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

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY
INFORMATION CENTER,
Civil Action No. 11-945 (BJR)
MEMORANDUM OPINION GRANTING
Plaintiff,
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT, DENYING
v.
PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT, AND GRANTING
UNITED STATES DEPARTMENT OF
PLAINTIFF’S MOTION FOR
HOMELAND SECURITY,
ATTORNEY’S FEES AND COSTS

Defendant.

This action concerns a Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq.,

request. Plaintiff the Electronic Privacy Information Center (“EPIC”) challenges defendant

United States Department of Homeland Security’s (“DHS” or “the department”) response to its

FOIA request seeking certain DHS records related to the agency’s plans to utilize body scanner

technology in the context of surface transportation. Before the court are [Dkt. ## 9, 10] parties’

cross-motions for summary judgment and EPIC’s motion for attorney’s fees and costs. For the

reasons set forth below, the court concludes that DHS’s motion for summary judgment should be

granted and EPIC’s motion for summary judgment denied. The court further concludes that

EPIC is eligible for and entitled to attorney’s fees and costs.
 I. BACKGROUND

A. DHS Testing of Whole Body Imaging Technology

In 2005, the Transportation Security Administration (“TSA”), a branch of the DHS,

began testing Whole Body Imaging (“WBI”) technology in U.S. airports with the goal of using

WBI to screen commercial aircraft travelers. Compl. ¶ 5; Answer ¶ 5. WBI devices use either

backscatter1 x-ray or millimeter wave technology to capture three-dimensional images of

individuals. Compl. ¶ 6; Answer ¶ 6. Body scanner devices have also been tested at surface

transportation stations in the U.S. and abroad. Compl. ¶ 8; Answer ¶ 8. In 2006, machines

utilizing both active and passive millimeter wave technology were tested on PATH train riders at

a New Jersey train station.2 Compl. ¶ 9-10; Answer ¶ 9-10. Beyond these facts, the parties

dispute the extent of DHS’s public testing of WBI technology in surface transportation.

B. DHS’s Involvement in Research and Development of Whole Body Imaging
Technology

The Homeland Security Advanced Research Projects Agency (“HSARPA”) is the

external funding arm for DHS’s Science and Technology Directorate (“S&T”). Def.’s Statement

of Genuine Facts Not in Material Dispute ¶ 1. HSARPA invests in new technologies that

promote homeland security. Towards this end, the agency awards procurement contracts for

research or the development of prototypes to public and private entities, businesses, and

universities. Def.’s Statement of Genuine Facts Not in Material Dispute ¶ 1. In December 2004,

1
According to DHS, backscatter scanning is “an advanced X-ray imaging technology
capable of being used to detect hidden explosives and weapons on transit passengers.” Def.’s
Mot at 3, n.2.
2
“PATH” is the (understandably) imprecise acronym for “Port Authority of New York &
New Jersey.”

2
HSARPA issued Broad Agency Announcement (“BAA”) 05-03, announcing the creation of the

Prototypes and Technology for Improvised Explosives Device Detection (“PTIEDD”) Program.

Id. ¶ 2; Aug. 18, 2011 Declaration of Rebecca Medina (“Medina Aug. 2011 Decl.”) ¶ 3.3

PTIEDD aimed to develop and improve existing systems capable of detecting explosive

compounds in vehicles, and to support research and development of other technologies for

detecting improvised explosive devices (“IEDs”) in vehicles, left-behind packages, or carried by

suicide bombers. Id. BAA 05-03 invited parties to “submit proposals for developing working

prototypes of explosive detection devices and novel technologies and devices that would advance

the state of the art.” Id. In May 2006, HSARPA amended BAA 05-03 to invite submissions for

a “prototype electro-imaging device capable of detecting concealed explosives and weapons.”

Id. ¶¶ 2, 4.

According to Medina, the BAA 05-03 bidders were required to register and submit

proposals online at a password-protected website, with all data uploaded to the website protected

from public view or download. Id. ¶ 3. Furthermore, all submissions were considered

proprietary/source selection sensitive. Id. HSARPA awarded two contracts under BAA 05-03.

The first was to Northeastern University (“NEU”) to assess the state of the art in explosives

detection technology and its adaptability to mass transit scenarios. Id. ¶¶ 5-6. The other contract

went to Rapiscan, Inc. (“Rapiscan”) to explore how its portal-based detector system might be

adapted for standoff detection in mass transit threat scenarios. Both these contracts ended in

3
Ms. Medina is a senior policy advisor in the Explosives Division (“EXD”) within S&T.
She supervised the processing of the FOIA request at issue. Def.’s Statement of Genuine Facts
Not in Material Dispute ¶2, n.1.

3
2008, and S&T’s Explosives Division (“EXD”), which succeeded HSARPA in managing the

PTIEDD program, decided to terminate it. Id.

C. EPIC’s FOIA Request and DHS’s Response

On November 24, 2010, EPIC submitted a FOIA request to DHS seeking certain records

pertaining to DHS’s activities in developing and using explosives detection systems.

Specifically, EPIC sought seven categories of records:

1. All documents detailing plans by federal law enforcement
agencies to implement body scanner technology in the surface
transportation context.

2. All contracts, proposals, and communications with private
transportation and shipping companies (including, but not
limited to NJ PATH, Amtrak, and Greyhound) regarding the
implementation of body scanner technology in surface transit.

3. All contracts, proposals, and communications with states,
localities, tribes, and territories (and their subsidiaries or
agencies) regarding the implementation of body scanners in
surface transportation.

4. All documents detailing plans by federal law enforcement
agencies to use ‘Z Backscatter Vans” or similar technology.

5. All contracts, proposals, and communications with the
manufacturers of the ‘Z Backscatter Vans” or similar
chronology.

6. All contracts, proposals, and communications with states,
localities, tribes, and territories (and their subsidiaries or
agencies) regarding the implementation of ‘Z Backscatter’ or
similar technology.

7. All images generated by the ‘Z Backscatter Vans’ or body
scanner technology that has been used in surface transit
systems.

4
 Compl. ¶ 16.

According to DHS, EXD staff first identified 21 records, comprising approximately 1,100

pages, as potentially responsive to EPIC’s request. Def.’s Statement of Genuine Facts Not in

Material Dispute ¶ 14. S&T then informed EPIC that it had located 1,156 pages of records

responsive to the FOIA request. Initially, the agency released 15 pages in full, 158 pages in

redacted form, and withheld 983 pages in their entirety. DHS invoked FOIA Exemptions 3, 4, 5,

and 6 to justify its decisions to withhold information. Id. ¶ 17; see also Vaughn Index

(Attachment 1 to Medina Aug. 2011 Decl.). It listed these documents and the justification for

the claimed exemptions in a Vaughn Index.4

EPIC then filed an administrative appeal, challenging the S&T’s partial withholding of

158 pages of documents and the S&T’s complete withholding of 983 pages of documents. The

agency failed to comply with the statutory deadline to reply to this appeal. EPIC then initiated

this lawsuit.

After the commencement of this litigation, DHS disclosed two more records in full (an

additional 151 pages in their entirety) and two more records in part (21 pages in redacted form).

According to DHS, these additional disclosures were the fruit of DHS’s additional review of the

withheld records to determine whether any additional non-exempt information could be

reasonably segregated and disclosed. It claims that it undertook such a review “[i]n an effort to

4
Under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), agencies must prepare an
itemized index that correlates each withheld document with a specific FOIA exemption and a
justification for the withholding.

5
narrow the issues for judicial review.” Def.’s Statement of Genuine Facts Not in Material

Dispute ¶ 14; see also Medina July 2011 Decl. ¶ 25. EPIC disputes this justification.

In its motion for summary judgment, DHS also explains in cursory fashion why portions

of partially disclosed documents had been redacted. Finding this segregabilty analysis

insufficient, this court ordered DHS to submit an adequate justification for the department’s

redactions. See Memorandum Order of May 11, 2012 [Dkt. # 19]. Accordingly, DHS filed a

supplemental declaration of Rebecca Medina, which explains the methods that the department

employed to review and redact the documents and the basis for the department’s withholdings.

Notice of Filing, May 31, 2012 (“Medina May 2012 Decl.”).

In addition, on June 6, 2012, DHS notified the court that it had found another responsive

record, in the form of a 174-page report prepared by NEU, pursuant to a contract the DHS

awarded it under Broad Agency Announcement 05-03. Curiously, the department states that

S&T located this record while searching for records in response to an “unrelated FOIA request

submitted by EPIC.” Medina Decl., July, 24, 2012 ¶ 3 (“Medina July 2012 Decl.”). DHS claims

that part of the information contained is subject to Exemption 4 because it contains proprietary

information. According to DHS, the withheld information relates to the progress made in

evaluating four sensors as well sensor design, capabilities and test results. ASE, one of NEU’s

two “industrial partners,” stated to DHS that it considers this information confidential

commercial information, which if released, would cause substantial competitive harm to ASE

and place it at a disadvantage on future contracts. Medina July 2012 Decl. ¶ 6. As well, DHS

states that the report contains information on how “both hardware and data integration of the

6
sensors would have been integrated if the program moved forward from Phase I, which it did

not.” Medina July 2012 Decl. ¶ 6. DHS further asserts that it conducted a segregability analysis

for releasable material within this report and that all reasonably segregated material has been

released. Id. ¶ 7.5 It has also filed an updated Vaughn Index. The court ordered EPIC to file a

response, if it had one, by August 1, 2012. See Order of July 25, 2012. EPIC did not reply.

Thus, in sum, a total of 21 records have been determined to be responsive to EPIC’s

FOIA request. DHS has withheld 18 records in full or in part. Def.’s Statement of Genuine

Facts Not in Material Dispute ¶ 14; Def.’s Notice of Filing Additional Record, June 6, 2012.

The department maintains that it has fulfilled all of FOIA’s requirements by conducting an

5
DHS asserts in its notice that was mistaken in redacting certain names. Medina avers the
following:

The redactions involved the names of two contractor employees, one for
ASE and the other for Siemens (a subcontractor). The redaction of the
Siemens employee’s name was an error because its release was not
objected to by Siemens. The name of the Siemens employee will therefore
be released. However, it is my understanding that ASE objected to its
employee's name being released because ASE considers him to be “key
personnel.” ASE asserted that its release could make him the target of
ASE’s competitors and risk him being hired away from ASE. Therefore,
ASE considers his name to be proprietary commercial information that
should not be released. Further, the second error in the NEU report
released to EPIC erroneously labeled this redaction as under the
Exemption b(6), when it should have been labeled under Exemption b(4).
DHS will make these corrections immediately and release to EPIC an
corrected version of the report.

Medina July 2012 Decl. ¶ 7.

The court is not aware that such a release has been made.

7
adequate search for responsive documents properly asserting Exemptions 3, 4, 5, and releasing

all reasonably segregable information.6

D. EPIC’s Complaint

EPIC challenges DHS’s reliance on Exemptions 4 and 5, and contends that it is entitled to

an award of attorney’s fees and costs. EPIC also argues that DHS has not properly segregated

materials that are not exempt from disclosure. In limiting its challenge to these exceptions, EPIC

concedes that DHS’s search was adequate and that DHS properly withheld certain records under

Exemption 3. EPIC asks the court to order DHS to produce all records responsive to its FOIA

request and award EPIC attorney’s’ fees and costs incurred. Compl. at 7.

II. LEGAL STANDARDS

A. The Freedom of Information Act

FOIA was enacted so that citizens could discover “what their government is up to.” U.S.

Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989). “The

basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic

society, needed to check against corruption and to hold the governors accountable to the

governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). FOIA “is broadly

conceived,” EPA v. Mink, 410 U.S. 73, 80 (1973), and its “dominant objective” is “disclosure,

not secrecy,” U.S. Dep’t of Def. v. FLRA, 510 U.S. 487, 494 (1994) (quoting Dep’t of Air Force

6
During this additional review, DHS also determined that it erroneously charged EPIC
$7.30 for processing — i.e. conducting a search and review of the request. Medina Aug. 2011
Decl. ¶ 26. DHS waived that charge. Id. Also, one record that was initially identified as
responsive — a 312-page study called “DHS S&T Countermeasures Test Beds (‘CMTB’) Rail
Security Pilot Final Report”— was upon further review determined not to be responsive to any
of the seven categories in EPIC’s FOIA request. Medina Aug. 2011 Decl. ¶ 15.

8
v. Rose, 425 U.S. 352, 361 (1976)). “At all times, courts must bear in mind that FOIA mandates

a ‘strong presumption in favor of disclosure . . . .’” Nat’l Ass’n of Home Builders v. Norton, 309

F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)).

An agency may withhold information responsive to a FOIA request only if the

information falls within an enumerated statutory exemption. 5 U.S.C. § 552(b). These

exemptions “are to be narrowly construed,” FBI v. Abramson, 456 U.S. 615, 630 (1982), and the

district court must conduct a de novo review of the record. 5 U.S.C. § 552(a)(4)(B). “Unlike the

review of other agency action that must be upheld if supported by substantial evidence and not

arbitrary and capricious, the FOIA expressly places the burden ‘on the agency to sustain its

action’ and directs the district courts to ‘determine the matter de novo.’” Reporters Comm., 489

U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)).

As well, because the focus of FOIA is “information, not documents . . . an agency cannot

justify withholding an entire document simply by showing that it contains some exempt

material.” Krikorian v. Dep’t of State, 984 F.2d 461, 467 (D.C. Cir. 1993) (citation and internal

quotation marks omitted). Instead, FOIA requires that federal agencies provide to a requester all

non-exempt information that is “reasonably segregable” from exempt information. 5 U.S.C. §

552(b); Mead Data Central, Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)

(citations and internal quotation marks omitted).

B. Summary Judgment

FOIA cases are typically decided on motions for summary judgment. Moore v. Bush,

9
601 F. Supp. 2d 6, 12 (D.D.C. 2009) (citing Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993);

Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980)). A motion for summary

judgment should be granted only “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).

A material fact is one that “might affect the outcome of the suit under the governing law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must support its factual

positions by “citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations, stipulations . . . ,

admissions, interrogatory answers, or other materials.” FED. R. CIV. P. 56(c)(1)(A); see Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Factual assertions in the moving party’s affidavits or

declarations may be accepted as true unless the opposing party submits its own affidavits,

declarations, or documentary evidence to the contrary. See Neal v. Kelly, 963 F.2d 453, 456

(D.C. Cir. 1992).

In the FOIA context, a defendant agency seeking summary judgment in a FOIA case

must demonstrate that no material facts are in dispute and that each responsive record that it has

located has been produced to the plaintiff or is exempt from disclosure under one of the

exemptions enumerated in 5 U.S.C. § 552(b), or else “inextricably intertwined with” exempt

information (and therefore not reasonably segregable). Clemente v. F.B.I., 2012 WL 1245656, at

*5 (D.D.C. Apr. 13, 2012) (citing Mead Data, 566 F.2d at 260); accord Students Against

Genocide v. U.S. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001). As well, “[b]ecause FOIA

challenges necessarily involve situations in which one party (the government) has sole access to

10
the relevant information, and that same party bears the burden of justifying its disclosure

decisions, the courts . . . require the government to provide as detailed a description as possible-

without, of course, disclosing the privileged material itself-of the material it refuses to disclose.”

Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996). This justification is

typically contained in a declaration or affidavit including a Vaughn index, the purpose of which

is “to permit adequate adversary testing of the agency’s claimed right to an exemption,” Nat’l

Treasury Emps. Union v. U.S. Customs Service, 802 F.2d 525, 527 (D.C. Cir. 1986) (citing Mead

Data, 566 F.2d at 251). While there is no set formula, the index must contain “an adequate

description of the records” and “a plain statement of the exemptions relied upon to withhold each

record.” Id. at 527 n.9. An agency’s affidavits or declarations are presumed to be submitted in

good faith. See SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991).

Courts must view the facts in the light most favorable to the FOIA requester and

“ascertain whether the agency has sustained its burden of demonstrating that the documents

requested . . . are exempt from disclosure.” Assassination Archives & Research Ctr. v. Cent.

Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (internal quotation marks omitted). If

courts find that any records were improperly withheld, they may order their production. 5 U.S.C.

§ 552(a)(4)(B).

III. ANALYSIS

Applying the appropriate legal standards, the court proceeds to examine the merits of the

parties’ arguments as to FOIA exemptions 4 and 5 arguments. It then determines whether or not

11
DHS has conducted an adequate segregability analysis. Finally, the court analyzes whether or

not EPIC is entitled to attorney’s fees and costs.

A. FOIA Exemption 4 Covers the Withheld Documents

1. DHS Has Shown Risk of Competitive Harm and Impairment of Government
Research

DHS has withheld ten records, five in full and five in part, pursuant to Exemption 4 and,

in some instances, in conjunction with other exemptions. See Vaughn Index, Record Nos. 6–10,

12, 15–18. Exemption 4 provides that FOIA’s disclosure requirements do not apply to matters

that are “trade secrets and commercial or financial information obtained from a person and

privileged or confidential.” 5 U.S.C. § 552(b)(4). DHS argues that Exemption 4 applies because

the releasing document would: (1) cause substantial competitive harm to Rapiscan and ASE; and

(2) impair DHS’s research and development efforts. Def.’s Mot. for Summ. J. at 13–18. EPIC

contends that Exemption 4 does not protect the documents in full because the information DHS

seeks to withhold pursuant to this exemption is already publicly available, and thus cannot be

considered privileged or confidential. EPIC also asserts that even if some documents are

protected from disclosure under Exemption 4, DHS has not complied with FOIA’s requirement

that agencies must release “any reasonably segregable portion” after deletion of the

nondisclosable portions. 5 U.S.C. § 552(b).7 The department disagrees in all respects,

countering that none are in fact public and that the public records culled by EPIC do not contain

7
EPIC does not dispute DHS’s withholdings as to employee information and specific cost
breakdowns. See Pl.’s Opp’n. at 17.

12
the same information withheld by DHS. It also maintains that its segregability analysis is

sufficient. DHS’s arguments are more persuasive.8

“Public availability of information defeats an argument that the disclosure of the

information would likely cause competitive harm.” Nat’l Cmty. Reinvestment Coal. v. Nat'l

Credit Union Admin., 290 F. Supp. 2d 124, 134 (D.D.C. 2003). “To the extent that any data

requested under FOIA are in the public domain, the submitter is unable to make any claim to

confidentiality-a sine qua non of Exemption 4.” CNA Fin. Corp. v. Donovan, 830 F.2d 1132,

1154 (D.C. Cir. 1987); see also Worthington Compressors, Inc. v. Costle, 662 F.2d 45, 51 (D.C.

Cir. 1981) (finding that “[i]f the information is freely or cheaply available from other sources,

such as reverse engineering, it can hardly be called confidential and agency disclosure is unlikely

to cause competitive harm to the submitter”); Critical Mass Energy Project v. Nuclear

Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (holding that information “will be

treated as confidential under Exemption 4 if it is of a kind that the provider would not

customarily make available to the public.”). EPIC maintains that the information it requested

falls into this category of already-public information. It contends that Rapiscan has already

8
Contrary to DHS’s argument that EPIC is “not purporting to challenge DHS’s invocation
of Exemption 4,” Def.’s Rep at 12, and that this objection was made “sub silentio,” id. at 11,
EPIC properly asserted a challenge to DHS’s invocation Exemption 4. EPIC challenged DHS’s
invocation of this exemption in it motion for summary judgment, which states, in relevant part,
that “[t]he Agency has Wrongly Withheld Information Under Exemption 4.” Pl.’s Mot. for
Summ. Jud. at 14; see also id. at 22 (“As discussed above, Defendant’s Motion for Summary
Judgment should be denied as to the withholdings under Exemption 5 and all segregable portions
of documents withheld under Exemption 4”); Pl.’s Proposed Order [Dkt. # 10], Text of Proposed
Order, (“ORDERED that Defendant disclose to Plaintiff, within seven (7) days of the date of this
order, all documents withheld under Exemption 5 and all segregable portions of documents
withheld under Exemption 4”).

13
disclosed much of this information in widely available brochures, product information data

sheets, and websites and that this public availability negates Rapiscan’s argument that disclosure

would harm the company or impair the government’s ability to obtain essential information in

the future.9

In support of its argument, EPIC submits two Rapiscan documents that are publicly

available: (1) a promotional data sheet by Rapiscan for its Secure 1000 scanner which is

available on Rapiscan’s website, Pl.’s Mot. for Summ. J., Ex. 3, (2) a document available on the

New York Office of General Services Website which lists the 2009 pricing for a variety of

Rapiscan Products and a variety of accessories for the system including the backdrop, operator

table, and privacy algorithms, id., Ex. 4. According to EPIC, the data sheet contains several

classes of information that DHS has identified as “confidential” in the Vaughn Index and the

department’s Motion for Summary Judgment. As for the 2009 pricing document, EPIC contends

that Rapiscan’s price list posted on the New York state website is “precisely the ‘unit pricing’

information that the defendants are attempting to argue is confidential.” DHS contests the

premise of EPIC’s argument — i.e. that the publicly available information in the promotional

data sheet and pricing document is the same information that EPIC has requested. DHS is

correct.

The declaration of Peter Kant, Rapiscan’s Executive Vice President provides sufficient

support for the exemption for two reasons. First, as DHS argues, the public documents that

9
EPIC submits publicly available information about another Rapiscan product, the
WaveScan 200. However, DHS asserts that the WaveScan 200 was not part of the PTIEDD
Program and no information concerning it has been withheld. Kant Decl. ¶ 7. Because EPIC
does not refute this contention, the court considers it conceded.

14
EPIC cites contain generic performance information distinct from the specific data included in

the document in dispute. See Kant Decl. ¶ 4. For example, while the public document states that

the Secure 1000 scanner has a scan rate of “[l]ess than 7 seconds per view,” according to Kant,

the withheld information discloses the precise scan rate that Rapiscan has achieved for purposes

of the DHS effort. Id. ¶ 4. Kant also states that the precise rate is sensitive information that

competitors could use to try to undercut Rapiscan’s advantage with respect to scan time. Id.

Second, according to Kant, the 2009 pricing document contained in the contract with New York

State has nothing to do with the pricing under any other contract because Rapiscan’s pricing is

unique to each procurement.10 Id. ¶ 5. Thus, EPIC’s contention that the public New York

contract price list demonstrates that DHS does not generally treat its unit pricing as confidential

falls flat. Pl.’s Opp. at 16.11 The information in the documents that DHS seeks to withhold is

“of a kind that the provider would not customarily make available to the public.” Critical Mass

10
Specifically, Kant explains that:

For any given acquisition, Rapiscan must make competitive
business decisions regarding the price that it needs to offer to best
enhance its chances of receiving an award. Those judgments are
procurement specific. Thus, while the standard commercial price
list contained in Exhibit 4 may not be sensitive, the pricing that
Rapiscan proposes in a given DHS procurement certainly is, and
Rapiscan goes to great lengths to ensure that such information is
kept confidential.

Kant Decl. ¶ 5.
11
EPIC also submits a Bloomberg Businessweek article that provides an overview of
available passenger screening systems. According to Kant, this does not include any of the
information withheld or any other confidential or competitively sensitive information. Kant
Decl. ¶ 6. The court agrees, and EPIC does not respond to DHS’s contention in its reply.

15
Energy Project, 975 F.2d at 872. Therefore, viewing the facts in the light most favorable to

EPIC, Assassination Archives & Research Ctr, 334 F.3d at 57, the court concludes DHS has met

its burden of showing that it properly invoked Exemption 4. No material fact is in dispute, and

summary judgment will be entered in the department’s favor on this matter.

2. DHS’s Segregability Analysis of the Records Withheld Under Exemption 4 Is
Sufficient

EPIC also argues that the segregable portions of the requested records should be released.

The court disagrees because DHS’s May 31, 2012 segregability analysis and Vaughn index

demonstrates that all reasonably segregable material has been disclosed.

Under the FOIA, “even if [the] agency establishes an exemption, it must nonetheless

disclose all reasonably segregable, nonexempt portions of the requested record(s).” Roth v. U.S.

Dep’t of Justice, 642 F.3d 1161, 1167 (D.C. Cir. 2011) (quoting Assassination Archives &

Research Ctr. v. CIA, 334 F.3d 55, 57–58 (D.C. Cir. 2003)). “Any reasonably segregable portion

of a record shall be provided to any person requesting such record after deletion of the portions

which are exempt under this subsection.” 5 U.S.C. § 552(b); Id. However, as stated above,

factual material that is “inextricably intertwined with exempted portions” of the documents need

not be disclosed. Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002)

(citations omitted).

The government has the “burden of demonstrating that no reasonably segregable

information exists within . . . documents withheld.” Loving v. Dep’t of Defense, 550 F.3d 32, 41

(D.C. Cir. 2008). “[T]he withholding agency must supply a relatively detailed justification,

specifically identifying the reasons why a particular exemption is relevant and correlating those

16
claims with the particular part of a withheld document to which they apply.” King v. U.S. Dep’t

of Justice, 830 F.2d 210, 224 (D.C. Cir. 1987) (internal quotations omitted). It must show “with

‘reasonable specificity’” why a document cannot be further segregated. Armstrong v. Executive

Office of the President, 97 F.3d 575, 578–79 (D.C. Cir. 1996). The agency is not required to

provide so much detail that the exempt material effectively would be disclosed. Mead Data, 566

F.2d at 261. And it need not “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.” Id., 566 F.2d at 261 n.55. Rather, it must separate out what is

“reasonably segregable,” 5 U.S.C. § 552(b), balancing factors such as the burden of line-by-line

segregation on the agency and the usefulness of the disclosures to the requester. See id. at 261

(explaining that “if only ten percent of the material is non-exempt and it is interspersed line-by-

line throughout the document, an agency claim that it is not reasonably segregable because the

cost of line-by-line analysis would be high and the result would be an essentially meaningless set

of words and phrases[,] might be accepted[.]”).

Here, DHS has met its burden. The department’s new analysis is “relatively detailed,”

King, 830 F.2d at 224, and discusses with ‘reasonable specificity’” why the requested document

cannot be further segregated. Armstrong, 97 F.3d at 578. In her declaration, Ms. Medina

explains, document-by-document and page-by-page, what the contents include and why they

could not be produced. For example, she asserts that, in the case of Record 17, a document about

Rapiscan complied by DHS employees:

Pages three through six were redacted in full because they contain
information deemed to constitute deliberative process and confidential

17
 commercial information. Specifically, the third page, which is a Power
Point slide, contains two bullet entries setting forth the strengths and
considerations for Rapiscan Systems’ development of a non-intrusive
explosive detection device. Rapsican Systems considers this information
to be confidential commercial information and it is therefore withheld
under exemption 4. This information is not reasonably segregable. The
remainder of the third page, as well as the fourth, fifth and sixth page in
their entirety, contain a summary of actions Rapiscan Systems is expected
to undertake as it performs it contract. The information constitutes the
government’s deliberative process and it is therefore withheld under
exemption 5. Although bits of this information, in the form of sentence
fragments or single sentences could be segregated and released, these bits
would have minimal or no information context, either separately or taken
together. These bits are therefore not reasonably segregable.

EPIC does not challenge the sufficiency of this court-ordered, enhanced

segregability analysis, generated after EPIC filed its motion for summary

judgment, and the court considers it sufficient.

B. DHS Properly Invoked Exemption 5 with Respect to Records 5, 8, and 17

DHS is withholding three records, two in full and one in part, as records protected by the

deliberative process privilege under Exemption 5. Vaughn Index, Record Nos. 5, 8, 17; Def.’s

Mot. Summ. J. at 18-22. According to the Vaughn Index, one withheld record consists of minute

entries from a preliminary design review meeting during which participants discussed project

performance and whether to move to the next phase of the contract. Medina Aug. 2011 Decl. ¶

22. The other two records are email communications and briefing material regarding NEU and

Rapiscan’s research efforts and findings. Medina Aug. 2011 Decl. ¶ 22. Vaughn Index Docs.

Nos. 5, 8, and 17.

18
 Exemption 5 authorizes the withholding of “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). To qualify, a document must satisfy two conditions: (1) its

source must be a government agency, and (2) it must fall within the ambit of a privilege against

discovery under judicial standards that would govern litigation against the agency that holds it.

See Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–9 (2001) (“The

point is not to protect Government secrecy pure and simple, however, and the first condition of

Exemption 5 is no less important than the second; the communication must be ‘inter-agency or

intra-agency.’”); Judicial Watch, Inc. v. Department of Energy, 412 F.3d 125, 129 (D.C. Cir.

2005); People For The American Way Foundation v. U.S. Dep’t of Educ., 516 F. Supp. 2d 28, 35

(D.D.C. 2007). “The threshold issue that must be addressed when Exemption 5 is asserted is

whether the records in question qualify as ‘inter-agency or intra-agency memorand[a].’”

Physicians Committee For Responsible Medicine v. National Institutes of Health, 326 F. Supp.

2d 19, 28 (D.D.C. 2004) (quoting Judicial Watch, Inc. v. U.S. Dep’t of Comm., 90 F. Supp. 2d 9,

13 (D.D.C. 2000)). The court therefore first resolves this issue before proceeding to the merits of

the Exemption 5 issue.

1. Communications Between the Contractors and DHS Are Intra-Agency for
FOIA Exemption 5 Purposes

DHS concedes that Rapiscan and NEU are not federal agencies and that, therefore, the

withheld documents are not inter-agency memoranda. Nevertheless, DHS maintains that the

documents are protected under the “consultant corollary” to Exemption 5 because the companies

acted as consultants to DHS when they authored the communications at issue. Under this

19
exception, “intra-agency” documents can include “agency records containing comments solicited

from nongovernmental parties.” McKinley v. Bd. of Governors of the Fed. Reserve Sys., 647

F.3d 331, 336 (D.C. Cir. 2011) (citing Nat’l Inst. of Military Justice v. U.S. Dep’t of Defense,

512 F.3d 677, 680, 682 (D.C. Cir. 2008)). EPIC contends that the contractors are not entitled to

this status because they were acting in their own self-interest. DHS has the better argument.

When an agency record is submitted by outside consultants as part of the deliberative

process, and it was solicited by the agency, the D.C. Circuit has found that it is “entirely

reasonable to deem the resulting document to be an ‘intra-agency’ memorandum for purposes of

determining the applicability of Exemption 5.” Nat’l Inst. of Military Justice, 512 F.3d at 680

(quoting Ryan v. Dep’t of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980)). In part, this is because

“federal agencies occasionally will encounter problems outside their ken, and it clearly is

preferable that they enlist the help of outside experts skilled at unraveling their knotty

complexities.” Formaldehyde Inst. v. Dep’t of Health and Human Serv., 889 F.2d 1118, 1122

(D.C. Cir. 1989) (quoting CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1162 (D.C. Cir. 1987)).

Here, the relevant question is whether “outside consultants” like NEU and Rapiscan are

entitled to such a status. In Klamath Water Users, the U.S. Supreme Court delineated the

applicable rule. Klamath Water Users, 532 U.S. at 6. At issue in that case was a FOIA request

submitted to the United States Department of the Interior’s Bureau of Indian Affairs seeking

disclosure of communications between the Bureau and certain Indian tribes — namely, six

documents prepared by tribes at the Bureau’s request and one document prepared by the Bureau,

all of which related to the allocation of water rights among competing users and uses. See id.

20
The Court held that the requested documents were not protected from disclosure under

Exemption 5, noting that in the “typical” case in which a court applies the consultant corollary,

“the consultant does not represent an interest of its own, or the interest of any other client, when

it advises the agency that hires it.” Id. at 11. Instead, the Court held that the consultant’s “only

obligations are to truth and its sense of what good judgment calls for, and in those respects the

consultant functions just as an employee would be expected to do.” Id. The tribes, by contrast,

“necessarily communicate with the Bureau with their own, albeit entirely legitimate, interests in

mind.” Id. at 12. Although that “fact alone distinguishes tribal communications from the

consultants’ examples recognized by several Courts of Appeals,” the Court explained that the

“distinction is even sharper, in that the [Indian] Tribes are self-advocates at the expense of others

seeking benefits inadequate to satisfy everyone.” Id. Lest there be any confusion, the Court

restated the “dispositive point” — i.e. “that the apparent object of the Tribe’s communications is

a decision by an agency of the Government to support a claim by the Tribe that is necessarily

adverse to the interests of competitors.” Id. at 14.

EPIC argues that Rapiscan and NEU resemble these self-interested Klamath Water Users

tribes for Exemption 5 purposes. It contends that Rapiscan and NEU, although consulting for

and advising DHS, ultimately aspire to win a more lucrative contract to implement the

deployment of body scanners — in EPIC’s words “the biggest prize: the contract for an actual

rollout of this technology in rail stations across the country.” Pl.’s Mot. for Summ. J. at 8–9.

Therefore, EPIC maintains, “Rapiscan and Northeastern University were communicating with

the agency not as independent agents to advance the Department of Homeland Security’s

21
interests, but as self-interested actors intent on selling their product to the agency.” Id. at 9. This

posture, according to EPIC, is analogous to that of the Klamath Water User tribes who were

acting “with their own, albeit entirely legitimate, interests in mind,” and “self-advocates at the

expense of others seeking benefits inadequate to satisfy everyone.” Klamath Water Users, 532

U.S. at 12. The court is not persuaded.

EPIC’s characterization of the holding Klamath Water Users misses the mark. Self-

advocacy is not a dispositive characteristic and does not control Exemption 5’s scope in this

case. In order to be excluded from the exemption, the contractors must assume a position that is

“necessarily adverse” to the government. Id. at 14. Even though NEU and Rapiscan’s positions

are competitive and self-interested, they are not adverse to DHS, and EPIC has proffered no

evidence suggesting as much. See Pub. Emps. for Envtl. Responsibility v. U.S. Section Int’l

Boundary & Water Comm’n, 839 F. Supp. 2d 304 (D.D.C. 2012). To the contrary, NEU and

Rapiscan are bound in contract to provide information and analysis to DHS. This relationship

stands in sharp contrast to the tribes in Klamath Water Users where the Bureau requested

information from the tribes about water resources who, as the government was well aware,

would take a position adverse to their competitors and the Bureau. Id. at 14. The Bureau did

not pay the tribes for the information they proffered or reply upon their neutral advice, much less

enter into a contractual relationship with them in order to obtain it. This distinction is significant

and forecloses EPIC’s proffered analogy.12 The court therefore concludes that the documents at

12
EPIC also attempts to analogize the Rapiscan and NEU contract documents to the
research grant application at issue in Physicians Committee for Responsible Medicine v. National
Institute of Health (NIH), 326 F. Supp. 2d 19 (D.D.C. 2004). In that case, the court held that the

22
issue were intra-agency communications for Exemptions 5 purposes and proceeds to evaluate

whether or not the records were part of the deliberative process and therefore not subject to

disclosure.

2. The Deliberative Process Privilege Applies to the Requested Records

To qualify for Exemption 5 protection under the deliberative process privilege, an

agency’s materials (including intra-agency records) must be both “predecisional” and a part of

the government’s “deliberative process.” Id. (quoting NIMJ, 512 F.3d at 680 n.4) (internal

citations and quotations omitted)); accord Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598

F.3d 865, 867 (D.C. Cir. 2009). The scope of the privilege does not turn on whether the contents

of a record are labeled “factual” or “deliberative,” but rather on whether the record reflects an

agency’s deliberative process. Nat’l Wildlife Fed. v. U.S. Forest Serv., 861 F.2d 1114, 1119 (9th

Cir. 1988); see Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1435 (D.C. Cir.

1992) (cautioning “against reflexive fact/opinion characterization as the way to decide the full

range of Exemption 5 cases”). A record is deliberative if “it reflects the give-and-take of the

consultative process.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006) (quoting

Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). Within this

rubric, courts have found the privilege to cover “documents reflecting advisory opinions,

application of a physician to the National Institutes of Health (NIH), which was not exempted
from disclosure under FOIA. This comparison is not convincing. The Physicians Committee
grant applicant was not acting on the government’s behalf when he submitted his application.
He was not a paid contractor or agent. Instead, he was seeking resources from the NIH to
support his research, a personal pursuit. Id. 29. Here, in contrast, the withheld records were
created after Rapiscan and NEU became paid DHS contactors and assumed a contractual duty to
advise DHS on the development of its body scanner program.

23
recommendations and deliberations comprising part of a process by which governmental

decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150

(1975). Factual information must ordinarily be disclosed. See Petroleum Info. Corp, 976 F.2d

at 1435 (citing Mink, 410 U.S. at 87,89 (endorsing fact/opinion distinction). However, even

“purely” factual information is protected by the deliberative process privilege when it “is so

inextricably intertwined with the deliberative sections of documents that its disclosure would

inevitably reveal the government’s deliberations.” Citizens for Responsibility and Ethics in

Washington (CREW) v. U.S. Dept. of Homeland Sec., 514 F. Supp. 2d 36, 46 (D.D.C. 2007);

Judicial Watch, Inc. v. Dep’t of Treasury, 796 F. Supp. 2d 13, 27–28 (D.D.C. 2011) (citing

cases).

To meet its burden of justification, a withholding agency must show “by specific and

detailed proof that disclosure would defeat, rather than further, the purposes of the FOIA.” Mead

Data, 566 F.2d at 258. It must point to the role in the deliberative process played by each of the

documents. See Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252, 259 (D.D.C.

2004) (requiring the agency to identify the role of a contested document in a specific deliberative

process to prove that disclosure would defeat the purposes of FOIA). Here, it is undisputed that

the documents are predecisional. The parties contest, however, whether the withheld material is

deliberative. EPIC argues that DHS has wrongfully withheld “purely factual information.” Pl.’s

Mot. for Summ. J. at 10. The court will now analyze each entirely withheld record in dispute.

24
 a. Record 5

EPIC claims that Record 5, an email from an NEU representative to a DHS official that

“outlines and attaches options related to potential test methodology and technology choices to be

made, as well as the progression to develop concepts of operation for equipment once selected

. . . for Phase II of the BomDetec program,” should be disclosed because “the information

contained in this email is largely descriptive and factual.” Pl.’s Rep. at 10 (emphasis added).

EPIC argues that such communication is not advice to the department or an opinion; rather, it

relays facts about what the options are and what the process is to develop the proposed concepts.

The court is not persuaded. Outlining and “attaching options,” as well as “choices to be made,”

id., constitutes deliberation and the protected “give and take” of the policy-making process.

Judicial Watch, Inc., 449 F.3d at 151. Accordingly, DHS’s withholding of Record 5 was proper.

b. Record 8

EPIC further claims that DHS has also wrongly withheld purely factual information in

Record 8, which is comprised of minutes of a meeting between Rapiscan and DHS officials

describing “options presented to DHS for moving forward with Phase II of system design, a

variety of possible deployment scenarios, and the type of software that may need to be developed

to effectively manage the system effectively.” Pl.’s Mot. for Summ. J. at 21 (quoting Def.’s

Mot. for Summ. J. at 21). According to EPIC, this document does not detail advisory opinions,

recommendations, or deliberations. Instead, EPIC asserts, it describes factual details — i.e. what

options are available, what deployment scenarios exist, and what the parameters are for

management software. As a result, EPIC contends, this document is not within the intended

25
scope of deliberative process privilege. Once again, the court disagrees. The discussions

described are deliberative. As with Record 5, assessment of “possible deployment scenarios”

and scenarios that “may need to be produced” amount to the policy making process that the

privilege protects. Moreover, such contingent language suggests the agency was deliberating

about its options. These comprise possible next steps that DHS is evaluating. As such, they are

covered by the exemption and need not be disclosed.

c. Record 17

Similarly, EPIC claims that Record 17, internal briefing materials prepared by DHS in

evaluating the Rapiscan proposal, must be disclosed because it details the “strengths and

weaknesses of the prototype system.” Pl.’s Rep. at 10. According to DHS, it is the agency’s

own assessment of the “strengths and weaknesses of the prototype system and items for [DHS]

to consider before moving forward with further development.” Vaughn Index, Record No. 17.

Nevertheless, EPIC contends that this is “exactly the type of factual information that courts

typically find is not protected by the deliberative process privilege.” Pl.’s Mot. for Summ. J. at

21. Thus, EPIC argues, DHS must disclose what these strengths and weaknesses are.

DHS counters that these records set forth DHS’s deliberations about whether to proceed

with Rapiscan’s proposal, and the contractors’ advice to the agency concerning the ongoing

development of the prototype systems. The court agrees. Strength and weaknesses are not

necessarily facts. Nor are they “straightforward explanations of agency regulations,” Coastal

States Gas Corp., 617 F.2d at 868, or headers at the top of meeting minutes that courts have

ordered disclosed. See id. Rather, as represented here, they are the contractors’ subjective

26
assessment of DHS’s options. As such, they form part of the department’s deliberative process

and fall within the scope of Exemption 5.

In sum, Records 5, 8 and 17 contain deliberative material, the release of which would

offend the core policies underlying the deliberative process privilege. Because the department

has met its burden of justifying its non-disclosure of these materials and because no material fact

remains in dispute on this issue, the court will enter summary judgment in DHS’s favor as to the

Exemption 5 withholdings.

3. DHS’s Segregability Analysis of the Records Withheld Under Exemption 5 Is
Adequate

DHS claims that it has disclosed all facts that are “reasonably segregable” from records

withheld under Exemption 5. See Medina May 2012 Decl.; 5 U.S.C. § 552(b). It asserts that, to

the extent the records contain “purely” factual information, such information is “inextricably

intertwined” with the opinions and deliberations of DHS and its consultants. Def.’s Mot. for

Summ. J. at 1. As well, because such facts are presented “in the context of recommendations

and assessments provided to DHS decision-makers,” DHS argues, they are as protected by the

deliberative process privilege as the accompanying opinions. Def.’s Rep. at 7 (citing CREW, 514

F. Supp. 2d at 46 (finding reports, timelines, and list of matters developed as part of FEMA’s

ongoing response to Hurricane Katrina protected); Bloomberg, L.P. v. SEC, 357 F. Supp. 2d 156,

169 (D.D.C. 2004) (finding exempt documents that distilled facts from meetings reflecting

impressions of agency officials). For the reasons stated above with respect to documents

withheld under Exemption 4, see supra at 16–18, and having reviewed DHS’s May 2012

segreability analysis of documents withheld under Exemption 5, see May 2012 Decl., the court is

27
persuaded that DHS has disclosed all factual material that is not inextricably intertwined with

deliberative portions of the withheld records. Therefore, no further review or disclosures of

factual material are required. DHS in entitled to summary judgment on the matter of

segregability.

C. EPIC Is Eligible For And Entitled To Attorney’s Fees and Costs

EPIC argues that it should be awarded attorney’s fees and costs by virtue of DHS’s

release of records after this suit was filed. It points to the department’s disclosure of an

additional 151 pages in their entirety and 21 pages in redacted form following the filing of this

suit on August 15, 2011. DHS disagrees, arguing that EPIC is not eligible for or entitled to a fee

award because it has not prevailed on a “non insubstantial” claim and has failed to show that the

post-filing release of records has benefitted the public or that DHS acted unreasonably in

refusing the disclosure certain documents.

The FOIA provides that courts “may assess against the United States reasonable attorney

fees and other litigation costs reasonably incurred in any case . . . in which the complainant has

substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). The attorney-fee inquiry is divided into two

prongs: fee eligibility and fee entitlement. Brayton v. Office of the U.S. Trade Rep., 641 F.3d

521, 524 (D.C. Cir. 2011). To be eligible, a plaintiff must “substantially prevail,” and, if she

has, the court proceeds to the entitlement prong and considers a variety of factors to determine

whether the plaintiff should be awarded fees and costs. Id.

28
 1. EPIC Meets FOIA’s Eligibility Requirement

“FOIA plaintiffs [are] eligible for a fee award if the lawsuit substantially caused the

agency to release the requested records,” Davis v. U.S. Dep’t of Justice, 610 F.3d 750, 752 (D.C.

Cir. 2010). The relief need not be court ordered; “a voluntary or unilateral change in position by

the agency,” makes a plaintiff eligible “if the complainant’s claim is not insubstantial.” 5 U.S.C.

§ 552(a)(4)(E)(ii).

Here, the court finds that EPIC has substantially prevailed. After the filing of this

lawsuit, DHS released five documents that were not scheduled for release for any other reason,

such as an already-existing obligation or commitment to disclose the documents. These post-

filing releases occurred in three stages. First, the department released three additional records

that it had refused to release during the administrative process: two that had been withheld in full

and one that been withheld in part. This release occurred “subsequent to the filing of this action”

and after a review to “determine whether any additional non-exempt information could be

reasonably segregated and disclosed.” Medina August 2011 Decl. ¶ 25. Next, DHS released

reasonably segregable information from three additional records that had been withheld in part.

Id; Def.’s Statement of Genuine Facts Not in Material Dispute ¶ 14.13 Finally, DHS disclosed

13
In an August 11, 2011 release letter from S&T Attorney/Advisor Marshall Caggianos,
DHS represents the following:

After further reviews of the DI-IS Science and Technology Directorate
(S&T) Explosives Division’s responsive records, I have determined that
151 pages of the records are releasable in their entirety, and 21 pages are
partially releasable, pursuant to Title 5 U.S.C. § 552 FOIA Exemption
(b)(6).
Def.’s Rep., Exh. 3 at 1.

29
yet another responsive record nearly one year into this litigation after the same record was

released in response to a separate lawsuit filed by EPIC. The sequencing of DHS’s disclosures

as well as the department’s change of position as to the propriety of withholding them suggests

that this lawsuit was the catalyst for the record release. As a result, EPIC is eligible for

attorney’s fees and costs under the FOIA.

2. EPIC Meets FOIA’s Eligibility Requirement for Attorney’s Fees

With respect to the second prong of the attorney’s fees analysis, EPIC argues that, in

addition to being eligible for attorney’s fees, it is entitled to them. The court agrees.

In determining whether a substantially prevailing FOIA litigant is entitled to attorney’s

fees, a court must consider “(1) the public benefit derived from the case; (2) the commercial

benefit to the plaintiff; (3) the nature of the plaintiff’s interest in the records; and (4) the

reasonableness of the agency’s withholding of the requested documents.” Davy v. CIA, 550

F.3d 1155, 1159 (D.C. Cir. 2008) (citations omitted). The second and third factors are often

considered together. Id. “No one factor is dispositive, although the court will not assess fees

when the agency has demonstrated that it had a lawful right to withhold disclosure.” Id.

Accordingly, the court evaluates the released records under each of these tests and balances

them.

a. Public Benefit

In assessing the public benefit derived from the case, the court must consider two factors:

(1) the effect of the litigation for which fees are requested, and (2) the potential public value of

the information sought. See id. (citing Chesapeake Bay Found. v. USDA, 108 F.3d 375, 377

30
(D.C. Cir. 1997); Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995); Tax Analysts v. U.S.

Dep’t of Justice, 965 F.2d 1095, 1093–94)). The public-benefit prong “speaks for an award of

[attorney’s fees] where the complainant’s victory is likely to add to the fund of information that

citizens may use in making vital political choices.” Fenster v. Brown, 617 F.2d 740, 744 (D.C.

Cir. 1979) (quoting Blue v. Bureau of Prisons, 570 F.2d 529, 534 (5th Cir. 1978)). EPIC argues

that its lawsuit has provided substantial benefit to the public. DHS counters that the released

documents are of little or no public value because news agencies did not cover this particular

release. EPIC has the better argument.

After the release of the four records in August 2011, EPIC posted the 151 pages as well

as a summary of their contents on its website — ostensibly one of EPIC’s two “most popular

privacy websites in the world”— and in its newsletter to over 8,000 members. Pl.’s Mot. for

Summ. J. at 19.14 The explanatory paragraph on the webpage, http://epic.org/2011/08/

documents-reveal-new-details-a.html, dedicated to the record releases states, in full:

EPIC has obtained more than one hundred fifty pages of documents
detailing the Department of Homeland Security’s development of mobile
body scanners and other crowd surveillance technology. The documents
were obtained as a result of a Freedom Information Act [sic] lawsuit
brought by EPIC against the federal agency. According to the documents
obtained by EPIC, vehicles equipped with mobile body scanners are
designed to scan crowds and pedestrians on the street and can see through
bags, clothing, and even other vehicles. The documents also reveal that
the mobile backscatter machines cannot be American National Standards
Institute “certified people scanners” because of the high level of radiation
14
DHS incorrectly states in its reply that “EPIC’s website does not discuss these
records or mention their release.” In fact, EPIC lists the active website in its brief:
http://epic.org/2011/08/documents-reveal-new-details-a.html. Instead of following this link,
DHS apparently looked to another, related EPIC webpage where it did not find the documents or
discussion thereof.

31
 output and because subjects would not know they have been scanned. For
more information see EPIC: Whole Body Imaging Technology and EPIC:
EPIC v. DHS (Suspension of the Body Scanner Program).

DHS unconvincingly claims that “[n]othing in the record or EPIC’s assertions suggest

that these latter records have provided any vital information to the public.” Def.’s Rep. at 10.

To the contrary, this information “adds to the fund” of information about body scanners in public

places that citizens may use in making “vital political choices,” Fenster, 617 F.2d at 744, about

what level of crowd and pedestrian scanning is acceptable, especially in light of the radiation

exposure and lack of prior notice to scanned subjects.

In further support of its motion for fees and costs, EPIC points to news coverage of the

controversy surrounding body scanner technology and government contractors. Specifically,

EPIC maintains that “EPIC’s FOIA work in this matter was prominently featured in a Forbes

article” and quotes the following excerpt:

Giving Transportation Security Administration agents a peek under your
clothes may soon be a practice that goes well beyond airport checkpoints.
Newly uncovered documents show that as early as 2006, the Department
of Homeland Security has been planning pilot programs to deploy mobile
scanning units that can be set up at public events and in train stations,
along with mobile x-ray vans capable of scanning pedestrians on city
streets.

Pl.’s Mot. for Summ. J. at 12.

EPIC also points to three other publications that carried news of DHS’s release of

documents, including USA Today, The Daily Herald, and Computerworld. As DHS asserts, the

document releases mentioned in those new particles occurred before this lawsuit was filed and as

a result of a separate FOIA action filed by EPIC on an earlier date. That earlier lawsuit also

32
sought information about the same topic: the development and deployment of body scanners.

Because no news articles stemmed directly from the case at bar, DHS contends, EPIC has not

demonstrated any public value to the disclosures obtained here. Although DHS is correct that

the cited news articles predate this action, this fact is not fatal to EPIC’s claim. As the media

coverage indicates, the subject matter contained in the records released as a result of the present

action is newsworthy, and the disclosures in this case have added to the body of public

knowledge on this issue of public importance. Cf. Elec. Privacy Info. Ctr. v. DHS, 811 F. Supp.

2d 216, 234 (D.D.C. 2011) (finding “[t]he [DHS] records [about body scanner technology]

disclosed to [EPIC] . . . have provided a public benefit in that they were covered extensively in

the news and cited frequently as a news source during the public debate surrounding the use of

whole body imaging devices in airports” and citing Jeffrey Rosen, Why the TSA Pat–Downs and

Body Scans are Unconstitutional, WASH. POST, (Nov. 28, 2010), http://www. washingtonpost.

com/wpdyn/content/article/2010/11/24/ x AR 2010112404510.html; Matthew L. Wald, Mixed

Signals on Airport Scanners, N.Y. TIMES, (Jan. 12, 2010), http://www.nytimes.com/2010/01/

13/us/1 scanners.html.). The court therefore concludes that EPIC has demonstrated a public

benefit arising from the disclosed records. This factor weighs in favor of EPIC’s entitlement to

attorney’s fees and costs.

b. Commercial Benefit to the Plaintiff and Nature of the Plaintiff’s
Interest

“[W]hen a [FOIA] litigant seeks disclosure for a commercial benefit or out of other

personal motives, an award of attorney’s fees is generally inappropriate.” Tax Analysts v. U.S.

Dep’t of Justice, 965 F.2d 1092, 1095 (D.C. Cir. 1992). Here, EPIC argues that its purpose — to

33
obtain and disseminate information of interest to the public — is non-commercial and public-

oriented and thus favors an award of fees. The court finds this argument, to which DHS does not

respond, persuasive. Moreover, another court in this district has found that EPIC has non-

commercial objectives oriented toward the public interest. Elec. Privacy Info. Ctr., 811 F. Supp.

2d at 235 (“[EPIC’s] aims, which include dissemination of information regarding privacy issues

to the public, fall within the scholarly and public-interest oriented goals promoted by FOIA . . . .

[T]he ‘commercial benefit’ and ‘nature of interest’ elements weigh in favor of granting [EPIC’s]

motion for attorney’s fees.”). This court reaches the same conclusion here. Therefore, these two

factors weigh in favor of granting EPIC a fee award.

c. Reasonableness of the Agency’s Withholding of the Requested
Documents

The final element of the fee entitlement analysis concerns “whether the agency’s

opposition to disclosure ‘had a reasonable basis in law,’ and whether the agency ‘had not been

recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior.’” Davy,

550 F.3d at 1162 (citations omitted). The government carries the burden of showing that it had a

colorable or reasonable basis for not disclosing the material until after the plaintiff filed suit. Id.

at 1163.

DHS has not demonstrated as much here. The department merely asserts that it disclosed

the additional records after conducting another round of review. Critically, these releases came

after EPIC filed suit. DHS’s purported justification for such disclosure — i.e. to “narrow the

issues for judicial review” — is not accompanied by any argument as to why the initial

withholding had any legal basis. Def.’s Statement of Genuine Facts Not in Material Dispute ¶

34
14. The court must therefore conclude that it did not.15 In addition, DHS’s failure to respond to

EPIC’s FOIA request by the statutory deadline as well as EPIC’s administrative appeal, forced

EPIC to commence this action. This obstructive approach weighs in favor of a fee award.16 See

Davy, 550 F.3d at 1166. What is more, DHS’s failure to provide an adequate segregability

analysis, see Memorandum Order of May 11, 2012, demonstrates that is has not been

forthcoming with the information and analysis that FOIA requires. Therefore, this factor weighs

in favor of EPIC’s entitlement to fees and costs. In sum, considering all of the fee entitlement

factors combined, the court finds that EPIC is entitled to attorney’s fees and costs.

IV. CONCLUSION

For the reasons stated above, the court concludes that DHS’s motion for summary

judgment should be granted and that EPIC’s motion for summary judgment should be denied.

EPIC’s motion for attorney’s fees and costs should be granted.

An appropriate order accompanies this memorandum opinion this 14th day of September,

2012.

BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE
15
DHS argues EPIC’s failure to show that the department acted in bad faith weighs in the
department’s favor. DHS is wrong. As EPIC maintains, an agency must show that its
withholding of requested records had a reasonable basis in the law, not merely that it did not
withhold in bad faith. See Davy, 550 F.3d at 1162.
16
On April 14, 2011, EPIC filed an administrative appeal challenging the S&T’s partial
withholding of 158 pages of documents and the S&T’s complete withholding of 983 pages of
documents. The agency failed to comply with the statutory deadline to reply to this appeal.

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