ELECTRONIC PRIVACY INFORMATION CENTER v. DEPARTMENT OF JUSTICE

Filing 32

MEMORANDUM OPINION AND ORDER denying DOJs 22 Motion for Summary Judgment and EPICs 25 Cross-Motion for Summary Judgment without prejudice; requiring DOJ to submit a revised Vaughn Index and supporting declarations by 3/11/2016, and setting a brie fing schedule for renewed motions for summary judgment. Motions for Summary Judgment are due by 4/8/2016. Responses to Motions for Summary Judgment are due by 5/6/2016. Replies re Motions for Summary Judgment are due by 5/27/2016. Signed by Judge Ketanji Brown Jackson on 02/04/2016. (lckbj1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY
INFORMATION CENTER,
Plaintiff,
v.
DEPARTMENT OF JUSTICE,
Defendant.

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Civil No. 13-cv-1961 (KBJ)

MEMORANDUM OPINION AND ORDER DENYING
CROSS MOTIONS FOR SUMMARY JUDGMENT WITHOUT PREJUDICE AND
REQUIRING SUPPLEMENTAL SUBMISSIONS
Before this Court at present are cross-motions for summary judgment that the
parties in the instant action, which was brought under the Freedom of Information Act
(“the FOIA”), 5 U.S.C. § 552, have filed. (See Def.’s Mot. for Summ. J. (“Def.’s
Mot.”), ECF No. 22; Pl.’s Combined Opp’n to Def.’s Mot. for Summ. J. & Cross-Mot.
for Summ. J. (“Pl.’s Mot.”), ECF No. 25.) The motions center on the parties’
disagreement about whether or not the Department of Justice (“DOJ” or “Defendant”)
has properly invoked several FOIA exemptions to withhold certain information in
response to a document request that plaintiff Electronic Privacy Information Center
(“EPIC”) submitted to the agency. (See, e.g., Mem. of Law in Supp. of Def.’s Mot.,
ECF No. 22-1, at 10 (“Consistent with FOIA’s exemptions, [DOJ] has withheld
classified information, information specifically protected by statute, and information
that would reveal sensitive law enforcement techniques, procedures, and guidelines.”);
Mem. of Law in Supp. of Pl.’s Mot., ECF No. 25-1, at 6 (“[DOJ] has not satisfied its

statutory obligation to disclose records responsive to EPIC’s request or established that
they are exempt from disclosure.”). 1 During the recent hearing that this Court held on
these motions, it became abundantly clear that the exemption issues have narrowed
substantially since EPIC first filed its complaint in this matter, and, indeed, so much so
that the declarations that DOJ has submitted fail to establish with sufficient specificity
the government’s reasons for asserting that the particular, limited number of documents
that remain at issue have been properly withheld or properly redacted.
As a result, and for the reasons explained below, both parties’ cross-motions will
be DENIED WITHOUT PREJUDICE, and DOJ will be ordered to file one or more
supplemental declarations and an updated Vaughn Index that is tailored to the
challenged withholdings in the particular documents currently in dispute. This Court
will also require the government to submit unredacted versions of all of the documents
that remain at issue in order to facilitate the Court’s in camera review of the materials.
I.

BACKGROUND
In early October of 2013, EPIC submitted a FOIA request to DOJ, seeking

records regarding a now-expired national security program that involved the United
States government’s surreptitious use of certain devices to collect communications
information. (Compl., ECF No. 1, ¶ 2.) DOJ did not respond to EPIC’s FOIA request
within the statutory timeframe, and on December 9, 2013, EPIC filed the instant
lawsuit, along with a motion for a preliminary injunction seeking a court order that
required DOJ to provide responsive documents within 20 days. (Id.; Pl.’s Mot. for a

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Page numbers herein refer to those that the Court’s electronic case filing system automatically
assigns.

2

Prelim. Inj., ECF No. 3, at 1.) This Court denied EPIC’s motion for a preliminary
injunction on February 11, 2014; at the same time, the Court also required the parties to
file periodic status reports regarding the status of the government’s review and
production of documents, in order to ensure that DOJ was exercising due diligence in
processing EPIC’s request. (Order, ECF No. 14; Mem. Op., ECF No. 15.)
DOJ substantially completed processing responsive documents by late summer of
2014, and, thereafter, the parties proposed a schedule for the government’s submission
of a Vaughn Index and the parties’ cross-motions for summary judgment. (See Joint
Status Rpt., ECF No. 20.) This Court adopted the parties’ proposed briefing schedule
on August 18, 2014. (See Minute Order of Aug. 18, 2014.) Then, on October 31, 2014,
DOJ filed a motion for summary judgment, a statement of material facts as to which
there is no genuine dispute, and four supporting declarations. 2 Attached to one of the
declarations was a Vaughn Index that contained 92 entries. (See Ex. A to 2d Decl. of
Mark. A. Bradley (“Vaughn Index”), ECF No. 22-3, at 8–24). 3
EPIC filed a combined opposition and cross-motion for summary judgment on
November 21, 2014 (see Pl.’s Mot.), and in that filing, it conceded (albeit implicitly)
that some of the documents listed in the government’s Vaughn Index had been properly

2
The declarations—one of which included classified information and was submitted in both its redacted
(unclassified) and original forms—are as follows: (1) the “Second Declaration of Mark A. Bradley”
(Ex. I to Def.’s Mot., ECF No. 22-3 (“2d Bradley Decl.”)); (2) the “Classified Declaration of David M.
Hardy” (see Notice Regarding Submission of Classified Decl. of David M. Hardy, Ex. II to Def.’s Mot.,
ECF No. 22-4; see also the “Unclassified Declaration of David M. Hardy” (Ex. III to Def.’s Mot., ECF
No. 23-1); (3) the “Declaration of David J. Sherman” (Ex. IV to Def.’s Mot., ECF No. 22-6); and (4)
the “Declaration of Martha M. Lutz” (Ex. V to Def.’s Mot., ECF No. 22-7). Notably, DOJ had filed the
“first” declaration of Mark Bradley as part of its opposition to the EPIC’s motion for a preliminary
injunction. (See Decl. of Mark A. Bradley, Ex. 1 to Def.’s Mem. of Law in Opp’n to Pl.’s Mot. for a
Prelim. Inj., ECF No. 9-1.)
3

The Vaughn Index apparently originally contained 139 entries; DOJ has represented that it removed
certain items from the index before filing it with this Court. (See Vaughn Index at 1 n.1.)

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withheld. (See Mem. of Law in Supp. of Pl.’s Mot., ECF No. 25-1, at 6 (failing to
address any of the withholdings based on FOIA Exemption 3, and stating that EPIC
“now challenges [DOJ’s] withholding of certain portions of [Congressional oversight]
reports under Exemptions 1 and 7(E), as well as [DOJ’s] failure to release reasonably
segregable portions of a legal brief and associated case summaries that were submitted
to the Foreign Intelligence Surveillance Court” (emphasis added)).) DOJ subsequently
made a concession of its own: in response to the arguments in EPIC’s cross motion,
DOJ admitted that it had mistakenly withheld certain information that should have been
released, and subsequently released that information to EPIC. (See Mem. in Opp’n to
Pl.’s Cross-Mot. for Summ. J. & Reply in Further Support of Def.’s Mot. for Summ. J.
(“Def.’s Reply”), ECF No. 27, at 8.)
In its brief in opposition to EPIC’s cross-motion for summary judgment, DOJ
further attempted to clarify the remaining issues, by declaring that EPIC had “conceded
the bulk of the Motion for Summary Judgment filed by defendant,” and now appeared
only to be contesting “the withholding in full of one document by the FBI, and the
partial withholding of 25 semiannual reports to Congress by the Department’s National
Security Division[.]” (Id. at 7.) The fully-withheld document that was seemingly still
in dispute appeared as entry 68 on the Vaughn Index (hereinafter dubbed “Document
68”), and the government described this document as “a government ‘response to orders
[of the Foreign Intelligence Surveillance Court (“FISC”)] for additional briefing in
reference to a [government] request for’ two combined Pen Register/Trap and Trace and
Business Records (‘PR/BR’) Orders” (id. at 9 (citation omitted)), including attachments
that consisted of “material printed from Westlaw” (id. at 10; see also Vaughn Index at

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17). DOJ also reiterated its understanding that EPIC was persisting in its challenge to
the redactions that had been made with respect to 25 semiannual reports to Congress by
DOJ’s National Security Division, which had been partially released and appear as
entries 115–139 on the Vaughn Index (“Documents 115–139”). (Vaughn Index at 18–
24.)
DOJ submitted two additional declarations along with its opposition to EPIC’s
cross motion for summary judgment: a third declaration from Mark A. Bradley
explaining in further detail why DOJ redacted certain portions of Documents 115–139
(3d Decl. of Mark Bradley, Ex. I to Def.’s Reply (“3d Bradley Decl.”), ECF No. 27-2–
27-5), and a classified declaration from David M. Hardy that addressed DOJ’s reasons
for withholding Document 68 in its entirety and also provided further information
regarding DOJ’s decision to redact portions of Documents 115–139 (see Notice
Regarding Classified 3d Decl. of David M. Hardy, Ex. II to Def.’s Reply, ECF No. 276). Significantly for present purposes, EPIC responded in its reply brief in support of
its cross-motion for summary judgment that it no longer sought disclosure of Document
68 in its entirety; rather, it was now challenging only the government’s withholding of
the Westlaw printouts that were attached to the FISC brief. (See Pl.’s Reply in Supp. of
the Cross-Mot. for Summ. J. (“Pl.’s Reply”), ECF No. 30, at 7 (“The NSD’s argument
that the release of Westlaw printouts ‘could be reasonably expected to cause serious
harm to national security,’ Def.’s Opp’n at 4, is simply not plausible.”).)
This Court held a hearing on the cross-motions for summary judgment on
January 21, 2016, during which it sought clarification from the parties regarding
precisely which of the original 92 documents listed on the Vaughn Index remain at

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issue. Based on counsel’s representations at that hearing, this Court understands that
EPIC is currently contesting the government’s withholding of (1) the four Westlaw case
printouts attached to Document 68, and (2) those portions of the 25 semiannual reports
to Congress (Documents 115–139) that consist of summaries of FISC legal opinions,
descriptions of the scope of the FISC’s jurisdiction, and discussions of FISA process
improvements (collectively, the “Remaining Challenged Withholdings”).
II.

DISCUSSION
The universe of documents at issue in this FOIA action has shrunk dramatically

since DOJ first drafted its Vaughn Index and submitted declarations in support of its
motion for summary judgment. To their credit, both parties have pivoted in response to
various developments, but due to the many concessions (both implicit and explicit) that
the parties have made, the arguments in this matter have been nothing short of a
continuously moving target, and indeed, it was not until this Court’s recent hearing on
the ripe cross motions for summary judgment that clarity arrived with respect to
precisely which withholdings are still in EPIC’s crosshairs. As explained above, EPIC
now asserts that it seeks to advance its FOIA action only with respect to two categories
of information that the government has withheld: the Westlaw printout-portion of
Document 68, which DOJ appears to have withheld (along with the brief to which the
printouts were attached) pursuant to FOIA Exemptions 1, 3, and 7(E); and the redacted
sections of the 25 semiannual reports to Congress in which the NSD summarizes FISC
legal opinions, describes the scope of the FISC’s jurisdiction, or discusses FISA process
improvements, which the government appears to have withheld pursuant to FOIA
Exemptions 1 and 7(E).

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This Court undertook to review this matter with this newly circumscribed set of
issues in mind—and it quickly realized that the declarations that DOJ has submitted in
support of its motion for summary judgment do not address these withholdings in
particular; rather, the declarants speak broadly to the dangers of releasing the classified
and otherwise sensitive information of which these particular withholdings are a part,
i.e., information that EPIC has already conceded may properly be withheld. Thus, to
this limited extent, EPIC is correct to contend that the declarations that DOJ has filed
lack the specificity necessary for this Court to evaluate whether DOJ has released all
reasonably segregable portions of non-responsive documents and is acting properly to
withhold the specific information EPIC now challenges. (See, e.g., Pl.’s Reply at 6–7,
15.) Put another way, the current sworn statements are too general in scope, and
because the declarations fail to home in on the specific withholdings now at issue, they
are manifestly inadequate to assist the Court in determining whether the declarants have
made a reasonable assessment that the particular withholdings that are now being
challenged, “when combined with other information that is available to the public[,] can
be expected to reveal (directly or by implication) classified national security
information concerning the timing or nature of intelligence activities.” (3d Bradley
Decl. ¶ 9; see also Unclassified 3d Decl. of David M. Hardy, Ex. III to Def.’s Reply,
ECF No. 27-7, ¶ 55 (asserting, generally, that “[e]ven though some information, if
examined in isolation, would appear benign or not sensitive, when read in conjunction
with other responsive documents, it reveals sensitive information about FBI techniques
and procedures used in national security investigations.”).)

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Consequently, this Court concludes that supplemental filings are in order.
Specifically, in order for this Court to evaluate whether DOJ has complied with its
FOIA obligation to produce all reasonably segregable information, DOJ must submit
one or more declarations that set forth the government’s reasons for withholding the
Westlaw printouts attached to Document 68 apart from the FISC brief, and the
government must also provide Document 68 to the Court in its entirety for in camera
review. Similarly, because it is difficult to glean from the Hardy and Bradley
declarations precisely what information DOJ is actually withholding from Documents
115–139, much less ascertain the government’s reasons for withholding summaries of
legal opinions and statements related to the FISA court’s jurisdiction and processes, this
Court finds that it needs (1) a supplemental Vaughn Index that identifies which of the
redactions relate to the “significant legal interpretations by the FISC, its jurisdiction, or
its procedures” (3d Bradley Decl. ¶ 8), and (2) one or more declarations tailored to the
government’s reasons for making those redactions. See Beltranena v. Clinton, 770 F.
Supp. 2d 175, 185–86 (D.D.C. 2011) (holding that the government must specify for
each withholding why material is not segregable, and it cannot rely on a blanket
explanation). The Court will also require the submission of unredacted copies of the
semiannual reports, which, when reviewed in camera in combination with the
supplemental declaration(s), will permit this Court to determine whether there is any
reasonably segregable information that DOJ must still produce. See Mead Data Ctr.,
Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977) (“[N]on-exempt
portions of a document must be disclosed unless they are inextricably intertwined with
exempt portions.”); see also, e.g., Gosen v. U.S. Citizenship & Immigration Servs., No.

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13cv1091, 2015 WL 4576578, at *8–9 (D.D.C. July 30, 2015) (holding that the agency
was required to reassess its segregability findings, where in camera review revealed
that the agency had withheld factual information and public material as nonsegregable). 4
Accordingly, it is hereby
ORDERED that DOJ’s [22] Motion for Summary Judgment and EPIC’s [25]
Cross-Motion for Summary Judgment, which, at this point, are not sufficiently tailored
to a discussion of the Remaining Challenged Withholdings, are DENIED WITHOUT
PREJUDICE. It is
FURTHER ORDERED that DOJ has until March 11, 2016, to submit (1) a
revised Vaughn Index that is limited to the Remaining Challenged Withholdings and
that specifies any and all FOIA exemptions that DOJ asserts for each partial or
complete withholding, and (2) one or more declarations that explain with specificity the
grounds for each partial or complete withholding that appears in the revised Vaughn
Index, as well as the reasons why any non-exempt material that DOJ is withholding
cannot reasonably be segregated from exempt material. In addition, on or before
March 11, 2016, DOJ shall also lodge with the Classified Information Security Office

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The government’s current ipse dixit that it is not able to segregate any of the nonexempt legal
analyses in the semiannual reports from exempt information, see 3d Bradley Decl. ¶ 9, without more, is
manifestly insufficient to satisfy the government’s obligation to demonstrate that this is so. Moreover,
in light of the fact that classified information appears to have been successfully segregated from legal
analysis in a similar context—see In Re Sealed Case (FISA Ct. July 14, 2004), available at
http://www.dni.gov/files/documents/1118/CLEANEDPRTT%201.pdf (a redacted and publicly released
version of Judge Kollar-Kotelly’s FISC opinion regarding a government application to collect internet
metadata under the pen register and trap and trace provisions of the Foreign Intelligence Surveillance
Act)—makes it all the more imperative that DOJ describe with specificity its inability to segregate the
material at issue here.

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for ex parte submission to and in camera review by the Court unreadacted copies of the
Documents 68 and Documents 115–139 in their entirety. It is
FURTHER ORDERED that renewed motions for summary judgment with
respect to the Remaining Challenged Withholdings shall be filed on or before April 8,
2016; the briefs in opposition to such motions for summary judgment shall be filed on
or before May 6, 2016; and reply briefs shall be filed on or before May 27, 2016.

Ketanji Brown Jackson

DATE: February 4, 2016

KETANJI BROWN JACKSON
United States District Judge

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