Electronic Privacy Information Center v. Drug Enforcement Administration

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELECTRONIC PRIVACY INFORMATION
CENTER,
Plaintiff,
v.
Civ. Action No. 14-317 (EGS)
UNITED STATES DRUG
ENFORCEMENT AGENCY,
Defendant.
MEMORANDUM OPINION
This case concerns the Hemisphere Project (“Hemisphere”), a
program utilized by multiple government agencies, that collects
daily data on telephone calls. The data is retained in a
database and used by the United States Drug Enforcement Agency
(“the DEA”), in cooperation with private corporations, to combat
illicit drug activity. Although the existence of Hemisphere was
widely reported in 2013, details of the program remain unknown.
Plaintiff Electronic Privacy Information Center (“EPIC”)
filed this lawsuit seeking injunctive relief following the DEA’s
response to EPIC’s Freedom of Information Act (“FOIA”) requests.
Compl., ECF No. 1 ¶¶ 1-2. The primary FOIA requests at issue in
this case sought the government’s analysis of legal and privacy
issues related to Hemisphere. The DEA ultimately responded to
the request with 319 documents: 39 were released in their
entirety, 104 withheld in their entirety, and 176 released in
part. The DEA claimed several FOIA exemptions as justification
for the withheld documents and portions. Relevant to the pending
motion, the DEA claimed FOIA Exemption 7(E), which allows the
government to withhold records or information compiled for a law
enforcement purpose, for 11 categories of documents. See 5
U.S.C. § 552(b)(7)(E).
The parties filed cross-motions for summary judgment and
the Court denied EPIC’s motion in part finding that, inter alia,
the DEA’s search for documents was reasonable and that the DEA
properly withheld certain documents under FOIA Exemption 5. See
Elec. Privacy Info. Ctr. (“EPIC”) v. United States Drug Enf't
Agency, 192 F. Supp. 3d 92, 100 (D.D.C. 2016). The Court also
denied the DEA’s motion in part finding that the DEA failed to
sufficiently justify its reliance on FOIA Exemption 7(E). Id. at
111–116. The Court ordered the DEA to either produce the
documents to EPIC, supplement the record with additional
affidavits and authority justifying its withholdings, or the
produce documents for the Court’s in camera review. Id. at 115–
16. The Court also ordered the DEA to produce documents related
to a particular category for in camera review. Id. at 114. The
Court deferred ruling on whether the DEA had processed and
released all reasonably segregable information. See id. at 116
n.14.
2
The parties have filed supplemental briefs on the issues
remaining to be resolved by the Court and the DEA partially
withdrew its motion for summary judgment, leaving only two
categories of withholdings in dispute. See generally Notice of
Partial Withdrawal of Def.’s Mot. for Summ. J. (“Not. Of Partial
Withdrawal”), ECF No. 41. Accordingly, the only issues before
this Court are whether: (1) the DEA has properly invoked FOIA
Exemption 7(E) over the two remaining categories of documents;
and (2) the DEA has met its obligation to segregate all
unprotected information from its withheld documents.
Upon consideration of the motions, the responses and
replies thereto, the applicable law, the entire record, and for
the reasons stated in this Memorandum Opinion, defendant’s
motion for summary judgment is GRANTED and plaintiff’s cross-
motion for summary judgment is DENIED.
I. Background
The Court has already described the facts of this case in
detail in its prior Memorandum Opinion. See EPIC, 192 F. Supp.
3d 92 (D.D.C. 2016). The Court will briefly outline the
surveillance program which gave rise to the FOIA request, the
DEA’s response to the request, and the procedural history of
this case.
A. The Hemisphere Program
Hemisphere is a program that grants law enforcement
3
officials access to an AT&T database containing “decades of
American’s phone calls.” Compl. ¶ 6 (quoting Drug Agents Use
Vast Phone Trove, Eclipsing N.S.A.’s, New York Times, Sept. 1,
2013). Operational since 2007, Hemisphere adds nearly four
billion calls to its database daily, including details about
caller location. Id. ¶ 9. AT&T manages the database and the DEA
pays AT&T staff to provide law enforcement agents with direct
access to the call information. Id. ¶ 7. According to the New
York Times, Hemisphere is funded through the White House’s
Office of National Drug Control Policy. Id. ¶ 11.
B. EPIC’s November 2013 FOIA Request and the DEA’s Response
EPIC’s November 15, 2013 FOIA request sought four
categories of documents from the DEA:
(1) All Hemisphere training modules, request
forms, and similar final guidance documents
that are used in the day-to-day operation of
the program;
(2) Any analyses, memos, opinions, or other
communications that discuss the legal basis of
the program;
(3) Any analyses, memos, opinions, or other
communications that discuss the privacy impact
of the program; and
(4) Any presentations, analyses, memos, opinions
or other communications for Congress that
cover Hemisphere’s operations.
4
Id. ¶ 14. 1
The DEA identified six offices at its headquarters likely to
have responsive records: The Operations Division, the Intelligence
Division, the Office of Training, the Office of Chief Counsel, the
Office of Information Systems, and the Office of Congressional and
Public Affairs. See Def.’s Mem. Supp. Summ. J., Decl. of
Katherine L. Myrick (“Myrick Decl.”), ECF No. 15-3 ¶ 16. The
DEA’s Atlanta, Houston, Los Angeles, and Washington, D.C.
division offices were also asked to search for responsive
records. Id. In July 2014, the DEA responded to EPIC’s FOIA
request with 319 responsive documents. Id. ¶ 11. Of those
documents, 39 were released in full, 176 were released in part
and withheld in part, and 104 were withheld in full. Id.To justify its withholdings, the DEA relied on FOIA
exemptions 5, 6, 7(C), 7(D), 7(E), and 7(F). 5 U.S.C.
§ 552(b)(5);(6);(7)(C)–(F). Most relevant to this case, the DEA
has asserted Exemption 7 for 11 categories of documents. Def.’s
Mem. Suppl. Summ. J., ECF No. 15 at 18-23. 2 EPIC challenged three
1 EPIC’s first FOIA request, sent September 25, 2013, was
challenged by the DEA as not reasonably describing the requested
records, in violation of FOIA standards and Department of
Justice regulations. Compl. ¶¶ 22-24. EPIC modified its letter
and re-sent the requests in November 2013. Id.2 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number, not the
original page number of the filed document.
5
of those categories: (1) names of private companies that assist
with the operation of Hemisphere (Categories 7D-1 and 7E-6); 3 (2)
documents that reveal how the DEA secures cooperation of
entities instrumental to Hemisphere’s operation (Category 7E-5);
and (3) names of other law enforcement agencies with access to
Hemisphere (Category 7E-11). Pl.’s Opp’n, ECF No. 18 at 28-38.
C. Procedural History
In a Memorandum Opinion dated June 24, 2016 the Court ruled
on the parties’ cross-motions for summary judgment. The Court
denied EPIC’s motion in part finding that the DEA’s search was
reasonable and that the DEA properly withheld certain documents
under FOIA Exemption 5. See EPIC, 192 F. Supp. 3d at 100. The
Court denied the DEA’s motion in part, finding that the DEA
failed to sufficiently justify its reliance on FOIA exemption
7(E). Id. The Court ordered the DEA to either produce the
documents, supplement the record with additional affidavits and
authority justifying its withholdings, or produce documents for
the Court’s in camera review. Id. at 115–16. The Court also
ordered the DEA to produce documents related to a particular
category for in camera review. Id. at 114.
3 The DEA has withdrawn its motion for summary judgment related
to this category and has produced the information to EPIC. See
Not. Of Partial Withdrawal, ECF No. 41; see also Def.’s Not. of
Filing Revised Release Pages in Connection with Notice of
Partial Withdrawal, ECF No. 42.
6
The parties have filed supplemental briefs related to the
issues remaining to be resolved by the Court. In the DEA’s
submission it has provided the documents for in camera review,
and filed an ex parte in camera affidavit from Douglass W.
Poole, DEA Chief of Intelligence, explaining its justification
for the exemption. See Redacted Decl. Douglass H. W. Poole
(“Redacted Poole Decl.”), ECF No. 36–1. The DEA has also filed a
redacted copy of these documents on the public record. Id.
Additionally, the DEA partially withdrew its motion for summary
judgment for all but two of the 11 categories of documents for
which it originally claimed the exemptions. See generally Not.
Of Partial Withdrawal, ECF No. 41. Accordingly, the DEA has
produced to EPIC revised versions of previously partially
withheld documents. See Def.’s Not. of Filing Revised Release
Pages in Connection with Not. of Partial Withdrawal, ECF No. 42.
The Court’s June 2016 Memorandum Opinion and the withdrawal
of the DEA’s arguments concerning categories 7D-1 and 7E-6 leave
two categories of withholdings in dispute:(1) category 7E-5,
information that could reveal what specific law enforcement
agencies have access to Hemisphere apart from DEA, whose use of
Hemisphere has been publicly confirmed, see Def.’s Mem. in Supp.
of Mot. for Summ. J., ECF No. 15-2 at 29, and (2) category 7E-
11, documents detailing the means through which Hemisphere
secures the cooperation of entities instrumental to Hemisphere,
7
id. at 30–31. Accordingly, the only issues before this Court are
whether the DEA has properly invoked FOIA Exemption 7(E) over
the documents in categories 7E-5 and 7E-11 and whether the DEA
has met its obligation to segregate all unprotected information
from its redactions.
II. Standard of Review
A. Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted if the moving party has shown that
there are no genuine issues of material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a); Celotex Corp v. Catrett, 477 U.S. 317, 325 (1986). In
determining whether a genuine issue of material fact exists, a
court must view all facts in the light most favorable to the
non-moving party. See Mastushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). FOIA cases are typically
and appropriately decided on motions for summary judgment. Gold
Anti-Trust Action Comm. Inc. v. Bd. Of Governors of Fed. Reserve
Sys., 762 F. Supp. 2d 123, 130 (D.D.C. 2011) (citations
omitted). In ruling on cross-motions for summary judgment, a
court shall grant summary judgment only if one of the moving
parties is entitled to judgment as a matter of law upon material
facts that are not genuinely disputed. Shays v. FEC, 424
F.Supp.2d 100, 109 (D.D.C.2006); Winston & Strawn LLP v.
8
F.D.I.C., No. 061120, 2007 WL 2059769, at *3 (D.D.C. July 13,
2007).
B. The Freedom of Information Act
FOIA requires agencies to disclose all requested agency
records, unless one of nine statutory exemptions applies. 5
U.S.C. § 552 (a), (b). Congress enacted FOIA to “pierce the veil
of administrative secrecy and to open agency action to the light
of public scrutiny.” Morley v. C.I.A., 508 F.3d 1108, 1114 (D.C.
Cir. 2007)(quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976)). Because disclosure rather than secrecy is the “dominant
objective of the Act,” the statutory exemptions are “narrowly
construed.” See McKneely v. DOJ, 132 F. Supp. 3d 44, 49 (D.D.C.
2015)(internal quotation marks and citations omitted).
The government bears the burden of justifying
nondisclosure, either through declarations or an index of
information withheld. See, e.g., Consumers’ Checkbook, 554 F.3d
1046, 1050 (D.C. Cir. 2009); Vaughn v. Rosen, 484 F.2d 820, 826
(D.C. Cir. 1973)(holding that an indexing system was necessary
in FOIA cases to “(1) assure that a party’s right to information
is not submerged beneath governmental obfuscation and
mischaracterization, and (2) permit the Court system effectively
and efficiently to evaluate the factual nature of disputed
information.”).
Agency affidavits and declarations must be “relatively
9
detailed and non-conclusory.” SafeCard Services v. SEC, 926 F.2d
1197, 1200 (D.C. Cir. 1991)(internal quotation marks and
citation omitted). 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.” Id. (internal quotation marks and citation
omitted). Courts must conduct a de novo review of the record and
may grant summary judgment solely on the basis of information
provided by the department or agency in affidavits or
declarations that describe the documents and justifications for
nondisclosure with “reasonably specific detail.” Cause of Action
v. Federal Trade Com’n, 961 F. Supp. 2d 142, 153 (D.D.C.
2013)(quoting Military Audit Project v. Casey, 656 F. 2d 724,
738 (D.C. Cir. 1981)).
III. Analysis
EPIC challenges the two remaining categories of exempted
documents: (1) names of other law enforcement agencies with
access to Hemisphere (Category 7E5); and (2) documents that
reveal how the DEA secures cooperation of entities instrumental
to Hemisphere’s operation (Category 7E11). See Def.’s Not. of
Partial Withdrawal of Mot. for Summ. J., ECF No. 41 at 4–5. EPIC
also challenges the DEA’s reliance on ex parte in camera
affidavits. See Pl.’s. Suppl. Resp., ECF No. 37 at 2–3. The
Court first discusses the propriety of the DEA’s use of such
10
affidavits, and then turns to DEA’s reliance on FOIA Exemption
7(E). Last, the Court discusses the DEA’s obligation to provide
any reasonably segregable non-exempt portion of the withheld
documents to EPIC.
A. DEA’s Use of In Camera Affidavit
As an initial matter, EPIC argues that the DEA improperly
relied on an ex parte declaration to support its justification
for its reliance on FOIA Exemption 7(E). See Pl.’s. Suppl.
Resp., ECF No. 37 at 2. EPIC is correct that courts are hesitant
to accept in camera ex parte affidavits in FOIA cases. See
Armstrong v. Exec Officer of the President, 97 F.3d 575, 580
(D.C. Cir. 1996)(stating the “use of in camera affidavits has
generally been disfavored.”). “Although in camera review of
withheld documents is permissible (and even encouraged), [the
D.C. Circuit has] held that a trial court should not use in
camera affidavits unless necessary and, if such affidavits are
used, it should be certain to make the public record as complete
as possible.” Lykins v. DOJ, 725 F.2d 1455, 1465 (D.C. Cir.
1984)(citations omitted). To that end, a district court must
satisfy itself that the use of the affidavit is absolutely
necessary, justified to the greatest extent possible on the
public record, and must make available as much of the in camera
submission to the adverse party as possible. Id. Ultimately, the
“use of such affidavits is at the discretion of the trial
11
court.” Id.The Court is satisfied that the DEA’s use of the Poole
declaration--submitted in camera and ex parte--was appropriate
in this case. First, a redacted version of the Poole declaration
was filed on the public docket, and this redacted version
explains the justifications for why the DEA submitted it in
camera. See Redacted Poole Decl., ECF No. 36-1. The declaration
explains that public disclosure would reveal non-public
sensitive DEA information not related to the FOIA request. Id.Second, the bulk of the redacted information relates to the
exhibits this Court ordered the DEA to file in camera because
the only way the Court could ascertain whether the exemption was
justified was by reviewing the documents themselves. EPIC, 192
F. Supp. 3d at 114. Accordingly, the Court finds the use of the
in camera declaration was absolutely necessary to determine
whether the DEA properly claimed FOIA Exemption 7(E) for its
withholdings.
However, the DEA’s notice that it has partially withdrawn
its motion for summary judgment and its subsequent filing of
revised documents in connection with that notice has now
rendered public some of the sensitive information in the
declaration. See Def.’s Not. of Partial Withdrawal of Mot. for
Summ. J., ECF No. 41 at 3. Although the DEA’s motion and
subsequent disclosure of revised documents arguably meet the
12
requirement that as much of the in camera submission as possible
be made available to the adverse party, in an abundance of
caution, the Court will order the DEA to un-redact portions of
the affidavit that are no longer sensitive in light of its new
disclosures to EPIC.
In short, because the use of the in camera declaration was
absolutely necessary, and justified on the public record, the
DEA’s submission was proper. However, in light of the
information the DEA made public after the submission of the
affidavit, the DEA is hereby ORDERED to file a revised
declaration with new redactions that are consistent with its
recent disclosures to EPIC.
B. FOIA Exemption 7(E)
The Court next turns to the DEA’s justifications for
withholdings of the two categories of documents in this case:
(1) the names of other law enforcement agencies with access to
Hemisphere; and (2) documents that reveal how the DEA secures
cooperation of entities instrumental to Hemisphere’s operation
(Category 7E11). See Def.’s Not. of Partial Withdrawal of Mot.
for Summ. J., ECF No. 41 at 4.
FOIA Exemption 7(E) permits the withholding of information
collected for law enforcement purposes if release of that
information would:
disclose techniques and procedures for law
13
enforcement investigations or prosecutions, or
would disclose guidelines for law enforcement
investigations or prosecutions if such
disclosure could reasonably be expected to
risk circumvention of the law.
5 U.S.C. § 552(b)(7)(E). The purpose of Exemption 7(E) is to
prevent publication of information that would “train potential
violators to evade the law or instruct them [on] how to break
the law,” and to protect information that, if disclosed, “could
increase the risks that a law will be violated or that past
violators will escape legal consequences.” Mayer Brown LLP v.
I.R.S., 562 F.3d 1190, 1193 (D.C. Cir. 2009). Exemption 7(E) sets
a “relatively low bar” for an agency to justify withholding
information” but the government must “demonstrate logically how
the release of the requested information might create a risk of
circumvention of the law.” Blackwell v. F.B.I., 646 F.3d 37, 42
(D.C. Cir. 2011)(quoting Mayer Brown LLP, 562 F.3d at 1193).
1. Category E-5: Names of Other Law Enforcement
Agencies with Access to Hemisphere
EPIC challenges the DEA’s withholding of the names of other
law enforcement agencies that have access to Hemisphere’s
database, arguing that the DEA does not explain “why the names
of federal agencies would reveal techniques, procedures, or
guidelines” or how such disclosure could “reasonably be expected
to risk circumvention of the law.” Pl.’s Cross-Mot. for Summ.
J., ECF No. 17-1 at 37. In its supplemental briefing, the DEA
14
explains that information “about specific law enforcement
agencies that have access to the Hemisphere program could help
criminals evade apprehension. . . . [and] would put violators on
notice that the Hemisphere program could be used against them .
. ..” Redacted Poole Decl., ECF No. 36–1 ¶ 43. The DEA also
argues that because the “types of crimes that fall within the
jurisdiction of one law enforcement agency can differ from the
types . . . that another agency law enforcement agency has
jurisdiction over” criminals could alter their behavior if
equipped of the knowledge of which agencies access Hemisphere.
Def.s’ Suppl. Br., ECF No. 36 at 11.
Under Exemption 7(E), the government must demonstrate (1)
that the withheld information would disclose techniques,
procedures or guidelines for law enforcement investigations and
(2) that the disclosure would reasonably “risk circumvention of
the law.” 5 U.S.C. § 552(b)(7)(E); see also Blackwell, 646 F.3d
at 41–42.
The Court first finds that, although a close question, the
DEA has sufficiently demonstrated that release of the names of
the agencies that have access to Hemisphere would reveal
techniques, procedures, or guidelines for law enforcement
prosecutions as to those agencies. See 5 U.S.C. § 552(b)(7)(E). 4
4 In its Memorandum Opinion dated June 24, 2016, the Court ruled
that defendant failed to adequately explain why release of the
15
Under the statute, information is only protected under Exemption
7(E) if it “would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or prosecutions.”
See 5 U.S.C. § 552(b)(7)(E). In its supplemental memoranda, the
DEA has explained that the use of Hemisphere by the agencies
other than the DEA has not been publicly confirmed, and to
disclose such information would be disclosing the capabilities
and limitations of certain agencies, specifically the agencies
that do not use Hemisphere. Def.’s Resp. to Order of the Court,
ECF No. 44 at 1–3. In other words, producing a set list of
which agencies use Hemisphere necessarily discloses that
Hemisphere is a technique or procedure that the agency utilizes,
which is information that is not publicly available.
EPIC responds that names of the agencies are not techniques
or procedures and argues that providing the names would not
reveal techniques or procedures. Pl.’s Resp. to Order of the
Court, ECF No. 45 at 3–4. EPIC argues that the DEA only cites to
cases which hold that information that explains how an agency
uses a type of investigatory tool falls within Exemption 7(E),
information would circumvent law enforcement, and had no
occasion to discuss if the information was a technique or
procedure. EPIC, 192 F. Supp. 3d at 115–16. The Court ordered
supplemental briefing on this issue and the parties have filed
their responses to the Court’s Order. See Minute Order dated
June 17, 2019.
16
but do not stand for the proposition that identification of
which agency uses a tool would fall under that exemption. Id.
EPIC is correct that there does not appear to be case law
that explicitly states that revealing which agency uses a
particular investigatory tool is tantamount to disclosure of a
technique, procedure, or guideline. However, the Court is
persuaded that disclosure of which agency has access to
Hemisphere necessarily discloses a technique or procedure used
by that agency. The Court understands that the names themselves
are not a technique, procedure or guideline, but with those
names comes the knowledge of how the agency employs its
procedures or techniques. In other words, to reveal the names of
the agencies would necessarily reveal information about the
techniques and procedures for those particular law enforcement
agency investigations. Therefore that information is protected
under Exemption 7(E) if its release would risk circumvention of
the law. See 5 U.S.C. § 552(b)(7)(E)
As for the circumvention of law requirement, the Court of
Appeals for the District of Columbia Circuit (“D.C. Circuit”)
has made clear that the requirement that a disclosure could
reasonably be expected to risk circumvention of the law, “sets a
relatively low bar for the agency to justify withholding[.]”
Blackwell, 646 F.3d at 42. “In fact, ‘the exemption looks not
just for [actual] circumvention of the law, but for a risk of
17
circumvention; not just for an actual or certain risk of
circumvention, but for an expected risk; not just for an
undeniably or universally expected risk, but for a reasonably
expected risk[.]’” Sheridan v. U.S. Office of Personnel Mgmt.,
278 F. Supp. 3d 11, 19 (D.D.C 2017)(quoting Mayer Brown LLP, 562
F.3d at 1193). Therefore, “[r]ather than requiring a highly
specific burden of showing how the law will be circumvented,
exemption 7(E) only requires that the [agency] demonstrate[]
logically how the release of [the requested] information might
create a risk of circumvention of the law.” Mayer Brown LLP, 562
F.3d at 1194 (internal quotation marks and citation omitted).
In support of its arguments, the Poole declaration details
the type of information the DEA seeks to withhold, and the
reasons why release of that information “could reasonably be
expected to risk circumvention of the law,” see 5 U.S.C. §
552(b)(7)(E). For example, the declaration explains that
disclosing which agencies have access to Hemisphere would put
certain violators on notice that it could be used against them
and therefore risks that potential criminals will alter their
behavior. See Redacted Poole Decl., ECF No. 36–1 ¶ 43. The Court
finds that, after review of the unredacted declaration, the
declaration is sufficient to demonstrate how the release of the
requested information can create a risk of circumvention of the
law. Accordingly, the DEA’s motion for summary judgment
18
pertaining to withholding of the names of other agencies that
have access to the Hemisphere data is GRANTED.
2. Category 7E-11: How the DEA Secures Cooperation
from Third-Parties Instrumental to Hemisphere
In its motion for summary judgment, the DEA argues that the
documents that reveal how the DEA secures cooperation from third
parties are protected under FOIA Exemption 7(E) because such
disclosure risks disruption of the means through which it
secures cooperation. Def.’s Reply, ECF No. 19 at 19. In its
prior Memorandum Opinion the Court noted that “[i]t is possible
that a document describing the means of securing cooperation
includes specific information . . . protected by Exemption 7(E),
yet it is also conceivable that the information is so
generalized that the document cannot be said to have been
created for law enforcement purposes, or that disclosure would
not risk circumvention of the law.” EPIC, 192 F. Supp. 3d at
114. Accordingly, the Court ordered the DEA to produce the
documents withheld under this rationale for in camera review.
Id. citing Fitzgibbon v. U.S. Secret Service, 747 F. Supp. 51,
60 (D.D.C. 1990)(noting that the F.B.I.’s conclusory statement
that certain techniques were not known to the public were
“general and cursory at best” and that the “only way the Court
can ascertain whether the assertions are correct is by way of an
in camera review.”)).
19
Through Mr. Poole’s declaration, the DEA has provided a
more specific explanation for why disclosure of the documents
would hamper law enforcement efforts. Redacted Poole Decl., ECF
No. 36-1 ¶ 44. Mr. Poole explains that it could “reasonably be
expected that . . . the entities instrumental in the operation
of Hemisphere would likely choose to discontinue their
cooperation . . . [and] [t]his would risk making an important
investigative tool unavailable.” Id. The Court has reviewed the
declaration and conducted in camera review of the documents at
issue. After review of the declaration and the documents, the
Court is satisfied that the DEA has supported its assertion that
publication of these documents could “reasonably be expected to
lead to disruption of the means of securing cooperation” and
therefore could reasonably be expected to risk circumvention of
the law. Def.’s Mem. Suppl. Summ. J., Myrick Decl., ECF No. 15-3
¶ 45(k). Furthermore, it is apparent from these documents that
releasing any additional information would in fact disclose law
enforcement techniques and procedures. Accordingly, the DEA’s
motion for summary judgment pertaining to the means through
which Hemisphere secures the cooperation of entities
instrumental to Hemisphere's operations is GRANTED.
C. Segregability
FOIA requires that “any reasonably segregable portion of a
record shall be provided to any person requesting such record
20
after deletion of the portions which are” otherwise exempt under
the Act. 5 U.S.C. § 552(b). This rule of segregation applies to
all FOIA exemptions. Ctr. for Auto Safety v. EPA, 731 F.2d 16,
21 (D.C. Cir. 1984). “It has long been a rule in this Circuit
that non-exempt portions of a document must be disclosed unless
they are inextricably intertwined with exempt portions.” Mead
Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260
(D.C. Cir. 1977). Before approving the application of a FOIA
exemption, a district court must make specific findings of
segregability regarding the documents to be withheld. Summers v.
DOJ, 140 F.3d 1077, 1081 (D.C. Cir. 1998). Agencies are entitled
to a presumption that they complied with the obligation to
disclose reasonably segregable material. Boyd v. Criminal Div.
of U.S. Dept. of Justice, 475 F.3d 381, 391 (D.C. Cir. 2007).
The DEA has not addressed segregability in its supplemental
filings; however, the Court has an independent obligation to
determine whether the government has met its obligation under
the statute. See Sussman v. U.S. Marshals Service, 494 F.3d
1106, 1116 (D.C. Cir. 2007)(“If the district court approves
withholding without such a finding [of segregability], remand is
required even if the requester did not raise the issue of
segregability before the court.”). Upon review of the Myrick
Declaration, Def.’s Mem. Supp. Summ. J., Myrick Decl., ECF No.
15-3 ¶ 10, explaining its process for segregability; the Court’s
21
in camera review of the contested documents; the released pages
attached to the motion for summary judgment; and the revised
released pages following the DEA’s notice of partial withdrawal,
the Court is satisfied that the government only withheld
information that is exempt from disclosure and material
“inextricably intertwined with exempt portions.” See Mead Data
Cent., Inc., 566 F.2d at 260. Accordingly, the Court finds that
the DEA has discharged its obligation to ensure it has not
withheld any segregable non-exempt materials.
IV. Conclusion
For the foregoing reasons, defendant’s motion for summary
judgment is GRANTED and plaintiff’s cross-motion for summary
judgment is DENIED. An appropriate Order accompanies this
Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
August 6, 2019
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