Foundation v. Dep't of Justice

ELECTRONIC FRONTIER FOUNDATION, Plaintiff, v. DEPARTMENT OF JUSTICE, Defendant.

Case No. 15-cv-03186-MEJ

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

December 22, 2016

ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT

Re: Dkt. Nos. 19, 23

INTRODUCTION

Plaintiff Electronic Frontier Foundation ("EFF") filed this lawsuit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to compel the release of records from the Drug Enforcement Administration ("DEA"), a component of Defendant United States Department of Justice ("DOJ") (collectively "the Government"). Compl. ¶ 1, Dkt. No. 1. Pending before the Court are the parties' cross motions for summary judgment. Gov't Mot., Dkt. No. 19; EFF Mot., Dkt. No. 23. Having considered the parties' positions, the relevant legal authority, and the record in this case, the Court GRANTS IN PART and DENIES IN PART the Government's Motion and GRANTS IN PART and DENIES IN PART EFF's Motion as set forth below.

BACKGROUND

On February 5, 2014, EFF submitted a FOIA request to the DEA for records pertaining to the "Hemisphere" program. Compl. ¶ 1; Declaration of Katherine L. Myrick ("Myrick Decl."), Ex. A ("FOIA Request"), Dkt. No. 21. EFF alleges Hemisphere is a partnership between telecommunications provider AT&T and law enforcement officials, including the DEA, that allows law enforcement to access detailed phone records and conduct complicated analysis and data mining of those records. Id. (both). The New York Times first reported on Hemisphere's existence on September 1, 2013. EFF Mot. at 1 (citing Scott Shane & Colin Moynihan, Drug Agents Use Vast Phone Trove, Eclipsing N.S.A.'s, N.Y. Times (Sept. 1, 2013, http://www.nytimes.com/2013/09/02/us/drug-agents-use-vast-phone-trove-eclipsing-nsas.html)). The program involves the placement of AT&T employees within law enforcement facilities to assist law enforcement access trillions of Americans' electronic call detail records (CDRs) dating back to 1987. Id. at 2. CDRs contain a phone user's dialing, routing, and location information. Id.; see also Declaration of Jennifer Lynch ("Lynch Decl."), Ex. 1 (Hemisphere Summary), Dkt. No. 23-1.

EFF's FOIA request specifically sought the following about Hemisphere:

1. Any and all DEA or DOJ memoranda, policies, procedures, forms, training and practice manuals concerning the "Hemisphere" program;

2. The case name, docket number, and court of all criminal prosecutions, current or past, in which officers and agents used the "Hemisphere" program to obtain records or data;

3. Any communications or discussions with AT&T or any other telecommunications providers concerning technical or legal difficulties the DEA or DOJ has encountered in obtaining records and data through "Hemisphere;"

4. Any communications or discussions between DEA or DOJ and other law enforcement agencies, including, but not limited to Immigrations and Customs Enforcement ("ICE"), the Federal Bureau of Investigation ("FBI"), state and local law enforcement agencies, and fusion centers related to coordinating or managing the "Hemisphere" program or any data obtained through "Hemisphere;"

5. Any DEA or DOJ contracts or compensation agreements with AT&T or any other telecommunications provider concerning the "Hemisphere" program;

6. Any DEA or DOJ contracts or compensation agreements with fusion centers or local law enforcement agencies to manage or coordinate the "Hemisphere" program and any data obtained through "Hemisphere"; and

7. Any briefings, discussion, or other exchanges between DEA or DOJ officials and members of the Senate or House of Representatives concerning the existence and operation of "Hemisphere."

FOIA Request at 2.¹

Between March 2014 and June 2014, the parties exchanged communications during which EFF reformulated and narrowed its request in response to the DEA's requirements. See Myrick Decl., Ex. D (DEA letter to EFF). Among other things, EFF limited the search to (1) the DEA Headquarters in Springfield, Virginia, and the Los Angeles, San Diego, and San Francisco field divisions; (2) records between 2008 and the present; (3) with regard to Item 2, criminal records contained within the DEA's Investigative Reporting and Filing System; and (4) with regard to Item 6, communications, discussions, contracts or compensation agreements between the DEA offices identified above and six specific fusions centers. Myrick Decl., Ex. E (EFF's Reformulated FOIA Request). In responses dated May 13, 2014 (id. ¶ 14, Ex. F (DEA's first response)), and April 7, 2015 the DEA informed EFF it would release 176 pages and withhold 132 pages based on FOIA Exemptions 5, 6, 7(A), 7(C), 7(D), 7(E), and (7)(F). Id. ¶ 15, Ex. M (DEA's Apr. 7 response). EFF filed an administrative appeal with the DOJ's Office of Information Policy ("OIP") on April 28, 2015. Second Myrick Decl., Ex. A, Dkt. No. 26. OIP affirmed the DEA's withholding on July 10, 2015. Id., Ex. B.

On July 9, 2015, EFF filed the present lawsuit. See Compl. The DEA subsequently prepared a draft Vaughn Index as part of its meet and confer with EFF. Myrick Decl. ¶ 16. On December 24, 2015, the DEA released to EFF portions of 13 pages it previously withheld in full. Id. ¶ 17. Following the meet and confer process, the parties no longer dispute employee identifying information withheld under Exemptions 6, 7(C), and 7(F). EFF Mot. at 1 n.1; see also Scharf Decl., Ex. B (EFF's e-mail response to the Government identifying the disputed documents), Dkt. No. 20; Gov't Mot. at 12.

The Government then filed its Motion for Summary Judgment, asserting the DEA conducted an adequate search and properly withheld responsive documents protected by the FOIAExemptions. Gov't Mot. at 2; see also Myrick Decl., Ex. O ("Vaughn Index"). EFF filed a cross-Motion for Summary Judgment, disagreeing with DEA's claimed exemptions and seeking information from seven documents withheld under Exemption 5, plus 27 documents withheld or redacted under Exemption 7. EFF Mot. at 6, 12; Gov't Reply at 11, Dkt. No. 25.

Since the parties filed their Motions, the Court ordered two rounds of supplemental briefing, and the parties have timely responded. The Government also filed a Statement of Recent Decision (Dkt. No. 39), attaching an Opinion by Judge Emmet G. Sullivan in Electronic Privacy Information Center v. United States Drug Enforcement Agency ("EPIC"), 2016 WL 3557007 (D.D.C. June 24, 2016). EPIC considers some of the same documents and exemptions at issue in this action. However, as of the date of this Order, the briefing in that case is still ongoing, and Judge Sullivan appears to be conducting further review of the evidence in that matter. For clarity, this Court ordered the Government to indicate which documents were at issue in both cases and which Exemptions it asserted in EPIC for each of those documents. Order, Dkt. No. 40. Based on the Government's response, it appears that in some instances the Government applied different Exemptions to the same documents in this case and the EPIC case. See Third Myrick Decl., Ex. B (chart), Dkt. No. 43. EFF argues these inconsistencies demonstrate the need to "independently check" the Government's withholding decisions. EFF Fifth Suppl. Resp. at 3, Dkt. No. 45.

LEGAL STANDARD

FOIA's "core purpose" is to inform citizens about "what their government is up to." Yonemoto v. Dep't of Veterans Affairs, 686 F.3d 681, 687 (9th Cir. 2012), overruled on other grounds by Animal Legal Defense Fund v. U.S. Food & Drug Admin. ("Animal Legal"), 836 F.3d 987 (9th Cir. 2010) (internal quotation marks omitted). This purpose is accomplished by "permit[ting] access to official information long shielded unnecessarily from public view and attempt[ing] to create a judicially enforceable public right to secure such information from possibly unwilling official hands." EPA v. Mink, 410 U.S. 73, 80 (1973), superseded on other grounds by statute as recognized in Islamic Shura Council of S. Cal. v. F.B.I., 635 F.3d 1160, 1166 (9th Cir. 2011). Such access "ensure[s] an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable tothe governed." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (internal quotation marks omitted). Congress enacted FOIA to "clos[e] the loopholes which allow agencies to deny legitimate information to the public." U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 150 (1989) (internal quotation marks and edits omitted).

At the same time, FOIA contemplates that some information can legitimately be kept from the public through the invocation of nine "Exemptions" to disclosure. See 5 U.S.C. § 552(b)(1)-(9). An agency may withhold only information to which the asserted Exemption applies and must provide all "reasonably segregable" portions of that record to the requester. 5 U.S.C. § 552(b). "These limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Dep't of Interior v. Klamath Water Users Protective Ass'n ("Klamath"), 532 U.S. 1, 7-8 (2001) (internal quotation marks omitted). "Consistently with this purpose, as well as the plain language of the Act, the strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents." U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991); Lewis v. IRS, 823 F.2d 375, 378 (9th Cir. 1987) (agency seeking to withhold information has burden of proving the information falls under the claimed Exemption).

The usual question raised in FOIA litigation is, as here, whether the information withheld by the government properly falls within the scope of the asserted exemptions. "Most FOIA cases are resolved by the district court on summary judgment, with the district court entering judgment as a matter of law." Animal Legal, 836 F.3d at 989 (citation omitted). Trial courts review summary judgment motions in FOIA actions under a de...