Elec. Privacy Info. Ctr. v. U.S. Drug Enforcement Agency

• Decision Date: 06 August 2019
• Docket Number: Civ. Action No. 14-317 (EGS)
• Citation: 401 F.Supp.3d 37
• Parties: ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff, v. UNITED STATES DRUG ENFORCEMENT AGENCY, Defendant.
• Court: U.S. District Court — District of Columbia

401 F.Supp.3d 37

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,

v.UNITED STATES DRUG ENFORCEMENT AGENCY, Defendant.

Civ. Action No. 14-317 (EGS)

United States District Court, District of Columbia.

Signed August 6, 2019

Jeramie D. Scott, Alan Jay Butler, Marc Rotenberg, Electronic Privacy Information Center, Washington, DC, for Plaintiff.

James C. Luh, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge

This case concerns the Hemisphere Project ("Hemisphere"), a program utilized by multiple government agencies, that collects daily data on telephone calls. The data is retained in a database and used by the United States Drug Enforcement Agency ("the DEA"), in cooperation with private corporations, to combat illicit drug activity. Although the existence of Hemisphere was widely reported in 2013, details of the program remain unknown.

Plaintiff Electronic Privacy Information Center ("EPIC") filed this lawsuit seeking injunctive relief following the DEA's response to EPIC's Freedom of Information Act ("FOIA") requests. Compl., ECF No. 1 ¶¶ 1-2. The primary FOIA requests at issue in this case sought the government's analysis of legal and privacy issues related to Hemisphere. The DEA ultimately responded to the request with 319 documents: 39 were released in their entirety, 104 withheld in their entirety, and 176 released in part. The DEA claimed several FOIA exemptions as justification for the withheld documents and portions. Relevant to the pending motion, the DEA claimed FOIA Exemption 7(E), which allows the government to withhold records or information compiled for a law enforcement purpose, for 11 categories of documents. See 5 U.S.C. § 552(b)(7)(E).

The parties filed cross-motions for summary judgment and the Court denied EPIC's motion in part finding that, inter alia , the DEA's search for documents was reasonable and that the DEA properly withheld certain documents under FOIA Exemption 5. See Elec. Privacy Info. Ctr. ("EPIC") v. United States Drug Enf't Agency , 192 F. Supp. 3d 92, 100 (D.D.C. 2016). The Court also denied the DEA's motion in part finding that the DEA failed to sufficiently justify its reliance on FOIA Exemption 7(E). Id. at 111–116. The Court ordered the DEA to either produce the documents to EPIC, supplement the record with additional affidavits and authority justifying its withholdings, or the produce documents for the Court's in camera review. Id. at 115–16. The Court also ordered the DEA to produce documents related to a particular category for in camera review. Id. at 114. The Court deferred ruling on whether the DEA had processed and released all reasonably segregable information. See id. at 116 n.14.

The parties have filed supplemental briefs on the issues remaining to be resolved by the Court and the DEA partially withdrew its motion for summary judgment, leaving only two categories of withholdings in dispute. See generally Notice of Partial Withdrawal of Def.'s Mot. for Summ. J. ("Not. Of Partial Withdrawal"), ECF No. 41. Accordingly, the only issues before this Court are whether: (1) the DEA has properly invoked FOIA Exemption 7(E) over the two remaining categories of documents; and (2) the DEA has met its obligation to segregate all unprotected information from its withheld documents.

Upon consideration of the motions, the responses and replies thereto, the applicable law, the entire record, and for the reasons stated in this Memorandum Opinion, defendant's motion for summary judgment is GRANTED and plaintiff's cross-motion for summary judgment is DENIED .

I. Background

The Court has already described the facts of this case in detail in its prior Memorandum Opinion. See EPIC , 192 F. Supp. 3d 92 (D.D.C. 2016). The Court will briefly outline the surveillance program which gave rise to the FOIA request, the DEA's response to the request, and the procedural history of this case.

A. The Hemisphere Program

Hemisphere is a program that grants law enforcement officials access to an AT & T database containing "decades of American's phone calls." Compl. ¶ 6 (quoting Drug Agents Use Vast Phone Trove, Eclipsing N.S.A.'s , New York Times, Sept. 1, 2013). Operational since 2007, Hemisphere adds nearly four billion calls to its database daily, including details about caller location. Id. ¶ 9. AT & T manages the database and the DEA pays AT & T staff to provide law enforcement agents with direct access to the call information. Id. ¶ 7. According to the New York Times, Hemisphere is funded through the White House's Office of National Drug Control Policy. Id. ¶ 11.

B. EPIC's November 2013 FOIA Request and the DEA's Response

EPIC's November 15, 2013 FOIA request sought four categories of documents from the DEA:

(1) All Hemisphere training modules, request forms, and similar final guidance documents that are used in the day-to-day operation of the program;

(2) Any analyses, memos, opinions, or other communications that discuss the legal basis of the program;

(3) Any analyses, memos, opinions, or other communications that discuss the privacy impact of the program; and

(4) Any presentations, analyses, memos, opinions or other communications for Congress that cover Hemisphere's operations.

Id. ¶ 14.¹

The DEA identified six offices at its headquarters likely to have responsive records: The Operations Division, the Intelligence Division, the Office of Training, the Office of Chief Counsel, the Office of Information Systems, and the Office of Congressional and Public Affairs. See Def.'s Mem. Supp. Summ. J., Decl. of Katherine L. Myrick ("Myrick Decl."), ECF No. 15-3 ¶ 16. The DEA's Atlanta, Houston, Los Angeles, and Washington, D.C. division offices were also asked to search for responsive records. Id. In July 2014, the DEA responded to EPIC's FOIA request with 319 responsive documents. Id. ¶ 11. Of those documents, 39 were released in full, 176 were released in part and withheld in part, and 104 were withheld in full. Id.

To justify its withholdings, the DEA relied on FOIA exemptions 5, 6, 7(C), 7(D), 7(E), and 7(F). 5 U.S.C. § 552(b)(5);(6);(7)(C)–(F). Most relevant to this case, the DEA has asserted Exemption 7 for 11 categories of documents. Def.'s Mem. Suppl. Summ. J., ECF No. 15 at 18-23.² EPIC challenged three of those categories: (1) names of private companies that assist with the operation of Hemisphere (Categories 7D-1 and 7E-6);³ (2) documents that reveal how the DEA secures cooperation of entities instrumental to Hemisphere's operation (Category 7E-5); and (3) names of other law enforcement agencies with access to Hemisphere (Category 7E-11). Pl.'s Opp'n, ECF No. 18 at 28-38.

C. Procedural History

In a Memorandum Opinion dated June 24, 2016 the Court ruled on the parties' cross-motions for summary judgment. The Court denied EPIC's motion in part finding that the DEA's search was reasonable and that the DEA properly withheld certain documents under FOIA Exemption 5. See EPIC , 192 F. Supp. 3d at 100. The Court denied the DEA's motion in part, finding that the DEA failed to sufficiently justify its reliance on FOIA exemption 7(E). Id. The Court ordered the DEA to either produce the documents, supplement the record with additional affidavits and authority justifying its withholdings, or produce documents for the Court's in camera review. Id. at 115–16. The Court also ordered the DEA to produce documents related to a particular category for in camera review. Id. at 114.

The parties have filed supplemental briefs related to the issues remaining to be resolved by the Court. In the DEA's submission it has provided the documents for in camera review, and filed an ex parte in camera affidavit from Douglass W. Poole, DEA Chief of Intelligence, explaining its justification for the exemption. See Redacted Decl. Douglass H. W. Poole ("Redacted Poole Decl."), ECF No. 36–1. The DEA has also filed a redacted copy of these documents on the public record. Id. Additionally, the DEA partially withdrew its motion for summary judgment for all but two of the 11 categories of documents for which it originally claimed the exemptions. See generally Not. Of Partial Withdrawal, ECF No. 41. Accordingly, the DEA has produced to EPIC revised versions of previously partially withheld documents. See Def.'s Not. of Filing Revised Release Pages in Connection with Not. of Partial Withdrawal, ECF No. 42.

The Court's June 2016 Memorandum Opinion and the withdrawal of the DEA's arguments concerning categories 7D-1 and 7E-6 leave two categories of withholdings in dispute:(1) category 7E-5, information that could reveal what specific law enforcement agencies have access to Hemisphere apart from DEA, whose use of Hemisphere has been publicly confirmed, see Def.'s Mem. in Supp. of Mot. for Summ. J., ECF No. 15-2 at 29, and (2) category 7E-11, documents detailing the means through which Hemisphere secures the cooperation of entities instrumental to Hemisphere, id. at 30–31. Accordingly, the only issues before this Court are whether the DEA has properly invoked FOIA Exemption 7(E) over the documents in categories 7E-5 and 7E-11 and whether the DEA has met its obligation to segregate all unprotected information from its redactions.

II. Standard of Review

A. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Celotex Corp v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether a genuine issue of material fact exists, a court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). FOIA cases are typically and appropriately decided on motions for summary judgment. Gold Anti-Trust Action Comm. Inc. v....