Elec. Privacy Info. Ctr. v. Dep't of Justice, Civil No. 13–cv–1961 (KBJ)

Citation296 F.Supp.3d 109
Decision Date07 November 2017
Docket NumberCivil No. 13–cv–1961 (KBJ)
Parties ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff, v. DEPARTMENT OF JUSTICE, Defendant.
CourtU.S. District Court — District of Columbia

Alan Jay Butler, Marc Rotenberg, Washington, DC, for Plaintiff.

Caroline J. Anderson, Rodney Patton, U.S. Department of Justice, Steven Y. Bressler, Office of General Counsel, Washington, DC, for Defendant.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

This decision marks the Court's third foray into the dispute between plaintiff Electronic Privacy Information Center ("EPIC") and the Department of Justice ("DOJ") regarding a document request that EPIC submitted to DOJ under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, in October of 2013. EPIC seeks records about a now-expired U.S. government national security program that involved the surreptitious use of pen register and trap-and-trace ("PR/TT") devices to collect communications information (see Compl., ECF No. 1), and this Court previously denied EPIC's motion for a preliminary injunction, which the organization had filed contemporaneously with its complaint. See Elec. Privacy Info. Ctr. v. DOJ , 15 F.Supp.3d 32 (D.D.C. 2014) (" EPIC I ") (denying the request for an order that required DOJ to process the pending FOIA request immediately and provide responsive documents within 20 days). This Court has also summarily denied previous cross-motions for summary judgment in this matter, largely due to the government's continued release of additional responsive materials while the parties were briefing those motions. See Elec. Privacy Info. Ctr. v. DOJ , No. 13cv1961, 2016 WL 447426 (D.D.C. Feb. 4, 2016) (" EPIC II ").

The parties have now narrowed the scope of the dispute, such that the only issues left for this Court to resolve are whether the government has properly withheld two categories of materials pursuant to FOIA Exemptions 1, 3, and/or 7(E): (1) Westlaw printouts that were attached to a certain brief that the government submitted to the Foreign Intelligence Surveillance Court ("FISC"), and (2) portions of certain reports that DOJ issued to Congress, consisting of summaries of FISC legal opinions, descriptions of the scope of the FISC's jurisdiction, and discussions of process improvements (collectively, the "Remaining Challenges").1 DOJ has submitted a revised Vaughn Index and supplemental affidavits speaking to the propriety of these withholdings (see Revised Vaughn Index, ECF No. 35; Fourth Decl. of David M. Hardy ("Hardy Suppl. Decl."), ECF No. 35–1; Decl. of David J. Sherman ("Sherman Suppl. Decl."), ECF No. 35–2), and it has also filed—ex parte and in camera —both unredacted copies of the withheld materials and classified versions of the government's supplemental declarations (see Notice of Lodging Documents for In Camera Review with the Classified Info. Sec. Officer ("Notice of Classified Lodging"), ECF No. 34; In Camera , Ex Parte Classified Fourth Decl. of David M. Hardy ("Classified Hardy Suppl. Decl."); In Camera , Ex Parte Decl. of David J. Sherman ("Classified Sherman Suppl. Decl.")).

Before this Court at present are the parties' renewed cross-motions for summary judgment regarding these two categories of materials. (See Def.'s Mot. for Summ. J. ("Def.'s Mot."), ECF No. 36; Pl.'s Renewed Mot. for Summ. J. ("Pl.'s Mot."), ECF No. 37.) DOJ argues that the government properly withheld all of the information at issue in this case pursuant to Exemptions 3 and 7(E) (see Def.'s Mot. at 18–23), and that the classified material in the Congressional reports and FISC filing is further properly withheld under Exemption 1 (see id. at 13–16).2 DOJ also contends that the government has released all non-exempt, reasonably segregable portions of the records that EPIC has requested. (See id. at 23–24.) EPIC's cross-motion insists that the fact that some of the material that DOJ initially withheld as exempt has now been released suggests that DOJ is acting in bad faith with respect to the withheld materials. (See Pl.'s Mot. at 12–14.) EPIC further asserts that none of the information that the government has withheld is properly deemed classified (see id. at 16–19), nor is it specifically exempted from disclosure by statute (id. at 19–21), nor do the materials satisfy the Exemption 7(E) criteria for protected law-enforcement information (see id. at 21–23). EPIC also argues that the government has failed to release all reasonably segregable information. (See id. at 24–25.)

On September 30, 2017, this Court issued an order that GRANTED IN PART AND DENIED IN PART DOJ's motion for summary judgment, and also DENIED EPIC's Renewed Motion for Summary Judgment without prejudice. (See ECF No. 45.) This Memorandum Opinion explains the reasons for that order. In sum, and as discussed fully below, the Court has conducted an in camera review of the relevant materials, and it concurs with DOJ's contention that FOIA Exemption 3 was properly invoked with respect to the Westlaw printouts and the redacted portions of the Congressional reports that EPIC is challenging in this action. (See infra Sec. III.A.1.) It is also clear to the Court that the government has identified an Executive order that specifically authorizes it to maintain the secrecy of the material at issue in the interest of national defense, and that the challenged withheld material is properly classified pursuant to that order; therefore, the government is also entitled to rely on Exemption 1 to withhold the requested information.

Notably, however, DOJ's general success in establishing that the disputed information can be withheld comes with a caveat: the Court has identified at least three redactions in the Congressional reports that DOJ has categorized as undisputed (i.e., "outside the Remaining Challenges") but that do appear to fit within the categories of disputed redactions still at issue in this case. Given this mischaracterization, DOJ has not provided any reasons for the government's withholdings with respect to these particular redactions; therefore, this Court is in no better position to evaluate the appropriateness of these particular redactions than it was prior to the government's supplemental submissions. See EPIC II , 2016 WL 447426, at *3 (remarking that "the current sworn statements are too general in scope" and that "because the declarations fail to home in on the specific withholdings now at issue, they are manifestly inadequate to assist the Court in determining whether the declarants have made a reasonable assessment" under the FOIA). The Court has also identified two other aspects of the government's withholdings with respect to the congressional reports—a footnote on page 57 of Document 126 and a notation on page 59 of Document 127—that require further clarification, as explained below. Consequently, the accompanying Order requires DOJ to submit one or more supplemental declarations with respect to the congressional reports, in order to address the issues identified herein, and the Order also sets a schedule for submission of renewed motions for summary.

I. BACKGROUND
A. Prior Proceedings

The prior proceedings in this matter are described in detail in the two opinions that this Court has previously issued in this case. See EPIC I , 15 F.Supp.3d 32 ; EPIC II , 2016 WL 447426. Thus, only a brief recounting of the relevant background details is necessary here. In short, EPIC submitted a FOIA request to DOJ on October 3, 2013, seeking certain records that pertain to the United States government's prior surreptitious use of PR/TT devices under the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. §§ 1841 – 46 :

1. All reports made to the Permanent Select Committee on Intelligence in the House of Representatives and the Select Committee on Intelligence in the Senate, detailing the total number of orders for pen registers or trap and trace devices granted or denied, and detailing the total number of pen registers or trap and trace devices installed pursuant to 50 U.S.C. § 1843.
2. All information provided to the aforementioned committees concerning all uses of pen registers and trap and trace devices.
3. All records used in preparation of the above materials, including statistical data.

(EPIC FOIA Request, Ex. A to Pl.'s Mot. for Prelim. Inj., ECF No. 3–2.) EPIC filed the instant lawsuit, along with a motion for a preliminary injunction, when DOJ did not respond to this FOIA request by the statutory deadline. (See Compl., ECF No. 1.)

After this Court denied EPIC's motion for a preliminary injunction, EPIC I , 15 F.Supp.3d 32, DOJ proceeded to process EPIC's FOIA request, and in doing so, referred certain documents to the Federal Bureau of Investigation ("FBI") and the National Security Agency ("NSA") for review and a withholding determination. (See Bradley Decl. ¶ 7.) See also 28 C.F.R. § 16.4(d)(2)(i) ("When the component processing the request believes that a different component, agency, or other Federal Government office is best able to determine whether to disclose the record, the component typically should refer the responsibility for responding to the request regarding that record, as long as the referral is to a component or agency that is subject to the FOIA."). The government completed processing EPIC's FOIA request by late summer of 2014, and the parties then proceeded to brief cross-motions for summary judgment.

On October 31, 2014, DOJ submitted its opening summary judgment brief and supporting declarations from declarants of DOJ, the NSA, and the FBI, and it also filed a Vaughn Index that contained 92 entries and invoked Exemptions 1, 3, 6, 7(C), and 7(E). EPIC II , 2016 WL 447426, at *2. (See Vaughn Index, Ex. A to 2d Decl. of Mark A. Bradley ("Bradley Decl."), ECF No. 22–3, at 8–24.) Then, during the course of the remaining briefing of the summary judgment motions, the number of documents at issue shrank substantially, until at a motion hearing th...

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