Case Detail
| Case Title | PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY v. UNITED STATES SECTION INTERNATIONAL BOUNDARY AND WATER COMMISSION, U.S.- MEXICO | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2011cv00261 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2011-01-31 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2012-03-21 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Judge Barbara Jacobs Rothstein | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | UNITED STATES SECTION INTERNATIONAL BOUNDARY AND WATER COMMISSION, U.S.- MEXICO | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Appeal | D.C. Circuit 12-5158 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Opinion/Order [17] FOIA Project Annotation: In a decision that one can only hope is an outlier, Senior Judge Barbara Rothstein has brought back the worst excesses of FOIA overreach from the days after 9/11 and has applied them like we were still expecting a terrorist attack any moment. Aside from the D.C. Circuit's decision in Center for National Security Studies v. Dept. of Justice, 331 F.3d 918 (D.C. Cir. 2003), which extended deference under Exemption 1 (national security) to national security-related investigations under Exemption 7 (law enforcement records), no other early post-9/11 case was more reviled than Living Rivers, Inc. v. Bureau of Reclamation (D. Utah 2003), in which the government persuaded a district court judge that a combination of Exemption 2 (internal practices and procedures) and Exemption 7(F) (harm to individuals) somehow protected flood inundation maps for several dams. Now, in what easily could pass as "Son of Living Rivers," Rothstein has accepted the same argument, with Exemption 7(E) (investigatory methods and techniques) substituted for Exemption 2, which fell by the wayside after Milner v. Dept. of Navy, to protectâ€"what else?â€"dam inundation maps prepared for the U.S. Section of the International Boundary and Water Commission. Public Employees for Environmental Responsibility requested records about a number of dams that were under shared jurisdiction between the U.S. and Mexico, including a November 2009 report by a panel of technical advisors regarding the condition of Amistad Dam. The Commission's original response was that it could not locate the November 2009 report, two responsive records were being withheld under Exemption 5 (deliberative process privilege), and other responsive records were located and disclosed. In total, the Commission released 1,492 pages and withheld 383 pages. PEER appealed, alleging the Commission acted in bad faith when it said it could not locate the November 2009 report. This time, PEER provided an article from the Brownsville Herald referencing the existence of the report. The Commission then explained that it had not realized until PEER provided the newspaper article that they were talking about an October 2009 report. Nevertheless, the Commission withheld the report under the circumvention prong of Exemption 2. PEER filed suit and while the litigation was pending, the Supreme Court ruled in Milner that the circumvention prong of Exemption 2 did not exist because it was not supported by the plain language of the exemption. But instead of releasing the records protected by Exemption 2, the Commission now asserted they were protected by Exemption 7(E) and 7(F). PEER first challenged the adequacy of the Commission's search. Rothstein found that, although the Commission did not find a folder containing 77 inundation plans until subsequent searches were conducted, its search was reasonable. She also rejected PEER's contention that the agency had acted in bad faith by claiming that it could not find the November 2009 report, which, PEER pointed out, was listed on the Commission's website with a November 2009 date. But Rothstein noted that "the USIBWC responds that its Safety Dams Section [which conducted the search] was unaware of the date of the report on the agency website, and that it was not until PEER's appeal and reference to the newspaper article that Mr. Hernandez, who conducted the actual search, understood which document PEER sought. The court finds this explanation credible. . .In the instant case, PEER has not presented the court with any evidence of bad faith, incredulity alone cannot undermine the presumption of good faith that is accorded to agency affidavits." While Hernandez's explanation sounds like the way many agency searches are conducted, the statute actually requires agencies to contact requesters when they do not understand what records are being sought. In this case, Hernandez could surely have contacted PEER for more information rather than assuming with no basis that the report did not exist. PEER argued that the report of the joint panel of technical advisors was not protected by Exemption 5 because it was not an inter- or intra-agency record since it was prepared by employees of the U.S. Army Corps of Engineers and the Bureau of Reclamation whose interests did not coincide with those of the Water Commission. Rothstein, however, disagreed, and pointed out that "the USIBWC has assured the court that the responsibility of the panel that worked on the Joint Expert Panel Review of the Amistad Dam was assisting the USIBWC. There is not the slightest indication that these experts represented any outside interests. It appears that their function was simply to provide accurate information for the USIBWC to use in making various determinations with respect to the Amistad Dam. PEER has provided no evidence in contradiction." PEER also claimed that, according to the Commission's website, it planned to implement the recommendations, suggesting that the report had been adopted by the agency. Rothstein noted that the website citations were "far from convincing proof that the agency has adopted the document as policy. In the court's view, the Joint Expert Panel Review is not only clearly predecisional, but deliberative as well." Rothstein turned to Exemption 7. She first addressed the threshold issue of whether or not the records qualified as records compiled for law enforcement purposes. The Commission asserted that the National Dam Safety Act gave the Commission a role in maintaining the security of dams. It also contended that it shared the inundation maps with agencies like the FBI and the U.S. Border Patrol to assist emergency officials in the event of a dam accident or terrorist attack. While PEER called these claims "disingenuous," Rothstein accepted them readily, explaining that "the USIBWC's concern that its dams might be attractive targets for terrorists does nothing to alter the reality that such concerns may be valid. The court is aware that it is widely accepted that dams are a matter of concern for homeland security, and as such, implicate law enforcement. Similarly, the court is unmoved by PEER's assertion that this country has many such potential terrorist targets. A suggestion that the likelihood of a terrorist attack on, in particular, the Amistad Dam or the Falcon Dam, compared with any other national infrastructure may be relatively low, does not negate the fact that the USIBWC's activities have a nexus with law enforcement, or that these documents were, in fact, compiled for a law enforcement purpose." She then cited both Center for National Security Studies and Living Rivers for the proposition that an agency with any tenable connection with homeland security could qualify under the law enforcement exemption. After finding the records qualified as law enforcement records, Rothstein addressed Exemption 7(E) and 7(F). PEER argued that disclosure of Commission emergency guidelines would not endanger anyone's safety. But Rothstein pointed out that "but this argument is premised on PEER's unsubstantiated contention that the USIBWC dams are not a genuine target for terrorist activity." She then observed that "dams operated by the USIBWC such as the Falcon and Amistad Dams, are considered possible terrorist threats because of the potential for massive downstream casualties. Moreover, the [guidelines] contain sensitive information, the disclosure of which could endanger public safety. As the [guidelines] contained information, in part, that would reveal the USIBWC's guidelines and procedures for an emergency such as a terrorist attack, the agency properly redacted portions of the [guidelines] pursuant to Exemption 7(E)." As to Exemption 7(F), Rothstein rejected PEER's claim that other agencies had disclosed inundation maps. She pointed out that "PEER would need something more than evidence that different agencies have, at times, made different judgments about the security issues implicated by making inundation maps public. Further, there is a good reason to believe that the USIBWC's decision in this instance was based on legitimate security considerations." She supported that observation by again referring to Living Rivers and, gratuitously, to Justice Samuel Alito's self-serving concurrence in Milner embracing the 7(F) argument as an alternative to the now departed circumvention prong of Exemption 2.
Issues: Exemption 5 - Inter- or intra-agency record, Exemption 7(F) - Harm to safety of any person | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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