Electronic Privacy Information Center v. United States Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELECTRONIC PRIVACY
INFORMATION CENTER
Plaintiff,
v. Civil Action No. 12-0333 (GK)
THE UNITED STATES DEPARTMENT
OF HOMELAND SECURITY
Defendant.
MEMORANDUM OPINION
Plaintiff Electronic Privacy Information Center ("Plaintiff"
or "EPIC") brings this action against Defendant the United States
Department of Homeland Security ("the Government" or "OHS") under
the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff
seeks records concerning the Defense Industrial Base Cyber Pilot
("DIB Cyber Pilot"), a cyber-security pilot program jointly
conducted by the United Stat.es Department of Defense ("DoD") and
Defendant OHS. Government's Motion for Summary Judgment ("DHS' s
Mot.") at 2 [Dkt. No. 53].
The program, which "aim[ed] . to protect U.S. critical
infrastructure [,] [and] furnished classified thr.eat and
technical information to voluntarily participating [] companies or
their Commercial Service Providers[]." Id. EPIC, citing concerns
from the Department of Justice about the program "[running] afoul
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of laws forbidding government surveillance of private Internet
traffic [,] . . sought records to determine whether . . the DIB
Cyber Pilot program complied with federal wiretap laws."
Plaintiff's Combined Opposition to Defendant's Motion for Summary
Judgment and Cross-Motion for Summary Judgment ("Pl.'s Mot.") at
2 [Dkt. No. 57].
OHS conducted a search for records responsive to EPIC' s
request, produced documents to EPIC, and provided a Vaughn index
for all documents that were withheld in full or in part under one
of FOIA' s several exemptions. § 552 (b); see also Defendant's Vaughn
Index for Challenged Withholdings ("Vaughn index") [Dkt. No.
53-4] . EPIC now challeng-es the sufficiency of the search conducted
by OHS, as well as the Government's application of FOIA Exemptions
1, 3, 4, 5, and 7(0) to withhold certain responsive information.
Upon consideration of the Motions, Oppositions, Replies, the
entire record herein, and for the reasons stated below, Plaintiffs'
Motion for Summary Judgment shall be denied without prejudice with
regard to Exemption 70 and otherwise denied in whole, and the
Government's Motion for Summary Judgment shall be granted in part
and denied in part without prejudice.
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I . BACKGROUND
A. FOIA
The Freedom of Information Act ("FOIA"), 5 U.S.C § 552, was
enacted by Congress "to ensure an informed citizenry, vital to the
functioning of a democratic society." Critical Mass Energy Project
v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992)
("Critical Mass III"), cert. denied, 507 U.S. 984 (1993) (citing
FBI v. Abramson, 456 U.S. 615, 621 (1982)). "In enacting FOIA,
Congress struck the balance it thought right--generally favoring
disclosure, subject only to a handful of specified exemptions--
and did so across the length and breadth of the Federal
Government." Milner v. Dep't of the Navy, 562 U.S. 562, 571 n.5
(2011). FOIA's "basic purpose reflect[s] a general philosophy of
full agency disclosure unless information is exempted under
clearly delineated statutory language." Dep't of the Air Force v.
Rose, 425 U.S. 352, 360-361 (1976) (internal citations and
quotation marks omitted) .
When an ag-ency receives a request for records, the agency
must conduct a sufficient search within the scope of the request,
5 U.S.C. § 552_(a) (3) (A). The agency then must furnish the
information in a timely manner, unless the information is precluded
from disclosure by one of FOIA's nine exemptions. § 552(b). FOIA's
"goal is broad disclosure, [thus] the exemptions must be given a
narrow compass." Milner, 562 U.S. at 563 (citing United States
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Oep't of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989)). The
Government always bears the burden of proving exemptions apply for
any responsive information that is withheld.§ 552(a) (4) (B).
B. Factual Background
1. EPIC's FOIA Request
On July 26, 2011, EPIC submitted a FOIA request for documents
to OHS, as well as requests for news media fee status and a fee
waiver. Pl.'s Mot. at 2; OHS's Mot. at 2. EPIC's FOIA request was
for records related to the OIB Cyber Pilot program "to monitor
Internet traffic flowing through certain Internet Service
Providers ("ISPs") from Internet users to a select number of
defense contractors." ,Pl.' s Mot. at 2. Specifically, EPIC' s
request was for all information in the following categories:
1. All contracts and communications with Lockheed
Martin, CSC, SAIC, Northrop Grumman or any other
defense contractors regarding the new NSA [National
Security Agency] pilot program;
2. All contracts and communications with AT&T, Verizon
and CenturyLink or any other [ISPs] regarding the new
NSA pilot program;
3. All analyses, legal memoranda, and related ·records
regarding the new NSA pilot program;
4. Any memoranda of understanding between NSA and OHS or
any other government agencies or corporations
regarding the new NSA pilot program;
5. Any privacy impact assessment performed as part of
the development of the new NSA pilot program.
Id. at 2-3.
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On August 3, 2011, DHS sent a letter to EPIC acknowledging
receipt of the FOIA request, notifying EPIC that no responsive
documents had been found for category 5, and indicating that it
had referred the request to the DHS National Protection and
Programs Directorate ("NPPD"). Pl.'s Mot at 3; DHS's Mot. at 2.
Despite deadlines imposed by FOIA, 5 U.S.C. § 552 (a) (6) (A), DHS
did not produce the requested documents or contact EPIC again for
five months. Pl.'s Mot. at 3. On January 5, 2012, 1 EPIC faxed an
administrative appeal to NPPD's FOIA Office, appealing NPPD's non-
responsiveness regarding categories 1-4 of EPIC' s FOIA Request. 2
Id. On January 23, 2012, a FOIA Specialist from NPPD contacted
EPIC by telephone regarding the status of the FOIA request and
informed EPIC that DHS was processing it. DHS's Mot. at 3. On March
1, 2012, EPIC filed this Complaint for Injunctive Relief
("Complaint") [Dkt. No. l], and the Government filed its Answer on
May 1, 2012 [Dkt. No. 7].
On August 31, 2012, EPIC narrowed its FOIA request, in part
to exclude draft documents, and specifically requested:
1 In Pl.' s Mot. and the Declaration of Amie Stepanovich [Dkt.
No. 18-1], the date is listed as January 5, 2011. However, DHS's
Mot. and additional materials in the r-e-cord indicate the correct
date is January 5, 2012.
2 Defendant disputes whether this constituted an administrative
appeal, but whether it did or did not does not affect the
Court's final ruling. DHS's Mot. at 3.
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1. All contracts and communications with Lockheed
Martin, CSC, SAIC, Northrop Grumman or any other
defense contractors regarding the DIB Cyber Pilot;
2. All contracts and communications with AT&T, Verizon
and CenturyLink or any other [ISPs] regarding the DIB
Cyber Pilot;
3. All legal and technical analyses, including legal
memoranda, regarding the DIB Cyber Pilot;
4. Any memoranda of understanding between NSA and DHS or
any other government agencies or corporations
regarding the DIB Cyber Pilot.
Pl.' s Mot. at 4.
2. The Government's Search for Responsive Documents
In conducting its search for responsive records, DHS assigned
EPIC's FOIA request to NPPD. Second Holzer Deel. ~ 9. NPPD's FOIA
Office ("NPPD FOIA") began to process the request by "tasking out
the search" to subcomponents likely to have responsive records,
the Office of Cybersecurity and Communications ("CS&C"). Id. ``
11, 29. NPPD also provided the DHS Office of General Counsel and
the Office for Selective Acquisitions with EPIC' s FOIA request
because those offices had been involved in supporting the DIB Cyber
Pilot and might have had responsive records. Id. ~ 16. NPPD did
not search other offices or department components because it
determined that those off ices and department components were not
likely to have any connection to the DIB Cyber Pilot. Id. ~ 17.
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NPPD FOIA met with "subject matter experts" in the agency who
had been involved with the DIB Cyber Pilot to determine which sub-
of fices would likely have responsive records. Id. i 15. NPPD FOIA
and the subject matter experts created keyword search terms to be
used in electronic searches for responsive documents. Id. i 18.
The keyword search terms were provided to the identified offices,
where each employee was instructed to conduct searches using the
keywords and their own personal "knowledge of how and where they
stored their own documents . ." Id. i 19.
NPPD FOIA worked with the identified off ices to determine
which employees were involved with the DIB Cyber Pilot. Id. i i 22-
23. Each office and employee were instructed to conduct a search
for responsive documents. ~at i i 18-19. The -employees who were
involved with the DIB Cyber Pilot then searched electronic and
hard copies of their office and personal fiL~s. A search of the
classified network was also conducted. Id. i i 18-19, 2~-27, 29-
32.
Staff in one of the identified offices - the NPPD Office of
the Undersecretary ( "OUS") searched a database of taskings:
records of which employees were tasked with various assignments
and the files associated with those assignments. Id. at i i 22-23.
OUS used the database to further identify all staff who· may have
been involved with the DIB Cyber Pilot. Id.-7-
Staff in the NPPO Privacy Office and the CS&C, along with
CS&C's subcomponents, searched electronic and hard copies of their
personal files. Id. at`` 26-27, 29-32. Employees in those offices
conducted a further search of the classified network. Id. The OHS
Office of the General Counsel ("OGC") identified two attorneys who
would potentially have responsive documents and had them conduct
extensive manual and electronic searches of their computers and
files relating to the OIB Cyber Pilot. Id. at `` 33-38.
Staff in the Office of the Chief Procurement Officer ("OCPO"),
responsible for contracting for NPPO and other offices, and the
Office of Selective Acquisitions, an OCPO subcomponent which
handles classified and sensitive contracts, did similar searches
and located potentially responsive documents which were turned
over to the OHS Privacy Office for further processing. Id. at ``
39-42. OHS did not search the various other offices within the
agency that had no involvement with the DIB Cyber Pilot. Id. ~ 17.
OHS' s searches initially resulted in approximately 16, 000
pages of potentially responsive documents. Id. ~ 43. That number
were reduGed to roughly 10, 000 pages after initial review by a
team of FOIA specialists and attorneys who spent several weeks
reviewing the documents, removing duplicates, and removing
documents that were clearly non-responsive. Id. The agency then
took a "page-by-page and line-by-line" approach to determine if
the documents were in fact responsive and whether any of FOIA's
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exemptions applied to a part or the entirety of each document. Id.Id. 523 F.2d 1136 (D.C. Cir.
1975).
After receiving the documents, EPIC noticed that several
emails referenced attachments that EPIC believed were not included
in the DHS production. DHS's Mot. at 6. On June 20, 2015, EPIC
responded to DHS's initial production of documents with a list of
17 examples of documents that EPIC believed were missing from the
production. Second Holzer Deel. Id. Id. ~ 50;
DHS's Mot. at 1; see also 5 U.S.C. § 552(b).
C. Procedural Background
On August 30, 2013, DHS filed its Motion for Summary Judgment.
On September 27, 2013, EPIC filed its combined Opposition to the
Government's Motion and Cross-Motion for Summary Judgment. On
November 4, 2013, the Government filed its Combined Opposition to
Plaintiff's Motion for Summary Judgment and Reply in Further
Support of Defendant's Motion for Summary Judgment ("DHS's Reply")
[Dkt. No. 61]. Finally, on November 25, 2013, Plaintiff filed its
Reply in Further Support of Plaintiff's Motion for Summary Judgment
("Pl.' s Reply") [Dkt. No. 63].
EPIC challenges the adequacy of the search performed by DHS
in response to its FOIA request, Pl.'s Mot. at 6, and also contends
that the Government improperly redacted and withheld many
documents under FOIA Exemptions 1, 3, 4, 5, and 7(D). Pl.'s Mot.
at 15, 24.
II. STANDARD OF REVIEW
A. Summary Judgment
Summary judgment should be granted only if the moving party
has shown that there is no genuine dispute of material fact and
that the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991
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( D. C. Cir. 2002) . "A fact is material if it 'might affect the
outcome of the suit under the governing law,' and a dispute about
a material fact is genuine 'if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.'"
Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "The
court must draw all reasonable inferences in favor of the nonmoving
party, and it may not make credibility determinations or weigh the
evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000).
"To prevail on summary judgment [against a FOIA chall-enge],
the defending 'agency must show beyond material doubt []that it
has conducted a search reasonably calculated to uncover all
relevant documents.'" Morley v. C.I.A., 508 F.3d 1108, 1114 (D.C.
Cir. 2007) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d
1344, 1351 (D.C. Cir. 1983)). "Summary judgment may be based on
affidavit, if the declaration sets forth sufficiently detailed
information 'for a court to determine if the search was adequate.'"
Students Against Genocide v. Dep' t of State, 257 F. 3d 828, 838
(D.C. Cir. 2001) (quoting Nation Magazine v. U.S. Customs Serv.,
71 F.3d 885, 890 (D.C. Cir. 1995)).
If an agency denies disclosure of responsive records, either
in whole or in part, based upon FOIA exemptions, it then "bears
the burden of proving the applicability of claimed exemptions." Am.
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Civil Liberties Union v. U.S. Dep' t of Def., 62 8 F. 3d 612, 619
(D.C. Cir. 2011). "The government may satisfy its burden . by
submitting appropriate declarations and, where necessary, an index
of the information withheld [ (known as a "Vaughn index") ] . " Am.
Immigration Lawyers Ass'n v. U.S. Dep't of Homeland Sec., 852 F.
Supp. 2d 66, 72 (D.D.C. 2012) (citing Vaughn v. Rosen, 484 F.2d
820, 827-28 (D.C. Cir. 1973)).
There is no set formula for a Vaughn index or declarations,
but they must "provide[] a relatively detailed justification [for
any nondisclosure], specifically identif [y] the reasons why a
particular exemption is relevant and correlat[e] those claims with
the particular part of a withheld document to which they apply."
Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 146 (D.C.
Cir. 2006) (quoting Mead Data Cent., Inc. v. Dep't of the Air
Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). But, "exemptions from
disclosure must be narrowly construed and conclusory and
generalized allegations of exemptions are unacceptable." Morley,
508 F.3d at 1114-15 (internal quotation marks and citations
omitted).
III. ANALYSIS
A. Sufficiency of the Search Conducted by OHS
I
EPIC contends that DHS did not conduct a sufficient search
for responsive documents because DHS failed to re-evaluate the
sufficiency of its search in light of examples of missing -email
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attachments discovered by EPIC after DHS's initial production. See
Pl.'s Mot. at 8. EPIC believes there may be additional responsive
documents and, subsequent to DHS's supplemental production,
created an exhaustive list of every document referenced in the
emails that are potentially missing. Id.; Third Declaration of
Amie Stepanovich ~ 19 [Dkt. No. 57-4].
OHS argues that EPIC relies on a mistaken belief that many or
most of the "missing" documents EPIC references are responsive to
the FOIA request but were overlooked in the initial search. DHS's
Reply at 3. OHS states that the documents referenced by EPIC are
simply non-responsive which would explain why they were not
included in the OHS production. Id. at 5. OHS provided a chart
examining a sample of the documents cited by EPIC as po~entially
missing, indicating that many of the documents were already
released to EPIC, some documents were duplicates of documents that
had been released or withheld, and other documents were withheld
under a FOIA exemption and listed on the Vaughn index. DHS's Reply
at 4; Third Declaration of James V.M.L. Holzer ("Third Holzer
Deel.") ~ 5 [Dkt. No. 61-1]; Chart of Documents Referenced in
Plaintiff's Exhibit 4 [Dkt. No. 61-2].
EPIC nonetheless still contends that OHS should have
conducted a thorough additional search of email attachments in
light of the additional documents produced, and therefore, its
search is insufficient. Pl.'s Reply at 5.
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"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 (internal quotation marks and citation omitted) . To prevail
in a summary judgment motion, an agency is not required to search
every system possible, but must show that it made a good faith
effort that would be reasonably expected to produce all the
requested information. See Steinberg v. United States Dep' t of
Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). Summary judgment for
an agency is inappropriate only if the agency's responses "raise
serious doubts as to the completeness of the search or are for
some other reason unsatisfactory " Perry v. Block, 684 F.2d
121, 127 (D.C. Cir. 1982).
While agencies have broad discretion in determining what
constitutes a reasonable search under FOIA requests, the
Government "must revise its assessment of what is "reasonable" in
a particular case to account for leads that emerge during its
inquiry . [and] the court evaluates the reasonableness of an
agency's search based on what the agency knew at its conclusion
rather than what the agency speculated at its inception." Campbell
v. United States Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir.
1998). The revision requirement does not require an agency to
"examine virtually every document in its files, following an
interminable traii of cross-referenced documents" though, nor does
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"mere reference to other files establish the existence of
documents that are relevant to [the] FOIA request." Steinberg, 23
F.3d at 552 (D.C. Cir. 1994).
In Steinberg, a FOIA requester brought suit challenging the
sufficiency of the search conducted by two agency subdivisions.
The second subdivision relied on an affidavit to demonstrate the
adequacy of its search, "[describing] with particularity the files
that were searched, the manner in which they were searched, and
the results of the search." Id. The requester contended that
several specific documents "cross-referenced in several of the
disclosed documents" had not been properly examined by the
subdivision. Id. Our Court of Appeals disagreed, finding that the
search had been adequate. Id. Several years later, our Court of
Appeals reaffirmed this holding, finding that the ag.ency would not
be required to search every record referenced in disclosed
documents in order to conduct a sufficient search. See Morley, 508
F.3d at 1121-22.
As discussed above, the Government has shown that the initial
search conducted by DHS in response to EPIC' s FOIA request was
meticulous, organized, and thorough. As was done in the affidavit
provided by the second subdivision in Steinberg, the Second Holzer
Declaration explains in great detail how the search was conducted,
which subdivisions and employees of DHS conducted the search, and
the results of the search. See supra, Section I.B.2.
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While EPIC contends that OHS should have performed an
additional search after EPIC discovered the existence of cross-
referenced documents, Pl.'s Mot. at 8, our Court of Appeals has
·made clear that agencies do not need to examine every cross-
referenced document uncovered after an initial disclosure. See
Morley, 508 F.3d at 1121. Although it is true that some documents
were responsive, it was a very small number and in no way detracts
from the Government's extraordinary efforts in executing its
search. Although it is possible to envision circumstances in which
the numerosity of overlooked documents calls into question the
adequacy of the search, that is not the case here. EPIC has
identified a limited number of potentially responsive documents it
believes were overlooked, and OHS has sufficiently accounted for
why many (although not all) of the documents flagged by EPIC were
properly excluded.3 FOIA does not require OHS to track down every
cross-referenced document. The Government here has done a
commendable job in performing its search, and the Court concludes
that it has shown completion of a sufficient search to satisfy
FOIA.
3 OHS provided an additional affidavit, the Third Holzer Deel.,
and an additional chart to address EPIC's concern that documents
cross-referenced in emails produced from DHS's initial disclosure
had been overlooked.
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B. Exemptions under FOIA
Next, EPIC argues that OHS improperly withheld and redacted
documents under various FOIA exemptions. The Court will consider
each exemption in turn.
1. FOIA Exemption 1
FOIA Exemption 1 precludes disclosure of documents that are
"(A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order." 5 U.S.C. § 552 (b) (1).
OHS withheld information pursuant to FOIA Exemption 1 because
the documents related to the classified activities of the National
Security Agency ("NSA"). The Government has stated that "[t]he
information in question reveals capabilities and/or
vulnerabilities of systems relating to the national security,
specifically electronic networks used by the defense industrial
base sector." Se.cond Holzer Deel. CJI 56.
As with all of FOIA' s exemptions, the burden of proof li-es
with the Government to show proper application of Exemption 1.
5 U.S.C. § 552{a) (4) {B). The Court makes a presumption of good
faith on the behalf of agency affidavits purporting to meet the
Government's burden. Negley v. FBI, 169 F-ed. Appx. 591, 5.94 (D.C.
Cir. 200-6). Thus, "summary judgment may be granted on the basis of
agency affidavits if they contain reasonable specificity of detail
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rather than merely conclusory statements, and if they are not
called into question by contradictory evidence in the record or by
evidence of agency bad faith." Halperin v. Central Intelligence
Agency, 629 F.2d 144, 148 (D.C. Cir. 1980)
It is undisputed that the requirements for classifying
information relevant to this request are contained in Executive
Order 13292, which was in effect from March 2003 until June 2010,
and Exe cu ti ve Order 1352 6, which went into partial effect on
December 29, 2009, and into full effect in June 2010. The parties
agree that the differences between the two Executive Orders do not
impact the Exemption 1 analysis in this case. See DHS's Mot. at
20; Pl-'s Mot. at 9, n.1.
Executive Order 13526 provides that information may be
classified if:
(1) an original classification authority is classifying
the information;
(2) the information is owned by, produced by or for, or
is under the control of the United States ·Government;
( 3) the information falls within one or more of the
categories of information listed in section 1.4 of this
order; and
( 4) the original classification authority determines
that the unauthorized disclosure of the information
reasonably could be expected to result in damage to the
national security, which includes defense against
transnational terrorism, and the original classification
authority is able to identify or describe the damage.
Exec. Order No. 13526, 75 FR 707, 707 (De-c. 29, 2009).
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EPIC bases its Exemption 1 challenge exclusively on whether
DHS has sufficiently shown that David J. Sherman, Associate
Director for Policy and Records at the National Security Agency,
has original classification authority pursuant to the Executive
Orders. Without original classification authority, the withheld
documents could not be properly classified. Pl.'s Mot. at 10. EPIC
thus contends DHS could not properly invoke Exemption 1 as the
basis for withholding any information, because the Government did
not prove Sherman has original classification authority or that
the documents were properly classified.
The Government explained in the Second Holzer declaration
that Sherman, "who serves as a TOP SECRET ~lassification
authority[,] . determined that certain information {related to
the NSA] meets the criteria for classification and is . . .
properly classified . . in accordance with E. 0. 1352 6." Se-cond
Holzer Deel. ~ 55.
Neither party cites to any case directly addressing the issue
- possibly because the issue is rarely contested.
In Darui v. U.S. Dep't of State, 798 F. Supp. 2d 32, 40
(D.D.C. 2011), a FOIA requester did dispute an agency's application
of Exemption 1, and specifically challenged an agency official's
original classification authority based on an affidavit that
merely stated the official had such authority. The court found
that the agency official's declaration established that she was a
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proper classifying authority, reasoning that the requester had
brought forth "no evidence to support [the] contentions that [the
official] lacks the authority to classify information, that [the
official] is perjuring herself in her declaration, or that she has
failed to comply with the Exe cu ti ve Order's requirements for
classification authority." Darui, 798 F. Supp. 2d at 40.
EPIC contends that the Second Holzer Declaration, which
states that Sherman has TOP SECRET classification authority, was
insufficient because it did not "offer any basis to support
[Holzer's] claim of [] Sherman's alleged classification
authority." Pl's Mot. at 11. EPIC argues that DHS needed to provide
a declaration by Sherman himself, or other (unspecified)
documentation of Sherman's authority status. Pl.'s Mot. at 10-11.
However, EPIC fails to provide support for why the Government's
documents are insufficient. 4 Pl.' s Mot. at 11. As in Darui, EPIC
does not allege that Sherman actually lacks original
classification authority, that either Holzer or Sherman's
4 EPIC argues that Holzer did not allege personal knowledge of
Sherman's classification authority and cites only to Weisberg v.
Dept. of Justice, 627 F.2d 365 (D.C. Cir. 1980). Pl.'s Mot. at 11.
In that case, a declarant did not assert personal knowl.edge over
whether evidence had been destroyed, but instead stated what he
believed likely occurred, and thus the Court found a "permi·ssible
inference [for summary judgment purposes] that [the
declarant] fwas] incorrect in his belief." Weisberg, 627 F. 2d at
369. However, in this case, the Holzer declaration clearly asserts
personal knowledge that "Sherman serves as a TOP SECRET
classification authority." Second Holzer Deel. 5 U.S.C. § 552(b) (3). In determining whether Exemption 3 properly
applies, the Court conducts a two-part test: whether " [ 1] the
statute in question [is] a statute of exemption as contemplated by
exemption 3 [and] [2] the withheld material satisf[ies] the
criteria of the exemption statute." Fitzgibbon v. C.I.A., 911 F.2d
755, 761 (D.C. Cir. 1990) (citing C.I.A. v. Sims, 471 U.S. 159,
167 (1985)).
The Government withheld documents under Exemption 3 based on
two statutes: 18 U.S.C. § 798 ("Section 798u) and Section 6 of the
National Security Agency Act of 1959, Pub. L. No. 86-36, 73 Stat.
64 (codified at 50 U.S.C. § 3605) ("Section 6"). DHS's Mot. at 24-
25. While EPIC concedes "that Section 6 . [of the NSA Act] and
Section 798 are Exemption 3 statut~s for the purposes of FOIA,"
Pl.'s Mot. at 12, thus satisfying the first prong of the
Exemption 3 test, EPIC contends that the second prong is not
satisfied because the Government has not demonstrated how the
statutes apply to nondisclosure.
Section 798 prohibits disclosure:
[O]f any classified information concerning the
communication [of] intelligence activities of the United
States or any foreign government . . [or] obtained by
. the processes of communication intelligence from the
communications of any foreign government . . . .
18 u.s.c. § 798.
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EPIC's sole argument for why the Government's withholding of
information under Section 798 was improper is based on its prior
contention that the Government has not shown that Sherman has
original classification authority and therefore the documents are
not properly classified. Thus, EPIC argues, the documents are
outside the scope of Exemption 3. Pl.'s Mot at 12-13. Since the
Court has found that the Government met its burden to show that
Sherman has such authority, this argument is not persuasive.
Section 6 of the NSA Act of 1939 requires information related
to NSA functions or activities be precluded from release, stating
in relevant part that:
[N]othing in this [Act] or any other law . . shall be
construed to require the disclosure of the organization
or any function of the National Security Agency, of any
information with respect to the activities thereof, or
of the names, titles, salaries, or number of the persons
employed by such agency.
50 U.S. C. § 3605. EPIC contends that documents withheld under
Section 6 are not related solely to NSA functions or activities,
and thus do not satisfy the criteria of S.ection 6. Pl.' s Mot.
at 13; Pl.' s Reply at 10. If Section 6, which is the underlying
exemption statute, is not applicable, then Exemption 3 is also not
applicable. EPIC argues that the statements made in the Vaughn
index are insufficient to justify nondisclosure of information
under Exemption 3. Pl.'s Mot. at 13.
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However, the Government contends that "[t] he redactions of
information made by DHS on behalf of NSA consists of
information relating to the Agency's internal processes, and
activities, such as handling instructions for classified
information " DHS's Mot. at 26. The Government provided
many examples of why application of Exemption 3 is appropriate.
It also provided some examples of unredacted text where the
documents themselves plainly showed they were related to NSA
activities. See DHS's Reply at B.
Thus, the Court concludes that DHS has provided sufficient
details justifying application of Exemption 3 and the information
was properly withheld under Section 6 and Section 798.
3. FOIA Exemption 4
FOIA Exemption 4 precludes an agBncy from disclosing certain
commercial information when the following three requirements are
met : it is " [ 1 ] commercial or financial information [2]
obtained from a person and [ 3] pri vilegBd or confidential." 5
U.S.C. § 552(b) (4); see also Pub. Citizen Health Research Group v~
Food & Drug Admin., 704 F.2d 1280, 1290 (D.C. Cir. 1983); COMPTEL
v. FCC, 910 F. Supp. 2d 100, 114-115 (D.D.C. 2012).
EPIC contends that the Government improperly redacted and
withheld the identities of companies who participated in the DIB
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Cyber Pilot under Exemption 46 because the company names are not
commercial information, were not obtained from a person, and are
not confidential. Pl.'s Mot. at 15. The Government maintains that
it has proven that the identities of participating companies are
properly withheld.
a. Commercial or Financial Information
The first element of Exemption 4 requires that the information
sought to be withheld be commercial or financial in nature.
§ 552 (b) ( 4) • "The terms in Exemption 4 are to be given their
ordinary meanings, and information is commercial under
this exemption if, in and of itself, it serves a commercial
function or is of a commercial nature. Nat'l Ass'n of Home Builders
v. Norton, 309 F.3d 26, 38 (D.C. Cir. 2002).
While commercial information is broadly interpreted to
"include any information in which the submitter has a 'commercial
interest,' such as business sales statistics, research data,
overhead and operating costs, and financial conditions," it is not
all encompassing. COMPTEL, 910 F. Supp. 2d at 115 (internal
citations omitted) . Information may be deemed commercial "even if
the provider's [] interest in gathering, processing, and reporting
the information is noncommercial." Critical Mass Energy Project v.
6 EPIC also challenges the Government's assertion of Exemption 7(D)
to withhold the same information. Pl.'s Mot. at 24. That argument
is addressed later in this section.
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Nuclear Regulatory Comm'n, 830 F.2d 278, 281 (D.C. Cir. 1987)
("Critical Mass I"), vacated on other grounds, 975 F.2d B71 (D.C.
Cir. 1992) (en bane).
EPIC contends that the identities of companies participating
in the DIB Cyber Pilot are not commercial because a company's name
cannot be information in which a company would have a commercial
interest. Pl.'s Mot. at 15. EPIC cites Hodes v. United States Dept.
of Hous. And Urban Dev., 532 F. Supp. 2d 108 (D.D.C. 2008) for the
proposition that "identities of corporations [are] not exempt from
disclosure under Exemption 4." Pl.'s Mot. at 17. The Hodes court
was not stating a bright line rule, but rather noted in dicta that
if corporations preferred to be anonymous, they could take steps
to_protect their own identities. Hodes, 532 F. Supp. 2d at 118.
While the issue of disclosure of corporate identities in this case
arises in an entirely different context than in Hodes, these
companies nonetheless have taken affirmative steps to protect
their identities by using confidentiality agreements.
The Government argues, and the Court agrees, that while a
company may not always have a commercial interest in its name and
identity, the Court may also consider the context in which the
issue arises. The identities of which companies have participated
in the DIB Cyber Pilot, if disclosed, could have a commercial or
financial impact on the companies involved. DHS's Mot. at 24. The
companies are commercial enterprises doing business with the
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Government and the reason they seek piotection from having their
participation disclosed is because of the potential effect that
disclosure would have on their businesses. Id. Consequently, the
Court concludes that the names of participants in the DIB Cyber
Pilot are correctly considered commercial information in this
particular context;
b. Obtained From a Person
Information is considered "obtained from a person" if the
information originated from an individual, corporation, or other
entity, and so long as the information did not originate within
the federal government. Bd. of Trade, 627 F. 2d at 404.
Additionally, even if information originated within the
government, it is protected if the information "summarize [s]
information obtained from another person." COMPTEL, 910 F. Supp.
2d at 115 (citing Gulf & W. Indus. v. United States, 615 F.2d 527,
529-30 (D.C. Cir. 1979)).
EPIC contends that the identities of the participating
companies were improperly withheld because many of t~e redacted
documents appear to be email correspondence between DHS staff, and
thus, EPIC argues the information could not possibly have been
obtained from a person. Pl.'s Mot. at 16. EPIC is correct that
inter-agency emails generally cannot be "obtained from a person."
See Id. However, the information redacted from the emails in this
case was the underlying identities of the participating companies
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in the DIB Cyber Pilot. Declaration of Mark H. Herrington
("Herrington Deel.") '.II 10 [ Dkt. No. 53-5] . While those companies'
identities may have been discussed between OHS employees in email
conversations, the information originated with the corporations
which provided their identities to OHS in order to participate in
the program.
c. Privileged or Confidential
Our Court of Appeals, sitting en bane, has distinguished
between tests of confidentiality under Exemption 4 based on whether
the information was submitted to the government voluntarily or
involuntarily. See Critical Mass III, 975 F.2d at 874. Thus, in
evaluating whether information responsive to a FOIA request is
confidential, it must first be determined whether the information
was provided voluntarily or involuntarily. 7
The test for voluntarily submitted information was first
adopted by our Court of Appeals in Critical Mass III in 1992. See
975 F.2d 871. The Court ruled that voluntarily submitted
information subject to a FOIA request is confidential under
Exemption 4 when the information "is of a kind that would
customarily not be released to the public by the person from whom
7 Initially and without providing any case support, EPIC states
that before the Court can address confidentiality, information
must be established to be "private" because OHS characterized the
~ithheld information as "private information." Pl.'s Mot. at 18-
19. However, no authority has been cited to support this
statement.
-28-
it was obtained." Id. at 879; see also Baker & Hostetler LLP v.
United States DOC, 473 F.3d 312, 320 (D.C. Cir. 2006). Critical
Mass III, 975 F.2d at 879. Moreover, "[t]he court will generally
defer to the agency's predictive judgments as to the repercussions
of disclosure." Jurewicz v. U.S. Dep't of Agric., 741 F.3d 1326,
1331 (D.C. Cir. 2014) (citing United Techs. Corp. v. Dep't of Def.,
601 F.3d 557, 563 (D.C. Cir. 2010)) (internal quotation marks
omitted) .
The Government explains that companies participating in the
DIB Cyber Pilot did so on a voluntary basis and provided
information to the Government voluntarily, but with the
understanding that company identities would be kept confidential.
See Herrington Deel. `` 5, 7.
Companies voluntarily participated in the DIB Cyber Pilot to
allow OHS to help the companies better protect their own
information systems and enhance their cybersecurity. See Second
Holzer Deel. `` 3-7. Participating companies and the DoD Chief
Information Officer signed a confidentiality agreement stating
that the Government would take measures to protect the identities
of the participating companies. DHS's Mot. at 25.
EPIC's attempt to distinguish volunteering in the DIB Cyber
Pilot from volunteering one's identity is unsuccessful. The very
act of participating in the program included the act by which
companies volunteered their identity to the government.
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In Critical Mass III, a FOIA requester sought nuclear safety
reports that were voluntarily provided by a nonprofit corporation
to a federal government agency under an agreement of
confidentiality and nondisclosure. 97 5 F. 2d at 8 7 4. The agency
denied the request after determining the information was
"confidential commercial information protected from
disclosure by Exemption 4," in part because it was disclosed to
third parties only upon consent from the nonprofit. Id.; see also
Critical Mass I, 830 F.2d at 280 (earlier proceeding explaining
the circumstances of the request) . The Court of Appeals agreed
with the agency that the information was submitted voluntarily and
would not ordinarily be disclosed to the public. Critical Mass
III, 975 F.2d at 880. Therefore, it was confidential information
and met the requirement for application of Exemption 4. Id.The Court in Critical Mass III considered the parties'
nondisclosure agr.eements when determining whether the inf.ormation
was confidential and of the sort not customarily released to the
public. 975 F.2d at 880; see also Critical Mass I, 830 F.2d at
282. While such agreements are not sufficient in and of themselves
to establish confidentiality under Exemption 4, Green v.
Department of Commerce, 489 F. Supp. 977, 980 (D.D.C. 1980), they
are useful to the Court in evaluating whether intent existed to
shield the information from the public. Here, the confidentiality
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agreements clearly reflect the desire of the companies to shield
their identities as participants in the program.
In addition, as the Herrington Deel. explains, the need to
keep the information confidential is essential because:
If a company's participation in the DIB Cyber Pilot
were publicly known, that company could face increased
cyber targeting, exposing the company to greater
business or financial loss [and]
participation . . . could be viewed as an admission of
cyber vulnerability; a company could face competitive
disadvantages or market loss if its participation were
revealed.
Herrington Deel. ~ 10. The Government further explains that, to
encourage participation from companies in the DIB Cyber Pilot and
similar programs in the future, the companies need to be assured
that their participation will be confidential and not revealed to
the public. See Id. ~ 11; cf. Critical Mass III, 975 F.2d at 874(considering impairment to agency's ability to acquire information
in the future if agency not permitted to honor confidentiality
commitment).
EPIC makes a number of additional unpersuasive arguments. 8
For instance, EPIC states that because defense contracting
8 For example, EPIC argues that allowing the names of any and all
companies to be considered confidential under Exemption 4 "would
create a black hole for all access requests concerning business
records in the possession of a federal agency." Pl.'s Mot. at 22.
Whether identities of companies are released in record requests. in
the future will turn on the actual circumstances invol v-ed, and
thus a finding of confidentiality here will not leave any "black
hole" in its wake.
-31-
companies have preexisting, publically known relationships with
DHS, and because only defense contracting companies could have
participated in the DIB Cyber Pilot, the identities of the
participating companies are already publically known. Pl.'s Reply
at 11 n.2. If this were true, it is not clear why EPIC is still
seeking the information. In any event, in invoking Exemption 4,
the identities of which companies participated in this particular
program is at issue, not whether the companies are publically known
in other endeavors.
In considering the parties' confidentiality agreements, the
potential consequences of the information becoming public, and the
government's need for future cooperation from the companies, the
Court concludes that the identities of the companies would not
ordinarily be released to the public and are confidential. Thus,
DHS has met its burden of showing why Exemption 4 applies to the
identities of participants in the DIB Cyber Pilot program.
4. FOIA Exemption 5
FOIA Exemption 5 protects from disclosure "inter-agency or
intra-agency memorandums or letters which would not be available
by law to a party other than an agency in litigation with the
agency." 5 U.S.C. § 552(b) (5). Courts have construed this language
to exempt "those documents [,] normally privileged in the civil
discovery context," including those protected by the attorney work
product and attorney client privileges. NLRB v. Sears, Roebuck &
-32-
Co;, 421 U.S. 132, 149 (1975); see also Coastal States Gas Corp.
v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980); Martin
v. Dep't of Justice, 488 F.3d 446, 455 (D.C. Cir. 2007). In
addition, "[t]he privilege . . . extends to all situations in which
an attorney's counsel is sought on a legal matter." Coastal States,
617 F.2d at 862. Therefore, "it is clear that an agency can be a
"client" and agency lawyers can function as "attorneys" within the
relationship contemplated by the privilege" Id. at 863.
EPIC contends that the Government did not meet its burden of
proving that a redacted portion of one particular document produced
by the Government - Document 276 - was a privileged attorney-
client communication. See Pl.'s Reply at 12-13.
The government points out that the document consisted of a
string of emails, virtually all of which the Government does not
object to releasing. However, the particular portion redacted by
the Government contains a communication between a DHS employee and
a DHS attorney seeking legal review and advice. See Third Holzer
Deel. <[ 10. Thus, there is no question that the redaction was
properly exempted under the attorney-client privilege prong of
Exemption 5.
5. FOIA Exemption 7(0)
FOIA Exemption 7(D) precludes disclosure of responsive
documents, records or information that has been:
-33-
compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement
records or information (D) could reasonably be
expected to disclose the identity of a confidential
source, including . . any private institution which
furnished information on a confidential basis, and, in
the case of a record or information compiled . . . by an
agency conducting a lawful national security
intelligence investigation, information furnished by a
confidential source.
5 u.s.c.' § 552 (b) (7).
Information withheld under Exemption 7 must "first meet a
threshold requirement: that the records were compiled for law
enforcement purposes." Elec. Privacy Info. Ctr. v. U.S. Dep't of
Homeland Sec., 777 F.3d 518, 522-23 (D.C. Cir. 2015) (citing Pub.
Employees for Env't Responsibility v. United States Section, Int'l
Boundary & Water Comm'n, U.S.-Mexico, 740 F.3d 195, 202-03 (D.C.
Cir. 2014)) (internal quotation marks omitted) . It is undisputed
that the information withheld by DHS was compiled for law
enforcement purposes and meets the threshold requirement.
Part (D) of Exemption 7 requires that the information must
come from a "confidential source." 5 U.S.C. § 552 (b) (7) (D). "Giving
the word "source" its plain and ordinary meaning, it would appear
simply to refer to the originator of information, encompassing
within its scope nonfederal entities such as state, l~cal, and
foreign law enforcement agencies as well as individuals such as
private citizens and paid informants." Lesar v. U.S. Dep' t of
Justice, 636 F.2d 412, 489 (D.C. Cir. 1980); see also Black's Law
-34-
Dictionary 1522 (9th ed. 2009) (defining source as "[t]he
originator or primary agent of an act, circumstance, or result").
A source's confidentiality is determined on a case-by-case
basis. U.S. Dep't of Justice v. Landano, 508 U.S. 165, 179-80
(1993). There is no "presumption that a source is confidential
within the meaning of Exemption 7(D) whenever the source provides
information to [a law enforcement agency] in the course of a
criminal investigation." Id. at 181. Rather, "[a] source is
confidential within the meaning of Exemption 7(D) if the source
provided information under an express assurance of confidentiality
or in circumstances from which such an assurance could reasonably
be inferred." Williams v. F.B.I., 69 F.3d 1155, 1159 (D.C. Cir.
1995) (quoting Landano, 508 U.S. at 172).
DHS has withheld the identities of companies participating in
.DIB under Exemption 7 (D), stating that the companies acted as
sources and provided information under an express or implied
understanding of confidentiality. EPIC challenges these
withholdings, arguing that DHS improperly regards participants in
DHS's program as "sources." Pl.'s Mot. at 25-26. It does not
dispute that any information provided by particip.ating companies
to the government was given under assurances of confidentiality,
nor does it allege that a source loses its "source" status under
Exemption 7 when the government provides the source with
information." Pl.'s Reply at 16.
-35-
The crux of EPIC's challenge is whether every participating
company in the DIB Cyber Pilot actually provided information to
the government, in addition to receiving information from the
Government. For purposes of Exemption 7(D), sources include
participating companies who have provided records or information
under a promise of confidentiality. Companies that merely receive
information but do not provide any information would not qualify
for protection under Exemption 7(D).
EPIC contends that DHS improperly withheld ". records
documenting exchanges of information between DIB participants and
the government." Pl.'s Mot. at 26 (emphasis added). EPIC further
states, "[tJhe main flow of information was not from DIB
participants to the government, but from the government to the
participants II
Id. at 27. Under EPIC' s theory, the
Government was the "source" of information to the companies--not
the other way around.
Here, in most instances where Exemption 7(D) has been invoked
in the Vaughn Index, the Government refers to the participating
companies as "sources," without sufficiently explaining why the
companies are sources. For example, in many Vaughn index entries
asserting a 7 (D) exemption, the Government states that "[t] he
participating companies volunteered with an express promise of
confidentiality and are thus confidential sources of law
enforcement information." See, e.g., Vaughn index at 12.
-36-
While the express promise of confidentiality is relevant, DHS
has not contended that the companies provided any information
pursuant to that promise. Nor has DHS shown that mere participation
in the DIB Cyber Pilot program turns each company into a "source"
of information for purposes of Exemption 7(D).
DHS's other Exemption 7(D) explanations fare no better,
merely stating that the document "could reasonably be expected to
disclose the identity of a confidential source." See e.g., id. at
209-11. Although the Government's reference to the companies as
"sources" arguably implies that the companies provided
information, the Court is not willing to rely on such a weak
assumption. Therefore, the Vaughn index alone is not sufficiently
detailed to justify withholding under Exemption 7{D).
For these reasons, the Court finds that the Government has
failed to carry its burden to show that every participating company
provided information to the Government. If in fact there are some
companies that merely receive, but do not provide, information
through the program, the Government has failed to distinguish
between them. Thus, the Government's application of Exemption
7{D) is not justified.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs' Motion for Summary
Judgment shall be denied without prejudice with regard to Exemption
7D and otherwise denied in whole, and the Government's Motion for
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----------···--·----·---------~-----------
Summary Judgment shall be granted in part and denied in part
without prejudice. The Government prevails on its Motion for
Summary Judgment with respect to the adequacy of the search
performed and its withholding under FOIA Exemptions 1, 3, 4, and
5. However, the Government has failed to meet its burden under
FOIA Exemption 7(0). The Government shall have an opportunity to
file a revised Vaughn Index, and therefore Plaintiff's Motion shall
be denied without prejudice with respect to that Exemption. An
Order shall accompany this Memorandum Opinion. 9
August 4, 2015
Copies to: attorneys on record via ECF
9 The Court greatly regrets the delay in ruling on this Motion.
Sometimes, Judges have no excuse to offer and this is one of those
times.
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