Case Detail

FOIA Project Annotation: In two cases concerning Homeland Security records on the use of Advanced Image Technology scanners as the primary method for scanning passengers, Judge Royce Lamberth, while upholding most of the agency's claims, has ruled that the agency improperly tried to withhold certain records from EPIC under Exemption 4 (confidential business information) and Exemption 5 (deliberative process privilege). The agency argued that its own test results of a body scanning machine were protected under Exemption 4 because the "ultimate source" of the information was the company's machine. Rejecting the agency's claim, Lamberth noted that "even assuming that information gathered from an on-site visit to a plant qualifies as 'obtained from a person', information gathered from the test of equipment already in the government's possession does not. The information was generated by the government's own testing, not by a private party, and therefore is not entitled to exemption 4 protection." Lamberth also found that a subsequent report that relied on the government's earlier test results was also not protected under Exemption 4. He indicated that "information based on that earlier report would also not be 'obtained from a person.'" He added that "the government bears the burden to justify withholding any records. [Its] descriptions [of the records] fail to demonstrate that any particular piece of the withheld information was not based on the [earlier] report, so the Court finds that these withholdings were invalid under exemption 4." EPIC argued that some records were not covered by the deliberative process privilege because they were purely factual. But Lamberth pointed out that "all of these materials, factual or not, were properly withheld under exemption 5 because they are all part of DHS's deliberative process regarding the future of the AIT program." In the other opinion, Lamberth affirmed this holding, noting that "it follows that whether or not some of the material withheld was 'purely factual' is of no moment because this factual material was critical to the agency's deliberative process in determining whether to implement [its Automated Target Recognition program]." Rejecting the claim that some drafts were not deliberative because they were not part of a final decision, Lamberth explained that "to protect a 'draft' document, an agency need not necessarily identify a corresponding final document but must provide adequate description of the document to demonstrate that it was genuinely part of the agency's deliberative process." Lamberth found a PowerPoint presentation prepared for Congress was not protected by Exemption 5. He noted that "the document was assembled and presented to assist the Appropriations Committee in its own funding determinations." He rejected the agency's argument that PowerPoint presentation consisted of "preliminary agency opinions" and observed that "[this] argument does not undermine the main conclusion: this document was prepared to assist with Congressional deliberations rather than agency deliberations." The agency also withheld records under Exemption 3 (other statutes) because it concluded they constituted sensitive security information. After finding that 49 U.S.C. § 114(r) qualified as an Exemption 3 statute, Lamberth indicated that "judicial review of [the agency's] determination that certain material is nondisclosable sensitive security information is available exclusively in federal circuit courts." He added that "because the Court lacks jurisdiction to review the merits of the specific withholdings made pursuant to that provision, the legal conclusion that § 114(r) qualifies for exemption 3 withholding takes this Court as far as it can go here."
Issues: Exemption 4 - Confidential business information, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

FOIA Project Annotation: In two companion decisions, Judge Royce Lamberth has ruled that EPIC is eligible for attorney's fees for litigation against the Department of Homeland Security and the Transportation Security Administration for records concerning whole body imaging technology, but that because it only succeeded on part of its challenge the award should be reduced accordingly. As a result, Lamberth found EPIC had succeeded on only one-seventh of its claims against DHS and 40 percent of its claims against TSA. Because EPIC's legal team included several attorneys who had not yet been admitted to the D.C. Bar, Lamberth indicated they could only be compensated at the level of paralegals. As to attorneys who were bar members of another state and not admitted to the D.C. Bar, Lamberth explained that "this Court declines to monetarily penalize a FOIA plaintiff just because a licensed attorney who had not yet acquired a D.C. license signed a brief, even if that is not in accordance with local rules. Instead, the Court will apply the junior attorney rates that EPIC seeks." Lamberth scolded EPIC for requesting fees for overlapping work in both cases. He pointed out that "if a plaintiff were to get fees from two different adversaries for the same hours, there would be a windfall of 100% beyond compensation for the attorney's efforts." Turning to EPIC's entitlement to fees, Lamberth noted that "while the parties dispute the public benefit garnered from the 18 pages of production caused by the summary judgment motion, this Court is satisfied that EPIC sought the documents for public purposes. . ." But Lamberth then observed that "even though EPIC is entitled to fees, the Court will reduce those fees by six-sevenths because of EPIC's limited success. DHS withheld documents based on three exemptions [Exemption 4 (confidential business information), Exemption 5 (deliberative process privilege), and Exemption 6 (invasion of privacy], and EPIC won on its motion to compel disclosure with respect to only one of those exemptions [Exemption 4], leading to only 18 pages of new documents. . .[T]he Court finds that on the merits, EPIC dedicated 6 pages out of 42 of argument, or one-seventh, to the winning issue. Therefore, EPIC will receive one-seventh of fees on the merits." After rejecting some billing hours, including a 50 percent reduction for double billing, Lamberth reduced EPIC's fee request from $22,242 to $3,028.86. In the TSA litigation, although EPIC only received portions of ten pages, Lamberth found their overall success rate was higher, explaining that "this Court finds that EPIC dedicated about 13 pages of argument our of 33, or [40] percent to Exemption 5 (the winning issue)." As a result, Lamberth awarded EPIC $9,373 in attorney's fees.
Issues: Litigation - Attorney's fees - Entitlement - Calculation of award

Date Filed	Doc #	Docket Text
2011-02-02	1	COMPLAINT against UNITED STATES TRANSPORTATION SECURITY ADMINISTRATION ( Filing fee $ 350, receipt number 4616036246) filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 02/03/2011)
2011-02-02		SUMMONS (3) Issued as to UNITED STATES TRANSPORTATION SECURITY ADMINISTRATION, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 02/03/2011)
2011-02-02	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by ELECTRONIC PRIVACY INFORMATION CENTER (jf, ) (Entered: 02/03/2011)
2011-03-08	3	NOTICE of Appearance by Jesse Z. Grauman on behalf of UNITED STATES TRANSPORTATION SECURITY ADMINISTRATION (Grauman, Jesse) (Entered: 03/08/2011)
2011-03-16	4	ANSWER to 1 Complaint by UNITED STATES TRANSPORTATION SECURITY ADMINISTRATION. (Attachments: # 1 Exhibit Exhibit A: EPIC's First Request, # 2 Exhibit Exhibit B: EPIC's Second Request)(Grauman, Jesse) (Entered: 03/16/2011)
2011-03-29		Case randomly reassigned to U.S. District Judge Amy Berman Jackson. Judge Richard W. Roberts no longer assigned to the case. (gt, ) (Entered: 03/29/2011)
2011-05-16		MINUTE ORDER: A Meet & Confer Initial Status Conference is set for 6/13/2011 at 10:30 AM in Courtroom 2 before Judge Amy Berman Jackson. The parties shall meet, confer, and file a Joint Report pursuant to Local Rule 16.3 by 6/6/2011. Signed by Judge Amy Berman Jackson on 5/16/2011. (jth) (Entered: 05/16/2011)
2011-06-06	5	MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order)(Grauman, Jesse) (Entered: 06/06/2011)
2011-06-13	6	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Ginger McCall, :Firm- Electronic Privacy Information Center, :Address- 1718 Connecticut Ave NW Suite 200. Phone No. - 202-483-1140. Fax No. - 202-483-1248 by ELECTRONIC PRIVACY INFORMATION CENTER (Verdi, John) (Entered: 06/13/2011)
2011-06-13		Minute Entry for proceedings held before Judge Amy Berman Jackson: Case called for an Initial Scheduling Conference, but not held. Status Conference held on 6/13/2011. SCHEDULING ORDER TO BE ISSUED. (Court Reporter Lisa Schwam) (jth) (Entered: 06/13/2011)
2011-06-13		VACATED PURSUANT TO MINUTE ORDER FILED 06/17/2011.....MINUTE ORDER. On May 16, 2011 this Court issued a Minute Order scheduling an Initial Status Conference (ISC) for June 13, 2011 for 10:30 a.m. At no time thereafter did counsel for Plaintiff contact the Deputy Clerk seeking to reschedule the date. An attorney seeking leave to appear pro hac vice arrived in court this morning, but the motion required under LCvR 83.2 was not filed until 10:29 a.m., so the Court did not have sufficient time to evaluate the motion prior to the start of the conference, and plaintiff was not represented at the ISC. Therefore it is ORDERED that counsel for Plaintiff SHOW CAUSE by 6/20/2011 why sanctions should not be imposed for his non-appearance. Signed by Judge Amy Berman Jackson on 6/13/2011. (jth) Modified on 6/20/2011 (jth). (Entered: 06/13/2011)
2011-06-13		MINUTE ORDER denying 6 Motion for Leave to Appear Pro Hac Vice for failure to comply with LCvR 83.2(d)(4). Signed by Judge Amy Berman Jackson on 6/13/2011. (lcabj2, ) (Entered: 06/13/2011)
2011-06-13	7	SCHEDULING ORDER: a joint status report is due by 8/5/2011. SEE ORDER FOR COMPLETE DETAILS. Signed by Judge Amy Berman Jackson on 6/13/11. (MT) (Entered: 06/13/2011)
2011-06-14		Set/Reset Deadlines: Defendant's Motion for Summary Judgment due by 8/26/2011; Plaintiff's Oppositon and Cross Motion due by 9/23/2011; Defendant's Reply and Opposition to the Cross Motion due by 10/11/2011; Plaintiff's Reply to the Cross Motion is due by 10/25/2011. (jth) (Entered: 06/14/2011)
2011-06-17	8	RESPONSE TO ORDER TO SHOW CAUSE by ELECTRONIC PRIVACY INFORMATION CENTER re Order to Show Cause,,. (Attachments: # 1 Affidavit Affidavit of John Verdi, # 2 Affidavit Affidavit of Ginger McCall, # 3 Text of Proposed Order)(Verdi, John) (Entered: 06/17/2011)
2011-06-17		MINUTE ORDER: The order to show cause issued in a minute order on 6/13/2011 is vacated. Counsel is directed to contact the Deputy Clerk in advance in the event any future court appearances require rescheduling. Ms. McCall may not appear on behalf of the plaintiff unless and until she becomes a member of the bar of this court or she submits a motion for leave to appear pro hace vice that complies with LCvR 83.2(d)(4). Signed by Judge Amy Berman Jackson on 6/17/11. (MT, ) (Entered: 06/17/2011)
2011-07-14	9	Unopposed MOTION for Extension of Time to File Summary Judgment Briefs by UNITED STATES TRANSPORTATION SECURITY ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Grauman, Jesse) (Entered: 07/14/2011)
2011-07-15		MINUTE ORDER granting 9 Unopposed Motion for Extension of Time to File Summary Judgment Briefs. The motion for summary judgment will be due 9/9/2011, the opposition to the motion for summary judgment and the cross-motion for summary judgment will be due 10/7/2011, the reply to the motion for summary judgment and the opposition to the cross-motion for summary judgment will be due 10/25/2011, and the reply to the cross-motion for summary judgment will be due 11/8/2011. Signed by Judge Amy Berman Jackson on 7/15/2011. (MT) (Entered: 07/15/2011)
2011-07-16		Set/Reset Deadlines: Summary Judgment motions due by 9/9/2011; Opposition andCross Motion due by 10/7/2011; Reply to Summary Judgment and Opposition to Cross Motion due by 10/25/2011; Reply to Cross Motion due by 11/8/2011. (jth) (Entered: 07/16/2011)
2011-08-04	10	STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER, UNITED STATES TRANSPORTATION SECURITY ADMINISTRATION. (Grauman, Jesse) (Entered: 08/04/2011)
2011-08-30	11	NOTICE OF SUBSTITUTION OF COUNSEL by Joseph Wilfred Mead on behalf of UNITED STATES TRANSPORTATION SECURITY ADMINISTRATION Substituting for attorney Jesse Grauman (Mead, Joseph) (Entered: 08/30/2011)
2011-08-30	12	Consent MOTION for Extension of Time to File Motion for Summary Judgment by UNITED STATES TRANSPORTATION SECURITY ADMINISTRATION (Attachments: # 1 Text of Proposed Order Proposed Order)(Mead, Joseph) (Entered: 08/30/2011)
2011-08-30		MINUTE ORDER granting 12 Consent Motion for Extension of Time. The motion for summary judgment will be due 9/16/2011, with opposition to motion for summary judgment and cross-motion for summary judgment due 10/14/2011, with reply to motion for summary judgment and opposition to cross-motion for summary judgment due 11/1/2011 and reply to cross-motion for summary judgment due 11/15/2011. Signed by Judge Amy Berman Jackson on 8/31/2011. (MT) (Entered: 08/30/2011)
2011-08-30		Set/Reset Deadlines: Summary Judgment motion due by 9/16/2011, Opposition and Cross Motion due by 10/14/2011, Reply to Motion for Summary Judgment and the Oppositon to the Cross Motion due by 11/1/2011, Reply to Cross Motions due by 11/15/2011. (jth) (Entered: 09/02/2011)
2011-09-16	13	MOTION for Summary Judgment by UNITED STATES TRANSPORTATION SECURITY ADMINISTRATION (Attachments: # 1 Exhibit 1 - Sotoudeh Decl., # 2 Exhibit 1A - June FOIA Request, # 3 Exhibit 1B - October FOIA Request, # 4 Exhibit 1C - Vaughn Index, # 5 Exhibit 2 - Benner Decl., # 6 Exhibit 3 - Modica Decl., # 7 Exhibit 4 - Weller Decl., # 8 Exhibit 5 - Excerpts, # 9 Text of Proposed Order Proposed Order)(Mead, Joseph) (Entered: 09/16/2011)
2011-10-14	14	Cross MOTION for Summary Judgment Combine Cross-Motion/Opposition by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support Memorandum in Support, # 2 Statement of Facts Statement of Facts, # 3 Statement of Facts Statement of Genuine Issues in Opposition to Defendant's Statement of Material Facts, # 4 Text of Proposed Order Text of Proposed Order, # 5 Exhibit Exhibit 1, # 6 Exhibit Exhibit 2, # 7 Exhibit Exhibit 3, # 8 Exhibit Exhibit 4, # 9 Exhibit Exhibit 5, # 10 Exhibit Exhibit 6, # 11 Exhibit Exhibit 7, # 12 Exhibit Exhibit 8, # 13 Exhibit Exhibit 9, # 14 Exhibit Exhibit 10, # 15 Exhibit Exhibit 11)(Verdi, John) (Entered: 10/14/2011)
2011-10-14	15	Memorandum in opposition to re 13 MOTION for Summary Judgment Combined Cross-Motion/Opposition filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Statement of Facts Statement of Facts, # 2 Statement of Facts Statement of Genuine Issues in Opposition to Defendant's Statement of Material Facts, # 3 Text of Proposed Order Text of Proposed Order, # 4 Exhibit Exhibit 1, # 5 Exhibit Exhibit 2, # 6 Exhibit Exhibit 3, # 7 Exhibit Exhibit 4, # 8 Exhibit Exhibit 5, # 9 Exhibit Exhibit 6, # 10 Exhibit Exhibit 7, # 11 Exhibit Exhibit 8, # 12 Exhibit Exhibit 9, # 13 Exhibit Exhibit 10, # 14 Exhibit Exhibit 11)(Verdi, John) (Entered: 10/14/2011)
2011-11-01	16	Memorandum in opposition to re 14 Cross MOTION for Summary Judgment Combine Cross-Motion/Opposition and Memorandum in Support of Defendant's Motion for Summary Judgment filed by UNITED STATES TRANSPORTATION SECURITY ADMINISTRATION. (Attachments: # 1 Statement of Facts Response to Plaintiff's Statement of Facts, # 2 Exhibit A - Sotoudeh Supplemental Declaration, # 3 Text of Proposed Order)(Mead, Joseph) (Entered: 11/01/2011)
2011-11-01	17	REPLY to opposition to motion re 13 MOTION for Summary Judgment and Combined Memorandum in Opposition to Plaintiff's Motion for Summary Judgment filed by UNITED STATES TRANSPORTATION SECURITY ADMINISTRATION. (Attachments: # 1 Statement of Facts Response to Plaintiff's Statement of Material Facts, # 2 Exhibit A - Sotoudeh Supplemental Declaration, # 3 Text of Proposed Order)(Mead, Joseph) (Entered: 11/01/2011)
2011-11-15	18	REPLY to opposition to motion re 14 Cross MOTION for Summary Judgment Combine Cross-Motion/Opposition filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Verdi, John) (Entered: 11/15/2011)
2012-03-28	19	NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 03/28/2012)
2012-03-28	20	NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney John Arthur Verdi terminated. (Verdi, John) (Entered: 03/28/2012)
2012-04-10		Case reassigned to Judge Rudolph Contreras. Judge Amy Berman Jackson no longer assigned to the case. (ds) (Entered: 04/10/2012)
2013-01-04	21	Case reassigned to Chief Judge Royce C. Lamberth as related. Judge Rudolph Contreras no longer assigned to the case. (ztnr, ) (Entered: 01/04/2013)
2013-03-07	22	ORDER granting in part and denying in part 13 Motion for Summary Judgment; granting in part and denying in part 14 Motion for Summary Judgment. Signed by Chief Judge Royce C. Lamberth on March 7, 2013. (lcrcl5) (Entered: 03/07/2013)
2013-03-07	23	MEMORANDUM OPINION granting in part and denying in part the parties' cross-motions for summary judgment. Signed by Chief Judge Royce C. Lamberth on March 7, 2013. (lcrcl5) (Entered: 03/07/2013)
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