Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec.

218 F.Supp.3d 27

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,

v.The UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant.

Civil Action No. 12-0333 (GK)

United States District Court, District of Columbia.

Signed November 21, 2016

Jeramie D. Scott, Marc Rotenberg, Alan Jay Butler, Electronic Privacy Information Center, Washington, DC, for Plaintiff.

Lisa Zeidner Marcus, U.S. Department of Justice, Tamra Tyree Moore, Consumer Financial Protection Bureau, Washington, DC, for Defendant.

MEMORANDUM OPINION

Gladys Kessler, United States District Judge

Plaintiff Electronic Privacy Information Center ("Plaintiff" or "EPIC") brings this action against Defendant the United States Department of Homeland Security ("the Government" or "DHS") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff sought records concerning the Defense Industrial Base Cyber Pilot ("DIB Cyber Pilot"), a cyber-security pilot program jointly conducted by the United States Department of Defense ("DoD") and Defendant DHS. Memorandum in Support of Defendant's Motion for Summary Judgment ("Def.'s Mot. Summ. J.") at 2 [Dkt. No. 53–1].

The program "aim[ed] ... to protect U.S. critical infrastructure [,] ... [and] furnished classified threat and technical information to voluntarily participating [ ] companies or their Commercial Service Providers[ ]." Id. EPIC, citing concerns from the Department of Justice that the program "[ran] afoul of laws forbidding government surveillance of private Internet traffic [,]" filed a FOIA request with DHS seeking records to determine whether the DIB Cyber Pilot program complied with federal wiretap laws. Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiff's Cross-Motion for Summary Judgment ("Pl.'s Mot. Summ. J.") at 2 [Dkt. No. 57–1]. Dissatisfied with DHS's response, EPIC initiated this lawsuit challenging the sufficiency of DHS's search and production.

Thereafter, DHS 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. 5 U.S.C. § 552(b) ; see also Defendant's Vaughn Index for Challenged Withholdings ("Vaughn Index") [Dkt. No. 53–4].

The Court held that DHS's search for records responsive to EPIC'S FOIA request was sufficient and that the Government met its burden in justifying withholding documents under all but one relevant FOIA Exemption. Memorandum Opinion on Summary Judgment (Aug. 4, 2015) ("2015 Mem. Op.") at 16 [Dkt. No. 68]. The Court ordered DHS to submit a revised Vaughn Index to more fully explain the basis for withholding documents under FOIA Exemption 7(D), id. at 38, which it did on September 30, 2015. Notice of Filing of Supplemental, Revised Vaughn Index ("Supplemental Vaughn Index") [Dkt. No. 73]. EPIC now seeks attorneys' fees under 5 U.S.C. § 552(a)(4)(E). Memorandum of Points and Authorities in Support of Plaintiff's Motion for Attorneys' Fees and Costs ("Pl.'s Mot.") [Dkt. No. 81–1].

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), cert. denied , 507 U.S. 984, 113 S.Ct. 1579, 123 L.Ed.2d 147 (1993) (citing Fed. Bureau of Investigations v. Abramson , 456 U.S. 615, 621, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) ).

When an agency receives a request for records, the agency must conduct a sufficient search for records 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," and the exemptions must be "given a narrow compass." Milner v. Dep't of Navy , 562 U.S. 562, 571, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (citing U.S. Dep't of Justice v. Tax Analysts , 492 U.S. 136, 151, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) ).

The agency has the burden of justifying its withholding of a document under a FOIA exemption. Defenders of Wildlife v. U.S. Border Patrol , 623 F.Supp.2d 83, 91 (D.D.C. 2009). To enable the Court to determine whether the agency has met its burden, the agency must submit a "Vaughn Index" consisting of affidavits or declarations that "identif[y] the reasons why a particular exemption is relevant and correlate[e] those claims with the particular part of a withheld document to which they apply." Id. (citing Judicial Watch, Inc. v. Food & Drug Admin. , 449 F.3d 141, 146 (D.C. Cir. 2006) ); see also Vaughn v. Rosen , 523 F.2d 1136 (D.C. Cir. 1975).

FOIA additionally provides for attorneys' fees in order to encourage FOIA suits that benefit the public and to compensate a complainant for enduring an agency's resistance to complying with FOIA. Barnard v. Dep't of Homeland Sec. , 656 F.Supp.2d 91, 97 (D.D.C. 2009). FOIA provides that a court may award "reasonable attorney fees and other litigation costs reasonably incurred" in FOIA litigation in which the complainant has "substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i).

B. Factual Background

1. EPIC'S FOIA Request and Appeal

On July 26, 2011, EPIC submitted a FOIA request for documents to DHS, as well as requests for news media fee status and a fee waiver. Pl.'s Mot. Summ. J. at 2. EPIC requested records related to the DIB Cyber Pilot program "to monitor Internet traffic flowing through certain Internet Service Providers ("ISPs") from Internet users to a select number of defense contractors." Id. Specifically, EPIC requested five categories of documents, with the fifth category described as, "[a]ny privacy impact assessment performed as part of the development" of the DIB Cyber Pilot program. Id. at 3.

After receiving a FOIA request, an agency must make a "determination" within 20 working days as to whether to comply with the request. 5 U.S.C. § 552(a)(6)(A)(i). A "determination" must include the scope of the documents that the agency will produce and withhold under FOIA exemptions. Citizens for Responsibility and Ethics in Washington v. Fed. Election Comm'n , 711 F.3d 180, 186 (D.C. Cir. 2013).

The following week, on August 3, 2011, DHS sent a letter to EPIC acknowledging receipt of its FOIA request. Def.'s Mot. Summ. J. at 2. DHS also indicated that it had referred the request to the DHS National Protection and Programs Directorate ("NPPD"). DHS Response at 1-2 [Dkt. No. 58–3]. DHS notified EPIC that no responsive documents had been found for the fifth category and informed EPIC of its right to appeal that determination.

After receiving no further communication regarding its FOIA request, EPIC faxed an administrative appeal approximately 100 days later on January 5, 2012, to the attention of NPPD FOIA Officer Lizzy Gary. EPIC Facsimile at 1-2 [Dkt. No. 57–4]. Under DHS's FOIA regulations, an appeal must be made in writing and received by the Associate General Counsel of DHS within 60 days of the date of the agency's "adverse determination." 6 C.F.R. § 5.9(a)(1). EPIC appealed NPPD's failure to respond to categories 1-4 of EPIC's FOIA request, but did not appeal DHS's determination that it lacked records for category 5 of the request. EPIC Facsimile at 2. In its Answer, DHS denied that the January 5, 2012 facsimile constituted a FOIA appeal, Answer ¶ 26-28 [Dkt. No. 7], and its timeliness. Defendant's Statement of Undisputed Material Facts in Support of its Motion for Summary Judgment ("Def.'s Statement") ¶ 9–10 [Dkt. No. 62–4].

As already noted, the agency must make a determination as to any appeal within twenty days. 5 U.S.C. § 552(a)(6)(A)(ii). An adverse determination by the Associate General Counsel will be the final action, 6 C.F.R. § 5.9(a)(2), and the decision "will be made in writing," 6 C.F.R. § 5.9(b). On January 23, 2012, a FOIA Specialist from NPPD contacted EPIC by telephone requesting additional information with respect to category one of EPIC'S FOIA request. Declaration of Amie Stepanovich ("First Stepanovich Decl.") ¶ 12 [Dkt. No. 18–1]. EPIC was unable to provide the agency with further information, and DHS informed EPIC that "DHS was processing the request," Id. ; Def.'s Mot. Summ. J. at 3.

Under FOIA, a person making a request for any records will be deemed to have exhausted administrative remedies if the agency fails to comply with the applicable time limit provisions under FOIA. 5 U.S.C. § 552(a)(6)(C)(i). Arguing that NPPD failed to comply with FOIA by neither responding to nor producing records for EPIC'S FOIA request within the statutory timelines, EPIC filed its Complaint for Injunctive Relief on March 1, 2012. Complaint for Injunctive Relief ("Compl.") ¶ 4 [Dkt. No. 1]. EPIC sought, inter alia, a court order compelling DHS to conduct a search for responsive records within five days and to produce documents within ten days, and attorneys' fees and other relief as "just and proper." Compl. ¶ A-E. DHS filed its Answer on May 1, 2012.

2. FOIA Litigation

After DHS filed its Answer, the parties submitted a Joint Meet and Confer Statement, where they agreed that categories 1-4 of EPIC'S FOIA request served as the basis of the FOIA litigation, and that EPIC did not appeal DHS's determination that it lacked records responsive to category 5. Joint Meet and Confer Statement ("Joint Statement") ¶ 3 [Dkt. No. 11]. The parties also stated that DHS was conducting a "new search for records" responsive to categories 1-4 of EPIC'S FOIA request. Id. ¶ 4. Although the parties agreed that the post-production issues would likely be the sufficiency of DHS's search, the appropriateness of the agency's withholdings, and attorneys' fees, they disagreed as to the appropriate production schedule. Id. ¶ 5, 8.

DHS proposed a two-stage search for responsive records, with stage one...