Case Detail

FOIA Project Annotation: Judge Emmet Sullivan has ruled that the DEA conducted an adequate search for records concerning its use of a database known as the Hemisphere Project, an AT&T-operated database that collects data on billions of phone calls daily and allows agencies like the DEA to have access to the calls for use in combating illegal drug activity. Sullivan also found the agency had properly withheld records under Exemption 5 (privileges), but that it had not yet shown that its claims under Exemption 7(D) (confidential sources) and Exemption 7(E) (investigative methods and techniques) were appropriate. EPIC requested records about the privacy implications of the Hemisphere Project. The agency found 319 responsive documents, 39 of which were released in full, 176 in part, and 104 were withheld in full. EPIC's challenge to the agency's search consisted solely of the allegation that more records must exist based on the far-reaching privacy implications of such a program. Sullivan noted, however, that "based on the legal standard for what constitutes a reasonable search, arguments that certain documents 'should' or 'must' exist are consistently rejected." DEA had withheld a draft memorandum analyzing the legal issues involved in obtaining the data used in the Hemisphere Project, but had withheld it under the deliberative process privilege. EPIC argued that to withhold a draft memo the agency was required to identify a final decision to which it contributed. Calling this claim "incorrect," Sullivan sharply criticized EPIC for arguing the point because it had been rejected in previous litigation brought by EPIC. He explained that "EPIC's insistence that the draft memorandum here be treated as a final policy. . .ignores the reality of how government policies evolve." Sullivan indicated that the memo was deliberative because it was prepared by an attorney for superiors and "includes comments by the attorney who prepared the document, reflecting the deliberative posture of the memorandum." DEA had also withheld an email chain under the attorney work-product privilege. Sullivan agreed. He noted that "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." DEA claimed that the names of private companies involved in the Hemisphere Project were protected under Exemption 7(D). But Sullivan agreed with EPIC that the agency so far had failed to show that the companies received either explicit or implicit assurance confidentiality. Ordering DEA to supplement the record or disclosure the identities, Sullivan indicated that "the DEA cites no authority for the proposition that potential retaliation against a private company is sufficient to justify a finding of implied confidentiality." DEA also claimed that records concerning how it interacted with the companies constituted investigative methods and techniques under Exemption 7(E). Again, Sullivan agreed with EPIC that the agency had not yet made its case. He rejected the agency's claim that disclosing the identities of cooperating companies would put their corporate facilities at risk. He observed that "although not confirmed by the government, the cooperation of Verizon Communications Inc. and AT&T in government data collection 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." He told the agency to either disclose the identities or supplement the record to justify its withholding claims.
Issues: Exemption 7(D) - Assurance of confidentiality, Exemption 5 - Privileges - Attorney work-product privilege compiled in anticipation of litigation, Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Adequacy - Search, Exemption 7(E) - Investigative methods or techniques

FOIA Project Annotation: Judge Emmet Sullivan has ruled that the DEA properly withheld categories of records under Exemption 7(E) (investigative methods and techniques) in response to a request from EPIC for records concerning the agency's use of the Hemisphere surveillance program allowing participating agencies to access AT&T's database of phone calls. The DEA located 319 responsive documents. It released 39 in full, 176 in part, and withheld 104 in full under several exemptions. By the time Sullivan ruled, the only remaining issue was whether the agency could claim Exemption 7(E) for three categories of records. To justify its exemptions, Sullivan agreed to review an ex parte in camera affidavit. However, because the agency revised its exemption claims and disclosed more information, Sullivan pointed out that "in an abundance of caution, the Court will order the DEA to un-redact portions of its affidavit that are no longer sensitive in light of its new disclosures to EPIC." EPIC argued that Exemption 7(E) did not apply to names of law enforcement agencies that used Hemisphere because they were neither procedures nor techniques. Sullivan agreed in the abstract, but sided with the agency, noting that "the Court understands that the names themselves are not a technique, procedure or guideline, but with those names comes the knowledge of how the agency employs its procedures or techniques. In other words, to reveal the names of agencies would necessarily reveal information about the techniques and procedures for those particular law enforcement agency investigations." Having decided that the names of law enforcement agencies qualified as investigative techniques, Sullivan went on to find that disclosure of the names would risk circumvention of the law for purposes of Exemption 7(E). Sullivan explained that while the agency had not addressed the issue of segregability, his review of the records in camera persuaded him that "the government only withheld information that is exempt from disclosure. . ."
Issues: Exemption 7(E) - Investigative methods or techniques

Date Filed	Doc #	Docket Text
2014-02-26	1	COMPLAINT against DRUG ENFORCEMENT ADMINISTRATION ( Filing fee $ 400 receipt number 0090-3634783) filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Attorney General, # 3 Summons DEA, # 4 Summons US Attorney)(McCall, Ginger) (Entered: 02/26/2014)
2014-02-26	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ELECTRONIC PRIVACY INFORMATION CENTER (McCall, Ginger) (Entered: 02/26/2014)
2014-02-26		Case Assigned to Judge Emmet G. Sullivan. (zmd, ) (Entered: 02/27/2014)
2014-02-27	3	ELECTRONIC SUMMONS (3) ISSUED as to DRUG ENFORCEMENT ADMINISTRATION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons 2nd, # 2 Summons 3rd, # 3 Notice of Consent, # 4 Consent Form)(md, ) (Entered: 02/27/2014)
2014-03-21	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/6/2014. Answer due for ALL FEDERAL DEFENDANTS by 4/5/2014. (Attachments: # 1 Affidavit Affidavit of Service - U.S. Attorney General, # 2 Affidavit Affidavit of Service - DC Attorney, # 3 Affidavit Affidavit of Service - Drug Enforcement Administration, # 4 Exhibit Receipt for Certified Mail - U.S. Attorney General, # 5 Exhibit Receipt for Certified Mail - DC Attorney, # 6 Exhibit Receipt for Certified Mail - Drug Enforcement Administration)(McCall, Ginger) (Entered: 03/21/2014)
2014-03-31	5	NOTICE of Appearance by Judith A. Kidwell on behalf of DRUG ENFORCEMENT ADMINISTRATION (Kidwell, Judith) (Entered: 03/31/2014)
2014-04-02	6	NOTICE OF SUBSTITUTION OF COUNSEL by James C. Luh on behalf of All Defendants Substituting for attorney Judith A. Kidwell (Luh, James) (Entered: 04/02/2014)
2014-04-07	7	ANSWER to Complaint by DRUG ENFORCEMENT ADMINISTRATION.(Luh, James) (Entered: 04/07/2014)
2014-04-08	8	ORDER FOR MEET AND CONFER REPORT. Attorney Meet and Confer Conference due by 4/30/2014. Meet & Confer Statement due by 5/14/2014. Signed by Judge Emmet G. Sullivan on 04/08/14. (mac) (Entered: 04/08/2014)
2014-05-12	9	MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order)(Luh, James) (Entered: 05/12/2014)
2014-05-13	10	NOTICE of Appearance by Julia Ann Horwitz on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Horwitz, Julia) (Entered: 05/13/2014)
2014-05-20		MINUTE ORDER adopting 9 the parties proposal for further proceedings in their Meet and Confer Statement. Based on the parties' representation that Defendant intends to complete its response to Plaintiff's FOIA request by June 23, 2014, the parties are hereby ORDERED to file a joint status report, including recommendations for further proceedings, by no later than July 3, 2014. Signed by Judge Emmet G. Sullivan on May 20, 2014. (lcegs1) (Entered: 05/20/2014)
2014-05-21		Set/Reset Deadlines: Joint Status Report due by 7/3/2014 (mac) (Entered: 05/21/2014)
2014-07-03	11	NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 07/03/2014)
2014-07-03	12	RESPONSE TO ORDER OF THE COURT re Order, (Defendant's Status Report in Response to May 20, 2014, Order) filed by DRUG ENFORCEMENT ADMINISTRATION. (Attachments: # 1 Text of Proposed Order)(Luh, James) (Entered: 07/03/2014)
2014-07-03	13	STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Horwitz, Julia) (Entered: 07/03/2014)
2014-07-03		MINUTE ORDER. In light of the representations in 12 Defendant's Response and 13 Plaintiff's Status Report that Defendant intends to complete its response to Plaintiff's FOIA request by July 21, 2014, the parties are hereby ORDERED to file a joint status report, including recommendations for further proceedings, by no later than July 28, 2014. Signed by Judge Emmet G. Sullivan on July 3, 2014. (lcegs1) (Entered: 07/03/2014)
2014-07-07		Set/Reset Deadlines: Joint Status Report due by 7/28/2014. (mac) (Entered: 07/07/2014)
2014-07-28	14	RESPONSE TO ORDER OF THE COURT re Order, (Joint Status Report in Response to July 3, 2014 Order) filed by DRUG ENFORCEMENT ADMINISTRATION. (Attachments: # 1 Text of Proposed Order Plaintiff's Proposed Order, # 2 Text of Proposed Order Defendant's Proposed Order)(Luh, James) (Entered: 07/28/2014)
2014-07-30		MINUTE ORDER. Upon consideration of the parties' joint status report, the parties are directed to comply with the following briefing schedule: defendant's motion for summary judgment shall be filed by no later than September 29, 2014. Plaintiff's opposition shall be filed by no later than December 1, 2014. If plaintiff chooses to file a cross-motion, it shall be combined with the opposition and filed on the same date. Defendant's reply and, if applicable, combined opposition shall be filed by no later than December 22, 2014. Plaintiff's reply, if applicable, shall be filed by no later than January 12, 2015. It is FURTHER ORDERED that each party shall be permitted a total of 70 pages for its two briefs, to be allocated between the two briefs as each party chooses. Signed by Judge Emmet G. Sullivan on July 30, 2014. (lcegs4) (Entered: 07/30/2014)
2014-07-31		Set/Reset Deadlines: Defendant's Summary Judgment motions due by 9/29/2014. Plaintiff's Opposition, And/Or Cross-Motion due by 12/1/2014. Defendant's Reply And If Applicable Combined due by 12/22/2014. Plaintiff Reply due by 1/12/2015. (mac) (Entered: 07/31/2014)
2014-09-29	15	WITHDRAWN (PARTIALLY) PURSUANT TO 41 NOTICE FILED 9/4/2018 .....MOTION for Summary Judgment (Defendant's Motion for Summary Judgment) by DRUG ENFORCEMENT ADMINISTRATION (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Declaration of Katherine L. Myrick, # 4 Text of Proposed Order)(Luh, James) Modified on 9/5/2018 (zjf). Modified on 9/6/2018 (znmw). (Entered: 09/29/2014)
2014-10-01	16	ERRATA (Defendant's Notice of Filing Second Declaration of Katherine L. Myrick) by DRUG ENFORCEMENT ADMINISTRATION 15 MOTION for Summary Judgment (Defendant's Motion for Summary Judgment) filed by DRUG ENFORCEMENT ADMINISTRATION. (Attachments: # 1 Declaration of Katherine L. Myrick)(Luh, James) (Entered: 10/01/2014)
2014-11-21		Case randomly reassigned to Judge Randolph D. Moss. Judge Emmet G. Sullivan no longer assigned to the case. (gt, ) (Entered: 11/21/2014)
2014-12-01	17	Cross MOTION for Summary Judgment by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(McCall, Ginger) (Entered: 12/01/2014)
2014-12-01	18	Memorandum in opposition to re 15 MOTION for Summary Judgment (Defendant's Motion for Summary Judgment) filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(McCall, Ginger) (Entered: 12/01/2014)
2014-12-22	19	REPLY to opposition to motion re 15 MOTION for Summary Judgment (Defendant's Motion for Summary Judgment) (Defendant's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and Reply Memorandum in Support of Defendant's Motion for Summary Judgment) filed by DRUG ENFORCEMENT ADMINISTRATION. (Luh, James) (Entered: 12/22/2014)
2014-12-22	20	Memorandum in opposition to re 17 Cross MOTION for Summary Judgment (Defendant's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and Reply Memorandum in Support of Defendant's Motion for Summary Judgment) filed by DRUG ENFORCEMENT ADMINISTRATION. (Attachments: # 1 Statement of Facts)(Luh, James) (Entered: 12/22/2014)
2015-01-05	21	Case reassigned to Judge Emmet G. Sullivan. Judge Randolph D. Moss no longer assigned to the case. (ztnr, ) (Entered: 01/05/2015)
2015-01-12	22	REPLY to opposition to motion re 17 Cross MOTION for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER. (McCall, Ginger) (Entered: 01/12/2015)
2015-01-20	23	MOTION for Leave to File , MOTION (Defendant's Motion Regarding the Parties' Cross-Motions for Summary Judgment) by DRUG ENFORCEMENT ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Luh, James) (Entered: 01/20/2015)
2015-02-03	24	RESPONSE re 23 MOTION for Leave to File MOTION (Defendant's Motion Regarding the Parties' Cross-Motions for Summary Judgment) Opposition filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(McCall, Ginger) (Entered: 02/03/2015)
2015-02-04	25	REPLY to opposition to motion re 23 MOTION for Leave to File MOTION (Defendant's Motion Regarding the Parties' Cross-Motions for Summary Judgment) (Defendant's Reply Memorandum in Support of Motion Regarding the Parties' Cross-Motions for Summary Judgment) filed by DRUG ENFORCEMENT ADMINISTRATION. (Luh, James) (Entered: 02/04/2015)
2015-05-19	26	NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Ginger P. McCall terminated. (McCall, Ginger) (Entered: 05/19/2015)
2015-08-13	27	NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Julia Horwitz terminated. (Horwitz, Julia) (Entered: 08/13/2015)
2015-09-21	28	NOTICE of Appearance by Jeramie D. Scott on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Scott, Jeramie) (Entered: 09/21/2015)
2015-09-21	29	NOTICE of Appearance by Alan Jay Butler on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Butler, Alan) (Entered: 09/21/2015)
2015-09-29		MINUTE ORDER granting in part and denying in part 23 defendant's motion regarding the parties' cross motions for summary judgment. The defendant shall file its surreply by no later than October 6, 2015. The plaintiff may file a response by no later than October 13, 2015. Thereafter, no additional filings related to the parties' cross motions for summary judgment shall be made without invitation of the Court. Pending motions 15 and 17 are STAYED to allow the parties to file these briefs. Signed by Judge Emmet G. Sullivan on 9/29/2015. (lcegs1) (Entered: 09/29/2015)
2015-09-30		Set/Reset Deadlines: Defendant Surreply due by 10/06/2015. Plaintiff Response due by 10/13/2015. (mac) (Entered: 09/30/2015)
2015-10-06	30	SURREPLY to re 17 Cross MOTION for Summary Judgment (Defendant's Surreply in Opposition to Plaintiff's Motion for Summary Judgment) filed by DRUG ENFORCEMENT ADMINISTRATION. (Luh, James) (Entered: 10/06/2015)
2015-10-13	31	RESPONSE re 30 Surreply filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Scott, Jeramie) (Entered: 10/13/2015)
2016-06-24	32	ORDER DENYING in part and HOLDING IN ABEYANCE in part Plaintiff's Motion for Summary Judgment; GRANTING in part and DENYING without prejudice in part Defendant's Motion for Summary Judgment. Signed by Judge Emmet G. Sullivan on June 24, 2016. (lcegs4) (Entered: 06/24/2016)
2016-06-24	33	MEMORANDUM AND OPINION. Signed by Judge Emmet G. Sullivan on June 24, 2016. (lcegs4) (Entered: 06/24/2016)
2016-06-27		Set/Reset Deadlines: Proposed Briefing Schedule due by 7/8/2016. (mac) (Entered: 06/27/2016)
2016-07-08	34	RESPONSE TO ORDER OF THE COURT re 33 Memorandum & Opinion, 32 Order, (Joint Proposed Briefing Schedule in Response to June 24, 2016, Order and Memorandum Opinion) filed by DRUG ENFORCEMENT ADMINISTRATION. (Attachments: # 1 Text of Proposed Order)(Luh, James) (Entered: 07/08/2016)
2016-07-08	35	SUPPLEMENTAL SCHEDULING ORDER. Signed by Judge Emmet G. Sullivan on July 8, 2016. (lcegs4) (zmac). (Entered: 07/08/2016)
2016-07-08		Set/Reset Deadlines: Drug Enforcement Administration Shall Serve Its Supplement Materials due by 09/21/2016. Electronic Privacy Information Center Response due by 10/12/2016. (mac) (Entered: 07/08/2016)
2016-09-21	36	SUPPLEMENTAL MEMORANDUM to re 20 Cross MOTION for Summary Judgment , 15 MOTION for Summary Judgment (Defendant's Motion for Summary Judgment) (Defendant's Supplemental Brief in Support of Motion for Summary Judgment and in Opposition to Plaintiff's Cross Motion for Summary Judgment (redacted)) filed by DRUG ENFORCEMENT ADMINISTRATION. (Attachments: # 1 Declaration of Douglas W. Poole (redacted), # 2 Exhibit 2 (cover page only), # 3 Exhibit 3)(Luh, James) Modified on 9/22/2016 (jf). (Entered: 09/21/2016)
2016-10-13	37	RESPONSE re 15 MOTION for Summary Judgment (Defendant's Motion for Summary Judgment) filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Scott, Jeramie) (Entered: 10/13/2016)
2016-11-03	38	Unopposed MOTION for Leave to File Supplemental Exhibits by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Text of Proposed Order)(Scott, Jeramie) (Entered: 11/03/2016)
2016-11-09		MINUTE ORDER granting 38 unopposed motion to file supplemental exhibits. Signed by Judge Emmet G. Sullivan on 11/9/2016. (lcegs4) (Entered: 11/09/2016)
2016-11-09	39	SUPPLEMENTAL Exhibits to re 36 Supplemental Memorandum,, filed by ELECTRONIC PRIVACY INFORMATION CENTER. (td) (Entered: 11/10/2016)
2016-11-25	40	RESPONSE re 39 Supplemental Memorandum, 20 Memorandum in Opposition, 15 MOTION for Summary Judgment (Defendant's Motion for Summary Judgment) (Defendant's Response to Plaintiff's Motion to File Supplemental Exhibits) filed by DRUG ENFORCEMENT ADMINISTRATION. (Luh, James) (Entered: 11/25/2016)
2018-09-04	41	NOTICE OF WITHDRAWAL OF MOTION by DRUG ENFORCEMENT ADMINISTRATION (Defendant's Notice of Partial Withdrawal of Defendant's Motion for Summary Judgment) (Luh, James) (Entered: 09/04/2018)
2018-09-17	42	NOTICE (Defendant's Notice of Filing Revised Release Pages in Connection with Notice of Partial Withdrawal of Defendant's Motion for Summary Judgment) by DRUG ENFORCEMENT ADMINISTRATION re 41 Notice of Withdrawal of Motion (Attachments: # 1 Revised Release Pages)(Luh, James) (Entered: 09/17/2018)
2018-10-01	43	NOTICE of Change of Address by James C. Luh (Luh, James) (Entered: 10/01/2018)
2019-06-17		MINUTE ORDER. The DEA is directed to file supplemental briefing on the following issue by no later than June 24, 2019: How disclosing the names of agencies that have access to Hemisphere data "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions." See 5 U.S.C. § 552(b)(7)(E). The plaintiff shall respond by no later than, July 1, 2019. The DEA shall file a reply by no later than July 8, 2019. Signed by Judge Emmet G. Sullivan on 6/17/2019. (lcegs2) (Entered: 06/17/2019)
2019-06-18		Set/Reset Deadlines: Supplemental Briefing due by 6/24/2019. Plaintiff Response due by 7/1/2019. DEA Reply due by 7/8/2019. (mac) (Entered: 06/18/2019)
2019-06-24	44	RESPONSE TO ORDER OF THE COURT re Order,, (Defendant's Supplemental Brief in Response to June 17, 2019, Order) filed by DRUG ENFORCEMENT ADMINISTRATION. (Luh, James) (Entered: 06/24/2019)
2019-07-01	45	RESPONSE re 44 Response to Order of the Court (Plaintiff's Response to Defendant's Supplemental Brief in Response to June 17, 2019 Order) filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Scott, Jeramie) (Entered: 07/01/2019)
2019-08-06	46	ORDER GRANTING defendant's motion for summary judgment and DENYING plaintiff's cross-motion for summary judgment. Signed by Judge Emmet G. Sullivan on 8/6/2019. (lcegs2) (Entered: 08/06/2019)
2019-08-06	47	MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 8/6/2019. (lcegs2) (Entered: 08/06/2019)
2019-08-07	48	FINAL JUDGMENT in Favor Of Defendant, United States Drug Enforcement Agency against Electronic Privacy Information Center. Signed by Judge Emmet G. Sullivan on 08/07/19. (mac) (Entered: 08/07/2019)
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