UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELECTRONIC PRIVACY INFORMATION
CENTER,
Plaintiff,
v. Civil Action No. 11-2261 (JDB)
U.S. DEPARTMENT OF HOMELAND
SECURITY,
Defendant.
MEMORANDUM OPINION
Plaintiff the Electronic Privacy Information Center ("EPIC") brings this action against
defendant the U.S. Department of Homeland Security ("DHS") under the Freedom of Information
Act ("FOIA"), 5 U.S.C. § 552. Before the Court are [12] [16] the parties' cross motions for
summary judgment. For the reasons set forth below, both motions will be granted in part and
denied in part.
BACKGROUND
In February 2011, DHS announced its intention to implement a new system of social
media monitoring initiatives, titled "Publicly Available Social Media Monitoring and Situational
Awareness Initiative System of Records." See Compl. [ECF 1] ¶ 5; see also 76 Fed. Reg. 5603
(Feb. 1, 2011). On April 12, 2011, EPIC submitted a FOIA request for DHS records concerning
these social media monitoring initiatives. Id. ¶ 20. Specifically, EPIC asked for the following:
1. All contracts, proposals, and communications between the federal government
and third parties, including, but not limited to, H.B. Gary Federal, Palantir
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Technologies, and/or Berico Technologies, and/or parent or subsidiary companies,
that include provisions concerning the capability of social media monitoring
technology to capture, store, aggregate, analyze, and/or match
personally-identifiable information;
2. All contracts, proposals, and communications between DHS and any states,
localities, tribes, territories, and foreign governments, and/or their agencies or
subsidiaries, and/or any corporate entities, including but not limited to H.B. Gary
Federal, Palantir Technologies, and/or Berico Technologies, regarding the
implementation of any social media monitoring initiative;
3. All documents used by DHS for internal training of staff and personnel regarding
social media monitoring, including any correspondence and communications
between DHS, internal staff and personnel, and/or privacy officers, regarding the
receipt, use, and/or implementation of training and evaluation documents;
4. All documents detailing the technical specifications of social media monitoring
software and analytic tools, including any security measures to protect records of
collected information and analysis; and
5. All documents concerning data breaches of records generated by social media
monitoring technology.
Id. After receiving EPIC's FOIA request on April 19, 2011, the DHS Privacy Office tasked five
DHS component agencies with searching for responsive records. See Def.'s Mot. for Summ. J.
[ECF 12], Attach. 3, Decl. of James Holzer ("Holzer Decl.") ¶¶ 7, 11-13 (request referred on
April 26 and 29). DHS informed EPIC that it had received EPIC's request on April 28. Id. ¶ 10.
As of December 20, 2011, DHS had not produced any documents in response to EPIC's
request. See Compl. ¶ 27. Hence, EPIC filed this action, seeking an order enjoining DHS to
release the requested records. See id. ¶ 38.
In January 2012, DHS began releasing records in response to EPIC's FOIA request. By
January 10, DHS and its component agencies had located and reviewed 341 pages of responsive
records. See Holzer Decl. ¶ 15. Of those, DHS released 175 pages in full, released 110 pages
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with redactions, and withheld 56 pages in full; the redactions and withholdings were made under
FOIA Exemptions 3, 4, 5, 6, 7(C), and 7(E). See id. On February 6, 2012, after reviewing an
additional 39 pages of responsive documents, DHS released 24 pages in full and released 15
pages with redactions under FOIA Exemptions 6, 7(C), and 7(E). Id. ¶ 17.
The DHS Privacy Office also tasked the U.S. Secret Service with searching for records
responsive to EPIC's FOIA request. Id. ¶ 14. The Secret Service located 365 pages of responsive
records. See Def.'s Mot. for Summ. J., Attach. 5, Decl. of Julie Ferrell ("Ferrell Decl.") ¶ 26. It
released 55 pages in full on July 2, 2012, and another 32 pages in full on July 9, and released 48
pages with redactions and withheld 230 pages under FOIA Exemptions 4, 5, 6, 7(C), and 7(E).
Id. ¶¶ 26-29.
DHS then moved for summary judgment, arguing that it had conducted an adequate
search for records, released all responsive, nonexempt records, and properly withheld exempt
records under the asserted FOIA exemptions. See Def.'s Mot. for Summ. J., Attach. 2, Mem. in
Supp. ("Def.'s MSJ") 7-8. EPIC cross moved for summary judgment, challenging the sufficiency
of DHS's Vaughn index and the segregability analysis as to seven documents withheld in full by
the Secret Service. See Pl.'s Opp'n & Cross Mot. for Summ. J. [ECF 16], Attach. 1, Mem. in
Supp. ("Pl.'s Cross Mot.") 1. EPIC also requested attorney's fees and costs. Id. at 14. DHS
responded by providing a revised, more detailed Vaughn index and a supplemental declaration on
the segregability of the withheld Secret Service documents. See Def.'s Reply & Opp'n [ECF 20],
Attachs. 1, 3. It asked the Court to deny EPIC's attorney's fees request as premature. See id. at 8.
In light of DHS's revisions to its Vaughn index, EPIC withdrew its Vaughn index objections.
See Pl.'s Reply [ECF 22] 2. However, it continues to challenge the segregability analysis for the
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withheld Secret Service documents and to claim entitlement to attorney's fees and costs. See id.
at 1-2.
LEGAL STANDARDS
FOIA requires federal agencies to release all records responsive to a proper request except
those protected from disclosure by any of nine enumerated exemptions set forth at 5 U.S.C.
§ 552(b). A district court is authorized "to enjoin [a federal] agency from withholding agency
records or to order the production of any agency records improperly withheld from the
complainant." 5 U.S.C. § 552(a)(4)(B); see also Kissinger v. Reporters Comm. for Freedom of
the Press, 445 U.S. 136, 139 (1980). The agency has the burden of proving that "each document
that falls within the class requested either has been produced, is unidentifiable, or is wholly
exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir.
1978) (internal citation and quotation marks omitted); accord Maydak v. U.S. Dep't of Justice,
218 F.3d 760, 764 (D.C. Cir. 2000).
"FOIA cases typically and appropriately are decided on motions for summary judgment."
Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). Summary
judgment is appropriate when the pleadings and the evidence demonstrate that "there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a). In a FOIA case, the district court may award summary judgment to an
agency on the basis of information provided in affidavits or declarations that 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."
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Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); accord Vaughn v. Rosen,
484 F.2d 820, 826 (D.C. Cir. 1973).
DISCUSSION
The only issues remaining in this dispute relate to segregability and attorney's fees. The
Court will address each issue in turn.
I. Segregability
Even where an agency has established the applicability of one or more FOIA exemptions,
"it must nonetheless disclose all reasonably segregable, nonexempt portions of the requested
record(s)." See Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 58 (D.C. Cir.
2003); see also 5 U.S.C. § 552(b). "[N]on-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); accord Sussman v. U.S. Marshals Serv.,
494 F.3d 1106, 1116 (D.C. Cir. 2007). To justify withholding a document in full, an agency
must show with "reasonable specificity" why the document cannot be further segregated, see
Johnson v. Exec. Office for U.S. Att'ys, 310 F.3d 771, 776 (D.C. Cir. 2002) (internal quotation
marks omitted), or why the document is not reasonably segregable – for example, because the
nonexempt material "would be an essentially meaningless set of words and phrases," see Mead
Data, 566 F.2d at 261.
Here, EPIC contends that the Secret Service has not given sufficient justification for
withholding in full seven documents, listed in the Secret Service's Vaughn index as Documents
4, 5, 6, 10, 12, 13, and 16. See Pl.'s Reply 2-7. DHS argues that the seven documents are
properly withheld in full, and points to Secret Service declarations stating that the Secret Service
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carefully reviewed these documents and concluded that none is reasonably segregable. See Def.'s
Reply & Opp'n 7; see also id., Attach. 3, Decl. of Brady J. Mills ("Mills Decl.") ¶¶ 4, 8, 12, 15,
20, 23, 26; Ferrell Decl. ¶¶ 47-48.
Four of the seven documents – Documents 4, 5, 6, and 16 – are contracts or contract
packets that include related documents such as statements of work. The Secret Service has
asserted FOIA Exemption 7(E) as to each of these records, which involve software and systems
used by the Secret Service in carrying out its protective intelligence functions. See Mills Decl.
¶ 7, 10, 15, 26; see also id. 5 U.S.C. § 552(b)(7)(E) (exempting "records or information compiled
for law enforcement purposes" that "would disclose techniques and procedures for law
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"). According to the Secret Service, some information in each of the
four documents, such as standard contract language, the street address and order number, and
sentences about the period of performance, "could be segregated and released." See Mills Decl.
¶¶ 7, 12, 15, 26. But, it says, such information is "not reasonably segregable" because it has
"minimal or no informational content related or responsive to Plaintiff's FOIA request, either
separately or taken together." See id.
EPIC does not dispute that Exemption 7(E) applies to these contracts and related
documents. Rather, it argues that the agency's justification for not disclosing segregable portions
of the documents is insufficient. See Pl.'s Reply 4-7. The Court agrees. Citing a footnote in
Mead Data, DHS argues that it properly withheld Documents 4, 5, 6, and 16 in full because the
nonexempt information in the documents has minimal or no value, either separately or taken
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together. See Def.'s Reply & Opp'n 7-8 (citing Mead Data, 566 F.2d at 261 n.55 ("[A] court may
decline to order an agency to commit significant time and resources to the separation of
disjointed words, phrases, or even sentences which taken separately or together have minimal or
no information content.")). But the standard contract language and other basic information in
Documents 4, 5, 6, and 16 do not equate to the kind of "disjointed words, phrases, or even
sentences" referred to by the court in Mead Data. The nonexempt (and concededly segregable)
information here has meaning, and the agency may not withhold information simply because its
"value to the requestor" may be low. See Mead Data, 566 F.2d at 261 n.55. "FOIA mandates
disclosure of information, not solely disclosure of helpful information." Stolt-Nielsen Transp.
Grp. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008) (rejecting argument that redacted
documents could be withheld because they "would provide no meaningful information").
Moreover, there is no plausible argument here that segregating and producing these portions of
four contract documents would require DHS "to commit significant time and resources." See
Mead Data, 566 F.2d at 261 n.55. The Court thus concludes that DHS has not disclosed all
reasonably segregable portions of Documents 4, 5, 6, and 16.
The same goes for Documents 12 and 13, two September 2011 emails, each with a two-
page contract modification attached.1 See Mills Decl. ¶ 22. The agency released both emails
with redactions but withheld the attachments under FOIA Exemption 7(E) because they describe
changes to a system used to identify, analyze, and investigate threats against Secret Service
protectees. See id. Again, the Secret Service admits that some portions of the documents, "such
1
Presumably, the two attachments are the same, except that Document 12 is an
unexecuted version of the contract modification and Document 13 is an executed version. See
Mills Decl. ¶ 22.
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as street address, order number, and similar basic information, general sentences or sentence
fragments, and standardized contract language," could be released. See id. ¶ 23. But the agency
is nevertheless withholding such information on the ground that it "would be of minimal use or
value." See id. As stated above, this is not a sufficient justification. An agency may not
withhold segregable, nonexempt portions of a document just because those portions may be less
than helpful to the person or entity requesting the document. See Stolt-Nielsen, 534 F.3d at 734.
Because DHS has not shown that Documents 12 and 13, like Documents 4, 5, 6, and 16, are
properly withheld in full, it must disclose all reasonably segregable, nonexempt portions of those
documents as well.
The final document at issue, Document 10, is a 22-page PowerPoint presentation dated
January 2010 and entitled "United States Secret Service, Cyveillance Overview." See Mills
Decl. ¶ 18. The presentation was prepared specifically for the Secret Service and, as a whole,
"reveals information about the Agency's protective intelligence techniques." See id. ¶ 19. It also
contains specific details about a system to be used in identifying, analyzing, and investigating
threats against Secret Service protectees. See id. After conducting a segregability analysis of
this document, the Secret Service determined that the only nonexempt material in the
presentation consisted of the first page, which shows the company logo and the date and title of
the presentation, and the last page, which shows the company logo and the phrase "Q&A – Next
Steps." See id. Accepting the Secret Service's determination that only the first and last pages of
Document 10 are nonexempt,2 Document 10 differs from the other challenged documents in that
2
Given that Document 10 is a targeted presentation about Secret Service techniques
falling squarely within FOIA Exemption 7(E), see 5 U.S.C. § 552(b)(7)(E), and that the Secret
Service has identified nonexempt portions of the other challenged documents, the Court has no
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the agency has already disclosed all of the nonexempt information in the document – the
company name, Cyveillance; the date of the presentation, January 2010; and the presentation's
title, "United States Secret Service, Cyveillance Overview." See Mead Data, 566 F.2d at 260
(noting that "[t]he focus of the FOIA is information, not documents"). Hence, the Court is
satisfied that the agency met its disclosure obligations with respect to Document 10.
II. Attorney's Fees and Costs
EPIC asks for attorney's fees and costs under 5 U.S.C. § 552(a)(4)(E), claiming that it has
"substantially prevailed" in this lawsuit, irrespective of the Court's decision on the motions for
summary judgment. See Pl.'s Cross Mot. 14-15. DHS contends that EPIC's request for fees and
costs is premature and that the parties should first be given an opportunity to negotiate and
resolve fee issues on their own. See Def.'s Reply & Opp'n 8-9. The Court agrees, and will enter
an order directing the parties to confer and attempt to reach an agreement on fee issues. See
Local Civ. R. 54.2(a). Although the Court is not deciding the issue at this time, it notes, in the
hope of guiding the parties' discussions, that EPIC will be entitled to some amount of fees and
costs, given the agency's release of responsive documents, the Vaughn index revisions, and the
Court's resolution of the instant motions.
CONCLUSION
For the foregoing reasons, both parties' motions for summary judgment will be granted in
part and denied in part. DHS's motion will be granted as to the segregability of Document 10 of
reason to question this determination. See Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013)
(stating that agency "is entitled to a presumption that it complied with the obligation to disclose
reasonably segregable material" (internal quotation marks and alteration omitted)); Boyd v.
Criminal Div. of U.S. Dep't of Justice, 475 F.3d 381, 391 (D.C. Cir. 2007).
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the Secret Service's Vaughn index. EPIC's motion will be granted as to the segregability of
Documents 4, 5, 6, 12, 13, and 16; DHS must disclose all reasonably segregable, nonexempt
portions of these documents. EPIC's request for attorney's fees and costs will be denied at this
time, and the parties will be ordered to confer on fee issues pursuant to Local Civil Rule 54.2(a).
A separate order accompanies this memorandum opinion.
/s/
John D. Bates
United States District Judge
Dated: March 4, 2013
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