Greenpeace, Inc. v. Department of Homeland Security ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GREENPEACE, INC.,
Plaintiff,
v.
Civil Action No. 17-479 (TJK)
DEPARTMENT OF HOMELAND
SECURITY et al.,
Defendants.
MEMORANDUM OPINION
The Department of Homeland Security (“DHS”) runs a government program known as
Chemical Facility Anti-Terrorism Standards (“CFATS”). The purpose of CFATS is to identify
chemical facilities that might be targeted by terrorists, and to promulgate and enforce standards
for reducing the risks arising from potential terrorist attacks on those facilities. DHS requires
facilities to submit information about certain chemicals they possess and, based on those
submissions and other information (including information received from the broader intelligence
community), determines which facilities pose a “high risk” of significant terrorism-related harm.
Those high-risk facilities are required to implement various security measures. Alternatively,
facilities may reduce their chemical holdings to levels that do not qualify them as high risk.
Plaintiff Greenpeace, Inc. (“Greenpeace”) made a request pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, that DHS provide information regarding previously
high-risk facilities that have reduced their chemical holdings. After a lengthy administrative
process, DHS produced two heavily-redacted lists of facility names, withholding those names
that might serve to identify a particular facility. DHS argues that the redacted information falls
under FOIA’s law-enforcement exemption, because releasing it would threaten public safety by
increasing the risks to human life and health from terrorist attacks. Greenpeace disagrees,
claiming that FOIA and DHS’s own procedures require DHS to produce the records without
redactions. Greenpeace has therefore brought suit against DHS and one of its components, the
National Protection and Programs Directorate (“NPPD,” and together with DHS, “Defendants”).
Greenpeace asserts claims under FOIA and the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 551 et seq., and petitions the Court for a writ of mandamus.
Defendants have filed a motion to dismiss or, in the alternative, for summary judgment.
ECF No. 11. Greenpeace has cross-moved for summary judgment. ECF No. 14.1 For the
reasons explained below, Defendants’ motion will be granted and Greenpeace’s will be denied.
Greenpeace’s claims under the APA and for a writ of mandamus will be dismissed. In addition,
the Court will enter summary judgment for Defendants on Greenpeace’s FOIA claim.
Factual and Procedural Background
A. The CFATS Program
Congress initially created the CFATS program in 2006. Falcon Reply Decl. ¶ 4; see
Nat’l Propane Gas Ass’n v. DHS, 534 F. Supp. 2d 16, 18 (D.D.C. 2008) (describing history of
program). The relevant act instructed DHS to issue “regulations establishing risk-based
performance standards for security of chemical facilities and requiring vulnerability assessments
and the development and implementation of site security plans for chemical facilities.” Nat’l
1
The Court has considered the following briefing on these motions: ECF No. 11-2 (“Defs.’
Br.”); ECF No. 14 at 3-42 (“Pl.’s Br.”); ECF No. 17 (“Defs.’ Reply”); ECF No. 19 (“Pl.’s
Reply”). The Court has also reviewed each party’s statement of material facts and supporting
declarations and exhibits. ECF No. 11-1 (“Defs.’ SoMF”); ECF No. 11-4 (“Fuentes Decl.”);
ECF No. 11-5 (“Falcon Decl.”); ECF No. 11-6 (“Palmer Decl.”); ECF No. 14 at 43-52 (“Pl.’s
SoMF”); ECF No. 14 at 53-78 (“Pl.’s Resp. SoMF”); ECF No. 14-2 (“Hind Decl.”); ECF No.
14-3 (“Orum Decl.”); ECF No. 14-4 (“Poje Decl.”); ECF No. 14-5 (“Sherman Decl.”); ECF No.
17-1 (“Defs.’ Resp. SoMF”); ECF No. 17-2 (“Palmer Reply Decl.”); ECF No. 17-3 (“Falcon
Reply Decl.”).
2
Propane, 534 F. Supp. 2d at 18 (quoting Department of Homeland Security Appropriations Act,
2007, § 550(a), Pub. L. No. 109-295, 120 Stat. 1355, 1388 (2006)). DHS did so. See 6 C.F.R.
pt. 27. In 2014, Congress enacted a formal statutory framework for the CFATS program. See
Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014, 6 U.S.C. § 621
et seq. The Infrastructure Security Compliance Division (“ISCD”), a component of DHS located
within NPPD, operates CFATS. Pl.’s Resp. SoMF ¶ 4.
Under CFATS, DHS determines whether chemical facilities present “a high level of
security risk,” which means that there is “the potential that a terrorist attack involving the facility
could result in significant adverse consequences for human life or health, national security or
critical economic assets.” 6 C.F.R. § 27.205(a). The first step in making this determination is to
identify which chemical facilities possess a “screening threshold quantity,” or “STQ,” of one or
more “chemicals of interest.” See 6 C.F.R. §§ 27.105, 27.200(b)(2). The chemicals of interest
and their respective STQs are listed in Appendix A to the CFATS regulations. See 6 C.F.R. pt.
27 app. A. DHS requires chemical facilities to submit “Top-Screens,” reports listing each
chemical of interest that the facilities possess at or above the STQ for that chemical. See Pl.’s
Resp. SoMF ¶ 3; 6 C.F.R. § 27.200(b)(2).
Based on the Top-Screens and other information, including information received from the
broader intelligence community about the threat of attack, DHS makes a preliminary
determination of which facilities are high risk and places those high-risk facilities into one of
four tiers. See Pl.’s Resp. SoMF ¶ 3; 6 C.F.R. § 27.220. DHS makes a final “tiering” decision
for each facility after a “security vulnerability assessment.” 6 C.F.R. §§ 27.215, 27.220(b).
High-risk facilities must then implement security measures intended to reduce the risks
associated with terrorist attacks. Pl.’s Resp. SoMF ¶ 3.
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Facilities designated as high risk can also request a redetermination of their status if they
alter their operations—for example, by reducing their holdings of chemicals of interest. See 6
C.F.R. § 27.205(b). Such facilities are informally referred to as “de-tiered,” because they are no
longer considered high risk and thus are not placed in one of the four tiers. See Falcon Reply
Decl. ¶ 11. In testimony before Congress in February 2012, an NPPD official explained that,
since CFATS’ inception, “more than 1,600 facilities [had] completely removed their chemicals
of interest, and more than 700 other facilities [had] reduced their holdings of chemicals of
interest to levels resulting in the facilities no longer being considered high-risk.” Defs.’ Resp.
SoMF ¶ 1. In February 2014, another NPPD official testified before Congress that “more than
3,000 facilities [had] eliminated, reduced or modified their holdings of chemicals of interest.”
Id. ¶ 3.
B. Greenpeace’s FOIA Request and DHS’s Response
On May 18, 2012, Greenpeace sent a letter to NPPD’s FOIA office requesting “copies of
all releasable documents and records that contain the most complete listing of chemical facilities
that have reduced their holdings of threshold quantities of ‘chemicals of interest’ (COI)
rendering them no longer ‘high risk’ facilities under [CFATS].” Fuentes Decl. Ex. B, at 1; Hind
Decl. Ex. C, at 1.2 Almost ten months later, on March 13, 2013, NPPD issued an “interim
response” stating that it had conducted a search and found 123 pages of responsive records,
which would be withheld in full. Fuentes Decl. Ex. C, at 1; Hind Decl. Ex. D, at 1. The asserted
grounds for withholding the documents were FOIA Exemption 5, and specifically, the
2
Greenpeace also requested additional records relating to “any safer chemicals, processes or
methods these same facilities adopted to no longer be classified as ‘high risk.’” Fuentes Decl.
Ex. B, at 1. NPPD subsequently informed Greenpeace it would withhold those documents in
their entirety. See Fuentes Decl. Ex. D. Greenpeace has not challenged NPPD’s action on that
additional request in this lawsuit. See Pl.’s Br. at 4 n.3.
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deliberative process privilege; Exemption 7(E), an exemption for law-enforcement techniques,
procedures and guidelines; and Exemption 7(F), an exemption for law-enforcement information
whose release might endanger the safety of any individual. Fuentes Decl. Ex. C, at 1-2; Hind
Decl. Ex. D, at 1-2.
On May 12, 2013, Greenpeace appealed the interim response to DHS’s Associate General
Counsel. Fuentes Decl. Ex. E; Hind Decl. Ex. E. Greenpeace argued that the claimed
exemptions did not apply. Fuentes Decl. Ex. E; Hind Decl. Ex. E. In particular, citing Second
Circuit case law, Greenpeace argued that Exemption 7(F) did not apply because DHS had not
identified any particular individual who would be harmed by release of the information. Fuentes
Decl. Ex. E, at 3 (citing ACLU v. Dep’t of Def., 543 F.3d 59, 71 (2d Cir. 2008), vacated on other
grounds, 130 S. Ct. 777 (2009)); Hind Decl. Ex. E, at 3. On September 27, 2013, while
Greenpeace awaited a decision on its administrative appeal, NPPD finalized its earlier, “interim”
response, standing by its decision to withhold the records but relying only on FOIA Exemptions
5 and 7(F), not 7(E). Fuentes Decl. Ex. D.
On June 27, 2014, Greenpeace received a response on its appeal from an attorney advisor
at the U.S. Coast Guard Office of the Chief Administrative Law Judge. Fuentes Decl. Ex. H;
Hind Decl. Ex. G. The attorney advisor explained that DHS’s General Counsel had assigned
FOIA appeals arising within DHS to that office. Fuentes Decl. Ex. H; Hind Decl. Ex. G; see
also Hind Decl. Ex. F (2011 DHS memorandum assigning authority to Coast Guard). The
attorney advisor ruled as follows: “NPPD’s decision to withhold the records in their entirety
pursuant [sic] is being reversed. The Agency has not provided adequate explanation as to why
the requested records should be withheld pursuant to FOIA Exemptions (b)(5), (b)(7)(E), or
(b)(7)(F).” Fuentes Decl. Ex. H, at 2; Hind Decl. Ex. G, at 2. The attorney advisor further
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explained that his decision was DHS’s “final action,” and that Greenpeace could seek review in
federal district court. Fuentes Decl. Ex. H, at 2; Hind Decl. Ex. G, at 2.
In an internal letter to NPPD’s FOIA office, the Coast Guard attorney advisor explained
the basis for his decision. Palmer Reply Decl. Ex. CC. He explained that he had relied on cases,
including Second Circuit precedent cited by Greenpeace, holding that Exemption 7(F) is
unavailable unless the agency identifies a specific person who would be harmed by release of the
information. See id. NPPD disagreed with the attorney advisor’s analysis of Exemption 7(F).
See Palmer Reply Decl. ¶¶ 12, 17. DHS had continued to take the position in litigation that
Exemption 7(F) does not require the agency to identify a specific individual who would be
harmed. See id. ¶¶ 12-14. The D.C. Circuit ultimately adopted that position in 2015. Id. ¶ 15 &
n.3 (citing Elec. Privacy Info. Ctr. (“EPIC”) v. DHS, 777 F.3d 518 (D.C. Cir. 2015)). Therefore,
while NPPD determined to comply with the “letter” of the attorney advisor’s decision by
releasing a redacted version of the documents, it would not follow the attorney advisor’s
reasoning in making those redactions. See id. ¶ 17.
Defendants’ declarations further assert that DHS was not, in any event, bound by the
Coast Guard attorney advisor’s decision. They assert that, as a matter of agency procedure,
DHS’s Office of General Counsel reserves the right to review FOIA decisions made by Coast
Guard attorney advisors. See Palmer Decl. ¶ 8; Palmer Reply Decl. ¶ 7. In this case, Defendants
assert, the Office of General Counsel did just that and determined that most of the material
should be redacted pursuant to Exemption 7(F), contrary to the attorney advisor’s reasoning in
the internal letter. See Palmer Decl. ¶¶ 11-12; Palmer Reply Decl. ¶¶ 12-19.
On December 15, 2014, NPPD released the 123 pages of records to Greenpeace, but in
heavily redacted form. Fuentes Decl. Ex. I; Hind Decl. Ex. H. The redacted records consisted of
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two documents. The first was a list of facility names (the “Unregulated Facilities List”). Hind
Decl. Ex. H. Most of the names were redacted, and those remaining were nondescript: examples
include “Tucson, AZ,” “College Street,” “Main,” and “Almond.” Id. The Unregulated Facilities
List concluded with approximately 20 blank pages followed by one final entry. See id. The
second document (the “Untiered Facilities List”) was a spreadsheet with two columns. Fuentes
Decl. Ex. J; Hind Decl. Ex. H, pt. II. Each entry in the first column consisted of a single number
ranging from 0 to 19. See Hind Decl. Ex. H, pt. II. This field represented the number of
chemicals of interest that each facility held at or above STQs. See Pl.’s Resp. SoMF ¶ 6. The
second column contained the name of each facility, and as in the first document, most of the
names were redacted. See Hind Decl. Ex. H, pt. II. NPPD asserted that Exemption 7(F) covered
the redacted material, because it “constitutes information compiled for law enforcement purposes
the disclosure of which could reasonably be expected to endanger the life or physical safety of
any individual.” Hind Decl. Ex. H, at 1.
On February 13, 2015, Greenpeace filed another appeal to DHS’s Associate General
Counsel. Hind Decl. Ex. I. The appeal argued that the documents NPPD had produced were
“indecipherable” due to the redactions, which violated the earlier decision by the Coast Guard
attorney advisor. See id. at 1. On August 25, 2015, the same Coast Guard attorney advisor
responded, explaining that NPPD was “obligated to comply” with his earlier decision but that his
office had “no ability to force compliance.” Hind Decl. Ex. J. He advised that Greenpeace had
exhausted its administrative remedies and could bring suit in federal district court. See id.
C. DHS’s Search Process
ISCD uses an electronic system called the Chemical Security Assessment Tool (“CSAT”)
to maintain records related to CFATS. Pl.’s Resp. SoMF ¶ 4. CSAT stores the information that
chemical facilities submit to DHS pursuant to CFATS, including the information submitted in
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their Top-Screens. Id.; Fuentes Decl. ¶ 16. DHS asserts that CSAT “is the only database within
DHS that stores the information necessary to produce a complete and contemporaneous listing of
chemical facilities that have reduced their holdings of threshold quantities of chemicals of
interest, thereby rendering them no longer high risk facilities.” Pl.’s Resp. SoMF ¶ 4. Among
the information in CSAT is a name for each facility; these names are provided by the facilities
themselves when they register in CSAT, and are not necessarily unique to each facility. Id. ¶ 8.
In June 2012, ISCD searched for records responsive to Greenpeace’s requests by running
two queries within CSAT. See id. ¶ 5. The first query yielded a spreadsheet of 2,733 facilities
that DHS had previously determined to be high risk but that, as of the date of the search, were no
longer considered high risk. Id. ¶ 6. This spreadsheet (the Untiered Facilities List that DHS
ultimately produced with redactions) included both the name of each facility and the number of
chemicals of interest at or above STQs. Id. Some of the facilities on this list “still hold a
screening threshold quantity of one or more chemicals of interest” and thus continued to be
regulated under CFATS, even though they were no longer considered high risk. Fuentes Decl.
¶ 17.
The second query yielded the Unregulated Facilities List that DHS also redacted and
produced to Greenpeace. This list, a subset of the Untiered Facilities List, contained the names
of 1,687 facilities still in operation that had reported having no chemicals of interest at or above
STQs. Pl.’s Resp. SoMF ¶ 7. Because these facilities have no chemical of interest at or above
an STQ, they are not regulated under CFATS. Fuentes Decl. ¶ 18. DHS explains that, due to a
technical error, about 20 blank pages were inserted into the list before the last entry, but that this
error did not cause any information to be withheld. Id. ¶ 22.
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DHS asserts that, by searching CSAT, it “conducted a search of all locations likely to
contain responsive documents using methods reasonably expected to uncover all relevant
documents.” Id. ¶ 23.D. DHS’s Redactions
DHS heavily redacted both lists before producing them to Greenpeace. The redactions
covered all “facility names that would allow an individual to identify the specific facility.”
Fuentes Decl. Ex. A (Vaughn index); Fuentes Decl. ¶ 26. DHS’s declarants state that personnel
in NPPD’s FOIA office carefully reviewed each entry on the lists to redact only those entries that
would allow a facility to be identified. See Fuentes Decl. ¶ 33. DHS invokes Exemption 7(F) to
justify these redactions, abandoning the other exemptions it had asserted. It explains that ISCD
is a “regulatory enforcement division” of DHS and that both lists are compiled from information
obtained from regulated facilities, which face penalties if they fail to comply with CFATS
regulations. Fuentes Decl. ¶ 25. Therefore, DHS asserts, they were “compiled for law
enforcement purposes,” the threshold requirement under Exemption 7. 5 U.S.C. § 552(b)(7); see
Fuentes Decl. ¶ 25.
DHS offers two reasons why releasing the redacted information “could reasonably be
expected to endanger the life or physical safety of any individual,” as is required to satisfy
Exemption 7(F). 5 U.S.C. § 552(b)(7). First, these facilities represent “soft” targets. Falcon
Reply Decl. ¶ 5. Even facilities that are not determined to be “high risk” under CFATS still
contain dangerous chemicals. Fuentes Decl. ¶ 30. Some facilities have chemicals of interest at
or above STQs, but nonetheless are not considered high risk for a variety of reasons. Id.; Falcon
Reply Decl. ¶ 13. Moreover, even facilities that have no chemicals of interest at or above STQs
might still possess chemicals of interest at lower levels. Fuentes Decl. ¶ 30. Even lower levels
of those chemicals can “present a risk to the lives and physical safety of individuals,” particularly
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those that work at or live near the facilities. Id. ¶ 32. But because those facilities are not
considered high risk, DHS does not require them to institute security measures, making them
appealing targets for terrorists. Id. ¶¶ 28, 32.
In addition, DHS claims, revealing this information could help terrorists identify facilities
that are “high risk.” DHS explains that facilities “regularly move between regulated and
unregulated status, and tiered and untiered status, based on fluctuations in their chemical
holdings and other facts that affect [DHS’s] risk assessment of the facility (e.g., based on new
threat information received from the intelligence community).” Id. ¶ 31. If DHS were required
to release the unredacted lists periodically, then comparing the lists at different times would
reveal the existence of some high-risk facilities: if a facility appeared on the list but later was
removed, then it would be identifiable as “high risk.” Id. DHS asserts that the risk of outing
high-risk facilities is especially high given the age of the June 2012 lists at issue in this case:
DHS is currently reanalyzing its risk determinations and expects that “approximately 5% of the
previously untiered population of facilities will be determined to be high-risk and tiered.”
Falcon Decl. ¶ 7.
DHS claims that these threats are not just hypothetical. One NPPD employee attests to
“numerous reports from the intelligence community” discussing “the threat of terrorism
involving chemicals and chemical facilities both in the United States and abroad.” Falcon Reply
Decl. ¶ 6. There have also been actual chemical attacks overseas, including “attacks at two
American-owned chemical facilities in France in 2015” and a thwarted terrorist plot in Australia.
Id. ¶ 7.
Greenpeace responds by submitting a number of declarations (all from individuals who
apparently have expertise in chemical safety) challenging DHS’s claim that releasing the
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redacted information would pose a risk to life or physical safety. Greenpeace suggests that
facilities that no longer have chemicals of interest at or above STQs are no more dangerous than
“thousands of other facilities that are unregulated by CFATS” throughout the country. Orum
Decl. ¶ 14. It provides examples such as underground storage tanks (which are regulated by the
EPA and also listed on many state government websites) and facilities like dairy farms, which
can be easily located online. Hind Decl. ¶ 17. Greenpeace further claims that not releasing the
information would cause a safety risk: it would inhibit “developing and publicizing knowledge
of successful practices at facilities” that have reduced their risk, and thereby “perpetuate
unnecessary terrorist targets of opportunity.” Orum Decl. ¶ 7; see Poje Decl. ¶¶ 11-12.
Greenpeace also asserts that much of the redacted information is already available to the
public, such that there is no justification for withholding it. Many chemical facilities are “also
regulated by other government agencies,” which have made available lists of those facilities and
the chemicals they store. Orum Decl. ¶ 15. Greenpeace notes the EPA’s Toxic Release
Inventory (“TRI”) program, which Congress created to “provide the public with information
about releases of toxic chemicals in their community.” Poje Decl. ¶ 10. Pursuant to the TRI
program, facilities must make annual disclosures of certain chemicals they release or otherwise
dispose of. Id. Greenpeace also points to the EPA’s Risk Management Plan (“RMP”), which
requires facilities to report holdings of certain substances over threshold amounts. Hind Decl.
¶ 18. The Houston Chronicle maintains a searchable online listing of RMP-regulated facilities.
Id. The chemicals covered by the TRI and RMP programs overlap with the chemicals of interest
regulated by CFATS, meaning many of the facilities regulated by CFATS (and the TRI- and
RMP-reportable chemicals they store) are already publicly disclosed. Id. ¶¶ 18-21 & Ex. K; Poje
Decl. ¶ 13. And Greenpeace asserts that information about these facilities can also be accessed
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through “a) web searches, phone books, tax records, or other public databases or records; b)
direct observation; or c) engineering or other analysis of information sources that are lawfully
disclosed or required to be disclosed.” Orum Decl. ¶ 13.
DHS’s response is twofold. First, it points out that CFATS overlaps only incompletely
with these other sources of public information, meaning that revealing the redacted names will
provide terrorists with a new source of potential targets. See Falcon Reply Decl. ¶ 10. Next, and
perhaps more importantly, DHS asserts that the availability of public information about chemical
facilities makes the redacted information more dangerous, not less dangerous. A terrorist could
cross-check the already-public lists against the lists of facilities that are not “high risk,” using the
former to identify facilities holding chemicals they want to exploit, and the latter to determine
which of those facilities are soft targets. See id. ¶ 11.
Greenpeace also asserts that DHS has failed to satisfy FOIA’s segregability requirement.
Greenpeace claims that, to the extent some facilities have “completely and permanently
remov[ed] chemicals of interest from their operations,” there is no threat to releasing those
facilities’ names. Orum Decl. ¶ 8. Moreover, Greenpeace claims, DHS should be able to
identify those facilities. By statute, DHS is required to “document the basis” for determining
that a facility will no longer be subject to CFATS requirements. Id. ¶ 9 (citing 6 U.S.C.
§ 622(e)(3)(A)). Nonetheless, DHS has redacted those facilities’ names.
DHS responds that it cannot identify those facilities that have “completely and
permanently” removed all chemicals of interest. First, the statutory provision Greenpeace relies
on did not go into effect until 2015, just after DHS had made its December 2014 production of
the documents at issue. Falcon Reply Decl. ¶ 12. Before 2015, the CFATS program did not
maintain information about why facilities were “de-tiered” in a “searchable format.” Id. In any
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event, DHS explains, it does not ask facilities whether they have “completely and permanently”
removed chemicals of interest. Facilities are often de-tiered because they have reduced one
particular chemical of interest below its STQ; therefore, the recorded “reasons” for de-tiering
those facilities do not include whether all of their chemicals of interest have been removed. Id.
¶ 13. In addition, facilities do not report whether they have “permanently” removed chemicals of
interest, and so DHS has no way of knowing that fact. Id. ¶ 14.
E. This Action
On March 16, 2017, Greenpeace filed this lawsuit. ECF No. 1 (“Compl.”). Greenpeace
brings three causes of action. The first, under FOIA, alleges that the Coast Guard attorney
advisor’s June 2014 decision obligated DHS to produce the entirety of the requested records. Id.
¶ 23. Greenpeace claims it is entitled to release of the records, “without redactions,” under 5
U.S.C. § 552(a)(4). Id. ¶ 27. Greenpeace’s second cause of action, under the APA, similarly
alleges that DHS unlawfully withheld agency action by failing to comply with the attorney
advisor’s decision. Id. ¶ 30. Greenpeace asserts that, “[i]f no relief was available under FOIA,”
it is entitled to declaratory and injunctive relief under the APA. Id. ¶ 32. Finally, Greenpeace
alleges that it is entitled to a writ of mandamus compelling DHS to produce the unredacted
records in the event that FOIA and the APA do not provide the requested relief. Id. ¶ 36.
Defendants have moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) or, alternatively, for summary judgment under Rule 56. ECF No. 11.
Legal Standard
A. Motion to Dismiss
“A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a plaintiff’s complaint; it
does not require a court to ‘assess the truth of what is asserted or determine whether a plaintiff
has any evidence to back up what is in the complaint.’” Herron v. Fannie Mae, 861 F.3d 160,
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173 (D.C. Cir. 2017) (quoting Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)). “In
evaluating a Rule 12(b)(6) motion, the Court must construe the complaint ‘in favor of the
plaintiff, who must be granted the benefit of all inferences that can be derived from the facts
alleged.’” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v.
United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). “But the Court need not accept inferences
drawn by plaintiff if those inferences are not supported by the facts set out in the complaint, nor
must the court accept legal conclusions cast as factual allegations.” Id. “To survive a motion to
dismiss, a complaint must have ‘facial plausibility,’ meaning it must ‘plead[] factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.’” Id. (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
District courts “may in appropriate cases dispose of a motion to dismiss for lack of
subject matter jurisdiction under [Rule] 12(b)(1) on the complaint standing alone.” Herbert v.
Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). In such cases courts must, as when
reviewing a Rule 12(b)(6) motion, “accept[] as true all of the factual allegations contained in the
complaint.” KiSKA Const. Corp. v. WMATA, 321 F.3d 1151, 1157 (D.C. Cir. 2003).
B. Motion for Summary Judgment
Under Rule 56, a court must grant summary judgment “if the movant shows 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). “Summary judgment is appropriately granted when, viewing the
evidence in the light most favorable to the non-movants and drawing all reasonable inferences
accordingly, no reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.-
Islamic Relations Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016). “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be
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no genuine issue of material fact.” Id. (alteration in original) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton
v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Congress enacted FOIA in
1966 to “pierce the veil of administrative secrecy and to open agency action to the light of public
scrutiny.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Dep’t of Air Force v.
Rose, 425 U.S. 352, 361 (1976)). “FOIA ‘mandates that an agency disclose records on request,
unless they fall within one of nine exemptions.’” EPIC v. DHS, 777 F.3d 518, 522 (D.C. Cir.
2015) (quoting Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011)).
In FOIA cases, “to obtain summary judgment the agency must show that it made a good
faith effort to conduct a search for the requested records, using methods which can be reasonably
expected to produce the information requested.” Mobley v. CIA, 806 F.3d 568, 580 (D.C. Cir.
2015) (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). “The court
may rely on a ‘reasonably detailed affidavit, setting forth the search terms and the type of search
performed, and averring that all files likely to contain responsive materials (if such records exist)
were searched.’” Id. at 580-81 (quoting Oglesby, 920 F.2d at 68). “The court applies a
‘reasonableness’ test to determine the ‘adequacy’ of a search methodology, consistent with
congressional intent tilting the scale in favor of disclosure . . . .” Morley, 508 F.3d at 1114
(quoting Campbell v. DOJ, 164 F.3d 20, 27 (D.C. Cir. 1998)).
In addition, if the agency has invoked any of FOIA’s exemptions, the “burden is on the
agency to justify withholding the requested documents, and the FOIA directs district courts to
determine de novo whether non-disclosure was permissible.” EPIC, 777 F.3d at 522. “Summary
judgment is warranted on the basis of agency affidavits when the affidavits describe the
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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.” Larson v. Dep’t of State, 565 F.3d
857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). That
is, the agency must provide a “logical” or “plausible” justification for the exemption. Id.
(quoting Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)). The agency cannot rely on
“conclusory and generalized allegations of exemptions.” Morley, 508 F.3d at 1114-15 (quoting
Founding Church of Scientology of Wash., D.C., Inc. v. NSA, 610 F.2d 824, 830 (D.C. Cir.
1979)).
FOIA further requires that “[a]ny reasonably segregable portion of a record shall be
provided to any person requesting such record after deletion of the portions which are exempt.”
5 U.S.C. § 552(b). The court has an affirmative duty to ensure that this requirement is satisfied,
even if it must do so sua sponte. See Morley, 508 F.3d at 1123.
Analysis
As explained below, the Court will grant Defendants’ motion and deny Greenpeace’s
motion. Greenpeace’s claims under the APA and for a writ of mandamus will be dismissed for
failure to state a claim and lack of subject matter jurisdiction, respectively. In addition, the Court
will grant summary judgment for Defendants on Greenpeace’s FOIA claim.
A. Motion to Dismiss
As discussed below, the Court agrees with DHS that Greenpeace’s FOIA claim must be
dismissed insofar as it asks the Court to “enforce” the Coast Guard attorney advisor’s decision,
although the Court will allow the FOIA claim to proceed to summary judgment under a de novo
standard of review. In addition, Greenpeace’s APA and mandamus claims must be dismissed in
their entirety.
16
1. Freedom of Information Act
In its complaint, Greenpeace asserts that it has a right under FOIA to the unredacted
records “[p]ursuant to” the June 2014 decision of the Coast Guard attorney advisor. Compl.
¶ 23. That is, it seeks to have this Court “compel” DHS to abide by the attorney advisor’s
decision. Pl.’s Br. at 2. But such a claim is not cognizable under FOIA because it would entail
this Court deferring to the attorney advisor’s decision on the merits. FOIA, by contrast, requires
the Court to “determine the matter de novo.” 5 U.S.C. § 552(a)(4)(B). “De novo means here, as
it ordinarily does, a fresh, independent determination of ‘the matter’ at stake; the court’s inquiry
is not limited to or constricted by the administrative record, nor is any deference due the
agency’s conclusion.” Doe v. United States, 821 F.2d 694, 697-98 (D.C. Cir. 1987) (en banc)
(R.B. Ginsburg, J.) (interpreting identical language in Privacy Act). That is, the Court is “to put
itself in the agency’s place, to make anew the same judgment earlier made by the agency.” Id. at
698. Therefore, to the extent that Greenpeace seeks to “enforce” the attorney advisor’s decision,
Pl.’s Br. at 12, it does not state a valid claim for relief.
Greenpeace argues that the following provision of FOIA gives rise to such an
“enforcement” claim: “Upon any determination by an agency to comply with a request for
records, the records shall be made promptly available to such person making such request.” 5
U.S.C. § 552(a)(6)(C)(i). But this provision does not purport to provide a remedy. It merely
goes to timing, requiring agencies to release records “promptly,” which “typically would mean
within days or a few weeks of a ‘determination,’ not months or years.” Citizens for
Responsibility & Ethics in Wash. (“CREW”) v. FEC, 711 F.3d 180, 188 (D.C. Cir. 2013). If the
agency fails to live up to this obligation, the remedy is the one that the statute provides: the
requester can immediately seek de novo review in federal district court. 5 U.S.C. § 552(a)(4)(B).
“Where, as here, ‘a statute expressly provides a remedy, courts must be especially reluctant to
17
provide additional remedies.’” Sandoz Inc. v. Amgen Inc., 137 S. Ct. 1664, 1675 (2017) (quoting
Karahalios v. Nat’l Fed’n of Fed. Emps., Local 1263, 489 U.S. 527, 533 (1989)); see also Nw.
Airlines, Inc. v. Transp. Workers Union of Am., 451 U.S. 77, 94 (1981) (“It is, of course, not
within our competence as federal judges to amend these comprehensive enforcement schemes by
adding to them another private remedy not authorized by Congress.”).
In most cases, de novo review is a boon to plaintiffs: unlike the APA standard of review,
de novo review generally affords no deference to the agency’s decisions. See Cause of Action v.
FTC, 799 F.3d 1108, 1115 (D.C. Cir. 2015). But cf. Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d
918, 926-28 (D.C. Cir. 2003) (explaining that deference is due where executive branch invokes
national-security and law-enforcement exemptions). Moreover, FOIA reverses the normal
burden of proof, requiring the agency, not the plaintiff, to prove that it conducted an adequate
search and to justify any exemptions it claims. See 5 U.S.C. § 552(a)(4)(B); EPIC v. NSA, 678
F.3d 926, 932 (D.C. Cir. 2012); Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14
(D.C. Cir. 2003).
But FOIA plaintiffs must take the bitter with the sweet. The FOIA standard of review
does disadvantage plaintiffs who would prefer to focus on the niceties of agency procedure
instead of the merits of their claims. Under the APA, it would be arbitrary and capricious for an
agency to change its mind without acknowledging it had done so and providing an adequate
explanation. See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125-26 (2016).
Similarly, it would be arbitrary and capricious for an agency to deviate from an administrative
law judge’s decision without a reasoned explanation. See Morall v. DEA, 412 F.3d 165, 177
(D.C. Cir. 2005). And under the APA, an agency generally cannot defend its actions in court for
reasons that are absent from the administrative record. See Williams Gas Processing-Gulf Coast
18
Co. v. FERC, 475 F.3d 319, 328-29 (D.C. Cir. 2006). Under a de novo standard, by contrast, all
that matters is whether the agency reached the right outcome. Accordingly, an agency is free to
advance new justifications for withholding documents under FOIA once it comes to court. See
Bayala v. DHS, 827 F.3d 31, 35-36 (D.C. Cir. 2016).
The briefs in this case have addressed numerous arcane questions, such as: whether the
Court Guard attorney advisor is properly characterized as an “administrative law judge,” see
Pl.’s Reply at 7 n.1; whether DHS’s Office of the General Counsel fully delegated its FOIA
appeals process to the Coast Guard Office of the Chief Administrative Law Judge, or instead
retained the authority to review the Coast Guard’s decisions, see Defs.’ Reply at 27-30; whether
any such retention of authority amounted to an improper “secret veto,” Pl.’s Br. at 7-8; which
decision represented DHS’s “final action” on Greenpeace’s FOIA request, Pl.’s Reply at 6-10;
and whether DHS regulations allow for multiple administrative appeals, see Pl.’s Br. at 17 n.9.
Not one of those issues matters, however, to the question before the Court: whether Greenpeace
is entitled to the documents it seeks on the merits.
That is not to say that FOIA’s procedural provisions are irrelevant. Plaintiffs must
exhaust their administrative remedies under FOIA before going to court. See CREW, 711 F.3d at
184. (Defendants concede that Greenpeace has satisfied that requirement in this case. Defs.’
Reply at 2.) If the agency fails to follow FOIA’s procedures, “the ‘penalty’ is that the agency
cannot rely on the administrative exhaustion requirement to keep cases from getting into court.”
CREW, 711 F.3d at 189. But the agency suffers no prejudice on the merits of its defense, nor
could it, because review must be de novo.
Greenpeace also argues that Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C.
Cir. 1988), authorizes the remedy it seeks. See Pl.’s Br. at 17-19. That case concerns the
19
availability of prospective relief—that is, an order that the agency provide documents beyond
those falling within the particular request before the court—based on a “policy or practice” of
agency misconduct. See Ctr. for Study of Servs. v. U.S. Dep’t of Health & Human Servs., 874
F.3d 287, 292 (D.C. Cir. 2017). Payne decidedly lacks any relevance in deciding the propriety
of a single FOIA request. Indeed, “the allegation of a single FOIA violation [is] insufficient as a
matter of law to state a policy or practice claim” under Payne. Scudder v. CIA, 281 F. Supp. 3d
124, 129 (D.D.C. 2017).
Therefore, to the extent Greenpeace seeks merely to “enforce” the attorney advisor’s
ruling, without an inquiry into the merits of that ruling, its claim must be dismissed.
Nonetheless, construing Greenpeace’s complaint liberally in its favor, it also states a traditional
claim for documents withheld “[i]n violation of FOIA.” Compl. ¶ 25. The Court will
accordingly consider the merits of Greenpeace’s claim on de novo review. That issue cannot be
resolved on a motion to dismiss, and so the Court will consider it below on the parties’ cross-
motions for summary judgment.
2. Administrative Procedure Act
Greenpeace also requests, in the alternative, that the Court compel DHS to comply with
the Coast Guard attorney advisor’s ruling under the APA. See Pl.’s Br. at 29-32. This APA
claim fails because Greenpeace already has an adequate remedy under FOIA. The APA only
authorizes the review of actions “for which there is no adequate remedy in a court.” 5 U.S.C.
§ 704. In CREW v. DOJ, 846 F.3d 1235 (D.C. Cir. 2017), the D.C. Circuit considered whether a
FOIA policy-or-practice claim under Payne was an “adequate remedy” that foreclosed similar
relief under the APA. See id. at 1244. The D.C. Circuit noted that, where Congress has afforded
plaintiffs a private right of action, there generally is no APA remedy. See id. at 1244-45. That is
particularly true where Congress has provided for de novo review, “given the frequent
20
‘incompat[ibility]’ between de novo review and the APA’s deferential standards.” Id. at 1245
(alteration in original) (quoting Envt’l Def. Fund v. Reilly, 909 F.2d 1497, 1506 (D.C. Cir.
1990)). The D.C. Circuit concluded that FOIA did offer an adequate remedy, reasoning that the
“creation of both agency obligations and a mechanism for judicial enforcement in the same
legislation suggests that FOIA itself strikes the balance between statutory duties and judicial
enforcement that Congress desired.” Id.
The same is true here. Greenpeace’s theories about the effect of the agency process
aside, this is a run-of-the-mill FOIA case involving a request that DHS turn over specific
information it has withheld. Plainly, FOIA offers an “adequate remedy”: it provides the exact
relief that Greenpeace has requested—an order to turn over the requested information—if
Greenpeace can show it is actually entitled to that relief. Greenpeace’s argument is, in essence,
that a FOIA claim is not an adequate remedy in this case because Greenpeace might fare worse
under de novo review than under the APA standard of review. See Pl.’s Br. at 32. But as the
D.C. Circuit has explained, an “adequate” remedy does not necessarily mean an “identical”
remedy. See CREW, 846 F.3d at 1245. The fact that Greenpeace must proceed under FOIA’s de
novo standard of review does not mean that FOIA’s remedy is inadequate. Therefore,
Greenpeace’s APA claim must be dismissed for failure to state a claim.3
3. Mandamus
Finally, Greenpeace argues that it is entitled to a writ of mandamus. The threshold
jurisdictional requirements for mandamus require plaintiffs to demonstrate, among other things,
“that no adequate alternative remedy exists.” Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189
3
While Defendants argue that the APA’s “adequate remedy” rule is a jurisdictional bar and that
the Court should dismiss under Rule 12(b)(1), see Defs.’ Br. at 13, they are incorrect. See Perry
Capital LLC v. Mnuchin, 864 F.3d 591, 621 (D.C. Cir. 2017).
21
(D.C. Cir. 2016). Greenpeace fails to meet this requirement because, as explained in connection
with its APA claim, FOIA offers an adequate remedy if the government has unlawfully withheld
information. Therefore, the “court must dismiss . . . for lack of jurisdiction.” Id.
B. Motions for Summary Judgment
For the reasons explained below, reviewing the record on a de novo basis, the Court
concludes that it must enter summary judgment for Defendants on Greenpeace’s FOIA claim.
1. Adequacy of Defendants’ Search
To obtain summary judgment, Defendants must show “a good faith effort to conduct a
search for the requested records, using methods which can be reasonably expected to produce the
information requested.” Mobley v. CIA, 806 F.3d 568, 580 (D.C. Cir. 2015) (quoting Oglesby v.
U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). In this case, Greenpeace requested “the
most complete listing of chemical facilities that have reduced their holdings of threshold
quantities of ‘chemicals of interest’ (COI) rendering them no longer ‘high risk’ facilities under
[CFATS].” Hind Decl. Ex. C, at 1. In order to produce such a listing, Defendants queried
CSAT, “the only database within DHS that stores the information necessary to produce a
complete and contemporaneous listing of chemical facilities that have reduced their holdings of
threshold quantities of chemicals of interest, thereby rendering them no longer high risk
facilities.” Pl.’s Resp. SoMF ¶ 4. Plaintiffs have admitted that CSAT is, in fact, the only such
database. See id. Defendants’ queries returned lists of facilities that previously had been
considered high risk, but had since been determined not to be high risk. See id. ¶ 6.
Greenpeace has not challenged the adequacy of this search, and the Court concludes that
Defendants have met their burden of showing a good faith effort to locate all responsive records
using reasonable methods.
22
2. Exemption 7(F)
The parties do, however, vigorously dispute the applicability of Exemption 7(F). To
satisfy Exemption 7(F), Defendants must show (1) that the information was “compiled for law
enforcement purposes” (a threshold requirement applying to all subsections of Exemption 7) and
(2) that production of these materials “could reasonably be expected to endanger the life or
physical safety of any individual.” 5 U.S.C. § 552(b)(7).
a. “Compiled for Law Enforcement Purposes”
As a threshold matter, the government must establish “that the records were ‘compiled
for law enforcement purposes.’” Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int'l
Boundary & Water Comm’n, U.S.-Mexico (“PEER”), 740 F.3d 195, 203 (D.C. Cir. 2014)
(quoting 5 U.S.C. § 552(b)(7)). “[T]he agency’s activity ‘must be related to the enforcement of
federal laws or to the maintenance of national security,’” and “the nexus between the [activity]
and one of the agency’s law enforcement duties must be based on information sufficient to
support at least ‘a colorable claim’ of its rationality.” Pinson v. DOJ, 202 F. Supp. 3d 86, 101-02
(D.D.C. 2016) (second alteration in original) (quoting Pratt v. Webster, 673 F.2d 408, 420-21
(D.C. Cir. 1982)).
Defendants argue that the records at issue satisfy this threshold requirement because
ISCD is a “regulatory enforcement division” of DHS and because the records consist of
information obtained from facilities regulated under CFATS. Fuentes Decl. ¶¶ 24-25.
Greenpeace has not contested that the records satisfy Exemption 7’s threshold requirement, and
the Court concludes that they do. DHS’s mission is, among other things, to “prevent terrorist
attacks within the United States.” 6 U.S.C. § 111(b)(1)(A). That is a “law enforcement”
function, because it involves “proactive steps designed to prevent criminal activity and to
maintain security.” PEER, 740 F.3d at 203 (quoting Milner v. Dep’t of Navy, 562 U.S. 562, 582
23
(2011) (Alito, J., concurring)). And DHS compiled the particular information at issue pursuant
to that function, in order to reduce the risk from terrorist attacks at the chemical facilities it
regulates. See 6 U.S.C. § 622(a)(2)(B); 6 C.F.R. § 27.100. “[S]teps by law enforcement officers
to prevent terrorism surely fulfill ‘law enforcement purposes.’” PEER, 740 F.3d at 203 (quoting
Milner, 562 U.S. at 583 (Alito, J., concurring)). Therefore, this information, by its very nature,
satisfies Exemption 7’s threshold requirement.
b. “Could Reasonably Be Expected to Endanger the Life or
Physical Safety of Any Individual”
The crux of the parties’ dispute is whether releasing the information in question “could
reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S.C.
§ 552(b)(7)(F). “That language is very broad.” PEER, 740 F.3d at 205. It “does not require that
a particular kind of individual be at risk of harm; ‘any individual’ will do.” Id. Nor is the
agency required “to specifically identify the individuals who would be endangered.” EPIC v.
DHS, 777 F.3d 518, 520 (D.C. Cir. 2015). Moreover, disclosure “need not definitely endanger
life or physical safety; a reasonable expectation of endangerment suffices.” PEER, 740 F.3d at
205. Courts “have consistently deferred to executive affidavits predicting harm to the national
security, and have found it unwise to undertake searching judicial review.” Id. (quoting Ctr. for
Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 927 (D.C. Cir. 2003)).
The D.C. Circuit has held that, in cases “involving documents relating to critical
infrastructure, ‘it is not difficult to show that disclosure may “endanger the life or physical safety
of any individual.”’” Id. at 205-06 (quoting Milner, 562 U.S. at 582 (Alito, J., concurring)).
Archetypal examples of critical infrastructure include “bridges, airports, railroad tracks, dams
and research facilities.” Id. at 198. Courts have thus concluded that Exemption 7(F) protects
“inundation maps” that show the potential harm from burst dams, see id. at 206, documents
24
discussing the risks from potential spills at vulnerable locations along oil pipelines, see Standing
Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 249 F. Supp. 3d 516, 522 (D.D.C. 2017),
information about nuclear defense, see Ctr. for Pub. Integrity v. U.S. Dep’t of Energy, 234 F.
Supp. 3d 65, 83 (D.D.C. 2017), and protocols for shutting down wireless devices that could be
used to detonate bombs, see EPIC, 777 F.3d at 523. The parties dispute whether the chemical
facilities at issue in this case constitute “critical infrastructure.” Pl.’s Br. at 24; Defs.’ Reply at
12. Regardless of how they are labeled, however, identifying information about these facilities
shares a key characteristic with the foregoing examples: it represents highly useful information
for terrorists planning attacks on them.
All of the chemical facilities at issue, at one point, contained chemicals at levels so
dangerous they were categorized as “high risk”—meaning there was the potential that a terrorist
attack on these facilities “could result in significant adverse consequences for human life or
health, national security or critical economic assets.” 6 C.F.R. § 27.205(a) (emphasis added). As
Defendants point out, these facilities continue to pose some risk to life or health arising from
potential terrorist attacks. DHS’s risk methodology “is not designed or intended to identify all
facilities where an attack employing the facility’s chemicals would result in a loss to human
life.” Defs.’ Br. at 11. The CFATS program focuses its resources on facilities that are “high
risk.” Other facilities are not necessarily “no risk”—they may be “low risk,” “medium risk,” or
somewhere in between. Indeed, it seems unlikely that all chemical facilities previously
categorized as “high risk” would now pose no risk at all. The government’s affidavits say just
that: many facilities that are not “high risk” nonetheless continue to have chemicals of interest at
or above STQs—amounts that DHS considers dangerous enough to warrant a report to the
government. Fuentes Decl. ¶ 30; Falcon Reply Decl. ¶ 13. And even facilities with no
25
chemicals of interest at or above STQs may continue to hold those chemicals at levels below
STQs. Fuentes Decl. ¶ 30.
And there is more. Whether a facility is considered “high risk” does not depend merely
on the chemicals of interest it holds. It is also based on information received from the broader
intelligence community about the threat to those facilities. Pl.’s Resp. SoMF ¶ 3; Fuentes Decl.
¶ 31. Accordingly, disclosing which facilities are considered “high risk,” and which are not, has
the potential to reveal the government’s thinking about which facilities are likely targets for
terrorist attacks, and which are not. Revealing the names of “de-tiered” facilities would be
dangerous in at least two respects. First, it would provide terrorists with valuable insight into
how the United States government, including its intelligence services, assesses the risk of attacks
on chemical facilities in this country. Making strategic insights about national security matters
available to the general public (including our country’s enemies) has the inherent potential to
cause harm. Cf. ACLU v. U.S. Dep’t of Defense, 628 F.3d 612, 624-25 (D.C. Cir. 2011)
(discussing potential harm from providing terrorists with “insight” into “the CIA’s core mission
of collecting and analyzing intelligence that reveals the plans, intentions and capabilities of the
nation’s enemies”). Second, such revelations would effectively identify “de-tiered” facilities as
“soft targets” for terrorists. DHS does not require “de-tiered” facilities to implement security
measures under CFATS. See Falcon Reply Decl. ¶ 5. Releasing the lists would thus allow
terrorists to adjust their aim to focus on the very facilities that the government has decided are
unlikely to be targeted.
Moreover, as Defendants point out, this single request cannot be viewed in isolation. If
the lists of “de-tiered” facilities are not exempt, then nothing would stop FOIA requesters from
seeking refreshed lists at different points in time. Defendants’ affidavits confirm that facilities
26
do, in fact, fluctuate into and out of “high risk” status as DHS’s assessments change. See id.;
Falcon Decl. ¶ 7. And whenever facilities on an earlier version of the list disappear from a later
version, that would mean those facilities are once again “high risk,” revealing the identity of the
very facilities DHS is most determined to protect. Fuentes Decl. ¶ 31. Greenpeace’s response is
that DHS could limit future releases to mitigate this risk. That is, DHS could “redact or withhold
the facilities that have previously been included and provide only the additions.” See Pl.’s Br. at
24. This approach, Greenpeace argues, would “limit[] the ability of any would-be bad actors
from comparing the complete lists at various times.” Id. But Greenpeace provides no authority
for its proposed approach. Rather, the idea that FOIA would require the release of certain
information, but only to the first person who requests it, is obviously quite preposterous. “There
is no mechanism under FOIA for a protective order allowing only the requester to see whether
the information bears out his theory, or for proscribing its general dissemination.” Nat’l
Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004). That is, “if the information is
subject to disclosure, it belongs to all.” Id. at 172.
Finally, it is telling that Congress has limited DHS’s ability to reveal the very information
that Greenpeace has requested. By statute, DHS is required to make semi-annual reports to
certain congressional committees, providing the number of instances in which facilities were
either placed “in a lower risk tier” or “de-tiered,” along with the reasons for those decisions. See
6 U.S.C. § 622(e)(4)(B)(i). But DHS must provide this information “in a sufficiently
anonymized form to ensure that the information does not identify any specific facility or
company as the source of the information when viewed alone or in combination with other
public information.” Id. § 622(e)(4)(B)(ii). The deanonymized information Congress took care
27
to protect—names detailed enough to identify specific facilities—is precisely what Greenpeace
wants DHS to disclose.
For all these reasons, DHS has met its burden of showing that the information at issue, if
released, “could reasonably be expected to endanger the life or physical safety of any
individual.” 5 U.S.C. § 552(b)(7)(F). That requires showing only “a reasonable expectation of
endangerment” of human life or health, PEER, 740 F.3d at 205, which means some risk, not
necessarily a high risk. Defendants have made such a showing here, because even though these
facilities are no longer designated as “high risk,” releasing identifying information about them
could aid terrorists in identifying targets and thus would increase the risk of deadly attacks. Cf.
id. at 206 (“Terrorists or criminals could use [inundation map] information to determine whether
attacking a dam would be worthwhile, which dam would provide the most attractive target, and
what the likely effect of a dam break would be.”).
Greenpeace offers its own evidence to show that “[p]roviding the list of chemical
facilities that are no longer ‘high risk’ under CFATS cannot be reasonably expected to endanger
anyone.” Pl.’s Resp. SoMF ¶ 11. But its showing is insufficient to create a genuine issue of
material fact.
First, Greenpeace argues that the risks of releasing the identities of these facilities are
minor and outweighed by the benefits of taking such action. They point out, for example, that
many of the chemical facilities on the list have no chemicals of interest at or above STQs. See
Pl.’s Br. at 22-23. Of course, Greenpeace does not have information from the intelligence
community to inform its assessment of the risks involved. DHS does, and the Court owes
deference to DHS’s assertion that potential attacks against such facilities continue to pose a risk
because they may still hold those chemicals at lower levels. See PEER, 740 F.3d at 205; Fuentes
28
Decl. ¶ 30. Nor can the Court conclude that Greenpeace has raised a genuine issue of material
fact with its evidence (in the form of expert affidavits) that “the more likely consequence of
greater awareness of such reductions in inventories of dangerous chemicals is that, like other
government programs involving hazardous chemicals where regulated facilities are publicly
disclosed, disclosure creates an incentive for reductions, and more facilities will reduce their
inventories of chemicals of interest, increasing safety.” Pl.’s Br. at 23 (citing Poje Decl. ¶¶ 10-
12; Orum Decl. ¶¶ 7, 12). These affidavits miss the mark. Exemption 7(F) merely requires the
government to show “a reasonable expectation of endangerment” if the records are released.
PEER, 740 F.3d at 205. It is not a “balancing test” that requires the agency to weigh that danger
against possible benefits of releasing the information. Pinson v. DOJ, 236 F. Supp. 3d 338, 368
(D.D.C. 2017). Therefore, DHS is not required to show that risks to human life and health from
potential terrorist attacks outweigh the possibility that withholding the information might inhibit
the development of best practices by the private sector.
Greenpeace also relies heavily on the fact that the public already has access to
information about many of these facilities and the chemicals they hold from various public
sources (including the EPA). See Pl.’s Br. at 25-27. The Court agrees in principle that “where
information requested ‘is truly public, then enforcement of an exemption cannot fulfill its
purposes.’” Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999) (quoting Niagara Mohawk
Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999)). But the Court “must be
confident that the information sought is truly public and that the requester receive no more than
what is publicly available before [finding] a waiver.” Id. at 555. That is, the “same agency”
must have previously disclosed the “exact information” at issue. Valfells v. CIA, 717 F. Supp. 2d
110, 117 (D.D.C. 2010); see Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999). This
29
“insistence on exactitude” protects “the Government’s vital interest in information relating to
national security and foreign affairs.” ACLU, 628 F.3d at 621 (quoting Wolf v. CIA, 473 F.3d
370, 378 (D.C. Cir. 2007)).
Here, Greenpeace can show only that certain public disclosures by other agencies
“overlap with” the lists of CFATS-regulated facilities—not that any agency, much less DHS, has
previously produced the exact information at issue. See Pl.’s Br. at 26; Falcon Reply Decl. ¶ 10.
In fact, the information Greenpeace seeks is qualitatively different from publicly available
information. Cf. ACLU, 628 F.3d at 620-21 (declining to require the production of classified
information that, the government asserted, was “of a qualitatively different nature” from publicly
available information). It would reveal not only the location of the facilities, but also the fact
that DHS previously considered them as “high risk”—but now does not. This information is of a
different nature and was compiled for a different purpose than information released by other
agencies. For example, the EPA provides certain information about chemical facilities in order
to “promote emergency planning and to provide the public with information about releases of
toxic chemicals in their community.” Poje Decl. ¶ 10. DHS’s risk determinations under
CFATS, by contrast, are based on facilities’ chemical holdings and insight from the intelligence
community about the threat posed to those facilities, for the purpose of reducing the potential for
harm arising from terrorist attacks. Pl.’s Resp. SoMF ¶ 3. Such information enriches, and does
not merely repeat, the information already in the public domain. As Defendants persuasively
claim, terrorists might combine these different sources of information to make better-informed
decisions about which facilities to target. Falcon Reply Decl. ¶ 11. Therefore, Greenpeace’s
evidence fails to raise a genuine issue of material fact: even if true, it does not undermine
30
Defendants’ showing that releasing the records at issue “could reasonably be expected to
endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F).
While there are surely many hard cases under Exemption 7(F), this is not one of them.
The information in question was compiled by DHS in order to keep our country safe from
terrorist attacks. Disclosing it would reveal the location of facilities containing dangerous
chemicals terrorists might target, as well as how the government has assessed the risks posed by
those facilities—all information that terrorists might exploit. Such disclosures would thus risk
the life and health of persons working at or living near those facilities, who would be harmed in
the event of a terrorist attack. Therefore, DHS has properly invoked Exemption 7(F).
3. Segregability
Finally, Greenpeace argues DHS has failed to segregate a subset of the facility names that
can be released without endangering human life or health. Under FOIA, any “reasonably
segregable portion of a record shall be provided to any person requesting such record after
deletion of the portions which are exempt.” 5 U.S.C. § 552(b). The agency is “entitled to a
presumption that [it] complied with the obligation to disclose reasonably segregable material.”
Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013) (alteration in original) (quoting Sussman v.
U.S. Marshals Service, 494 F.3d 1106, 1117 (D.C. Cir. 2007)). Defendants must, however,
identify the exempt material and “provide descriptions of excerpts deemed to be non-segregable,
with explanations as to these decisions.” Am. Immigration Council v. DHS, 950 F. Supp. 2d 221,
248 (D.D.C. 2013).
DHS has clearly identified the exempt material (which is marked with redaction boxes)
and described it: “The redacted portions are facility names that would allow an individual to
identify the specific facility.” Fuentes Decl. Ex. A (Vaughn index). DHS also explains that it
decided which names to redact by performing a line-by-line review of each name individually.
31
See Fuentes Decl. ¶ 33. Greenpeace does not dispute that DHS performed this process
reasonably. If anything, DHS may have been too generous: Greenpeace reports that several of
the redacted entries “may reflect identifiable facilities.” Pl.’s Br. at 9 n.6.
Greenpeace does argue, however, that DHS should have segregated and produced the
names of those facilities that no longer pose any risk. In particular, Greenpeace claims, DHS
could have identified facilities that “completely and permanently remov[ed] chemicals of interest
from their operations.” Orum Decl. ¶¶ 8-9. Greenpeace points to an NPPD official’s 2012
testimony that “since [CFATS’] inception, more than 1,600 facilities completely removed their
chemicals of interest.” Defs.’ Resp. SoMF ¶ 1. Similarly, in 2014, an official testified that
“more than 3,000 facilities have eliminated, reduced or modified their holdings of chemicals of
interest.” Id. ¶ 3 (emphasis added). Greenpeace also argues that some facilities may only hold
chemicals of interest that are common (such as a nitromethane, which is used in race cars and
can be purchased legally) and thus pose no special risk. See Pl.’s Br. at 28 (citing Falcon Decl.
¶ 6). Finally, Greenpeace points to the fact that DHS is required, by statute, to record the reasons
why any chemical facility is “de-tiered.” Pl.’s Br. at 28-29 (citing 6 U.S.C. § 622(e)(3)). Those
records, Greenpeace asserts, should allow DHS to identify which facilities have completely
divested themselves of chemicals of interest, or at least of all chemicals except the common ones
that pose no real risk. See id.
Defendants concede that there is no risk from facilities that have “completely and
permanently” divested themselves of all chemicals of interest. Defs.’ Reply at 21. It explains,
however, that it cannot readily identify those facilities from its records. Many of the records it
keeps on facilities are not “searchable,” Falcon Reply Decl. ¶ 12, meaning that Greenpeace’s
approach would require manually combing through the records for each facility to determine the
32
reasons why it was “de-tiered.” And even to the extent DHS’s records are easily searchable, they
do not contain the information that Greenpeace desires. The recorded reason a facility is de-
tiered may be that it has brought a single chemical of interest below its STQ—even though the
facility still has other chemicals of interest at or above STQs. See id. ¶ 13.4 And even if DHS
did plumb its records to identify facilities that have “completely” removed chemicals of interest,
the records do not capture whether facilities have “permanently” removed chemicals of
interest—a fact that DHS simply does not track. See Falcon Reply Decl. ¶ 14. Indeed, the
facilities themselves may not know with certainty that they will never again possess these
chemicals.
In light of these facts, the Court agrees with Defendants that they have satisfied FOIA’s
segregability requirement. FOIA only requires the government to release all “reasonably
segregable” information. 5 U.S.C. § 552(b) (emphasis added). Greenpeace effectively wants
DHS to determine which facilities have no risk, so that their names can be unredacted. But DHS
does not make such determinations in the ordinary course. It decides whether facilities are “high
risk;” it does not determine which facilities pose “no risk.” Unsurprisingly, then, DHS does not
generally record facts—such whether facilities have “permanently” divested themselves of
chemicals of interest—that would be necessary to make a “no risk” determination.
DHS no doubt could undertake to identify “no risk” facilities, and perhaps would even
succeed at identifying some of them based on information it already possesses. FOIA does not,
4
Defendants explain that the congressional testimony Greenpeace cites, which referred to
facilities that “completely” removed or “eliminated” all chemicals of interest, actually meant the
reduction of all chemicals of interest to levels below STQs. Defs.’ Reply at 22. This explanation
is backed up by Defendants’ declarations. See Fuentes Decl. ¶¶ 19, 30. Greenpeace has offered
no evidence rebutting these declarations, and so the Court concludes that the testimony was not
based on DHS’s knowledge of any facilities with absolutely no chemicals of interest.
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however, require agencies to “create records,” “conduct research,” or otherwise “dig out all the
information that might exist, in whatever form or place it might be found.” Nat’l Sec.
Counselors v. CIA, 898 F. Supp. 2d 233, 269 (D.D.C. 2012). Nor does it require agencies to
“perform searches which are not compatible with their own document retrieval systems.” People
for Am. Way Found. v. DOJ, 451 F. Supp. 2d 6, 14 (D.D.C. 2006) (quoting Assassination
Archives & Research Ctr., Inc. v. CIA, 720 F. Supp. 217, 218 (D.D.C. 1989)). It certainly does
not require DHS to undertake an individualized analysis of 2,733 facilities to determine, in the
first instance, which should be considered “no risk.” But as Greenpeace admits, it wants DHS to
do just that: “to review the files for each facility.” Pl.’s Reply at 21. Because DHS cannot
determine which individual facilities pose no risk without an unreasonable effort, its
segregability approach—redacting any name that could serve to identify a facility—passes
muster.5
Conclusion
For all of the above reasons, Defendants’ Motion to Dismiss or, in the alternative, for
Summary Judgment (ECF No. 11) is GRANTED, and Greenpeace’s Motion for Summary
Judgment (ECF No. 14) is DENIED. The Court will dismiss Greenpeace’s second claim for
relief (APA) for failure to state a claim, dismiss Greenpeace’s third claim for relief (mandamus)
for lack of subject matter jurisdiction, and enter judgment for Defendants on Greenpeace’s first
claim for relief (FOIA), in a separate order.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: May 1, 2018
5
Indeed, given the nature of this information, the Court suspects that DHS’s initial approach—
withholding this information entirely—was the correct one.
34