by the DEA are not subject to Exemption 5 because they ‘would not normally be privileged in the context of civil discovery.’”). Id.
Although there is sufficient evidence in the record to
conclude that EPIC has waived any argument regarding the
application of the work-product doctrine to the email in
question because EPIC did not contest the application of
the work-product doctrine to the email message in its first
summary judgment brief,
see e.g. Texas v. United States
,
Case No. 14-5151,
18, 2015), the Court is also satisfied that the email is in fact protected by the privilege. The Court will therefore briefly address the merits of the DEA withholding the email under Exemption 5.
The work product doctrine “protects from disclosure
materials prepared in anticipation of litigation or for trial
by or for another party or its representative. . . .”
Williams
& Connolly v. S.E.C.
, 662 F.3d 1240, 1243 (D.C. Cir. 2011)
(internal quotations omitted) (citing Fed. R. Civ. P.
26(b)(3)(A));
see also Hickman v. Taylor
,
[I]t is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant fats, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways. . . .
Id. Further, the work product doctrine protects both deliberative materials as well as factual material prepared *22 in anticipation of litigation. Tax Analysts v. IRS , 117 F.3d 607 at 620 (D.C. Cir. 1997).
Here, the DEA asserts under the sworn Declaration of Ms.
Myrick that the email is “covered by the attorney work-product
doctrine because it was prepared by a DOJ attorney in
anticipation of litigation relating to the use of Hemisphere
in law enforcement.” Myrick Decl. ¶ 15-3 (b). This is the
critical factor when determining whether a document is
covered by the work product doctrine.
See, e.g. Tax Analysts
v. I.R.S.
, 391 F. Supp. 2d 122, 127 (D.D.C. 2005) (noting
that the work product doctrine does not extend to every
document generated by an attorney, but the “key is whether or
not the documents were prepared in anticipation of
litigation.”) (citing
Johnson v. United States Dep’t. of
Justice
, 591 F.2d 753 (D.C. Cir. 1978). “[L]itigation need
not be actual or imminent, it need only be ‘fairly
foreseeable.’”
Hertzberg v. Veneman
,
While some articulable claim likely to lead to
litigation must have arisen, the work product doctrine
protects communications even if no specific claim is
contemplated.
Hertzberg
, 273 F. Supp. 2d at 79 (citing
Schiller v. NLRB
,
EPIC articulates no reason to doubt the veracity of Ms. Myrick’s declaration. Moreover, the nature of the Hemisphere program, which clearly implicates controversial law- enforcement techniques and privacy rights as evidenced by this lawsuit, satisfies the Court that it is objectively reasonable for the government agencies involved to hold a subjective belief that litigation was and is a real possibility. The Court therefore concludes that the email at issue is protected by the work product doctrine because it was prepared in anticipation of litigation. See e.g. , McKinley v. Board of Governors of Federal Reserve System , 647 F.3d 331, 341 (D.C. Cir. 2011) (holding that the work product doctrine applied to a document prepared in anticipation of litigation and was therefore protected from disclosure under FOIA Exemption 5).
For all of these reasons, the email was properly withheld under FOIA Exemption 5. The DEA’s Motion for Summary Judgment *24 on this issue is GRANTED and Plaintiff’s Motion for Summary Judgment is DENIED .
2. Exemption 7
Information may be withheld under FOIA Exemption 7 if it
was compiled for law enforcement purposes. 5 U.S.C. § 552;
see also Campbell v. U.S. Dept. of Justice
,
a. Whether an explicit or implicit assurance of confidentiality was given to the private institutions assisting with Hemisphere EPIC challenges the DEA’s application of Exemption 7(D) to protect the identification of private companies that assist in the operation of Hemisphere because there is no evidence of an explicit or implicit assurance of confidentiality. Pl.’s Mem. Opp. at 26-28. The DEA contends that it has sufficiently shown *25 that private institutions received both explicit and implicit assurances of confidentiality. Def.’s Mem. Supp. at 15-16.
Exemption 7(D) permits the government to withhold: Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation . . ., information furnished by a confidential source.
§ 552(b)(7)(D) (emphasis added). Exemption 7(D) applies whether
the source provided the information under an express or implied
assurance of confidentiality.
U.S. Dep’t. of Justice v. Landano
,
i. The Myrick Declaration does not support finding that an express assurance of confidentiality was given
To withhold information under Exemption 7(D) by an express assurance of confidentiality, the DEA must present “probative evidence that the source did in fact receive an express grant of confidentiality.” Campbell v. U.S. Dept. of Justice , 164 F.3d 20, 34 (D.C. Cir. 1998), as amended (Mar. 3, 1999). Such evidence includes notations on the face of a withheld document, the personal knowledge of an official familiar with the source, a statement by the source, or contemporaneous documents discussing practices or policies for the dealing with the source or similarly situated sources. Id. The agency’s declaration must *27 permit “meaningful judicial review by providing a sufficiently detailed explanation for the agency’s conclusions.” Id.
Here, the DEA relies on Ms. Myrick’s statement that “[a]ccording to the DEA personnel who are familiar with Hemisphere, the companies provide information to law enforcement with the express expectation that both the source and the information will be afforded confidentiality.” Myrick Decl. ¶ 41. EPIC argues that the DEA’s justification of express confidentiality is insufficient because the DEA does not (1) attach declarations from the agents who extended the promise of confidentiality, (2) produce any FBI document supporting the grant of confidentiality, or (3) submit evidence of a consistent policy granting confidentiality to designated sources during the relevant time period. Pl.’s Mem. Opp. at 28. The DEA acknowledges that Ms. Myrick’s statement “admittedly does not provide a great amount of detail” because “some circumspection is necessary because of the sensitivity of the information involved.” Def.’s Reply Mem. at 10.
The Court acknowledges the sensitive nature of the information at issue, but agrees with EPIC that the government has failed to meet its burden of showing that an explicit assurance of confidentiality was given to the private companies involved with Hemisphere. See e.g., Voinche v. F.B.I. , 46 F. Supp.2d 26, 34 (D.D.C. 1999) (“To properly invoke Exemption *28 7(D), however, the [government] must present more than the conclusory statement of an agent that is not familiar with the informant.”). The DEA is therefore ordered to submit the relevant documents to the Court for in camera review, or to supplement the record with a declaration from a DEA employee who has first-hand knowledge of the explicit assurance of confidentiality given to the private companies. See e.g. Trea Senior Citizens League v. U.S. Dept. of State , 923 F. Supp. 2d 55, 71 (D.D.C.) (“Having concluded there are various factual deficiencies in the defendant’s sworn declarations, the Court ‘has several options, including inspecting the documents in camera , requesting further affidavits, or allowing the plaintiff discovery.’”) (quoting Spirko v. U.S. Postal Serv. , 147 F.3d 992, 997 (D.C. Cir. 1998).
ii. The Myrick Declaration does not support a
finding that an implicit assurance of
confidentiality was given
To establish that a source received an implicit assurance
of confidentiality, several considerations are examined,
including the nature of the crime and the informant’s relation
to the crime.
Landano
,
In this case, Ms. Myrick states that “confidentiality can
be inferred because providing the information can lead to
retaliation against the companies.” Myrick Decl. ¶ 41. EPIC
responds that the DEA failed to properly discuss the
Roth
factors, depriving the Court of adequate information to
determine if an implicit guarantee of confidentiality should be
found. Pl.’s Reply Mem. (citing
Roth
,
The Court agrees with EPIC that the DEA has failed to provide the necessary details to support a finding that *30 confidentiality was implied to private companies assisting with the operation of Hemisphere. The DEA cites no authority for the proposition that potential retaliation against a private company is sufficient to justify a finding of implied confidentiality. To establish an implied assurance of confidentiality, the DEA must provide a more detailed explanation of the Roth factors—— including the sources’ relation to the crime, whether the source received payment, and whether the source has an ongoing relationship with the law enforcement agency. [11]
For all of these reasons, Defendant’s Motion for Summary Judgment on the issue of whether an explicit or implicit grant of confidentiality was given under Exemption 7(D) is DENIED without prejudice. The DEA must either disclose the relevant information withheld under Exemption 7(D), supplement the record with additional affidavits and authority justifying its withholding, or produce documents for the Court’s in camera review.
b. FOIA Exemption 7(E) FOIA Exemption 7(E) permits the withholding of information collected for law enforcement purposes if release of that information would:
*31 disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.
5 U.S.C. § 552(b)(7)(E). The purpose of Exemption 7(E) is to
prevent publication of information that would “train potential
violators to evade the law or instruct them how to break the
law,” and to protect information that, if disclosed, “increases
the risks that a law will be violated or that past violators
will escape legal consequences.”
Mayer Brown v. I.R.S.
, 562 F.3d
1190, 1193 (D.C. Cir. 2009)
.
Exemption 7(E) sets a “relatively
low bar” for an agency to justify withholding information” but
the government must “demonstrate logically how the release of
the requested information might create a risk of circumvention
of the law.”
Blackwell v. F.B.I.
,
In this case, the DEA has asserted Exemption 7(E) for 11 categories of documents. Def.’s Mem. Supp. Summ. J., at 18-23. EPIC challenges three of those categories: (1) withholding of the names of private companies that assist with the operation of Hemisphere; (2) documents that reveal how the DEA secures cooperation of entities instrumental to Hemisphere’s operation; (3) names of other law enforcement agencies with access to *32 Hemisphere. Pl.’s Mem. Opp. at 28-38. Each category will be discussed in turn.
i. Withholding names of private companies
cooperating in the operation of Hemisphere
EPIC argues that the DEA fails to give any explanation of
how disclosing the names of private corporations cooperating
with Hemisphere would reveal techniques or procedures that may
be exploited by potential criminals.
Id.
at 29. The DEA responds
that “all of the material withheld under Exemption 7(E) in this
case pertains to a single set of law enforcement techniques and
procedures——Hemisphere and its use by law enforcement
authorities to obtain access to telephone records in the course
of law enforcement investigations.” Def.’s Reply Mem. at 12.
The DEA has offered no evidence or explanation for its claim
that Hemisphere is a “single” technique and procedure.
See e.g.
Blackwell v. F.B.I.
,
Moreover, 7(E) is intended to protect information that is
not generally known to the public. O’Reilly at 446;
see also
*33
Rosenfeld v. U.S. Dept. of Justice
,
In support of its position, the DEA relies on
PHE, Inc. v.
Dep’t of Justice
for the proposition that this Circuit has
upheld invocations of 7(E) at an even higher level of
generality.
The DEA also argues that “knowing the identities of particular companies instrumental in the operation of Hemisphere would help criminals understand how Hemisphere works and how it can be evaded and would also facilitate efforts to disrupt Hemisphere, for example, by attacking facilities involved in the Hemisphere program.” Def.’s Reply Mem. at 13. The DEA has failed to logically demonstrate how release of the private corporation’s names would assist drug traffickers seeking to evade law enforcement. For example, according to one of the media reports cited in EPIC’s Complaint, the AT&T database “includes every phone call which passes through the carrier’s infrastructure, not just those made by AT&T customers.” U.S. Drug Agency Partners with AT&T for Access to ‘Vast Database’ of Call Records , The Guardian, September 2, 2013. The logical inference from this report is that a drug trafficking *35 organization cannot avoid use of any one telephone carrier in order to evade the DEA’s prosecution efforts through Hemisphere.
Second, the DEA has not provided enough information for the Court to agree with its assertion that knowing the identity of the private corporations assisting with Hemisphere would reveal the location of corporate facilities, and that such a disclosure might risk circumvention of the law. Although not confirmed by the government, the cooperation of Verizon Communications Inc. and AT&T in government data collection, as noted supra , has been publicly reported for years. Publicly available information about such telecommunication companies’ facility locations is as available now as it would be were the DEA to disclose the identities of the companies assisting with Hemisphere. Further, even if facility locations were identified, it is unclear how an attack on publicly known facilities would compromise Hemisphere and risk circumvention of the law.
Finally, the DEA’s citation to
EPIC v. Office of the Dir.
of Nat’l Intelligence
,
In sum, the record in this case does not, at this time, support a finding that disclosure of the names of the private companies cooperating with the government in the operation of Hemisphere will assist individuals in thwarting the DEA, or create a risk of circumvention of the law. [12] The Defendant’s Motion for Summary Judgment pertaining to whether the names of the private companies assisting with Hemisphere are justifiably withheld under Exemption 7(E) is DENIED without prejudice . The DEA must either disclose the relevant information withheld under Exemption 7(E), supplement the record with additional affidavits and authority justifying its withholding, or produce documents for the Court’s in camera review.
*37 ii. Documents that reveal how cooperation from third parties is secured
EPIC argues documents that reveal how Hemisphere secures cooperation from other entities do not meet the threshold requirement of Exemption 7, in that such documents were “not compiled for law enforcement purposes.” Pl.’s Mem. Opp. at 31. The DEA maintains that all documents identified as responsive to EPIC’s FOIA request were compiled for law enforcement purposes and that documents setting forth how to secure cooperation from third parties are protected under 7(E) because disclosure risks disruption of those means, which would “hamper law enforcement efforts by reducing or eliminating the availability and effectiveness of Hemisphere as a law enforcement tool.” Def.’s Reply at 14-15.
It is possible that a document describing the means of
securing cooperation includes specific information that would be
protected by Exemption 7(E), yet it is also conceivable that the
information is so generalized that the document cannot be said
to have been created for law enforcement purposes, or that
disclosure would not risk circumvention of the law. The DEA’s
conclusory assertion that publication of these documents could
“reasonably be expected to lead to disruption of the means of
securing cooperation” does not allow the Court to assess whether
the documents deserve protection under 7(E). Myrick Decl. ¶
*38
45(k). Because the DEA insists that “a more specific description
of this potential risk would entail revealing the withheld
information,” the DEA is
ORDERED
to produce the documents
withheld under this rationale for
in camera
review.
See e.g.
Fitzgibbon v. U.S. Secret Service
,
iii. Names of the law enforcement agencies that have access to the Hemisphere database EPIC also challenges the DEA’s withholding of the names of other law enforcement agencies that have access to Hemisphere’s database, arguing that the DEA does not explain “why the names of federal agencies would reveal techniques, procedures, or guidelines” or how such disclosure could “reasonably be expected to risk circumvention of the law.” Pl.’s Reply Mem. at 37. [13] The *39 DEA maintains that knowledge of the other agencies would “be helpful to criminals and criminal organizations . . . [which would be] better informed about the capabilities of their pursuers” because “each law enforcement agency has its own respective focus and sphere of authority.” Def.’s Reply Mem. at 14.
The DEA cites no persuasive authority in support of
withholding the names of other agencies who have access to
Hemisphere’s database. For example, the government cites
Light
v. Department of Justice
for the proposition that the identity
and expertise of investigating law enforcement units are
protected under 7(E).
The DEA also cites Pons v. U.S. Customs Service for the proposition that “information that concerns the cooperative arrangement between Customs and other law enforcement agencies” is protected under exemption 7(E). See Civ. No. 93-2094 (TFH), Civ. No. 93-2189 (TFH), 1998 U.S. Lexis 6084. In Pons , the Court reasoned that because “Defendant’s evidence demonstrates that Customs does not publicize its cooperation with other agencies” and “relies in part on secrecy of its cooperative efforts to fulfill its law enforcement purpose,” disclosure of the information sought by Plaintiff could “compromise the effectiveness of the agency, and could facilitate circumvention of the law.” Id. at * 20. Here, no evidence has been presented to the Court to justify the DEA’s conclusory argument that “because every law enforcement agency has its own respective focus and sphere of authority, knowing which particular law enforcement agencies have access to Hemisphere would help criminals tailor their activities to avoid apprehension.” Def.’s Reply Mem. 13-14.
For these reasons, the Defendant’s Motion for Summary Judgment pertaining to withhold the names of other agencies that have access to the Hemisphere data is DENIED without prejudice . The DEA must either disclose the names of other agencies that have access to the data withheld under Exemption 7(E), supplement the record with additional affidavits and authority justifying its withholding, or produce documents for the Court’s in camera review. [14]
IV. Conclusion
For the foregoing reasons, Plaintiff’s Motion is DENIED in part and Defendant’s Motion is GRANTED in part and DENIED in part . Plaintiff’s Motion shall be HELD IN ABEYANCE on those issues where the Court has invited supplemental submissions from Defendant. To the extent Defendant plans to submit supplemental briefing, the parties shall submit a proposed briefing schedule *42 no later than July 8, 2016.
Signed: Emmet G. Sullivan
United States District Judge
June 24, 2016.
Notes
[1] Although media reports cite AT&T as one of the private corporations assisting the government with Hemisphere, the government has never confirmed this allegation and one of the issues disputed in this lawsuit is whether the identity of private institutions assisting the government should be disclosed.
[2] EPIC’s first FOIA request, sent September 25, 2013, was challenged by the DEA as not reasonably describing the requested records, in violation of FOIA standards and Department of Justice regulations. Compl . ¶¶ 22-24. EPIC modified its letter and resent the requests in November 2013. Id.
[3] EPIC does not challenge the sufficiency of the DEA’s search in response to the first, second or fourth prongs of its FOIA request. Pl.’s Mem. Opp. at 22.
[4] EPIC’s memorandum in opposition to DEA’s Motion for Summary Judgment is also EPIC’s Cross-Motion for Summary Judgment.
[5] DEA’s Reply Memorandum is also its Memorandum in Opposition to Plaintiff’s Motion for Summary Judgment.
[6] EPIC notes that it “does not concede that the DEA’s withholdings under 6, 7(C) or 7(F) were proper” but that it “chose not to dispute these for the purposes of this lawsuit.” Pl.’s Opposition, ECF No.24 at 3. EPIC’s failure to address the DEA’s withholdings pursuant to exemptions 6, 7(C) or 7(F) constitutes a concession, for the purposes of this motion, that the documents were withheld lawfully. See e.g. , Elec. Privacy Info. Ctr. v. Office of the Dir. of Nat'l Intelligence , 982 F. Supp. 2d 21, 26 (D.D.C. 2013) ((“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”) (quoting Hopkins v. Women's Div., Gen. Bd. of Global Ministries,284 F.Supp.2d 15 , 25 (D.D.C. 2003), aff'd,98 Fed. Appx. 8 (D.C. Cir. 2004)).
[7] It is extremely troubling that EPIC repeated a legal argument that was rejected by this Court more than two years ago. “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good- faith argument for an extension, modification, or reversal of existing law.” Rules of Professional Conduct: Rule 3.1 – Meritorious Claims and Contentions, available at https://www.dcbar.org/bar-resources/legal-ethics/amended- rules/rule3-01.cfm. EPIC did not acknowledge Judge Lamberth’s decision, let alone attempt to distinguish the facts or offer additional authority to support its legal argument. This suggests a hasty cut-and-paste of arguments from one brief to another. Other errors in EPIC’s brief also support this conclusion. For example, two of EPIC’s headings appear to have been cut and pasted from a previous brief involving the DHS rather than the DEA. See e.g. Pl.’s Mem. Opp. at 19 and 21.
[8] Because the memorandum is protected from disclosure under the deliberative process privilege, the Court need not address the parties’ arguments pertaining to the attorney-client and work product privileges.
[9] The DEA’s investigative jurisdiction derives from the Controlled Substances Act (“CSA”), 21 U.S.C. § 801, et seq. Myrick Decl. ¶ 5. The CSA authorizes the DEA to enforce the Act through the investigation of trafficking in controlled substances. Id.
[10] In its Reply, EPIC argues that “[t]he recognition of
corporations as confidential informants would be an
unprecedented expansion of Exemption 7(D) and would conflict
with the Supreme Court’s holding in
Landano.
” Pl.’s Reply Mem.
at 14.
Landano
held that the government is not entitled to a
presumption
that all sources supplying information to the FBI
are confidential sources.
[11] Establishing that the private institutions received an implicit assurance of confidentiality will not be necessary if the DEA establishes that an explicit assurance of confidentiality was received.
[12] As discussed in Section III. C. 2, the DEA may establish that the identities of the private companies assisting with Hemisphere should be protected based on either an explicit or implicit assurance of confidentiality under Exemption 7(D). Such a showing under 7(D) would make the issue of whether the private company identities should be protected under 7(E) moot.
[13] EPIC also objects to what it characterizes as “categorical” withholdings under Exemptions 7(D) and 7(E). Pl.’s Mem. Opp. at 16–19 and Pl.’s Reply Mem. at 4-5. EPIC’s argument is not persuasive. The DEA has specified the page numbers and marked the relevant redacted material under Exemption (D) and (E). Myrick Decl. ¶¶ 40-45. As discussed in Section III. C. 2. b., the type of record withheld is not significant to the Court’s analysis of whether they were properly withheld under Exemption 7 (D). Rather, the question is whether the private institutions received an explicit or implicit assurance of confidentiality. In regard to the DEA’s withholdings under 7(E), EPIC challenges
[14] EPIC argues that the DEA has not met its burden to show that it properly segregated unprotected material from its redactions. Pl.’s Mem. Opp. at 19. The DEA maintains that any words or phrases not covered by an exemption would be “incomprehensible” and “not contribute to the understanding of how the DEA or the United States conducts business either in general or specifically related to the matters requested by Plaintiff.” Myrick Decl. ¶ 48. Because the Court has ordered and otherwise invited the DEA to submit certain documents to the Court for in camera review, the Court will defer its ruling on the issue of segregability until after it has reviewed documents in camera.