Case Detail

FOIA Project Annotation: Judge Timothy Kelly has ruled that data on the level of dangerous chemicals at various facilities nationwide is protected by Exemption 7(F) (harm to any person) because the information could be used by terrorists to locate potential targets for attack. Kelly's decision shows how embedded the 9/11 mentality has become in withholding records that also have a public health and safety aspect to them, a knee-jerk political decision to always assume that a terrorist attack is far more likely than a chemical spill caused by negligence or a natural disaster. But even more telling is the extent of the influence of Justice Samuel Alito's concurrence, which was joined by no other Supreme Court Justice, in Milner v. Dept of Navy, 562 U.S. 562 (2011), suggesting that agencies could characterize virtually any records as security-related and then withhold them under Exemption 7 (law enforcement records), has taken hold in allowing agencies to more aggressively use Exemption 7(E) (investigative methods and techniques) â€" often as a substitute for the circumvention prong previously recognized as part of Exemption 2 (internal practices and procedures) â€" and Exemption 7(F). Starting with PEER v. U.S. Section, International Boundary and Water Commission, 740 F.3d 195 (D.C. Cir. 2014), and continuing with EPIC v. Dept of Homeland Security, 777 F.3d 518 (D.C. Cir. 2015), the D.C. Circuit adopted Alito's argument that records containing data that could potentially be exploited by terrorists qualified for 7(E) and 7(F) protection, regardless of how far-fetched such a scenario might be. While the flood inundation projections involved in PEER were the most ludicrous claim justified under 7(F), the subsequent use of 7(E) and 7(F) in EPIC to protect a DHS memo addressing a possible need to temporarily shut down the cellular network in the event of a terrorist attack was a much closer call. In the case before Kelly, Greenpeace had requested data DHS compiled under the Chemical Facility Anti-Terrorism Standards program showing the "screening threshold quantity" of dangerous chemicals held in facilities nationwide. CFATS tracks the levels of dangerous chemicals and facilities can go in and out of maintaining the requisite level of chemicals, a process referred to as "de-tiering." Greenpeace requested records showing the number of facilities that had reduced their levels of dangerous chemicals so that they were no longer considered high risk. The National Protection and Programs Directorate located 123 pages of responsive records but told Greenpeace that it was withholding them all under Exemption 5 (privileges), Exemption 7(E), and Exemption 7(F). Greenpeace filed an administrative appeal, arguing that in ACLU v. Dept of Defense, 543 F.3d 59 (2nd Cir. 2008), the Second Circuit held that Exemption 7(F) applied only when an agency could describe a discrete group of individuals who could be harmed by disclosure. Greenpeace's appeal was heard by an attorney at the Coast Guard. The Coast Guard attorney ruled in favor of Greenpeace, finding the agency had gone beyond the holding in ACLU v. Dept of Defense. NPPD disagreed with the Coast Guard attorney's decision in light of the fact that in the PEER and EPIC decisions, the D.C. Circuit had decided that the ACLU v. Dept of Defense holding did not apply under the circumstances presented in those cases. Instead DHS's Office of General Counsel reviewed the Coast Guard attorney's decision and allowed NPPD to redact the records under Exemption 7(F). Greenpeace appealed that decision. The Coast Guard attorney once again ordered the agency to comply but indicated that he had no ability to enforce his decision. As a result, Greenpeace filed suit. Because of the peculiar circumstances of the case, Greenpeace asked Kelly to order DHS to comply with the Coast Guard attorney's decision and require the agency to disclose an unredacted copy of the records. This put Greenpeace in the odd position of asking Kelly to uphold the agency's appeal rather than deciding the merits of the case de novo. Kelly explained that "in most cases, de novo review is a boon to plaintiffs; unlike the APA standard of review, de novo review generally affords no deference to the agency's decisions." However, he noted that "but FOIA plaintiffs must take the bitter with the sweet. The FOIA standard of review does disadvantage plaintiffs who would prefer to focus on the niceties of agency procedures instead of the merits of their claims." He added that "that is not to say that FOIA's procedural provisions are irrelevant. . . If the agency fails to follow FOIA's procedures, the 'penalty' is that the agency cannot rely on the administrative exhaustion requirement to keep cases from getting into court. But the agency suffers no prejudice on the merits of its defense, nor could it, because review must be de novo." DHS stressed that disclosure of the data would make the facilities more susceptible to a terrorist attack. Kelly agreed, noting that "identifying information about these facilities shares a key characteristic. . .it represents highly useful information for terrorists planning attacks on them." He pointed out that "disclosing which facilities are considered 'high risk' and which are not, has the potential to reveal the government's thinking about which facilities are likely targets for terrorist attacks, and which are not. Revealing the names of 'de-tiered' facilities would be dangerous [because] it would provide terrorists with valuable insight into how the United States government, including its intelligence services, assesses the risk of attacks on chemical facilities in this country. . .[Further], such revelations would effectively identify 'de-tiered' facilities as 'soft targets' for terrorists." Greenpeace emphasized that disclosure would foster the public interest in ensuring that the facilities followed the appropriate safety regulations. Greenpeace pointed out that "disclosure creates an incentive for reductions, and more facilities will reduce their inventories of chemicals of interest, increasing safety." Kelly indicated that "these affidavits miss the mark. Exemption 7(F) merely requires the government to show 'a reasonable expectation of endangerment' if the records are released. It is not a 'balancing test' that requires the agency to weigh that danger against possible benefits of releasing the information. Therefore, DHS is not required to show that risks to human life and health from potential terrorist attacks outweigh the possibility that withholding the information might inhibit the development of best practices by the private sector." Even Greenpeace's argument that much information about chemical facilities was already publicly available through the EPA and other agencies was turned against it. Kelly observed that "such information enriches, and does not merely repeat, the information already in the public domain. As Defendants persuasively claim, terrorists might combine these different sources of information to make better-informed decisions about what facilities to target."
Issues: Exemption 7(F) - Harm to safety of any person

Date Filed	Doc #	Docket Text
2017-03-16	1	COMPLAINT against Department of Homeland Security ( Filing fee $ 400 receipt number 0090-4878214) filed by GREENPEACE, INC. (Attachments: # 1 Civil Cover Sheet, # 2 Summons for Attorney General, # 3 Summons for U.S. Attorney, # 4 Summons for DHS, # 5 Sumnmons for NPPD)(Nelson, Scott) Modified on 3/17/2017 to correct docket text (jd). (Entered: 03/16/2017)
2017-03-16	2	Corporate Disclosure Statement by GREENPEACE, INC.. (Nelson, Scott) (Entered: 03/16/2017)
2017-03-16	3	NOTICE of Appearance by Scott Lawrence Nelson on behalf of GREENPEACE, INC. (Nelson, Scott) (Entered: 03/16/2017)
2017-03-16		Case Assigned to Judge Colleen Kollar-Kotelly. (jd) (Entered: 03/17/2017)
2017-03-17	4	SUMMONS (4) Issued Electronically as to DEPARTMENT OF HOMELAND SECURITY, NATIONAL PROTECTION AND PROGRAMS DIRECTORATE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Forms)(jd) (Entered: 03/17/2017)
2017-03-17	5	ORDER Establishing Procedures for Cases Assigned to Judge Colleen Kollar-Kotelly. Signed by Judge Colleen Kollar-Kotelly on March 17, 2017. (NS) (Entered: 03/17/2017)
2017-03-29	6	NOTICE of Appearance by Joshua L. Rogers on behalf of All Defendants (Rogers, Joshua) (Entered: 03/29/2017)
2017-04-13	7	Consent MOTION for Extension of Time to Answer or Otherwise Respond to Complaint by DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Rogers, Joshua) (Entered: 04/13/2017)
2017-04-19		MINUTE ORDER. The Court is in receipt of Defendant's 7 Consent Motion for Extension of Time to Answer or Otherwise Respond to the Complaint. Defendant seeks an extension of 30 days to respond to the Complaint because defense counsel needs additional time to review the Complaint and the evidence, and to confer with applicable agencies. This is the first request for an extension in this case, and Plaintiff does not oppose it. Accordingly, Defendant's motion is GRANTED. Defendant shall respond to Plaintiff's Complaint by no later than MAY 22, 2017. Signed by Judge Colleen Kollar-Kotelly on 4/19/2017. (lcckk3) (Entered: 04/19/2017)
2017-04-19		Set/Reset Deadlines: Answer due by 5/22/2017. (dot) (Entered: 04/25/2017)
2017-05-16	8	NOTICE of Appearance by Sean M. Sherman on behalf of All Plaintiffs (Sherman, Sean) (Entered: 05/16/2017)
2017-05-17	9	MOTION for Summary Judgment by GREENPEACE, INC. (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Rick Hind and Accompanying Exhibits)(Sherman, Sean) (Entered: 05/17/2017)
2017-05-17		MINUTE ORDER. The Court is in receipt of Plaintiff's 9 Motion for Summary Judgment. Plaintiff's motion is premature, given that Defendant has not yet responded to the Complaint, and is not required to do so until May 22, 2017. Plaintiff's motion is accordingly DENIED WITHOUT PREJUDICE. After Defendant has responded to the Complaint, the Court will set a schedule for proceeding in this matter. Signed by Judge Colleen Kollar-Kotelly on 5/17/2017. (lcckk3) (Entered: 05/17/2017)
2017-05-18	10	MOTION for Extension of Time to File Motion for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY, NATIONAL PROTECTION AND PROGRAMS DIRECTORATE (Attachments: # 1 Text of Proposed Order)(Rogers, Joshua) (Entered: 05/18/2017)
2017-05-19		MINUTE ORDER. The Court is in receipt of Defendant's 10 Consent Motion for Extension of Time to File Motion for Summary Judgment. There is no current deadline by which Defendant is required to file a motion for summary judgment. Defendant has not yet answered or otherwise responded to the Complaint. Defendant is currently required to do so by May 22, 2017. The Court will accordingly interpret Defendant's motion as a motion to extend the time to respond to the complaint. This is the second such request Defendant has made, and Defendant concedes that its motion is untimely. Nonetheless, Plaintiff consents to the relief requested and the Court will GRANT Defendant's motion. Defendant may answer or otherwise respond to the Complaint by JUNE 21, 2017. As the Court has already explained, after Defendant has responded to the Complaint, the Court will set a schedule for proceeding in this matter, including any necessary briefing schedule. Signed by Judge Colleen Kollar-Kotelly on 5/19/2017. (lcckk3) (Entered: 05/19/2017)
2017-05-19		Set/Reset Deadlines: Defendant may Answer or otherwise respond to the Complaint by 6/21/2017. (dot) (Entered: 05/19/2017)
2017-06-21	11	MOTION to Dismiss or, in the Alternative, , MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY, NATIONAL PROTECTION AND PROGRAMS DIRECTORATE (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Text of Proposed Order, # 4 Declaration, # 5 Declaration, # 6 Declaration)(Rogers, Joshua) (Entered: 06/21/2017)
2017-06-22		MINUTE ORDER. The Court is in receipt of Defendant's 11 Motion to Dismiss or, in the Alternative, for Summary Judgment. Plaintiff shall file a response to Defendant's motion by no later than JULY 5, 2017. Defendant shall file a reply by no later than JULY 12, 2017. Signed by Judge Colleen Kollar-Kotelly on 6/22/2017. (lcckk3) (Entered: 06/22/2017)
2017-06-22		Set/Reset Deadlines: Plaintiff's Response to 11 due by 7/5/2017. Reply due by 7/12/2017. (dot) (Entered: 06/22/2017)
2017-06-28	12	MOTION to Modify the Court's Scheduling Order by DEPARTMENT OF HOMELAND SECURITY, NATIONAL PROTECTION AND PROGRAMS DIRECTORATE (Attachments: # 1 Text of Proposed Order)(Rogers, Joshua) (Entered: 06/28/2017)
2017-06-29		MINUTE ORDER. The Court is in receipt of the parties' 12 Joint Motion to Modify the Court's Scheduling Order. The Court perceives that this pleading has an error. The first proposed deadline is for Defendant to file an opposition to Plaintiff's motion for summary judgment, but Plaintiff does not have a currently pending motion for summary judgment on the docket (that motion was denied without prejudice). It is Defendant who has a pending 11 Motion to Dismiss or, in the Alternative, for Summary Judgment. Yet the first due date suggested by the parties is for Defendant to respond to a motion of the Plaintiff. Accordingly, the Court will DENY the parties' motion WITHOUT PREJUDICE. The parties shall file another joint proposed schedule which either (1) sets dates for the briefing of Defendant's 11 motion and for the filing and briefing of Plaintiff's cross-motion, or (2) sets an initial date for Plaintiff to file a motion for summary judgment, and then follows the course proposed by the parties in their currently-proposed schedule. After the parties file such a proposed schedule, the Court will enter its Scheduling and Procedures Order, which sets forth in detail the Court's requirements for dispositive motions. Signed by Judge Colleen Kollar-Kotelly on 6/29/2017. (lcckk3) (Entered: 06/29/2017)
2017-06-29	13	Joint MOTION to Modify the Court's Scheduling Order (Corrected) by GREENPEACE, INC. (Attachments: # 1 Text of Proposed Order)(Sherman, Sean) (Entered: 06/29/2017)
2017-06-30		MINUTE ORDER. The Court is in receipt of the parties' 13 Corrected Joint Motion to Modify the Court's Scheduling Order. On June 21, 2017, Defendant filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. On June 22, 2017, the Court ordered Plaintiff to file a response to Defendant's motion by no later than July 5, 2017, and ordered Defendant to file a reply by no later than July 12, 2017. The parties now request that the Court modify this schedule to allow for Plaintiff's dispositive motion to be considered together with the Defendant's pending motion. The parties' motion is GRANTED. Plaintiff's Opposition to Defendant's Motion to Dismiss or, in the alternative, for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment shall be filed by no later than JULY 21, 2017. Defendant's Opposition to Plaintiff's Cross-Motion for Summary Judgment and Defendants Reply to Plaintiff's Opposition to Defendant's Motion to Dismiss or, in the alternative, for Summary Judgment shall be filed by no later than AUGUST 28, 2017. Plaintiff's Reply to Defendant's Opposition to Plaintiff's Cross-Motion for Summary Judgment shall be filed by no later than SEPTEMBER 22, 2017. The Joint Appendix shall be filed by OCTOBER 13, 2017. Signed by Judge Colleen Kollar-Kotelly on 6/30/2017. (lcckk3) (Entered: 06/30/2017)
2017-06-30		Set/Reset Deadlines: Plaintiff's Cross Motion due by 7/21/2017. Response to Cross Motions due by 8/28/2017. Reply to Cross Motions due by 9/22/2017. Plaintiff's Response to 7 Motion for Summary Judgment due by 7/21/2017. Reply to Motion for Summary Judgment due by 8/28/2017. Joint Appendix due by 10/13/2017. (dot) (Entered: 06/30/2017)
2017-07-20	14	MOTION for Summary Judgment by GREENPEACE, INC. (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Rick Hind and accompanying exhibits, # 3 Declaration of Paul Orum and accompanying exhibits, # 4 Declaration of Gerald Poje, # 5 Declaration of Sean Sherman)(Sherman, Sean) (Entered: 07/20/2017)
2017-07-20	15	Memorandum in opposition to re 11 MOTION to Dismiss or, in the Alternative, MOTION for Summary Judgment filed by GREENPEACE, INC.. (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Rick Hind and accompanying exhibits, # 3 Declaration of Paul Orum and accompanying exhibit, # 4 Declaration of Gerald Poje, # 5 Declaration of Sean Sherman)(Sherman, Sean) (Entered: 07/20/2017)
2017-08-23	16	MOTION for Extension of Time to File Response to Plaintiff's Motion for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY, NATIONAL PROTECTION AND PROGRAMS DIRECTORATE (Attachments: # 1 Text of Proposed Order)(Rogers, Joshua) (Entered: 08/23/2017)
2017-08-24		MINUTE ORDER. The Court is in receipt of Defendant's 16 Consent Motion for Extension of Time to Respond to Plaintiff's Motion for Summary Judgment. Defendant requests an additional seven days to file its response because an agency official who will be submitting a declaration in support of Defendant's response is ill. Plaintiff does not oppose this extension. Defendant's motion is accordingly GRANTED. Defendant may file its response by no later than SEPTEMBER 5, 2017. Plaintiff's reply to Defendant's response shall now be filed by no later than SEPTEMBER 29, 2017. The Joint Appendix shall now be filed by OCTOBER 20, 2017. Signed by Judge Colleen Kollar-Kotelly on 8/24/2017. (lcckk3) (Entered: 08/24/2017)
2017-08-24		Set/Reset Deadlines: Defendant's response to summary judgment due 9/5/2017; Plaintiff's reply to Defendant's response due 9/29/2017; Joint Appendix due 10/20/2017. (kt) (Entered: 08/24/2017)
2017-09-05	17	Memorandum in opposition to re 14 MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY, NATIONAL PROTECTION AND PROGRAMS DIRECTORATE. (Attachments: # 1 Statement of Facts, # 2 Declaration David Palmer, # 3 Declaration Jessica Falcon)(Rogers, Joshua) (Entered: 09/05/2017)
2017-09-05	18	REPLY to opposition to motion re 11 MOTION to Dismiss or, in the Alternative, MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY, NATIONAL PROTECTION AND PROGRAMS DIRECTORATE. (See Docket Entry 17 to view document). (znmw) (Entered: 09/06/2017)
2017-09-18		Case directly reassigned to Judge Timothy J. Kelly. Judge Colleen Kollar-Kotelly is no longer assigned to the case. (ztnr) (Entered: 09/18/2017)
2017-09-29	19	REPLY to opposition to motion re 14 MOTION for Summary Judgment filed by GREENPEACE, INC.. (Sherman, Sean) (Entered: 09/29/2017)
2017-10-17	20	Joint MOTION to Vacate Minute Order of August 24, 2017 by DEPARTMENT OF HOMELAND SECURITY, NATIONAL PROTECTION AND PROGRAMS DIRECTORATE (Attachments: # 1 Text of Proposed Order)(Rogers, Joshua) (Entered: 10/17/2017)
2017-10-17		MINUTE ORDER granting 20 Joint Motion to Vacate. It is hereby ORDERED that the Joint Appendix filing deadline set in the Minute Order of August 24, 2017 is hereby vacated. Signed by Judge Timothy J. Kelly on 10/17/2017. (lctjk1) (Entered: 10/17/2017)
2018-03-31	21	ORDER granting Defendants' 11 Motion to Dismiss or, in the alternative, for Summary Judgment; and denying Plaintiff's 14 Motion for Summary Judgment. Memorandum opinion and final order to follow within 30 days. See Order for details. Signed by Judge Timothy J. Kelly on 3/31/2018. (lctjk2) (Entered: 03/31/2018)
2018-05-01	22	ORDER granting Defendants' 11 Motion to Dismiss or, in the alternative, for Summary Judgment, and denying Plaintiff's 14 Motion for Summary Judgment, for the reasons set forth in the accompanying Memorandum Opinion. This is a final, appealable Order. The Clerk of Court is directed to close the case. See Order for details. Signed by Judge Timothy J. Kelly on 5/1/2018. (lctjk2) (Entered: 05/01/2018)
2018-05-01	23	MEMORANDUM OPINION in support of 22 Order granting Defendants' 11 Motion to Dismiss or, in the alternative, for Summary Judgment, and denying Plaintiff's 14 Motion for Summary Judgment. Signed by Judge Timothy J. Kelly on 5/1/2018. (lctjk2) (Entered: 05/01/2018)
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