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Case TitleELECTRONIC PRIVACY INFORMATION CENTER v. DEPARTMENT OF HOMELAND SECURITY
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2013cv00260
Date Filed2013-02-27
Date Closed2013-11-13
JudgeJudge James E. Boasberg
PlaintiffELECTRONIC PRIVACY INFORMATION CENTER
DefendantDEPARTMENT OF HOMELAND SECURITY
AppealD.C. Circuit 14-5013
Documents
Docket
Complaint
Opinion/Order [19]
FOIA Project Annotation: Judge James Boasberg has rejected the government's argument that Exemption 7(F) (safety of any individual) protects information whose disclosure might cause harm to undefined groups of people. His decision is the first since the Second Circuit's opinion in ACLU v. Dept of Defense, 543 F.3d 59 (2d Cir. 2008), which was vacated to prevent it from being considered by the Supreme Court and was traded for passage of the Open FOIA Act amending Exemption 3, to look closely at both the language and legislative history of Exemption 7(F) and conclude that it covers only individuals or identifiable groups of individuals rather than the universe of individuals. In ACLU v. Dept of Defense, the government invoked Exemption 7(F) to protect American troops and citizens in Iraq and Afghanistan from potential attacks as the result of disclosure of graphic photographs of abuse of detainees. In Boasberg's case, EPIC had requested Standard Operating Procedure 303 from the Department of Homeland Security, an Emergency Wireless Protocol codifying the shutdown and restoration process for use by commercial and private wireless networks during national crises, including deterring the detonation of remote explosive devices. The agency first indicated it could find no responsive records. When EPIC appealed, the agency sent the request back for a further search. The agency then found the document, but withheld it under Exemption 7(E) (investigative methods and techniques) and Exemption 7(F). Boasberg, however, found that neither exemption covered the protocol. Turning first to Exemption 7(E), Boasberg agreed with the agency that the record was created for law enforcement purposes. But he pointed out that "DHS's trouble comes at the second step, which requires that the disclosure would reveal 'techniques and procedures for law enforcement investigations or prosecutions.' They key question is whether the agency has sufficiently demonstrated how SOP 303, which articulates protective measures, is a technique or procedure 'for law enforcement investigations or prosecutions.'" He then looked at the legislative history of Exemption 7(E), which was amended in 1986. He noted that "prior to the 1986 amendments, to merit withholding, Exemption 7 first required 'investigatory records compiled for law enforcement purposes,' and subparagraph (E) then required that the records would 'disclose investigative techniques and procedures.' The 1986 amendments 'delet[ed] any requirement [in the first step] that the information be 'investigatory' and broadened the permissible withholding to 'records or information compiled for law enforcement purposes.' Congress, however, retained the investigatory requirement in 7(E) by keeping the requirement that information be 'for law enforcement investigations or prosecutions.' Congress thus specifically and intentionally chose to remove the investigatory requirement from the first step and to leave it in the second step." Boasberg observed that "looking at the amended language, the Court agrees with the Government that Exemption 7's mention of 'law enforcement purposes' may certainly include preventive measures. The problem is that 7(E)'s reference to 'law enforcement investigations and prosecutions' does not." He pointed out that "if 'techniques and procedures for law enforcement investigations or prosecutions' is given its natural meaning, it cannot encompass the protective measures discussed in SOP 303. This term refers only to acts by law enforcement after or during the commission of a crime, not crime-prevention techniques." Boasberg noted that "the agency's last gambit is a post hoc attempt to classify SOP 303 as an investigative technique" by suggesting that preventing an explosion would facilitate the investigation of who built and tried to detonate the explosive. He pointed out that "this is too little, too late" and agreed with EPIC that SOP 303 could not be characterized "as an evidence-gathering technique." Boasberg indicated the government's argument fared no better when applied to Exemption 7(F). He pointed out that "DHS must show that production would 'endanger the life or physical safety of any individual. The agency argues that SOP 303's 'disclosure could reasonably be expected to endanger the physical safety of individuals near unexploded bombs.'. . .In other words, [the government contends that] the 'any individual' test is satisfied because those endangered are any individuals near a bomb. Although this interpretation holds some appeal, the Court must conclude that the agency reads the 'any individual' standard too broadly." He noted that "while DHS is correct that Exemption 7(F) is not limited to protecting law-enforcement personnel from harm, the agency still must identify the individuals at risk with some degree of specificity." Boasberg found the Second Circuit's analysis in ACLU v. Dept of Defense persuasive. The Second Circuit explained that Exemption 7(F) was also amended in 1986 by deleting language that limited its application to law enforcement personnel and replacing it with "any individual." But in 1985 congressional testimony, the government specifically indicated the amendment was intended to cover "witnesses, potential witnesses and family members whose personal safety is of central importance to the law enforcement process." Boasberg explained that "Congress ultimately settled on the broader term of 'any individual,' as opposed to, for example, 'any individual connected to or assisting law enforcement.'" He observed that "the Court, therefore, would be overly restrictive if it defined 'any individual' in the latter, cabined manner. Yet, bearing in mind the modest expansion intended and the prescription that exemptions must be read narrowly, the Court must require some specificity and some ability to identify the individuals endangered." Boasberg indicated that "the population is vaster here because it encompasses all inhabitants of the United States, while in ACLU it only covered people in Iraq and Afghanistan. Indeed, if the Government's interpretation were to hold, there is no limiting principle to prevent 'any individual' from expanding beyond the roughly 300 million inhabitants of the United States, as the Government proposes here, to the seven billion inhabitants of the earth in other cases." While the Second Circuit completely rejected the reasoning of Living Rivers v. Bureau of Reclamation, 272 F. Supp. 2d 1313 (D. Utah 2003), nearly the only case upholding application of Exemption 7(F) to a loosely defined population, consisting of everyone living downstream from Hoover and Glen Canyon Dams, Boasberg was hesitant to dismiss the case completely. Instead he distinguished his case from Living Rivers. He pointed out that "here, the individuals at risk include anyone near any unexploded bomb, which could include anyone anywhere in the country. As the Living Rivers population was clearly specified and limited, the case, even were it binding, does not affect the Court's decision."
Issues: Exemption 7(F) - Harm to safety of any person
Opinion/Order [33]
FOIA Project Annotation: Judge James Boasberg has ruled that while EPIC is entitled to attorney's fees for its litigation against the Department of Homeland Security for access to Standard Operating Procedure 303, a document describing DHS protocols for shutting down wireless networks during a national emergency, its limited success called for a significant reduction from the $81,223 EPIC requested to the $20,145 Boasberg awarded. The agency originally told EPIC it could not find the document. EPIC filed an administrative appeal, but decided to file suit before its appeal was resolved. The agency located the document, but released only a heavily redacted version, claiming the rest was protected by Exemption 7(E) (investigative methods and techniques). Boasberg ruled in favor of EPIC, but on appeal, the D.C. Circuit reversed, finding the record qualified as a law enforcement record because it dealt with security matters. On remand back to the district court, the agency disclosed a second version of SOP 303 with fewer redactions. After reviewing the new version in camera, Boasberg agreed with the agency that no further information could be disclosed. EPIC then filed for attorney's fees, including a request for $26,000 for time spent on the fee litigation. The parties agreed that the Legal Services Index of the National Consumer Price Index should be used as the basis for calculating fees. The agency argued that EPIC's fee request was replete with overbilling, but Boasberg noted that "the Court takes up Defendant's proposal to factor in these inefficiencies when considering how to discount the overall fee request. In other words, the Court will write off a percentage of EPIC's bill 'to reflect attorney inefficiency and other considerations.'" To account for overstaffing, Boasberg indicated that he would start by reducing the request by 35 percent. Boasberg further reduced EPIC's fee request for that portion of the litigation dealing with the exemption claims by 76 percent for lack of success. He then noted that because EPIC had initially tried to settle the question of fees unsuccessfully by dealing directly with the agency, much of its time spent on the issue of its entitlement to fees was unnecessary. He observed that 'while the Court encourages parties to resolve their differences without motions, here EPIC's exorbitant demands seem to have unnecessarily prolonged this case. The Court will thus only access as potentially recoverable the time spent after settlement talks fell through. . ."
Issues: Litigation - Attorney's fees - Entitlement - Calculation of award
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2013-02-271COMPLAINT against DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 350 receipt number 0090-3233293) filed by ELECTRONIC PRIVACY INFORMATION CENTER.(McCall, Ginger) (Entered: 02/27/2013)
2013-02-272LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ELECTRONIC PRIVACY INFORMATION CENTER (McCall, Ginger) (Entered: 02/27/2013)
2013-02-27Case Assigned to Judge James E. Boasberg. (md, ) (Entered: 02/27/2013)
2013-02-283NOTICE of Civil Cover Sheet by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Summons)(McCall, Ginger) (Entered: 02/28/2013)
2013-03-154ELECTRONIC SUMMONS Issued (3) as to DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent, # 2 Consent Form)(md, ) (Entered: 03/15/2013)
2013-03-185RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/18/2013. Answer due for ALL FEDERAL DEFENDANTS by 4/17/2013. (McCall, Ginger) (Entered: 03/18/2013)
2013-04-176ANSWER to Complaint by DEPARTMENT OF HOMELAND SECURITY.(Sandberg, Justin) (Entered: 04/17/2013)
2013-04-177ORDER requiring the parties to consult and file a joint proposed briefing schedule by May 17, 2013. Signed by Judge James E. Boasberg on 4/17/2013. (lcjeb2) (Entered: 04/17/2013)
2013-04-18Set/Reset Deadline: Parties to consult and file a joint proposed briefing schedule by 5/17/2013. (ad) (Entered: 04/18/2013)
2013-05-178MEET AND CONFER STATEMENT. (McCall, Ginger) (Entered: 05/17/2013)
2013-05-20MINUTE ORDER adopting the parties' 8 Joint Proposed Briefing Schedule. The Court ORDERS that: (1) Defendant shall file a Motion for Summary Judgment, along with a Vaughn index, and produce any segregable material to Plaintiff, by June 14, 2013; (2) Plaintiff shall file a Combined Opposition to Defendant's Motion and any Cross-Motion for Summary Judgment by July 12, 2013; (3) Defendant shall file a Combined Reply in support of its Motion and Opposition to any Cross-Motion by July 26, 2013; (4) Plaintiff shall file a Reply in support of any Cross-Motion by August 9, 2013. Signed by Judge James E. Boasberg on 5/20/13. (lcjeb2) (Entered: 05/20/2013)
2013-05-21Set/Reset Deadlines: Defendant shall file a Motion for Summary Judgment, along with a Vaughn index, and produce any segregable material to Plaintiff, by 6/14/2013; Plaintiff shall file a Combined Opposition to Defendant's Motion and any Cross-Motion for Summary Judgment by 7/12/13; Defendant shall file a Combined Reply in support of its Motion and Opposition to any Cross-Motion by 7/26/2013; Plaintiff shall file a Reply in support of any Cross-Motion by 9/09/2013. (ad) (Entered: 05/21/2013)
2013-06-139Consent MOTION for Extension of Time to File Summary Judgment and Otherwise Amend Briefing Schedule by DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Sandberg, Justin) (Entered: 06/13/2013)
2013-06-13MINUTE ORDER granting Defendant's 9 Consent Motion to Amend Briefing Schedule. The Court ORDERS that: (1) Defendant shall now file a Motion for Summary Judgment, along with a Vaughn index, and produce any segregable material to Plaintiff, by June 28, 2013; (2) Plaintiff shall now file a Combined Opposition to Defendant's Motion and any Cross-Motion for Summary Judgment by July 26, 2013; (3) Defendant shall now file a Combined Reply in support of its Motion and Opposition to any Cross-Motion by August 9, 2013; and (4) Plaintiff shall now file a Reply in support of any Cross-Motion by August 23, 2013. Signed by Judge James E. Boasberg on 6/13/2013. (lcjeb2) (Entered: 06/13/2013)
2013-06-14Set/Reset Deadlines: Defendant shall now file a Motion for Summary Judgment, along with a Vaughn index, and produce any segregable material to Plaintiff, by 6/28/2013; Plaintiff shall now file a Combined Opposition to Defendant's Motion and any Cross-Motion for Summary Judgment by 7/26/2013; Defendant shall now file a Combined Reply in support of its Motion and Opposition to any Cross-Motion by 8/09/2013; Plaintiff shall now file a Reply in support of any Cross-Motion by 8/23/2013. (ad) (Entered: 06/14/2013)
2013-06-2810MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Text of Proposed Order)(Sandberg, Justin) (Entered: 06/28/2013)
2013-07-2611Cross MOTION for Summary Judgment by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Statement of Facts, # 4 Exhibit, # 5 Text of Proposed Order)(McCall, Ginger) (Entered: 07/26/2013)
2013-07-2612Memorandum in opposition to re 10 MOTION for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Statement of Facts, # 4 Exhibit, # 5 Text of Proposed Order)(McCall, Ginger) (Entered: 07/26/2013)
2013-08-0913Memorandum in opposition to re 11 Cross MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY. (Sandberg, Justin) (Entered: 08/09/2013)
2013-08-0914REPLY to opposition to motion re 10 MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY. (Sandberg, Justin) (Entered: 08/09/2013)
2013-08-2215NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 08/22/2013)
2013-08-2316REPLY to opposition to motion re 11 Cross MOTION for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Rotenberg, Marc) (Entered: 08/23/2013)
2013-08-2617NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Ginger P. McCall terminated. (McCall, Ginger) (Entered: 08/26/2013)
2013-11-1218ORDER: As set forth in the accompanying Memorandum Opinion, the Court ORDERS that: (1) Defendant's 10 Motion for Summary Judgment is DENIED; (2) Plaintiff's 11 Motion for Summary Judgment is GRANTED; (3) This Judgment is STAYED for 30 days; and (4) Should DHS notice an appeal by December 12, 2013, the stay shall remain in effect until the Court of Appeals rules on such appeal. Signed by Judge James E. Boasberg on 11/12/13. (lcjeb1, ) (Entered: 11/12/2013)
2013-11-1219MEMORANDUM OPINION re 18 Order. Signed by Judge James E. Boasberg on 11/12/13. (lcjeb1) (Entered: 11/12/2013)
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