Case Detail

FOIA Project Annotation: Judge John Bates has ruled that the Secret Service must disclose non-exempt parts of several contracts concerning the monitoring of social media. Although EPIC admitted that substantial portions of the contracts were protected by Exemption 7(E) (investigative methods and techniques), it argued the agency must disclose any non-exempt information. The agency argued that withholding the entire contracts was appropriate because "the nonexempt information in the documents has minimal or no value, either separately or taken together." But Bates noted that "the standard contract language and other basic information in [the disputed documents] do not equate to the kind of 'disjointed words, phrases, or even sentences' referred to by the court in Mead Data v. Dept of Air Force, 566 F. 2d 242 (D.C. Cir. 1977). The nonexempt (and concededly segregable) information here has meaning, and the agency may not withhold information simply because its 'value to the requestor' may be low. . .Moreover, there is no plausible argument here that segregating and producing these portions of four contract documents would require DHS 'to commit significant time and resources.'" Applying the same rationale to some emails the agency was withholding entirely, Bates added that "an agency may not withhold segregable, nonexempt portions of a document just because those portions may be less than helpful to the person or entity requesting the document." Bates agreed with the agency that a decision on attorney's fees was premature, but indicated that "although the Court is not deciding the issue at this time, it notes, in the hope of guiding the parties' discussions, that EPIC will be entitled to some amount of fees and costs, given the agency's release of responsive documents, the Vaughn index revisions, and the Court's resolution of the instant motions."
Issues: Segregability - Disclosure of all non-exempt records

FOIA Project Annotation: Judge John Bates has ruled that EPIC is entitled to $30,000 in attorney's fees for its FOIA suit against the Secret Service concerning its proposed program to monitor social media. Bates found that six of the seven documents the agency was withholding should be disclosed with redactions. He then asked EPIC and the agency to confer and reach an agreement on a reasonable fee award. The parties failed to reach an agreement and the attorney's fees dispute came back to Bates to decide. Bates first found EPIC was eligible for fees, noting that "EPIC obtained nearly all of the relief it was seeking, as the Court ordered DHS to produce all reasonably segregable portions of six of the seven documents that remained in dispute. . .[A] FOIA requester can still 'substantially prevail' even when it obtains less-than-full relief." Bates indicated that DHS did not seriously dispute that EPIC was eligible for fees, but did contest whether EPIC was entitled to an award. Bates pointed out that "as FOIA requests go, the public benefit derived from this one was exceptional. EPIC obtained and disclosed documents relating to a matter subject to an ongoing national debate: the tension between individual privacy interests and the national-security needs of our government in the digital age. Regardless of one's views on the merits, there is no doubt that EPIC's FOIA request made a contribution to this national conversation." He then found that EPIC's interest in the records favored an award while the reasonableness of the agency's position did not favor either party. Turning to the award itself, Bates found EPIC was entitled to fees for litigating both the merits of the case and whether it was entitled to attorney's fees. Bates reduced the requested charges for some of EPIC's attorneys who either were not yet admitted to the bar during the litigation or did not yet have the requisite years of experience to qualify for higher hourly rates. DHS argued EPIC could not charge for time spent reviewing records received during the request. But Bates observed that "EPIC is only seeking fees for review of documents produced during this litigation, and DHS 'has failed to provide any evidence that this time billed by Plaintiff's attorneys was not spent for the purpose of litigating this case.'" The agency also argued that EPIC should not be awarded for the arguing for the release of the document Bates found was properly exempt. But Bates pointed out that "EPIC's work on this case cannot be thinly sliced on a document-by-document basis. The controversy over each individual document was not just 'related' to the others�"it was entirely overlapping. Any work that EPIC did in arguing for the release of the [withheld] document would also have assisted it in its argument to release [the disclosed documents]."
Issues: Litigation - Attorney's fees - Entitlement - Public benefit, Litigation - Attorney's fees - Prevailing party

Date Filed	Doc #	Docket Text
2011-12-20	1	COMPLAINT against UNITED STATES DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 350, receipt number 4616044679) filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Civil Cover Sheet)(dr) (Entered: 12/21/2011)
2011-12-20		SUMMONS (3) Issued as to UNITED STATES DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (dr) (Entered: 12/21/2011)
2011-12-20	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ELECTRONIC PRIVACY INFORMATION CENTER identifying Corporate Parent NONE for ELECTRONIC PRIVACY INFORMATION CENTER. (dr) (Entered: 12/21/2011)
2012-02-17	3	ANSWER to 1 Complaint by UNITED STATES DEPARTMENT OF HOMELAND SECURITY.(Sealls, Kenneth) (Entered: 02/17/2012)
2012-02-27	4	ORDER requiring parties to confer and submit a proposed briefing schedule for the filing of dispositive motions by not later than March 21, 2012. Signed by Judge John D. Bates on 2/27/2012. (lcjdb1) (Entered: 02/27/2012)
2012-02-28		Set/Reset Deadlines: Meet & Confer and Proposed Briefing Scheduling due by 3/21/2012. (tb, ) (Entered: 02/28/2012)
2012-03-02	5	NOTICE OF SUBSTITUTION OF COUNSEL by Jean-Michel Voltaire on behalf of UNITED STATES DEPARTMENT OF HOMELAND SECURITY Substituting for attorney Kenneth E. Sealls (Voltaire, Jean-Michel) (Entered: 03/02/2012)
2012-03-21	6	Joint STATUS REPORT and Proposed Schedule , by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Text of Proposed Order Plaintiff's Proposed Order, # 2 Text of Proposed Order Defendant's Proposed Order)(McCall, Ginger) Modified on 3/22/2012 to edit event used (dr). (Entered: 03/21/2012)
2012-03-26	7	ORDER setting briefing schedule. See text of Order for details. Signed by Judge John D. Bates on 3/26/2012. (lcjdb1) (Entered: 03/26/2012)
2012-03-27		Set/Reset Deadlines: Defendant's Status Report is due by 6/1/2012. Defendant's Summary Judgment motion is due by 6/15/2012, Plaintiff's opposition and cross-motion is due 30 days later, Defendant's reply and cross-opposition is due 14 days later, Plaintiff's cross-reply is due 14 days later. (jth) (Entered: 03/27/2012)
2012-06-01	8	STATUS REPORT by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Voltaire, Jean-Michel) (Entered: 06/01/2012)
2012-06-01	9	Joint MOTION for Briefing Schedule Modification by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Voltaire, Jean-Michel) (Entered: 06/01/2012)
2012-06-05	10	ORDER granting 9 Joint Motion to Modify the Briefing Schedule. See text of Order for details. Signed by Judge John D. Bates on 6/5/2012. (lcjdb1) (Entered: 06/05/2012)
2012-06-08		Set/Reset Deadlines: Summary Judgment motions due by 7/31/2012. (tb, ) (Entered: 06/08/2012)
2012-07-31	11	ENTERED IN ERROR..... MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Exhibit DHS Vaughn Index, # 4 Declaration, # 5 Exhibit Secret Service Vaughn Index)(Voltaire, Jean-Michel) Modified on 8/1/2012 (dr). (Entered: 07/31/2012)
2012-08-01		NOTICE OF CORRECTED DOCKET ENTRY: re 11 MOTION for Summary Judgment was entered in error and counsel is instructed to refile said pleading to include the actual Motion. (dr) (Entered: 08/01/2012)
2012-08-01	12	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Declaration Declaration of James Holzer, # 4 Exhibit DHS Vaughn Index, # 5 Declaration Declaration of Julie Ferrell, # 6 Exhibit Secret Service Vaughn Index)(Voltaire, Jean-Michel) (Entered: 08/01/2012)
2012-08-27	13	NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 08/27/2012)
2012-08-28	14	MOTION for Briefing Schedule Modification by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Text of Proposed Order)(Rotenberg, Marc) (Entered: 08/28/2012)
2012-08-31	15	ORDER granting 14 Motion to Modify the Briefing Schedule. See text of Order for details. Signed by Judge John D. Bates on 8/31/2012. (lcjdb1) (Entered: 08/31/2012)
2012-09-05		Set/Reset Deadlines: Response/Cross Motions due by 9/21/2012. (tb, ) (Entered: 09/05/2012)
2012-09-21	16	Cross MOTION for Summary Judgment Combined Cross-Motion/Opposition by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Statement of Facts Genuine Issues/Facts in Dispute, # 4 Statement of Facts Facts Not in Dispute, # 5 Exhibit Exhibit 1, # 6 Exhibit Exhibit 2)(McCall, Ginger) (Entered: 09/21/2012)
2012-09-21	17	Memorandum in opposition to re 12 MOTION for Summary Judgment Combined Cross-Motion/Opposition filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order, # 2 Statement of Facts Facts Not in Dispute, # 3 Statement of Facts Genuine Issues/Facts In Dispute, # 4 Exhibit Exhibit 1, # 5 Exhibit Exhibit 2)(McCall, Ginger) (Entered: 09/21/2012)
2012-10-02	18	MOTION for Extension of Time to File Response/Reply by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Voltaire, Jean-Michel) (Entered: 10/02/2012)
2012-10-04	19	Memorandum in opposition to re 18 MOTION for Extension of Time to File Response/Reply filed by ELECTRONIC PRIVACY INFORMATION CENTER. (McCall, Ginger) (Entered: 10/04/2012)
2012-10-04		MINUTE ORDER: Upon consideration of 18 defendant's Motion for an Extension of Time to File Its Reply and Opposition, 19 plaintiff's Opposition thereto, and the entire record herein, it is hereby ORDERED that defendant's motion is GRANTED; and it is further ORDERED that the schedule in this matter shall be entered as follows: defendant shall file its reply and opposition to plaintiff's cross-motion for summary judgment by not later than October 26, 2012; and plaintiff shall file its reply within 15 days of defendant's reply and opposition. SO ORDERED. Signed by Judge John D. Bates on 10/04/2012. (lcjdb1) (Entered: 10/04/2012)
2012-10-26	20	REPLY to opposition to motion re 12 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 DHS Updated Vaughn Index, # 2 DHS Suppl. Decl, # 3 USSS Suppl. Decl, # 4 Exhibit)(Voltaire, Jean-Michel) Modified link on 10/29/2012 (znmw, ). (Entered: 10/26/2012)
2012-10-26	21	Memorandum in opposition to re 16 Cross MOTION for Summary Judgment Combined Cross-Motion/Opposition filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (See Docket Entry 20 to view document. Counsel is reminded to file the opposition as a separate docket entry in future). (znmw, ) (Entered: 10/29/2012)
2012-11-09	22	REPLY to opposition to motion re 16 Cross MOTION for Summary Judgment Combined Cross-Motion/Opposition filed by ELECTRONIC PRIVACY INFORMATION CENTER. (McCall, Ginger) (Entered: 11/09/2012)
2013-03-04	23	MEMORANDUM OPINION. Signed by Judge John D. Bates on 03/04/2013. (lcjdb1) (Entered: 03/04/2013)
2013-03-04	24	ORDER granting in part and denying in part 12 16 the parties' cross motions for summary judgment. See text of order and accompanying memorandum opinion for details. Signed by Judge John D. Bates on 03/04/2013. (lcjdb1) (Entered: 03/04/2013)
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