Electronic Privacy Information Center v. Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELECTRONIC PRIVACY
INFORMATION CENTER,
Plaintiff,
v. Civil Action No. 13-260 (JEB)
DEPARTMENT OF HOMELAND
SECURITY,
Defendant.
MEMORANDUM OPINION
This case concerns efforts of the Electronic Privacy Information Center under the
Freedom of Information Act to obtain documents related to the Department of Homeland
Security’s Standard Operating Procedure 303. This protocol governs the shutdown of wireless
networks in emergencies to, inter alia, prevent the remote detonation of explosive devices. After
DHS withheld the lion’s share of the one responsive document it found, EPIC brought this
action. DHS now moves for summary judgment, arguing that its search for documents was
adequate, that it properly withheld the bulk of SOP 303 under applicable FOIA exemptions, and
that no other non-exempt parts of the document could be released. EPIC cross-moves for
summary judgment, contending that the two exemptions DHS relied on to withhold most of the
document, 7(E) and 7(F), do not apply here. As the Court believes EPIC has the better of this
argument, it will dispose of the Motions accordingly.
I. Background
Standard Operating Procedure 303 is an “Emergency Wireless Protocol[] . . . codifying a
shutdown and restoration process for use by commercial and private wireless networks during
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national crises.” National Security Telecommunications Advisory Committee, NSTAC Issue
Review 2006-07 at 139 (2007), http://www.dhs.gov/sites/default/files/publications/2006-
2007%20NSTAC%20Issue%20Review_0.pdf. The wireless networks could be shut down in
certain emergency situations to, inter alia, “deter the triggering of radio-activated improvised
explosive devices.” See Def. Mot., Exh. 2 (Declaration of James V.M.L. Holzer), ¶ 25.
On July 10, 2012, EPIC submitted a FOIA request to DHS seeking: “(1) the full text of
Standard Operating Procedure 303 (SOP 303), which describes a shutdown and restoration
process for use by ‘commercial and private wireless networks’ in the event of a crisis; (2) the full
text of the pre-determined ‘series of questions’ that determines if a shutdown is necessary; and
(3) any executing protocols or guidelines related to the implementation of SOP 303, distributed
to DHS, other federal agencies, or private companies, including protocols related to oversight of
shutdown determinations.” Id., ¶ 9. DHS responded to EPIC on August 21, 2012, saying that it
“had conducted comprehensive searches for records that would be responsive to the request[,
but] . . . that [DHS was] unable to locate or identify any responsive records.” Id., ¶ 16. EPIC
administratively appealed on October 2, 2012, and on March 25, 2013, the United States Coast
Guard, Office of the Chief Administrative Law Judge – the office that reviews these FOIA
appeals – “remanded the matter back to DHS Privacy for further review.” Id., ¶¶ 17-18.
Upon additional inspection, DHS located one responsive record, the very document EPIC
had requested: Standard Operating Procedure 303. Id., ¶¶ 19-20. “Included as part of SOP 303
itself are the two other categories of records that EPIC seeks, i.e., the full text of the pre-
determined series of questions that determines if a shutdown is necessary, and the executing
protocols related to the implementation of SOP 303.” Id., ¶ 21. DHS “determined that the SOP
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is the only responsive document because there are no other documents that contain the full text
of the questions or any executing protocols.” Id.
Portions of SOP 303 – “names, direct-dial telephone numbers, and email addresses for
state homeland security officials” – were withheld from EPIC under Exemptions 6 and 7(C),
which generally permit withholding of personal information. Id., ¶¶ 23-24. The remainder of
the document was withheld under Exemptions 7(E) and 7(F), which permit withholding of
certain law-enforcement information if it, respectively, would “disclose techniques and
procedures for law enforcement investigations or prosecutions” or “could reasonably be expected
to endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7); Holzer Decl., ¶¶
25-26.
On February 27, 2013, EPIC filed this lawsuit seeking the release of the withheld
portions of SOP 303. Both parties have now cross-moved for summary judgment.
II. Legal Standard
Summary judgment may be granted 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). A genuine issue of material fact is one that would change the outcome of the litigation.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to
construe the evidence in the light most favorable to the non-moving party. See Sample v. Bureau
of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual assertions in the moving party’s
affidavits or declarations may be accepted as true unless the opposing party submits his own
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affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453,
456 (D.C. Cir. 1992).
FOIA cases typically and appropriately are decided on motions for summary judgment.
See Defenders of Wildlife v. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v.
U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency
bears the ultimate burden of proof. See U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,
142, n.3 (1989). The Court may grant summary judgment based solely on information provided
in an agency’s affidavits or declarations when they describe “the documents and 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). 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, 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)).
III. Analysis
Congress enacted FOIA in order to “pierce the veil of administrative secrecy and to open
agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976) (citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to
the functioning of a democratic society, needed to check against corruption and to hold the
governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146,
152 (1989) (citation omitted). The statute provides that “each agency, upon any request for
records which (i) reasonably describes such records and (ii) is made in accordance with
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published rules . . . shall make the records promptly available to any person.” 5 U.S.C. §
552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order
the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B);
Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).
“Unlike the review of other agency action that must be upheld if supported by substantial
evidence and not arbitrary and capricious, FOIA expressly places the burden ‘on the agency to
sustain its action’ and directs the district courts to ‘determine the matter de novo.’” Reporters
Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). “At all times courts must bear in
mind that FOIA mandates a ‘strong presumption in favor of disclosure’ . . . .” Nat’l Ass’n of
Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep’t of State v. Ray, 502
U.S. 164, 173 (1991)).
In moving for summary judgment, DHS first contends that its search was adequate. EPIC
does not contest this point. DHS next maintains that its withholding of personal identifying
information under Exemptions 6 and 7(C) was appropriate. EPIC makes no challenge here
either. See Opp. at 5 n.1. Instead, it saves its ammunition for DHS’s claim that it properly
withheld the bulk of SOP 303 under both Exemption 7(E) and 7(F). Because the Court
ultimately finds that the agency’s invocation of these exemptions was not proper, it need not
address the last issue EPIC raises – namely, whether DHS performed an appropriate
segregability analysis. The Court will begin with a discussion of 7(E) and then move to a
consideration of 7(F).
A. Exemption 7(E)
Exemption 7 authorizes the Government to withhold “records or information compiled
for law enforcement purposes, but only to the extent that the production of such law enforcement
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records or information” meets one of six requirements. 5 U.S.C. § 552(b)(7); see Keys v. Dep’t
of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987) (“[Exemption 7] exempts such documents from
disclosure only to the extent that production of the information might be expected to produce one
of six specified harms.”). The fifth subparagraph – 7(E) – permits withholding where production
“would disclose techniques and procedures for law enforcement investigations or prosecutions.”
5 U.S.C. § 552(b)(7)(E). The agency here must thus satisfy two requirements: First, the record
must be compiled for law-enforcement purposes; and second, production must disclose
techniques and procedures for law-enforcement investigations.
DHS clearly surpasses the first hurdle. “Steps by law enforcement officers to prevent
terrorism surely fulfill ‘law enforcement purposes.’” Milner v. Dep’t of Navy, 131 S. Ct. 1259,
1272 (2011) (Alito, J., concurring). DHS need only make “a colorable claim” of a rational nexus
“between the agency’s activity [that created the document] and its law enforcement duties.”
Keys, 830 F.2d at 340. DHS created SOP 303 to “establish[] a protocol for verifying that
circumstances exist that would justify shutting down wireless networks” “to efficiently and
effectively deter the triggering of radio-activated improvised explosive devices.” Holzer Decl., ¶
25. There is, accordingly, a rational nexus between SOP 303’s protocol for preventing the
triggering of radio-activated IEDs and DHS’s law-enforcement purpose of keeping the country
safe.
DHS’s trouble comes at the second step, which requires that the disclosure would reveal
“techniques and procedures for law enforcement investigations or prosecutions.” 5 U.S.C. §
552(b)(7)(E). The key question is whether the agency has sufficiently demonstrated how SOP
303, which articulates protective measures, is a technique or procedure “for law enforcement
investigations or prosecutions.” Id.6
The Court must begin by “presum[ing] that a legislature says in a statute what it means
and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249,
253-54 (1992). Of particular relevance here, Congress amended FOIA in 1986. See PL 99-570,
Oct. 27, 1986, 100 Stat 3207. Prior to the 1986 amendments, to merit withholding, Exemption 7
first required “investigatory records compiled for law enforcement purposes,” and subparagraph
(E) then required that the records would “disclose investigative techniques and procedures.” See
PL 93-502, Nov. 21, 1974, 88 Stat 1561. The 1986 amendments “delet[ed] any requirement [in
the first step] that the information be ‘investigatory,’” Tax Analysts, 294 F.3d at 79, and
broadened the permissible withholding to “records or information compiled for law enforcement
purposes.” See PL 99-570, Oct. 27, 1986, 100 Stat 3207. Congress, however, retained the
investigatory requirement in 7(E). See id. (slightly modifying subparagraph (E), but keeping
requirement that information be “for law enforcement investigations or prosecutions”). Congress
thus specifically and intentionally chose to remove the investigatory requirement from the first
step and to leave it in the second step. The Court, therefore, will apply “the usual rule that ‘when
the legislature uses certain language in one part of the statute and different language in another,
the court assumes different meanings were intended.’” Sosa v. Alvarez-Machain, 542 U.S. 692,
711 n.9 (2004) (quoting 2A N. Singer, Statutes and Statutory Construction § 46:06, p. 194 (6th
rev. ed. 2000)).
Looking at the amended language, the Court agrees with the Government that Exemption
7’s mention of “law enforcement purposes” may certainly include preventive measures. See
Mot. at 9-10. The problem is that 7(E)’s reference to “law enforcement investigations and
prosecutions” does not. This distinction finds support in Justice Alito’s concurrence in Milner, a
case that dealt with the applicability of Exemption 2. In his opinion, Justice Alito explained that
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“[t]he ordinary understanding of law enforcement [purposes] includes not just the investigation
and prosecution of offenses that have already been committed, but also proactive steps designed
to prevent criminal activity and to maintain security.” Milner, 131 S. Ct. at 1272 (Alito, J.,
concurring). Justice Alito went on to explain how, in context, Exemption 7’s reference to “law
enforcement purposes” “involve[s] more than just investigation and prosecution,” which he
describes as “narrower activities” confined to Exemption 7’s subparagraphs. See id. at 1273(“Congress’ decision to use different language to trigger Exemption 7 confirms that the concept
of ‘law enforcement purposes’ sweeps in activities beyond [subparagraph (E)’s] investigation
and prosecution.”)
If “techniques and procedures for law enforcement investigations or prosecutions” is
given its natural meaning, it cannot encompass the protective measures discussed in SOP 303.
This term refers only to acts by law enforcement after or during the commission of a crime, not
crime-prevention techniques. Reading Exemption 7(E) as such, moreover, is in keeping with
FOIA’s “basic policy that disclosure, not secrecy, is the dominant objective of the Act,” Pub.
Citizen, Inc. v. Rubber Mfrs. Ass’n, 533 F.3d 810, 813 (D.C. Cir. 2008) (internal quotation
marks omitted), and the well-settled practice of reading FOIA exemptions narrowly. See Milner,
131 S. Ct. at 1265 (“We have often noted ‘the Act’s goal of broad disclosure’ and insisted that
the exemptions be ‘given a narrow compass.’”) (quoting Dep’t of Justice v. Tax Analysts, 492
U.S. 136, 151 (1989)).
In arguing against such an interpretation, DHS relies on a nearly 30-year-old case from
this district that upheld the Secret Service’s invocation of Exemption 7(E) to shield “records
pertaining to . . . two armored limousines for the President.” U.S. News & World Report v.
Dep’t of Treasury, 1986 U.S. Dist. LEXIS 27634, at *1 (D.D.C. March 26, 1986). In that case,
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the court rejected plaintiff’s argument – similar to the one EPIC makes here – “that the
information at issue [] would reveal ‘protective’ not ‘investigative’ techniques and procedures”
and concluded that “[i]t is inconceivable . . . that Congress meant to afford these [preventive]
activities any less protection from disclosure simply because they do not fit within the traditional
notion of investigative law enforcement techniques.” Id. at *6. This case, however, was decided
before the 1986 amendments changed the language of the relevant clauses, making it not
“inconceivable,” but in fact probable that Congress intended to differentiate between preventive
and investigative activities. U.S. News also predates Milner’s insistence on reading the
exemptions narrowly. See 131 S. Ct. at 1265; see also Dep’t of Justice v. Landano, 508 U.S.
165, 181 (1993) (noting Court’s “obligation to construe FOIA exemptions narrowly in favor of
disclosure”). The Court, therefore, does not believe U.S. News dictates a different result.
The agency’s last gambit is a post hoc attempt in its Reply to classify SOP 303 as an
investigative technique. It claims that “[p]reventing explosives from detonating preserves
evidence . . . and, thereby, facilitates the investigation into who built and placed the bomb.” See
Def’s Reply at 5-6. This is too little, too late. As EPIC notes, “[N]o ordinary speaker of the
English language” would describe SOP 303 – “a protocol for verifying that circumstances exist
that would justify shutting down wireless networks” “to efficiently and effectively deter the
triggering of radio-activated improvised explosive devices,” Holzer Decl., ¶ 25 – as an evidence-
gathering technique. Pl’s Reply at 3.
The Court will thus read Exemption 7(E) in a manner that harmonizes with FOIA’s
purpose of disclosure, the canons of statutory construction, and the Supreme Court’s guidance to
read FOIA’s exemptions narrowly.
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B. Exemption 7(F)
DHS next argues that SOP 303 was also properly withheld under Exemption 7(F). This
exemption authorizes the Government to withhold “records or information compiled for law
enforcement purposes, but only to the extent that the production of such law enforcement records
or information . . . could reasonably be expected to endanger the life or physical safety of any
individual.” 5 U.S.C. § 552(b)(7)(F). As the Court explained in relation to Exemption 7(E), the
agency easily clears the “law enforcement purposes” hurdle. See Section III.A, supra.
Yet again, though, the second requirement leads to DHS’s undoing. DHS must show that
production would “endanger the life or physical safety of any individual.” 5 U.S.C. §
552(b)(7)(F) (emphasis added). The agency argues that SOP 303’s “disclosure could reasonably
be expected to endanger the physical safety of individuals near unexploded bombs.” Mot. at 13.
DHS’s thinking goes like this: 1) SOP 303 “describes a procedure for shutting down wireless
networks to prevent bombings”; 2) “[r]eleasing information regarding this protocol would enable
‘bad actors’ to blunt its usefulness”; and 3) this “could reasonably be expected to endanger the
physical safety of those near a bomb by increasing the chances that the process will fail and the
bomb will explode.” Id. In other words, the “any individual” test is satisfied because those
endangered are any individuals near a bomb. Although this interpretation holds some appeal, the
Court must conclude that the agency reads the “any individual” standard too broadly.
While DHS is correct that Exemption 7(F) is not limited to protecting law-enforcement
personnel from harm, see Amuso v. Dep’t of Justice, 600 F. Supp. 2d 78, 101 (D.D.C. 2009), the
agency still must identify the individuals at risk with some degree of specificity. See ACLU v.
Dep’t of Defense, 543 F.3d 59, 66-72 (2d Cir. 2008) (“The phrase ‘any individual’ in exemption
7(F) may be flexible, but is not vacuous.”), vacated on other grounds, 558 U.S. 1042 (2009).
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The Second Circuit in ACLU considered a similar question to the one raised here, and its
opinion is instructive. The Government there wished to apply the “any individual” standard to
prevent the release of photographs “depict[ing] abusive treatment of detainees by United States
soldiers in Iraq and Afghanistan” on the ground that “the release of the disputed photographs will
endanger United States troops, other Coalition forces, and civilians in Iraq and Afghanistan.” Id.
at 63. In an extensive examination of the phrase “any individual” – in light of the Supreme
Court’s admonition to interpret FOIA exemptions narrowly – the court rejected the
Government’s argument “that it could reasonably be expected that out of a population the size of
two nations and two international expeditionary forces combined, someone somewhere will be
endangered as a result of the release of the Army photos.” Id. at 71. It concluded that “an
agency must identify at least one individual with reasonable specificity and establish that
disclosure of the documents could reasonably be expected to endanger that individual.” Id.Central to the ACLU court’s holding was its thorough examination of the legislative
history of 7(F), which this Court also finds significant. Prior to the 1986 FOIA amendments,
Exemption 7(F) protected records, the release of which would “endanger the life or physical
safety of law enforcement personnel.” See PL 93-502, Nov. 21, 1974, 88 Stat 1561 (emphasis
added). The exemption served to withhold “information which would reveal the identity of
undercover agents, State or Federal, working on such matters as narcotics, organized crime,
terrorism, or espionage.” Edward A. Levi, Attorney General’s Memorandum on the 1974
Amendments to the Freedom of Information Act, pt. I.B (1975), available at
http://www.justice.gov/oip/74agmemo.htm, cited in ACLU, 543 F.3d at 77-78. The exemption
did not cover witnesses, interviewees, victims, informants, or families of law-enforcement
personnel; as a result, among other impairments, it “harmed the ability of law enforcement
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officers to enlist informants.” Statement of the Chair of the Senate Committee on the Judiciary’s
Subcommittee on the Constitution (the subcommittee with jurisdiction over FOIA), 131 Cong.
Rec. S263 (daily ed. Jan. 3, 1985), cited in ACLU, 543 F.3d at 78.
To remedy this omission, the Government asked for an amendment to “modif[y] slightly
– not revise[] wholesale” – the scope of 7(F). Statement of Carol E. Dinkins, Deputy Attorney
General, 131 Cong. Rec. S263 (daily ed. Jan. 3, 1985), cited in ACLU, 543 F.3d at 79. As the
Government stated in support of the amendment:
The current language in Exemption 7(F) exempts records only if
their disclosure would endanger the life of a law enforcement
officer. However, the exemption does not give similar protection
to the life of any other person. [The proposed amendment]
expands Exemption 7(F) to include such persons as witnesses,
potential witnesses, and family members whose personal safety is
of central importance to the law enforcement process.
Id., cited in ACLU, 543 F.3d at 78. Congress complied, passing “only modest changes to the
FOIA . . . , [a]nd slight[ly] expan[ding] . . . exemption[] . . . (7)(F).” Statement of the Chair of
the House Committee on Government Operations, Subcommittee on Government Information,
Justice, and Agriculture (the subcommittee with jurisdiction over FOIA), 132 Cong. Rec. H9455
(daily ed. Oct. 8, 1986), cited in ACLU, 543 F.3d at 79.
Congress ultimately settled on the broader term of “any individual,” as opposed to, for
example, “any individual connected to or assisting law enforcement.” The Court, therefore,
would be overly restrictive if it defined “any individual” in the latter, cabined manner. Yet,
bearing in mind the modest expansion intended and the prescription that exemptions must be
read narrowly, the Court must require some specificity and some ability to identify the
individuals endangered.
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Against this backdrop, the Government here nonetheless seeks a broader interpretation of
“any individual” than was rejected in ACLU. The individuals that DHS claims satisfy the
standard are anyone “within the blast radius of a remotely detonated bomb.” See Def’s Mot. at
12-13; Def’s Reply at 11. As EPIC notes, “These hypothetical bombs” – like the hypothetical
danger to troops and civilians in ACLU – “could materialize at any time, in any place, and affect
anyone in the United States.” Pl’s Reply at 9. These individuals, therefore, are “identified only
as a member of a vast population.” ACLU, 543 F.3d at 68. In fact, the population is vaster here
because it encompasses all inhabitants of the United States, while in ACLU it only covered
people in Iraq and Afghanistan. Indeed, if the Government’s interpretation were to hold, there is
no limiting principle to prevent “any individual” from expanding beyond the roughly 300 million
inhabitants of the United States, as the Government proposes here, to the seven billion
inhabitants of the earth in other cases. This expansive interpretation of “any individual” is far
broader than what the Government had in mind when it requested a “slight[]” enlargement of
7(F) in 1985, and far more than Congress approved in its “slight expansion of exemption[] . . .
(7)(F)” in 1986. See 131 Cong. Rec. at S263; 132 Cong. Rec. at H9455.
The primary case DHS relies on for the proposition that anyone near unexploded bombs
is a specific-enough group, Living Rivers, Inc. v. U.S. Bureau of Reclamation, 272 F. Supp. 2d
1313 (D. Utah 2003), is easily distinguishable. In that case, the court upheld the Government’s
invocation of Exemption 7(F) to withhold inundation maps that showed downstream
communities that would be at risk in the event of dam failure. Id. at 1315, 1321-22. The danger
was that terrorists could use the maps to better plan prospective attacks. Id. at 1321. There is a
critical difference, however, between the populations in danger in that case and this one. In
Living Rivers, the Government contended that “disclosure of the inundation maps ‘could
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reasonably place at risk the life or physical safety of those individuals who occupy the
downstream areas that would be flooded by a breach of Hoover Dam or Glen Canyon Dam.’”
Id. (emphasis added) (internal citation omitted). Here, the individuals at risk include anyone
near any unexploded bomb, which could include anyone anywhere in the country. See Mot. at
12-13, Def’s Reply at 11. As the Living Rivers population was clearly specified and limited, the
case, even were it binding, does not affect the Court’s decision.
The additional cases DHS cites in its Reply for the proposition that individuals need not
be specifically identified all involve far narrower groups with readily identifiable members than
those at risk here. See Zander v. Dep’t of Justice, 885 F. Supp. 2d 1, 7 (D.D.C. 2012) (upholding
7(F) withholding where Government identified class of people at risk as police officers working
in prisons while forcibly removing prisoners from their cells); Pub. Employees for Envtl.
Responsibility v. U.S. Section Int’l Boundary & Water Comm'n, 839 F. Supp. 2d 304, 327-28
(D.D.C. 2012) (upholding 7(F) withholding of inundation maps for similar reasons as those in
Living Rivers); Peter S. Herrick’s Customs & Int’l Trade Newsletter v. U.S. Customs & Border
Prot., No. 04-00377, 2006 WL 1826185, at *8-9 (D.D.C. June 30, 2006) (upholding 7(F)
withholding relating to, inter alia, customs officials’ seized contraband because information’s
release would “put[] Customs’ officials at risk from individuals who would seek to acquire such
items”).
Reading 7(F) to encompass possible harm to anyone anywhere in the United States
within the blast radius of a hypothetical unexploded bomb also flies in the face of repeated
Supreme Court direction to read FOIA exemptions narrowly. See Milner, 131 S. Ct. at 1265(“We have often noted ‘the Act’s goal of broad disclosure’ and insisted that the exemptions be
‘given a narrow compass.’”) (quoting Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151
14
(1989)); Landano, 508 U.S. at 181 (noting Court’s “obligation to construe FOIA exemptions
narrowly in favor of disclosure”); Rose, 425 U.S. at 361 (noting “basic policy that disclosure, not
secrecy, is the dominant objective of the Act”). Exemption 7(F), therefore, cannot be read as
expansively as the Government proposes, and thus cannot justify withholding SOP 303. The
Court does not dispute that it will be difficult in some cases to decide whether endangered
individuals have been sufficiently identified, but such hardship does not exist here.
* * *
In reaching its conclusion, the Court is not unaware of the potential adverse use to which
this information could be put. Its ruling, furthermore, is no judgment on whether it is in the
national interest for SOP 303 to be disclosed. If, in fact, the Government believes release will
cause significant harm, it has other options to pursue. As the Supreme Court explained in
Milner, “If these or other exemptions do not cover records whose release would threaten the
Nation’s vital interests, the Government may of course seek relief from Congress. . . . All we
hold today is that Congress has not enacted the FOIA exemption the Government desires. We
leave to Congress, as is appropriate, the question whether it should do so.” Milner, 131 S. Ct. at
1271. Indeed, in issuing guidance on FOIA exemptions in a post-Milner world, the Department
of Justice’s Office of Information Policy concluded that “it seems inevitable that there will be
some sensitive records that will not satisfy the standards of any of the Exemptions.” OIP
Guidance, Exemption 2 After the Supreme Court’s Ruling in Milner v. Department of the Navy
15 available at http://www.justice.gov/oip/foiapost/milner-navy.pdf. Standard Operating
Procedure 303 is such a record.
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IV. Conclusion
For the foregoing reasons, the Court will issue a contemporaneous Order granting
judgment in Plaintiff’s favor and ordering DHS to turn over SOP 303 – with redactions related
only to Exemptions 6 and 7(C) – to Plaintiff within 30 days. Mindful of the national-security
implications involved, and appreciating that disclosure of SOP 303 would effectively moot any
appeal, this Opinion and accompanying Order will be stayed for 30 days in order to allow for
either appeal, should the Government wish to file one, or another type of cure – e.g.,
classification of the document to exempt it from disclosure under Exemption 1 or legislation
exempting it from FOIA under Exemption 3. If DHS notices an appeal by December 12, 2013,
the stay shall remain in effect until the Court of Appeals rules on such appeal.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: November 12, 2013
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