Pub. Emps. for Envtl. Responsibility v. Dep't of Homeland Sec.

• Decision Date: 17 December 2021
• Docket Number: Civil Action No. 18-0158 (CKK)
• Citation: 575 F.Supp.3d 34
• Parties: PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY, Defendant.
• Court: U.S. District Court — District of Columbia

575 F.Supp.3d 34

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, Plaintiff,

v.DEPARTMENT OF HOMELAND SECURITY, Defendant.

Civil Action No. 18-0158 (CKK)

United States District Court, District of Columbia.

Signed December 17, 2021

Paula Naomi Dinerstein, Public Employees for Environmental Responsibility, Silver Spring, MD, for Plaintiff.

Michael A. Tilghman, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge This lawsuit arises from a Freedom of Information Act ("FOIA") request made by Plaintiff Public Employees for Environmental Responsibility ("PEER") to Defendant Department of Homeland Security ("DHS"). PEER requested information relating to the 2015 Strategic National Risk Assessment ("SNRA") prepared by the Federal Emergency Management Agency ("FEMA").¹ In response, FEMA withheld certain documents from PEER pursuant to FOIA Exemption 5.

Currently before the Court are Defendant Department of Homeland Security's [22] Motion for Summary Judgment and Plaintiff PEER's [24] Cross Motion for Summary Judgment. Upon consideration of the pleadings,² the relevant legal authorities, and the record as whole, for the reasons stated below, the Court finds that DHS properly withheld records pursuant to FOIA Exemption 5, and so shall GRANT DHS's Motion for Summary Judgment and DENY PEER's Cross-Motion for Summary Judgment.

I. BACKGROUND

This case concerns a FOIA request for, in relevant part, drafts of DHS's Strategic National Risk Assessment, one of two reports DHS has historically compiled to address systemic risks to national security (e.g., natural disasters and terrorist attacks). The SNRA was initially executed in 2011 in support of Presidential Policy Directive 8 ("PPD-8") which called for the creation of a National Preparedness Goal, for which the SNRA served as the main risk assessment tool. See Dep't of Homeland Sec., The Strategic National Risk Assessment in Support of PPD 8: A Comprehensive Risk-Based Approach toward a Secure and Resilient Nation 1 (2011), https://www.dhs.gov/xlibrary/assets/rma-strategic-national-risk-assessment-ppd8.pdf. The SNRA was FEMA's comprehensive collection of the risks and hazards facing the United States, containing information and advice for how jurisdictions within the United States should address threats ranging from natural disasters to terrorism. Id.

At the same time, DHS developed a separate risk assessment vehicle, the Threat and Hazard Identification and Risk Assessment ("THIRA"). THIRA required the "major urban areas, states, tribal nations, and territories receiving Homeland Security Grant Program (HSGP) or Tribal Homeland Security Grant Program (THSGP) funds and the ten (10) FEMA regions" to complete an annual THIRA particular to their own geographic areas. Supplemental Declaration of Leiloni Stainsby ("Stainsby Suppl. Decl.") ¶ 5, ECF No. 28-1. THIRA enabled each "jurisdiction to examine current and future risks and resource requirements," and "use the information to support planning and investment strategies." Id. ¶ 4.

Multiple agencies and offices participated in the drafting of the SNRA, including FEMA's National Integration Center (NIC), which helps to develop "guidance and tools to assist communities in tackling their unique preparedness challenges and coordinates the adoption and implementation of a common incident management platform for emergency responders and officials." Declaration of Leiloni Stainsby ("Stainsby Decl.") ¶ 3, ECF No. 22-2. The NIC is a part of the National Preparedness Directorate (NPD), an organization within FEMA which assists people and communities in preventing and mitigating "against all threats and hazards." Id. The 2015 SNRA was intended to be the "risk-based analytic foundation of the National Preparedness Goal." Id. The NIC sent the draft SNRA documents in April of 2015 to several offices within FEMA for review.³ Id. ¶ 4.

As the SNRA was in the process of being drafted, FEMA decided to make the new National THIRA its main risk assessment tool, as opposed to the SNRA. Stainsby Suppl. Decl. ¶ 8. While THIRA data up to that point had been jurisdiction-specific and "could not be ‘rolled up’ into a national perspective," Stainsby Suppl. Decl. ¶ 7, the National THIRA was intended to "identify national catastrophic threats facing the United States, its tribes and territories, and identifying resources that would be needed to prepare for, mitigate against and most effectively respond to these threats," id. ¶ 8.

On September 1, 2017, PEER submitted a FOIA request to FEMA seeking to acquire the "SNRA 2015 Findings [Report], May 2015; (2) SNRA 2015 Technical Appendix, May 2015; (3) SNRA 2015 Working Papers, May 2015; (4) PPD-8 Implementation Plan, May 2011; (5) SNRA Terms of Reference, June 2011; (6) SNRA 2015 Update Background and General Guidance, February 2015; (7) SNRA 2015 Qualitative Data Instructions, February 2015; (8) SNRA 2015 Risk Summary Sheet Instructions & Template, February 2015; and (9) any successor SNRA versions later than May 2015." Compl. ¶ 3, 20, ECF. No. 1; see also Pl.’s Mot. at 1. PEER is a "non-profit organization dedicated to research and public education concerning the activities and operation of federal, state, and local governments." Compl. ¶ 2.

FEMA acknowledged receipt of PEER's FOIA request on September 12, 2017. Id. ¶ 22; Def.’s Answer ¶ 1, ECF No. 9. On December 12, 2017, PEER contacted both the DHS and FEMA FOIA Officers about the status of its FOIA request. Compl. ¶ 23; Def.’s Answer ¶ 23. PEER allegedly received contradictory responses regarding which component of DHS handles such FOIA requests. Compl. ¶ 23. But see Def.’s Answer ¶ 23 ("FEMA avers it replied to the email and informed Plaintiff that the FOIA request was closed.").

PEER filed this lawsuit on January 25, 2018 after FEMA failed to respond to PEER's FOIA request within the statutory deadline. Compl. ¶ 24; Def.’s Answer ¶ 24. As a response to PEER's lawsuit, FEMA produced, in full, the SNRA 2015 Update Background and General Guidance, February 2015; the SNRA 2015 Qualitative Data Instructions, February 2015; and the SNRA 2015 Risk Summary Sheet Instructions & Template, February 2015. Declaration of Gregory Bridges ("Bridges Decl.") ¶ 4, ECF No. 22-1. FEMA further partially released several other SNRA documents under FOIA Exemption 5. See id. ¶ 5.

In total, FEMA produced 716 Bates-stamped pages of material. See Declaration of Paula Dinerstein ("Dinerstein Decl.") ¶ 3, ECF No. 24-2. On September 10, 2018, FEMA produced a Vaughn Index identifying and detailing the redactions and withholdings. Bridges Decl. ¶ 6; Dinerstein Decl. ¶ 4. FEMA claimed an exemption pursuant to FOIA Exemption 5. Bridges Decl. ¶ 9.

Each party then cross-moved for summary judgment. See Def.’s Mot.; Pl.’s Mot. & Opp'n. PEER challenges FEMA's withholding of certain documents pursuant to FOIA Exemption 5. Pl.’s Mot. & Opp'n. FEMA claims that they validly withheld documents pursuant to the Deliberative Process Privilege under FOIA Exemption 5. Def.’s Mot.

II. LEGAL STANDARD

The FOIA authorizes a district court only "to enjoin [a federal] agency from withholding agency records or to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B). This case, like a "vast majority" of FOIA cases, can be decided on summary judgment. See Brayton v. Office of U.S. Trade Representative , 641 F.3d 521, 527 (D.C. Cir. 2011).

Summary judgment is appropriate upon a showing that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In a FOIA case, the Court may award summary judgment to an agency solely on the information provided in affidavits or declarations when they describe "the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981) ; accord Am. Civil Liberties Union v. U.S. Dep't of Def. , 628 F.3d 612, 619 (D.C. Cir. 2011) ; see also Vaughn v. Rosen , 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’ " SafeCard Servs., Inc. v. Sec. & Exch. Comm'n , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA , 692 F.2d 770, 771 (D.C. Cir. 1981) ). Rather, a plaintiff "must point to evidence sufficient to put the Agency's good faith into doubt." Ground Saucer , 692 F.2d at 771. Otherwise, " ‘uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail.’ " Schoenman v. FBI , 841 F. Supp. 2d 69, 80 (D.D.C. 2012) (quoting Ancient Coin Collectors Guild v. U.S. Dep't of State , 641 F.3d 504, 509 (D.C. Cir. 2011) (alteration omitted)).

On summary judgment, the district court must conduct a "de novo" review of the record, 5 U.S.C. § 552(a)(4)(B), "to ascertain whether the agency has sustained its burden of demonstrating that the documents requested ... are exempt from disclosure." Assassination Archives & Research Ctr. v. CIA , 334 F.3d 55, 57 (D.C. Cir. 2003) (citation and internal quotation marks omitted). "Consistent with the purpose of the Act, the burden is on the agency to justify withholding requested documents." Beck v. Dep't of Just. , 997 F.2d 1489, 1491 (D.C. Cir. 1993). Only after an agency has proven that "it has fully discharged its disclosure obligations" is summary judgment appropriate. Weisberg v. U.S. Dep't of Just. , 705 F.2d 1344, 1350 (D.C. Cir. 1983).

III. DISC...