Case Detail

FOIA Project Annotation: Judge Barbara Rothstein has ruled that most records related to contracts awarded by the Department of Homeland Security for the development of body scanners are protected by Exemption 4 (confidential business information) and Exemption 5 (deliberative process privilege). But because the agency provided EPIC with a large number of documents during the litigation, she concluded the public interest organization was entitled to attorney's fees. The agency located 2,300 pages of responsive records, but released only 15 pages in full and 158 pages in part. The agency failed to respond to EPIC's administrative appeal and the organization filed suit. DHS then disclosed 151 pages in full and 21 pages in part, claiming it had done so to "narrow the issues for judicial review." EPIC argued that pricing information for Rapiscan, one of the companies that had been awarded a DHS contract, had been made public by the company on a website related to its contract with New York State. Rothstein disagreed and noted that "the public documents that EPIC cites contain generic performance information distinct from the specific data included in the document in dispute. . . [A]ccording to [Rapiscan's affidavit] the 2009 pricing document contained in the contract with New York State has nothing to do with the pricing under any other contract because Rapiscan's pricing is unique to each procurement. Thus, EPIC's contention that the public New York contract price list demonstrates that DHS does not generally treat its unit pricing as confidential falls flat." EPIC argued that agency discussions with Rapiscan and Northeastern Universityâ€"the other contractorâ€"were not protected by Exemption 5 because the contractors had interests that were adverse to the agency. The agency, however, contended the exchanges were protected because the contractors served as outside consultants. Rothstein agreed with the agency. She pointed out that "self-advocacy is not a dispositive characteristic and does not control Exemption 5's scope in this case. In order to be excluded from the exemption, the contractors must assume a position that is 'necessarily adverse' to the government. Even though NEU and Rapiscan's positions are competitive and self-interested, they are not adverse to DHS, and EPIC has proffered no evidence suggesting as much. To the contrary. NEU and Rapiscan are bound in contract to provide information and analysis to DHS." EPIC claimed some of the information was factual. Rothstein, however, referring to one contested document, indicated that "strengths and weaknesses are not necessarily facts. Nor are they 'straightforward explanations of agency regulations,' or headers at the top of meeting minutes that courts have ordered disclosed. Rather, as represented here, they are the contractors' subjective assessment of DHS's options. As such, they form part of the department's deliberative process and fall within the scope of Exemption 5." Although she ruled for the agency on the merits of its exemption claims, Rothstein nonetheless concluded EPIC was entitled to attorney's fees. She noted that the agency had released several documents during litigation. "The sequencing of DHS's disclosures as well as the department's change of position as to the propriety of withholding them suggests that this lawsuit was the catalyst for the record release." DHS argued that some of the media coverage cited by EPIC predated the litigation. But Rothstein observed that "as the media coverage indicates, the subject matter contained in the records released as a result of the present action is newsworthy, and the disclosures in this case have added to the body of public knowledge on this issue of public importance." Assessing whether the agency's withholding was reasonable, she noted that "these releases came after EPIC filed suit. DHS's purported justification for such disclosureâ€"i.e. to 'narrow the issues for judicial review'â€"is not accompanied by any argument as to why the initial withholding had any legal basis."
Issues: Exemption 4 - Confidential business information, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Litigation - Attorney's fees - Prevailing party

Date Filed	Doc #	Docket Text
2011-05-20	1	COMPLAINT against UNITED STATES DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 350, receipt number 4616038999) filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 05/23/2011)
2011-05-20		SUMMONS (3) Issued as to UNITED STATES DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 05/23/2011)
2011-05-20	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by ELECTRONIC PRIVACY INFORMATION CENTER (jf, ) (Entered: 05/23/2011)
2011-06-17	3	NOTICE of Appearance by Javier M. Guzman on behalf of UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Guzman, Javier) (Entered: 06/17/2011)
2011-06-24	4	ANSWER to 1 Complaint by UNITED STATES DEPARTMENT OF HOMELAND SECURITY.(Guzman, Javier) (Entered: 06/24/2011)
2011-06-27	5	ORDER that defendant shall file a dispositive motion, or in the alternative, a report setting forth the schedule according to which it will complete its production of documents to plaintiff on or before July 25, 2011. Signed by Judge Amy Berman Jackson on 6/27/2011. (MT) (Entered: 06/27/2011)
2011-06-27		Set/Reset Deadlines: Defendant's Dispositive Motion or, Report setting forth the schedule according to which it will complete its production of documents to plaintiff, is due by 7/25/2011. (jth) (Entered: 06/27/2011)
2011-07-12	6	Unopposed MOTION for Extension of Time to File and for Entry of Briefing Schedule by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Guzman, Javier) (Entered: 07/12/2011)
2011-07-18	7	ORDER granting 6 Unopposed Motion for Extension of Time to File and for Entry of Briefing Schedule. SEE ORDER FOR COMPLETE DETAILS. Signed by Judge Amy Berman Jackson on 7/18/2011. (MT) (Entered: 07/18/2011)
2011-07-20		Set/Reset Deadlines: Summary Judgment motions due by 8/8/2011; Opposition and Cross motions are due by 9/8/2011. Reply to Motion for Summary Judgment and Opposition to Cross Motions due by 9/22/2011. Reply to Cross Motions due by 10/6/2011. (jth) (Entered: 07/20/2011)
2011-08-05	8	Unopposed MOTION for Extension of Time to File Motion for Summary Judgment by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Guzman, Javier) (Entered: 08/05/2011)
2011-08-08		MINUTE ORDER granting 8 Unopposed Motion for Extension of Time. The motion for summary judgment will be due 8/22/2011 with opposition to motion for summary judgment and cross-motion for summary judgment due on 9/22/11, with reply to motion for summary judgment and opposition to cross-motion for summary judgment due on 10/6/2011 and reply to cross-motion for summary judgment due on 10/20/2011. 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 8/22/2011; Opposition andCross Motion due by 9/22/2011; Reply to Motion for Summary Judgment and the Opposition to Cross Motion due by 10/6/2011; Reply to the Cross Motion due by 10/20/2011. (jth) (Entered: 08/08/2011)
2011-08-22	9	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Exhibit BAA 05-03, # 2 Exhibit Declaration of Rebecca Medina, # 3 Exhibit Amendment to BAA 05-03, # 4 Exhibit Declaration of Peter Modica, # 5 Text of Proposed Order)(Guzman, Javier) (Entered: 08/22/2011)
2011-09-22	10	Cross MOTION for Summary Judgment Combined Cross-Motion/Opposition 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, # 6 Exhibit Exhibit #2, # 7 Exhibit Exhibit #3, # 8 Exhibit Exhibit #4, # 9 Exhibit Exhibit #5, # 10 Exhibit Exhibit #6, # 11 Exhibit Exhibit #7)(Verdi, John) (Entered: 09/22/2011)
2011-09-22	11	Memorandum in opposition to re 9 MOTION for Summary Judgment Combined Cross-Motion/Opposition 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, # 5 Exhibit Exhibit #2, # 6 Exhibit Exhibit #3, # 7 Exhibit Exhibit #4, # 8 Exhibit Exhibit #5, # 9 Exhibit Exhibit #6, # 10 Exhibit Exhibit #7)(Verdi, John) (Entered: 09/22/2011)
2011-10-05	12	Unopposed MOTION for Extension of Time to File Response/Reply by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Guzman, Javier) (Entered: 10/05/2011)
2011-10-06		MINUTE ORDER granting 12 Unopposed Motion for Extension of Time to File Reply re 9 MOTION for Summary Judgment and Opposition re 10 Cross MOTION for Summary Judgment. The reply and opposition will be due by 10/7/2011. The reply to the cross-motion for summary judgment will be due by 10/21/2011. Signed by Judge Amy Berman Jackson on 10/6/11. (MT) (Entered: 10/06/2011)
2011-10-06		Set/Reset Deadlines: Reply to the Motion for Summary Judgment and Opposition to the Cross Motion is due by 10/7/2011. Reply to the Cross Motion is due by 10/21/2011. (jth) (Entered: 10/06/2011)
2011-10-07	13	REPLY to opposition to motion re 9 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Statement of Facts Response to Plaintiff's Statement of Material Facts Not in Genuine Dispute, # 2 Exhibit Exhibits 1 through 3)(Guzman, Javier) (Entered: 10/07/2011)
2011-10-07	14	Memorandum in opposition to re 10 Cross MOTION for Summary Judgment Combined Cross-Motion/Opposition filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Statement of Facts Response to Plaintiff's Statement of Material Facts Not in Genuine Dispute, # 2 Exhibit Exhibits 1 through 3)(Guzman, Javier) (Entered: 10/07/2011)
2011-10-20	15	REPLY to opposition to motion re 10 Cross MOTION for Summary Judgment Combined Cross-Motion/Opposition filed by ELECTRONIC PRIVACY INFORMATION CENTER. (McCall, Ginger) (Entered: 10/20/2011)
2012-01-26	16	Case reassigned to Judge Barbara Jacobs Rothstein by consent. Judge Amy Berman Jackson no longer assigned to the case. (ds) (Entered: 01/26/2012)
2012-03-28	17	NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 03/28/2012)
2012-03-28	18	NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney John Arthur Verdi terminated. (Verdi, John) (Entered: 03/28/2012)
2012-05-11	19	MEMORANDUM ORDER requiring that DHS produce an adequate segregability analysis by May 31, 2012. Signed by Judge Barbara Jacobs Rothstein on 5/11/12.(lcbjr2) (Entered: 05/11/2012)
2012-05-11		Set/Reset Deadlines: DHS to produce an adequate segregability analysis by 5/31/2012. (tg, ) (Entered: 05/11/2012)
2012-05-31	20	NOTICE of Filing Segregability Analysis by UNITED STATES DEPARTMENT OF HOMELAND SECURITY re 19 Order (Attachments: # 1 Declaration)(Guzman, Javier) (Entered: 05/31/2012)
2012-06-06	21	NOTICE of Additional Record by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Guzman, Javier) (Entered: 06/06/2012)
2012-07-19		MINUTE ORDER ordering defendant to inform the court of the status of the responsive document described in 21 its June 6, 2012 notice to the Court. Defendant shall file such notice no later than July 25th, 2012. Signed by Judge Barbara Jacobs Rothstein on July 19, 2012. (lchhk2) (Entered: 07/19/2012)
2012-07-23		Set/Reset Deadline: Defendant's Notice due by 7/25/2012. (tth) (Entered: 07/23/2012)
2012-07-24	22	STATUS REPORT by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit Second Supplemental Declaration of Rebecca Medina)(Guzman, Javier) (Entered: 07/24/2012)
2012-07-25		MINUTE ORDER directing defendant to revise and resubmit the Vaughn Index in accordance with its July 24, 2012 Status Report. Furthermore, to the extent plaintiff objects to defendant's arguments in support of the exemption claimed in the same status report, the Court orders plaintiff to file a response no later than August 1, 2012. Signed by Judge Barbara Jacobs Rothstein on July 25, 2012. (lchhk2) (Entered: 07/25/2012)
2012-07-25	23	NOTICE of Filing by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Exhibit (supplemental Vaughn index))(Guzman, Javier) (Entered: 07/25/2012)
2012-07-27		Set/Reset Deadline: Response due by 8/1/2012. (tth) (Entered: 07/27/2012)
2012-09-14	24	MEMORANDUM OPINION granting 9 Defendant's Motion for Summary Judgment, denying 10 Plaintiff's Motion for Summary Judgment and granting Plaintiff's Motion for Attorney's Fees and Costs. Signed by Judge Barbara Jacobs Rothstein on September 14, 2012. (lchhk2) (Entered: 09/14/2012)
2012-09-14	25	ORDER granting 9 Defendant's Motion for Summary Judgment, Denying 10 Plaintiff's Motion for Summary Judgment, and granting Plaintiff's Motion for Attorney's Fees and Costs. Signed by Judge Barbara Jacobs Rothstein on September 14, 2012. (lchhk2) (Entered: 09/14/2012)
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