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, Litigation - Attorney's fees - Eligibility

Date Filed	Doc #	Docket Text
2010-11-19	1	COMPLAINT against UNITED STATES DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 350, receipt number 4616034354) filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 11/22/2010)
2010-11-19		SUMMONS (3) Issued as to UNITED STATES DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General. (jf, ) (Entered: 11/22/2010)
2010-11-19	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by ELECTRONIC PRIVACY INFORMATION CENTER. (jf, ) (Entered: 11/22/2010)
2010-12-21	3	MOTION for Extension of Time to File Answer re 1 Complaint by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Exhibit Exhibit 1: Wells v. Newsome, # 2 Text of Proposed Order)(Grauman, Jesse) (Entered: 12/21/2010)
2011-01-05	4	ANSWER to 1 Complaint by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit Exhibit A: FOIA Request)(Grauman, Jesse) (Entered: 01/05/2011)
2011-01-06		MINUTE ORDER finding as moot 3 defendant's Motion for Extension of Time to Answer. Signed by Judge Ellen S. Huvelle on January 6, 2010. (AG) (Entered: 01/06/2011)
2011-01-06		MINUTE ORDER: It is hereby ORDERED that the parties shall file a joint proposed briefing schedule by January 20, 2010. Signed by Judge Ellen S. Huvelle on January 6, 2010. (AG) (Entered: 01/06/2011)
2011-01-06		Set/Reset Deadline: Joint Proposed Briefing Schedule due by 1/20/2011. (jth) (Entered: 01/06/2011)
2011-01-20	5	STATUS REPORT and Proposed Briefing Schedule by ELECTRONIC PRIVACY INFORMATION CENTER, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Grauman, Jesse) (Entered: 01/20/2011)
2011-01-21		MINUTE ORDER re 5 Status Report: it is hereby ORDERED that the Joint Proposed Briefing Schedule is approved; and it is further ORDERED that the following schedule shall apply: Defendant's completion of production of documents is due by June 6, 2011; Defendant's Motion for Summary Judgment (including a final Vaughn index) is due by July 11, 2011; Plaintiff's Opposition and Cross-Motion is due by August 15, 2011; Defendant's Reply and Opposition is due by August 29, 2011; and Plaintiff's Reply is due by September 12, 2011. In the event the parties are able to resolve or further limit the issues before the Court, the parties will promptly inform the Court and propose any appropriate modifications to the schedule. Signed by Judge Ellen S. Huvelle on January 21, 2011. (AG) (Entered: 01/21/2011)
2011-01-21		Set/Reset Deadlines: Defendant's completion of production of documents by 6/6/2011, Defendant's Summary Judgment Motion (Including a Vaughn Index) due by 7/11/2011; Plaintiff's Opposition and Cross-Motion due by 8/15/2011, Defendant's Reply and Opposition due by 8/29/2011, Plaintiff's Reply due by 9/12/2011. (jth) (Entered: 01/21/2011)
2011-03-30		Case randomly reassigned to U.S. District Judge Amy Berman Jackson. Judge Ellen S. Huvelle no longer assigned to the case. (gt, ) (Entered: 03/30/2011)
2011-06-02	6	Unopposed MOTION for Extension of Time to Complete Release of Documents and to Modify Briefing Schedule by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Grauman, Jesse) (Entered: 06/02/2011)
2011-06-03		MINUTE ORDER granting 6 Unopposed Motion for Extension of Time. The close of discovery will be extended from 6/6/2011 to 6/20/2011, defendant's motion for summary judgment will be due 7/25/2011, plaintiff's opposition to the motion for summary judgment and cross motion for summary judgment will be due 8/29/2011, defendant's reply to the motion for summary judgment and opposition to the cross motion for summary judgment will be due 9/12/2011 and plaintiff's reply to the cross motion for summary judgment will be due 9/26/2011. Signed by Judge Amy Berman Jackson on 6/3/11. (MT, ) (Entered: 06/03/2011)
2011-06-03		Set/Reset Deadlines: Document Release due by 6/20/2011; Defendant's Summary Judgment motion due by 7/25/2011, Response to Motion for Summary Judgment andCross Motion for Summary Judgment due by 8/29/2011, Response to Cross Motion and Reply to the Motion for Summary Judgment due by 9/12/2011. Reply to the Cross Motion due by 9/26/2011. (jth) (Entered: 06/03/2011)
2011-07-14	7	Unopposed MOTION for Extension of Time to File Summary Judgment Briefs by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Grauman, Jesse) (Entered: 07/14/2011)
2011-07-15		MINUTE ORDER granting 7 Unopposed Motion for Extension of Time to Modify Briefing Schedule. The motion for summary judgment will be due 8/12/2011, the opposition to the motion for summary judgment and cross-motion for summary judgment will be due 9/16/2011, the reply to the motion for summary judgment and opposition to the cross-motion for summary judgment will be due 9/26/2011, and the reply to the cross-motion for summary judgment will be due 10/10/2011. Signed by Judge Amy Berman Jackson on 7/15/2011. (MT) (Entered: 07/15/2011)
2011-07-16		Set/Reset Deadlines: Summary Judgment motion due by 8/12/2011; Opposition andCross Motion due by 9/16/2011; Reply to Summary Judgment and Opposition to Cross Motion due by 9/26/2011; Reply to Cross Motion due by 10/10/2011. (jth) (Entered: 07/16/2011)
2011-08-07	8	Unopposed MOTION for Extension of Time to File Summary Judgment Briefs by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Grauman, Jesse) (Entered: 08/07/2011)
2011-08-08		MINUTE ORDER granting 8 Unopposed Motion for Extension of Time. The motion for summary judgment will be due 9/12/2011, the opposition to the motion for summary judgment and cross-motion for summary judgment will be due 10/17/2011, the reply to the motion for summary judgment and opposition to the cross-motion for summary judgment will be due 10/31/2011, and the reply to the cross-motion for summary judgment will be due 11/14/2011. Signed by Judge Amy Berman Jackson on 8/8/2011. (MT, ) (Entered: 08/08/2011)
2011-08-08		Set/Reset Deadlines: Summary Judgment motion due by 9/12/2011; Opposition andCross Motion due by 10/17/2011; Reply to the Motion for Summary Judgment and Opposition to the Cross Motion due by 10/31/2011; Reply to the Cross Motion due by 11/14/2011. (jth) (Entered: 08/08/2011)
2011-09-12	9	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Declaration Exhibit 1: Declaration of Paul Sotoudeh, # 2 Declaration Exhibit 2: Declaration of Bert Coursey, # 3 Declaration Exhibit 3: Declaration of Pamela Beresford, # 4 Declaration Exhibit 4: Declaration of Joy Lazaroff, # 5 Declaration Exhibit 5: Declaration of Peter Modica, # 6 Declaration Exhibit 6: Declaration of Scott Trosper, # 7 Declaration Exhibit 7: Declaration of Joseph Callerame, # 8 Declaration Exhibit 8: Declaration of Rory Doyle, # 9 Exhibit Exhibit 9: E-mail from John Verdi to Jesse Grauman, # 10 Text of Proposed Order)(Grauman, Jesse) (Entered: 09/12/2011)
2011-10-11	10	Unopposed MOTION for Extension of Time to File Summary Judgment Briefs by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Text of Proposed Order)(Verdi, John) (Entered: 10/11/2011)
2011-10-12		MINUTE ORDER granting 10 Unopposed Motion for Extension of Time. The opposition to the motion for summary judgment and cross motion will be due 10/31/2011. The reply to the motion for summary judgment and opposition to the cross motion will be due 11/18/2011. The reply to the cross motion will be due 12/2/2011. Signed by Judge Amy Berman Jackson on 10/12/2011. (MT) (Entered: 10/12/2011)
2011-10-12		Set/Reset Deadlines: The opposition to the motion for summary judgment and cross motion are due by 10/31/2011. Reply to Motion for summary judgment and opposition to the cross motion are due by 11/18/2011. reply to cross motion due by 12/2/2011. (jth) (Entered: 10/12/2011)
2011-10-31	11	Cross MOTION for Summary Judgment and Oral Hearing by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Statement of Genuine Issues in Opposition to Defendants Statement of Material Facts, # 4 Text of Proposed Order, # 5 Exhibit Exhibit 1 - Challenged Withholdings)(McCall, Ginger). Added MOTION for Hearing on 11/1/2011 (jf, ). (Entered: 10/31/2011)
2011-10-31	12	Memorandum in opposition to re 9 MOTION for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Statement of Facts, # 2 Statement of Genuine Issues in Opposition to Defendants Statement of Material Facts, # 3 Text of Proposed Order, # 4 Exhibit Exhibit 1 - Challenged Withholdings)(McCall, Ginger) . (Entered: 10/31/2011)
2011-11-18	13	REPLY to opposition to motion re 9 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit Exhibit 1: TSA Vaughn Index Limited to Challenged Withholdings, # 2 Exhibit Exhibit 2: TES Vaughn Index Limited to Challenged Withholdings, # 3 Exhibit Exhibit 3: TSL Vaughn Index Limited to Challenged Withholdings)(Grauman, Jesse) (Entered: 11/18/2011)
2011-11-18	14	Memorandum in opposition to re 11 Cross MOTION for Summary Judgment MOTION for Hearing filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit Exhibit 1: TSA Vaughn Index Limited to Challenged Withholdings, # 2 Exhibit Exhibit 2: TES Vaughn Index Limited to Challenged Withholdings, # 3 Exhibit Exhibit 3: TSL Vaughn Index Limited to Challenged Withholdings)(Grauman, Jesse) (Entered: 11/18/2011)
2011-12-02	15	REPLY to opposition to motion re 11 Cross MOTION for Summary Judgment MOTION for Hearing filed by ELECTRONIC PRIVACY INFORMATION CENTER. (McCall, Ginger) (Entered: 12/02/2011)
2012-03-28	16	NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 03/28/2012)
2012-03-28	17	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	18	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	19	ORDER granting in part and denying in part 9 Motion for Summary Judgment; granting in part and denying in part 11 Motion for Summary Judgment. Signed by Chief Judge Royce C. Lamberth on March 7, 2013. (lcrcl5) (Entered: 03/07/2013)
2013-03-07	20	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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